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Crime and Consciousness: Science and Involuntary Acts



This article examines the important, but hardly recognized, legal implications that stem from modern scientific research on human consciousness. In light of groundbreaking scientific developments, the article focuses on questioning two of criminal law's traditional dichotomies: conscious versus unconscious thought processes, and voluntary versus involuntary acts. Evidence suggests that these dichotomies have no valid scientific basis, and in fact use antiquated models of mental functioning. These dichotomies also conflict conceptually and substantively with key criminal law defenses, such as insanity. This confusion frequently leads courts to adjudicate like individuals very differently based upon a misunderstanding of criminal defenses and the science that underlies them. This article considers possible solutions to this predicament which range from the total abolition of the voluntary act requirement to a new act requirement based on degrees of consciousness. The article proposes a compromise between these two extremes. Voluntary acts should consist of three parts: (1) voluntary acts, (2) involuntary acts, and (3) semi-voluntary acts. This new category of semi-voluntary acts not only incorporates modern ideas of consciousness but also advances the Model Penal Code. Using actual criminal cases, this article applies this new formulation of voluntary acts and shows how it leads to a more equitable resolution for criminal defendants, victims, and society.
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... 98 The issue of offender accountability was summarised succinctly in California jury instructions, which described the defence of 'automatism' as: 'A person who commits what would be a criminal act, while unconscious, is not guilty of a crime'. 97 It is in this context that the neuroscience research I have reviewed is relevant. There is incontrovertible evidence that there are independent levels of conscious and non-conscious processing which occur simultaneously by different brain structures. ...
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It is commonly reported that in the course of a drive, a parent or caretaker loses awareness of the presence of a child in the back seat of the car. Upon arriving at the destination, the driver exits the car and unknowingly leaves the child in the car. This incomprehensible lapse of memory exposes forgotten children to hazards, including death from heatstroke. More than 400 children in the past 20 years have suffered from heatstroke after being unknowingly forgotten in cars. How can loving and attentive parents, with no evidence of substance abuse or an organic brain disorder, have a catastrophic lapse of memory that places a child's welfare in jeopardy? This article addresses this question at multiple levels of analysis. First, it is concluded that the loss of awareness of a child in a car is a failure of a type of memory referred to as prospective memory (PM), that is, failure to remember to execute a plan in the future. Second, factors that increase the likelihood that PM will fail are identified. Third, research on the neurobiology of PM and PM-related memory failures are reviewed, including a discussion of how competition between brain structures contributes to a failure of PM. Finally, the issue of whether a failure of PM that results in harm to a child qualifies as a criminal offence is discussed. Overall, this neuropsychological perspective on how catastrophic memory errors occur should be of value to the scientific community, the public and law-enforcement agencies.
... "the boundaries between our conscious and unconscious are permeable, dynamic, and interactive, and there is no valid scientific support for a sharp dichotomy." 32 Intuitions are fluid rather than static. Simply directing attention to internal states often seems sufficient to reverse or reduce the effect of certain implicit attitudes, stereotypes and associations. ...
Criminal responsibility in the American legal system requires the presence of an actus reus—a harmful act that was committed voluntarily—and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the USA, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests that this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re‐conceptualizing punishment within a consequentialist, empirically‐based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility.
Sexual behaviors in sleep have gained wide recognition and can take on many expressions. These behaviors have been given many popular terms including “sexsomnia” and “sleep sex” but the most common primary pathway through the platform of sleep is as a disorder of arousal from NREM sleep. The public’s fascination with “sexsomnia” may equate this condition with unrestrained libidinous sexual intercourse between strangers but the most common expression of this condition may be an inappropriate and unwanted emerging intimacy between individuals who by tacit agreement have chosen to sleep in close proximity. Major influences for which there is clinical-based evidence that may promote sleep-related abnormal sexual behaviors include sleep deprivation and obstructive sleep apnea (OSA). Alcohol has long been erroneously cited in the past as a priming influence for disorders of arousal from NREM sleep, including sleep-related abnormal sexual behaviors. The sleep forensics experience in the United States has revealed an alarming increase in the number of cases of sexual assaults purported to be attributed to “sexsomnia”. If such legal cases are indeed a bellwether, a proposal could be made for more rigorous controlled epidemiologic studies into this condition to better define its prevalence and characteristics as part of public policy to ensure personal and public safety—especially in those who cosleep with children. Despite its increasing recognition, there also remains significant skepticism, if not disdain, related to “sexsomnia” as witnessed by published reports served by the National District Attorneys Association’s National Center for Prosecution of Child Abuse. To counteract media driven bias and the general skepticism emanating from an adversarial-driven court system, this chapter presents a progressive medicolegal case-based approach in analyzing potential sleep-related abnormal sexual behaviors to equip the sleep medicine professional with a combination of cognitive neuroscience constructs and salient clinical features to navigate the topology of sexual behavior in sleep in order to provide the most appropriate patient-centered care with the potential to be a resource to the legal community when indicated.
