Book Launch

University of Sunderland

Neuroscientific Perspectives of Vulnerable Defendants in the Courtroom by Hannah Wishart and Colleen M. Berryessa

This edited collection will offer a global perspective on interdisciplinary issues that fall under the new and emerging field of neurolaw. The chapters will embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants through a neuroscientific lens. This view will be informed by word-wide analyses from legal academics, philosophers, and legal practitioners based in the following countries: America, England, Italy, Germany, Norway, and the Netherlands.This collection seeks to bring interdisciplinary and leading perspectives together in one place to discuss the use/relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting/impacting vulnerable defendants in global criminal trials. As such, the book will build upon and add to the existing literature in this field, not least due to there being no competing edited collection that provides such comprehensive coverage of the intersection between these disciplines for vulnerable defendants (immature defendants, mentally disordered offenders and unfit to plead defendants) in the courtroom. The book will cover the following key areas:· 	The trial process, vulnerable defendants, and neuroscience· 	The pre-trial process (e.g., unfitness to plead test), vulnerable defendants, and neuroscience· 	The use of neuroscience as expert evidence at trial· 	Mentally disordered defendants, insanity defence, and neuroscience· 	Vulnerable defendants, neuroscience and mitigation of sentenceThe reader will gain significant insight into neuroscience&#x27;s current role in the courtroom for vulnerable defendants, through original exploration presented by contributors from both academia and practice. Programme Schedule2:00-2:20 PM Welcome, Overview of the Book and Contributors.2:20-2:50 PM Dr. Deborah W. Denno – Vulnerable Defendants and Neuroscience in Courtrooms WorldwideThis chapter examines how different criminal justice systems treat vulnerable defendants through a comparative analysis of empirical research on neuroscientific evidence in criminal cases. The discussion focuses on five systematic studies: one carried out in the United States and the others conducted in five additional countries—Canada, England and Wales, the Netherlands, and Slovenia. This international approach gives a new lens to defendant vulnerability by deciphering the techniques and hurdles different criminal justice systems face and the solutions they seek. It also provides a vehicle for framing the picture of &quot;vulnerability&quot; in light of the term&#x27;s definitional vagueness. Whether neuroscience can come to the rescue remains to be seen, yet such a proposition makes sense morally, legally, and pragmatically.2:50-3:20 PM Dr. Sjors Ligthart and Professor Gerben Meynen – Offering Neurotechnology to Defendants: On Vulnerability, Coercion and ConsentIn the near future, neurotechnologies are expected to be increasingly applied in criminal justice. Such neurotechnologies could &#x27;read&#x27; or modify the brain and may be helpful in evaluations of insanity or the prediction and prevention of a defendant&#x27;s reoffending. Such techniques could also be offered to defendants in return for milder sentences. Meanwhile, employing far-reaching neurotechnologies in criminal justice without valid informed consent is likely to infringe on a range of fundamental rights, such as the right to privacy, mental integrity, and freedom of thought. Consequently, obtaining valid consent is crucial. However, concerns have been raised about the voluntariness – and therefore validity – of a defendant&#x27;s consent because of his/her vulnerable position. In philosophy, offers in certain situations of vulnerability have been called ‘coercive offers’ – and the coerciveness could render consent invalid. In this chapter, we consider the question of the validity of the defendant&#x27;s consent regarding the offer of far-reaching neurotechniques, in particular, if the offer is connected to a milder sentence. We discuss the defendant&#x27;s vulnerability in relation to legal and ethical concepts such as coercion, exploitation, and manipulation. We conclude by identifying the implications of this discussion for potential infringements of the defendant&#x27;s fundamental rights when neurotechnologies are offered.3:20-3:50 PM Professor Amedeo Sanosuosso and Matilde Giustiniani – Vulnerable defendants: Redefining decision making through the lenses of neuroscience, law and artificial intelligenceThe conversation on the interaction between neuroscience and law has so far almost uniquely focused on the role that neuroscientific evidence can play in determining legal outcomes for defendants, namely vulnerable defendants. We propose here an inversion of the conversation where the subject is no longer the system itself, but rather its composing parts and their interaction. The paper will aim to reframe the issue of neuroscience and law in light of the challenges that the instance of vulnerable defendants poses to the judicial system, its repercussions on the ordinary process of decision making and its consequent demand for new solutions, possibly advanced by new technological frontiers. The chapter will begin defining the boundaries of the legal framework by outlining the principles that have thus far determined its functioning, expressly the logistic and realist approaches. It will then elucidate the dynamics of the reciprocal action between the building framework of the judicial system and the matter of differential influences on decision making, focusing on the case of vulnerable defendants. Considering the renewed understanding of the processes involved in decision making, the paper will propose the introduction of a further converging matter, namely the possibility of introducing new technologies in the judiciary. The question is thus redirected towards what new technologies, especially