Neuroscientific Evidence in Courtroom: Clash of Two Anthropological Paradigms

Abstract

The emergence of forensic neuropsychology—an empirical science assuming on the philosophical level a causal vision of the world and humans in particular—coincided with the change in the paradigm of criminal policies: in connection to increasing security concerns in many European societies, legislators have introduced new legal regulations targeting the elimination, or at least a reduction of (the) risk of specific types of crime (mainly sexual and violent crime). The contemporary criminal policy, based on fear and on the will to eliminate future threats, creates a singular frame for the interpretation of neuroevidences. Such an evidence most probably be evaluated as a source of indicators or even and instrument for assessment of the offender’s future dangerousness. Within forensic neuropsychology the problem of whether a psychopath can be held responsible for the crimes of rape and murder with extreme cruelty has also emerged. This dilemma was brought to the fore by the case of Brian Dugan. This case is an example of the entering new qualitative evidence into practical legal discourse. Evidence that brings with it scientific assumptions that the human behavior is determined by its neurobiological constitution. Such an assumption cannot be adapted to legal anthropology, but at the same time neuroscientific evidence cannot be ignored in cases with “neuro-element” (e.g. psychopathy)—such evidence must be critically assessed by legal decision-makers (judges). Therefore, it is necessary to develop and discuss in the field of the theory of evidence the directives for assessing such “anthropological intrusions” in practical legal discourse.