This article will engage with the difficult question of whether common purpose could be successfully used to prosecute the surviving Marikana miners for the murder of their fellow miners, shot and killed by the police. It will conclude that this is entirely possible, on the law as it stands. However, I will argue that the law is not what it ought to be. I will argue that common purpose violates fundamental principles of criminal law, beyond the arguments traditionally raised. The one traditional argument raised and rejected by the Constitutional Court in Thebus, which bears repeating, is that it is a violation of the presumption of innocence to attribute causation and that this is not solved, as the Constitutional Court stated, by placing the issue of causation beyond questions of proof for both parties. I will note also that Thebus does not seem to answer the charge that common purpose violates the dignity of an accused. In addition, I will argue that, contrary to fundamental principles, common purpose punishes evil thoughts alone to the extent that it relies upon subjective thought to establish conduct, and it violates the requirement of voluntariness and capacity for self-control because it allows for liability where the accused did not, and could not, control the conduct in question. It allows for the resort to unreasonable force in response to an attack. Furthermore, I will argue that common purpose has an effect which can, in many instances, be met with a valid defence of mistake of law. I will conclude that, if principle is observed, and while fairly broad defences are conceivable, common purpose ought to be abolished as a deep source of embarrassment in our criminal law.
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This article discusses the use of behavioral genetics in criminal cases and argues, contrary to the conventional view, that criminal responsibility theory limits the role behavioral predisposition testimony should play in assessing criminal responsibility. We proceed by reviewing criminal cases in which behavioral genetics and neurological evidence has been introduced - including claims that a defendant acted involuntarily, lacked the requisite mens rea, satisfied the mental defect element of an insanity defense, or was entitled to differential sentencing. This review reveals that courts have rejected the majority of these claims, but primarily because of the inadequacy of the science thereby leaving open the door for the introduction of such evidence in future criminal cases as the science further develops. The article then offers a more robust rationale for rejecting behavioral predisposition evidence when assessing a defendant's criminal responsibility. Using behavioral genetics as a tool, we explain why criminal responsibility theory clashes with defenses based on behavioral predispositions. We argue that the two components of criminal responsibility - liability and justifications and excuses to liability - operate with little regard to the infirmities of a criminal defendant. In so doing, we elucidate the fundamental characteristics underlying these components including the assumptions of legal free will and human agency, the voluntary act requirement, mens rea, and the reasonable person standard. We explain why seemingly anomalous defenses such as provocation and battered woman syndrome do not meaningfully challenge whether criminal responsibility operates without regard to a defendant's unique mental infirmities. Because liability and justifications and excuses to liability do not turn on individual infirmities, we conclude that behavioral genetics should not inform criminal responsibility.
Human action is a kind of magic, an astonishing ability to think of something and thereby make it happen. Perhaps this is why each person views self with awe - The Great Selfini amazes and delights! We are enchanted by the operation of our minds and bodies into believing that we are "uncaused causes", the origins of our own behavior. Unfortunately, the magic self stands in the way of the scientific understanding of the psychological, neural, and social origins of our behavior and thought. This chapter examines this standoff by outlining the theory of apparent mental causation - a theory of how the self's magic may arise. It then considers why the concept of self as an inner origin of our actions presents such a robust illusion. Finally, the chapter explores why evolution might have unfolded in such a way as to make us think we are magical creatures.
This essay addresses the question: What is the probative value of including neuroscience data in court cases where the defendant might have had a traumatic brain injury (TBI)? That is, this essay attempts to articulate how well we can connect scientific data and clinical test results to the demands of the Daubert standard in the United States’ court system, and, given the fact that neuroimaging is already being used in our courts, what, if anything, we should do about this fact. Ultimately, I am not sure that there are completely satisfactory answers to this query at this particular time in our legal history. I briefly rehearse the recent use of brain research in our legal system, summarize how neuroscience data regarding TBI and its relation to poor behavioral outcomes are currently used in the courtroom, review challenges with using these data, and highlight fundamental tensions between how the legal system views the causes of behavior and how medicine, neuroscience, and psychology do. Until these tensions are resolved, it is unclear the place neuroscience data should have in courts.