AI, are capable of and whether they can play a function within the system. The article resolves into an outline for future research, offering a perspective for interdisciplinary exploration of the fields of technology, neuroscience, and law.3:50-4:00 PM Coffee Break4:00-4:25 PM Amy Sixsmith - Safeguarding the Procedural Rights of Young Defendants in the English Criminal Justice System: The Role of NeuroscienceChildren and young people under the age of 18 years are, by virtue of their age, are considered vulnerable. Evidence also suggests that neurodisabilities and mental illness are particularly prevalent amongst young defendants in the criminal justice system. It is therefore ‘essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings’. A failure to do this would constitute a ‘travesty’. In England and Wales, the criminal courts proceed on the basis that a defendant is fit to plead unless and until the contrary is established. The legal framework for assessing unfitness to plead should ‘identify, accurately and efficiently, those vulnerable defendants who … cannot fairly be tried’.When dealing with vulnerable defendants courts must also consider whether special measures are required in order to secure effective participation.The legal mechanisms for assessing unfitness to plead and securing effective participation are essential tools for safeguarding the procedural rights of vulnerable defendants. This paper argues that in England and Wales these mechanisms are unsatisfactory. The field of neuroscience provides valuable insight into the cognitive development of young people and should help to shape reform in this area of law. This paper discusses how such research can (and cannot) potentially contribute to the development of more effective and robust legal safeguards for defendants under the age of 18 years.4:25-4:50 PM Associate Professor Sofia Moratti - Criminal Insanity in Norwegian Law Between Care and Societal ProtectionOver the past decade, the regulation of criminal insanity and the management of legally insane offenders in the Norwegian criminal justice system underwent significant reforms. The insanity clause was revised, along with the role of expert witnesses in insanity determinations and the regulation of compulsory-care orders for legally insane offenders who are assessed as dangerous. Taking a socio-legal perspective, this Chapter discusses: the process of legal change; the societal protection and legal certainty considerations that drove it; and the lively public, political, scholarly and intra- and inter-professional debates that accompanied it. The developments and debates in Norway provide a good illustration of how the mentally ill offender is at the same time a patient: frontier territory where multiple, sometimes divergent professional and criminal-policy logics are enforced simultaneously. This multiplicity – and occasionally, tension – raises questions that pertain to: the relationship between legal and medical conceptual categories in the statutory definition and forensic evaluation of criminal insanity; the compatibility between the different goals and modes of operating of law and medicine; the ethical obligations of the forensic expert witness (as opposed to the clinician); and the role of public perceptions of forensic expertise in a highly politicised area of criminal justice such as insanity. These questions do not have a technical nature and are not likely to be answered by new mental-state assessment techniques and technologies.4:50-5:15 PM Dr. Federica Coppola – Social Vulnerability on Trial: The Contribution of Social Neuroscience to a Contextual Model of SentencingThe pervasive disregard of criminal justice to socio-contextual factors of crime also manifests in sentencing. Sentencing determinations chiefly build upon individualist criteria and, as a consequence, they are largely inattentive to the background, social identities and ongoing social situations of the people on trial. As a result, the sentencing system fails to properly address the socio-contextual traumas and victimization that many (if not most) people on trial have suffered prior to offending and that have significant links with the crime being sentenced. Rather, desert- and incapacitation-based considerations tend to obscure these forms of social vulnerability within legal inquiry, with the likely effect of reproducing them into penal practice. Against this backdrop, this chapter calls for the adoption of a contextual model of sentencing, one that rejects such a narrow (and antiquated) individualist approach to criminal conduct and expands the scope of sentencing considerations to social and situational determinants of crime. The proposed argument builds on insights from modern social neuroscience about the ineradicable centrality of context as a major determinant of human conduct, and combines them with penological considerations of proportionality, deterrence and social (re)habilitation. Ultimately, the chapter showcases that the adoption of a contextual model of sentencing would critically allow sentencers to develop a more nuanced portrait of defendants and embrace sentencing options that, while providing a fair response to wrongdoing, they recognize and tackle social needs, provide empowering opportunities for individual change, and promote social (re)integration.5:15-5:40 PM Question and answers for speakers facilitated by the co-editors5:40-5:45 PM Concluding remarks Contributor Details:Deborah W. Denno, Ph.D., J.D., is the Arthur A. McGivney Professor of Law and Founding Director of the Neuroscience and Law Center at Fordham Law School. She received her B.A. from the University of Virginia, M.A. from the University of Toronto, and Ph.D. and J.D. from the University of Pennsylvania. Before joining the Fordham Law faculty, Professor Denno clerked for Anthony J. Scirica, formerly Chief Judge of the Third Circuit Court of Appeals, and worked as an associate at Simpson, Thacher &amp; Bartlett. At Fordham