The Future of Neurolaw

Catley, Paul (2016). The Future of Neurolaw. European Journal of Current Legal Issues, 22(2), article no. 487.



Neuroscientific evidence is being used in civil and criminal courtrooms across the world. It is being used to establish the cause and extent of injuries and the likely prognosis of those injured as well as to support or deny mental condition defences, claims of unfitness to plead and determinations of capacity, responsibility and risk.

In the future, as scientific understanding of the workings of the human brain improve, its potential use is huge. It may influence the shaping of the law for example in terms of the age of criminal responsibility and/or the structure of mental condition defences. Future technological advances may enable chronic pain to be identified and measured relatively accurately; with potentially very significant implications for personal injury claimants, medical treatment and possibly end of life decisions for those unable otherwise to communicate their wishes.

Challenges to current legal approaches may arise through greater understanding of how we lay down memory which may challenge many assumptions about the reliability of witness testimony. Greater challenges may arise in the potential of neuroimaging to identify lies, memory and possibly even thoughts. If such technology becomes accepted as being sufficiently robust then major privacy issues will arise. The potential use to determine whether a suspect or witness is lying or concealing guilty knowledge may to a significant degree usurp the court’s role in determining the veracity of witnesses, but if it is more accurate then should it be embraced in the interests of justice? Pressure to use such technology is unlikely to be limited to courtroom settings, employers may seek to use it as may the security agencies. Different challenges are raised by neuro-enhancement which may not only challenge conceptions as to what it is to be human, but also whether there should be new rules against unfair competition.

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