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Amanda Murphy
Eric Ekstrand
Writing 111
13 November 2013
The Brain on Trial
Crime has plagued the United States ever since this nation was created and the “who
done it” question has been the basis of all investigations and the court system. However, a new
question that has arisen in recent years is should someone who has committed a crime not get
punished because of the condition of their brain? Jurors, prosecutors, defense teams, judges, and
even citizens are faced with this dilemma every single day. The law is designed around the fact
that people are rational creatures, but there can be a person who is completely rational but
“whose strings are being pulled by something beyond his control.” The court system does not
know how to proceed with the introduction of brain scans and other neurological evidence that
speaks to the condition of someone’s brain. Nowadays, more and more neurologists are being
called to the stand in order to testify to the mental capability of the person in question. If the
judge allows neurological brain scan into court to be considered, then the jury’s job only gets
harder in determining the innocence or guilt of the defendant. Because of this new “brain wave”,
the jury has the possibility to send an otherwise guilty man free to walk the streets. This
perplexing situation has caused many to voice their views on the matter, like Jeffrey Rosen,
David Eaglemen, and Ron Rosenbaum, who attempt to answer the question from their own
perspectives.
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In order to get to the question at hand, another question must first be explored: Does evil
exist? Does Evil Exist? Neuroscientists Say No, written by Ron Rosenbaum, explores if this is
the end of evil. Rosenbaum states that the idea that people make conscious decisions to hurt or
harm is no longer sustainable due to the growing phenomenon of neuroscience. He also poses the
question do “brain bugs”, or mental defects, cause the behavior formerly known as evil. He
explores the idea of free will, which plays into the concept of evil. Because there is no “free
will”, we can cannot decide to commit evil acts, meaning that internal evil is impossible, or that
we are not capable of choosing to do evil. Rosenbaum says that “pop-sci brain books”, such as
Incognito: The Secret Lives of the Brain, replace metaphysical evil, such as imperfection,
chance, or deformities, allowing criminals with a physical explanations, malfunctions or
malformations in the brain, to have an exuse. Rosenbaum believes that Jonathan Marks, author
of “A Neuroskeptic’s Guide to Neuroethics and National Security”, holds one of the wisest
responses over the debate over the existence of evil and free will. Marks states that “we ought to
act as if we had free will to choose good or evil.” Rosenbaum goes on to say that evil does not
necessarily inhere in some wiring diagram within the brain. Evil may inhere in bad ideas,
particularly when they are dressed up as scientific. He assures that we can do better than the
mechanistic, deterministic, denial of personal responsibility the neuroscientists are offering to
“replace” evil with.
The question “are we our brains” plays a role in answering if defects in the brain can lead
to a “not guilty.” Jeffrey Rosen, author of The Brain on the Stand, delves into the question “are
we our brains”, beginning his article by exploring “Mr. Weinstein’s Cyst”, a case which involved
Herbert Weinstein killing his wife. Weinstein, a 65 year old man, strangled his wife and then
threw her body out a window making it appear as if she committed suicide. During the trial,
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Weinstein’s lawyer argued that his client should not be held accountable for his actions because
of an abnormal cyst that resided in his brain, which caused him to act the way he did. He implied
that this mental defect caused his client to kill his wife. Rosen states that “to suggest that
criminals could be excused because their brains made them do it seems to imply that anyone
whose brain isn’t functioning properly could be absolved of responsibility.” Should judges and
juries really be in the business of defining the normal or properly working brain? This question is
at the heart of his article. He quotes Daniel Martell, a forensic psychologist, who says that the
“organic brain defense has become de rigueur in any sort of capital defense.” Lawyers now
routinely order scans of convicted defendants’ brains and try to argue that a neurological
impairment prevented them from controlling themselves. Rosen acknowledges that neurolaw is
growing and is influencing the juries in trials. He also mentions another psychologist in his
article, Joshua D. Greene, an assistant professor of psychology at Harvard. This professor
believes that “to neuroscientists, you are your brain; nothing causes your behavior other than the
operations of your brain.” However, Rosen doesn’t agree with Greene at all. He believes that
“neuroscience itself can never identify the mysterious point at which people should be excused
from responsibility for their actions because they are not able, in some sense, to control
themselves.” The new sensation of brain scans cannot determine our guilt and punishments.
Rosen says that people should instead look to their own powers of reasoning and intuition.
People are separate from their brains. We are not our brains.
The next perspective in regards to the complex question at hand is David Eaglemen,
author of Incognito: The Secret Lives of the Brain. He examines the complex neural networks
that are constantly fighting one another and influencing how people act, the things that they are
attracted to, and the thought that they have. He then explains how the American justice system
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should integrate the current research in brain science into sentencing guidelines. He states that
we are subject to non-conscious drives that override our limited rational faculties. Like Joshua
Greene, Eaglemen believes that our brain “is us.” We are not separate from our internal wiring.
Because of this, he believes that criminals should be sentenced based on how culpable they
appear to be to a judge or jury, meaning that sentencing should be based on a person’s potential
for reforming behavior and based on neurological factors. Actions are dictated to a great extent
by our unconscious mind. He asserts that traditional beliefs about justice are merely a “desire for
revenge”. Criminals have no control over what got them into trouble in the first place. However,
to the court, without any obvious biological problem, such as a tumor, the criminals are punished
more severely than if they had a tumor or committed a crime while sleepwalking. Eaglemen
firmly believes that the court view is unfair and needs to be reformed. The specific neurological
criminal cases he mentions illustrate what happens to a person’s perception or behavior when the
brain is altered. In these cases, the criminal acts or radical changes in personality have been
shown to be the result of brain damage or disease, which implies that the person really has no
control of what he or she was doing or the changes that were happening. David Eaglemen’s main
point of Incognito is that there is no meaningful distinction between a person’s biology and a
person’s decision making. They are one in the same. His dream is to build an evidence-based,
neutrally compatible social policy instead of one based on shifting and provably bad intuitions.
Many people want to believe that we are not capable of consciously doing bad or evil
things. We would like to blame our brains for our wrong doings instead of blaming ourselves.
Our current legal system is based on the fact that free will exists when assigning blame to people.
Eaglemen believes that sentencing should be based on a person’s potential for reforming their
behavior based on neurological factors because we cannot control our actions. On the contrary,
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Rosen and Rosenbaum believe that we are not our brains. Both authors say that we have control
of our actions, thus meaning that we must take responsibility for our actions. This idea of
blaming our brain for our wrong doings is an excuse. I believe that we have total control of our
actions. Our modern justice system is based on the concept that we have free will. Because we
alone determine our actions, we are thus subjected to be punished for our wrong doings.
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Work Cited Page
Rosen, Jeffrey. "The Brain on the Stand." New York Time 11 Mar. 2011: 1-12. Print.
Eaglemen, David. Incognito: The Secret Lives of the Brain. New York: Pantheon Books, 2011.
Print.
Rosenbaum, Ron. “Does Evil Exist? Neuroscientists Say No.” Enable Social Reading.
Slate.com, 30 Sept 2011. Web.