Law School, she primarily teaches criminal law, criminal procedure, and various seminars on advanced criminal law topics, including a criminal law speaker series. Seven of Professor Denno’s articles have been cited by the United States Supreme Court, some multiple times. Her forthcoming book, Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (Oxford University Press), analyzes an original data set of every criminal case in the United States (over 9,000 cases) that addressed neuroscientific evidence over twelve decades (1900-2022). Professor Denno contends that, when used correctly, neuroscience can contribute to more comprehensive and accurate assessments of a defendant’s blameworthiness and, therefore, greater fairness in the criminal justice system.Sjors Ligthart received his Masters in criminal law (cum laude) in 2016. He started working as a lecturer in criminal law at Tilburg University, where he successfully applied for a PhD-student scholarship in 2017. His Ph.D. research concerned the human rights implications of coercive brain-reading in criminal law. In this context, he visited the Oxford Uehiro Centre for Practical Ethics at the University of Oxford in 2019 twice for a month. On 4 November 2021, he defended my thesis successfully and received the doctoral degree (cum laude).As of November 2021, he is continuing his research as Assistant Professor at Tilburg University and, as of December 2021, as a postdoc at Utrecht University on the NWO Vici-grant &#x27;Targeting the offender&#x27;s brain. A unified normative framework for the evaluation of neurotechniques in criminal justice&#x27; (2021-2026)Gerben Meynen is Chair Forensic Psychiatry, Willem Pompe Institute for Criminal Law and Criminology, Utrecht University &amp; Chair Ethics, in particular bioethics, Department of Philosophy, Faculty of Humanities, VU University Amsterdam, The Netherlands.Amedeo Santosuosso is one of the founders and current Scientific Director of the European Center for Law, Science and new Technologies (ECLT) at the University of Pavia (I). He is Professor of Law, Science and New Technologies at the Department of Law, University of Pavia, and at the Institute for Advanced Study of Pavia (IUSS). He also served as President of the First Chamber at the Court of Appeal of Milan. Santosuosso has served in several ad hoc committees appointed by the Italian government on science and law issues. He was President of the European Association for Neuroscience and Law (EANL) from its foundation (2010) till 2016 and is the main organizer of the Law, Neuroscience and New Technologies Winter School, which takes place yearly at the University of Pavia. Matilde Giustiniani, Bachelor in Psychology, New York University, NY, USA; Master’s in Psychology, Neuroscience and Human Sciences, Department of Brain and Behavioral Sciences of the University of Pavia (DBBS) and Department of Humanities and Life Sciences of the University School for Advanced Studies (IUSS) Pavia.Amy Sixsmith is a senior lecturer in law and has taught law at the University of Sunderland for over 12 years. She is also a Senior Fellow of the Higher Education Academy (Advance HE). She has taught a wide range of subjects, including the English legal system, child law, family law, and medical law. She is heavily involved in coaching students as part of Sunderland Law School&#x27;s wide range of extracurricular activities. She is involved in mooting, student negotiation, and client Interviewing. She has also acted as a judge for the National Client Interviewing Competition and the International Client Consultation Competition. Her primary research interest is children&#x27;s rights, and she is currently undertaking a Ph.D. which focuses on children&#x27;s rights in the context of the youth justice system. She is also a series editor for Revise SQE revision guides and author of &#x27;The Legal System and Services of England and Wales&#x27; Revise SQE book.Sofia Moratti is Associate Professor at the Department of Interdisciplinary Studies of Culture, Norwegian University of Science and Technology, Trondheim, Norway. Together with Dennis Patterson (Rutgers Law), she is the editor of the comparative anthology “Legal Insanity and the Brain: Science, Law and European Courts” (Oxford: Bloomsbury, 2016). Her research interests include the study of value-laden decision-making processes in professional settings; the Ethical, Legal and Social Implications (ELSI) of new technology; the evolution of professional authority, autonomy and self-regulation under technological or societal change. Moratti has a Ph. D. from the Department of Legal Theory, Sociology and Philosophy of Law, University of Groningen (the Netherlands). She was a “Max Weber” Fellow and later a Senior Researcher (Research Associate) at the European University Institute, where she conducted multiple projects on neuroscience in criminal justice, particularly on the insanity defence. Her professional experiences includes the membership of national and international Research Ethics Boards.Federica Coppola is a criminal lawyer specializing in neurolaw. Her work uses psychological and neuroscientific knowledge about the role of emotions in moral decision-making and social behavior to inform changes in criminal law doctrines, theories of punishment, and correctional interventions. Her main focus is to use this branch of scientific findings to reform restrictive and retributive approaches to criminal violence and redirect criminal justice toward social rehabilitation. She has published articles and book chapters on criminal culpability, excuse doctrines, and punishment, as well as on the use of neuroscientific tools for forensic purposes.Federica earned a JD from the University of Bologna Law School in 2010, an LLM in Comparative, European, and International Laws from the European University Institute in 2014, and a Ph.D. in law from the European University Institute in 2017.

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