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A person‘s brain determines their personality. If you therefore deploy technology to change the make up of the brain you will influence that individual‘s very self and perhaps also their sense of responsibility.

image“Imagine that I were a murder suspect”, Dr. Nicole Vincent suggests. “My advocate studies a scan made of my brain, compares it with other brain scans and argues, on those grounds, that my brain is so abnormal that I cannot reasonably be held accountable for my actions. On the basis of the same scan results the public prosecutor goes on to assert that mine is a typical criminal brain and swiftly backs this up by producing a number of scans of convicted criminals. But what does the scan really tell us?”

According to Vincent, who studies the interfaces between neurotechnology and legislation, it tells us nothing. “Accountable”, “guilty” and “criminal” are essentially social concepts while brain scans merely furnish us with information about the brain’s activities. Nevertheless, for many there is a strong desire to link the two together. Indeed, there is an increasing body of technologies which enable us to do just that: medicines that influence the brain, electrodes, different kinds of scans and surgery. As Vincent says: “The law is always retrospective ” who’s done it?” as well as anticipatory “what’s a suitable punishment?” In conjunction with the latter aspect, judges are always keen to establish to what extent culprits can be blamed for their actions. At present such assessments are based on psychological examinations but it would be convenient to be able to back that up with gaugeable factors. There is a firm that provides brain scans to establish whether a person is lying but is that more reliable than the old lie-detector method? And how can one reconcile taking a direct look at someone’s brain with that same person’s right to remain silent?”

In fact in their present form brain scans do little more than measure oxygen levels, thus establishing where there is most brain activity at any given time. Also with other techniques, the extent to which the relationship between actions and behaviour can be established is limited. In the case of certain medicines it is known that they can affect people’s moods in specific ways but does this mean that when under the influence an individual must be held less responsible for his actions?

What is so dangerous, Vincent finds, is that people tend to be very quickly persuaded by technical evidence. “If you back up any argument with brain scans it is two to three times as easy to convince people merely because the visual effect has such an impact. In fact the same visual representation can easily be used to back up two totally different arguments.”

Despite all of this she believes that brain scans can be useful in supporting criminal cases. All the other methods used to establish whether someone is guilty of a crime are far from perfect. It is really necessary to consider all the ethical aspects in the design phase. One must not therefore introduce a method and then gradually discover what are the ethical pros and cons. It is essential to know the effects of subjecting someone to a scan in order to determine whether there is something in the way his brain works that can help to explain his sense of responsibility.

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