Our earlier evidence had indicated that a substantial duration of appropriate cerebral activity (up to about 0.5 s) is required for the production of a conscious sensory experience; this means the sensory world is experienced delayed with respect to real time. Subjective timing of the experience can be retroactively referred to the time of the earliest signal arriving at the cortex. Our 'time-on' theory states that the transition from an unconscious to a conscious mental function is determined, at least in part, by an increase in the duration of appropriate neural activities. Our experimental finding that conscious intention to act appears only after a delay of about 350 ms from the onset of specific cerebral activity that precedes a voluntary act provided indirect evidence for the theory. In a direct experimental test a signal (stimulus to somatosensory thalamus) was correctly detected in a forced-choice test even when the stimulus duration was too short to produce any awareness of the signal; to go from correct detection with no awareness to detection with awareness required an additional 400 ms of the repetitive identical neural volleys ascending to sensory cortex. 'Time-on' theory has important implications for a variety of unconscious-conscious interactions.
This article discusses various legal issues posed when the results of position emission tomographic scans are sought to be introduced in criminal trials.
A 65-year-old man with no past history of violent or criminal behavior abruptly strangled his wife after she scratched his face during a domestic argument. He appeared emotionally blunted and lacked insight into the motivations for his violent actions. The presence of left-sided cerebral dysfunction was initially suggested by subtly decreased dexterity of his dominant right hand. A magnetic resonance image (MRI) revealed a large arachnoid cyst centered in his left Sylvian fissure that effaced ventral frontal, anterior temporal and insular cortical gyri. The left middle cerebral artery was displaced relative to an earlier study, providing indirect evidence that the cyst had enlarged during his adult life. Neuropsychological testing indicated generally intact cognitive abilities except for mild impairment on tests of prospective memory and executive functions. He was found to have intermittently decreased EEG amplitude in the left fronto-temporal region. Positron emission tomography (PET) revealed significantly reduced resting glucose metabolism in the left frontal and temporal lobes. He was also found to have pathological diminution of autonomic responses to affectively charged visual stimuli, a phenomenon previously reported in patients with ventromedial frontal lobe injury and acquired disturbances of social conduct. In light of these findings, we suggest that his violent behavior represents stimulus-bound aggression, triggered by a novel physical threat and unchecked by learned social restraints owing to the presence of ventral prefrontal dysfunction.
For an account of the facts and circumstances surrounding the case, see Jerry Kammer, Head-to-Head Issues
For an account of the facts and circumstances surrounding the case, see Jerry Kammer, Head-to-Head Issues, ARIZ. REPUBLIC, June 25, 1999, at A13 [hereinafter Kammer, Head-to-Head] (summarizing the prosecution and defense arguments and in particular their opposing expert witnesses);
) (discussing the major issues of the case with Greta Van Susteran
CNN Breaking News: Verdict to be Read in F alater Murder Trial (CNN television broadcast, transcript #99062501 V00, June 25, 1999) (discussing the major issues of the case with Greta Van Susteran, CNN legal analyst, prior to the reading of the verdict);
Head-to-Head, supra note 493
  • Kammer
Kammer, Head-to-Head, supra note 493, at A13.
Drug Halcion; Unlikely Pair Joined to Win Landmark Case, HOUS. C HRON
  • Steven R Reed
Steven R. Reed, A Tale of Two Attorneys vs. Drug Halcion; Unlikely Pair Joined to Win Landmark Case, HOUS. C HRON., Nov. 29, 1992, State Section, at 1.
512. Id. 513. Id.; see also Grundberg, 813 P
  • Todd Paul Meyers
Todd Paul Meyers, Halcion Made Me Do It: New Liability and a New Defense-Fear and Loathing in the Halcion Paper Chase, 62 U. CIN. L. REV. 603, 611 (1993). 512. Id. 513. Id.; see also Grundberg, 813 P.2d at 90, 104 (stating the facts surrounding Grundberg's complaint against UpJohn).
  • Tim Friend
Tim Friend, Halcion: Sleep Aid or Nightmare? Doubts Linger on Effects of Psycho-Drugs, USA TODAY, May 28, 1992, at A1. 516. See Grundberg, 813 P.2d at 104. 517. Id. 518. See id. 519. Id. 520. See id.