The Intersect of Neuroscience and Criminal Responsibility
By Katrina Sifferd

Modern science and technology seemingly present a problem for the traditional notion of free will. Historically, an action was considered "free" if it could not be completely explained by physical causes. That is, human beings were imagined to be "godlike" in that they were "unmoved movers" -- entities whose decisions and acts fell outside the physical causal chain of events.

As biotechnology and neuroscience begin to provide an explanation for the relationship between the brain and the mind, however, it has become somewhat implausible, according to certain scientific explanations, that humans are uncaused causers. Human behavior is directly linked to states within the nervous system, a physical system built by interactions among genes and the environment. And, like any other physical system, brain states operate according to set physical causal laws. This explanation seemingly provides no place for the existence of free will.

This possibility has sent many into panic. If human actions are just another link in a physical-causal chain -- if they are "determined" -- then how are we supposed to attribute blame and praise? Most importantly, how can we assign punishment when responsibility appears to depend on the idea that an actor not could have done otherwise?

Thankfully, such concern is unwarranted. Criminal responsibility does not require traditional free will; rather, the current criminal justice system holds persons responsible even if human actions have physical explanations. That is, even if a desire to kill is neuronally instantiated and has a complete causal history, the criminal justice system is designed to attribute responsibility when that desire leads to criminal harm.

Criminal responsibility does not require purely "uncaused" action but, instead, requires that action be immediately caused in a certain way. If a harmful act is connected to the actor's desires or goals, and if the actor held certain beliefs about the harm that could result from the act, then he or she is criminally responsible. Thus, to be guilty of murder under the U.S. Model Penal Code, for example, one must have a mens rea (or a mental state) that includes: (1) the desire to perform an act that results in the death of another; and (2) performance of the act with the desire to kill, knowledge one will kill, or with reckless indifference to the chance that one may kill.

It is possible -- even likely -- that future science may provide a complete physical causal description of the mental states required for criminal responsibility -- the desire to kill and the understanding that the act will result in a death. But this need not affect the categories of culpability (such as murder, rape, and theft) themselves. The breadth of category is a policy decision determined by legislatures and judges. New scientific knowledge should only act to help us, as a society, better categorize defendants as "guilty" or "not guilty" based upon the existing categories of culpability and defense.

Even though there is some concern that new scientific knowledge may expand criminal defenses (Golding, 1992), lawyers, scientists, and bioethicists should instead focus on helping judges and juries understand how scientific data will speak to already existing legal categories. Judges need to act as informed gatekeepers to "translate" scientific findings into commonsense terms for evaluation by the ultimate trier of fact in a given case, and to keep out irrelevant and/or unreliable expert evidence.

Governing the admission of expert evidence, states have adopted one of two standards to be used by judges in this gatekeeper role. The older of these two evidentiary standards for expert testimony, known as the Frye test, allows inclusion of any expert evidence that is "generally accepted in the field." (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) The Daubert test -- the newer standard designed by the U.S. Supreme Court -- requires judges to determine the relevance of scientific evidence by looking to see if it has been subjected to the rigors of testing and peer review. The Daubert test also required a finding that the underlying science can be explained with "sufficient clarity and simplicity." (Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 U.S. 2786 (1993))

It is true that the Daubert test places a heavy burden on judges in their role as gatekeepers. However, this more nuanced test provides safeguards into the system, such as the introduction of opposing expert evidence, and the opportunity for direct- and cross-examination. Nevertheless, roughly only half of states have adopted the Daubert test.

Katrina L. Sifferd, J.D., Ph.D., is currently adjunct faculty at Elmhurst College and an IBHF Affiliated Scholar. Recently, she held the Rockefeller Fellowship in Law and Public Policy at Dartmouth College.

A Second Take on Second Life
By Christina Bieber Lake

I used to think that Second Life was just a waste of time.

That was before I took my 17-month-old to daycare for only his second visit. I overheard one of the other children say to the caregiver: "it's that kid who cries all the time." Of course, I wanted, for a minute, to keep my son in my arms forever. Not mostly because he had been sad, but because I was reminded that it is inevitable that he will be at the mercy of others' views of him. He will always be "that kid who ___," even as what the blank is filled in with changes from circumstance to circumstance, community to community.

Though we like to think that we can be indifferent to others' opinions of us, it simply is not true. Hannah Arendt argued that it is our speaking and acting in public -- our making an appearance -- that makes us real. We see and are seen by others; we live and act together, and our actions render between us a kind of a polis. Arendt noted that a polis is "not the city-state in its physical location; it is the organization of the people as it arises out of acting and speaking together, and its true space lies between people living together for this purpose, no matter where they happen to be."

I am not claiming that my son's daycare community -- or the community of Second Life -- is a polis by this definition (though it is arguable). But all this did get me thinking about just how difficult it is in our society today -- or really, any society -- to be in community, to be made real by our appearance to others. We always have to deal with others' perceptions of us and our histories. We are, all of us, "that kid who ____." And in our superficial culture, the task of interacting with others can be downright frightening.

It is no wonder that the virtual polis of Second Life is so appealing. You control your appearance in this public, and, if you do not like the avatar, you have created or the history you have generated, you can start again. You can give yourself whatever physical form you want, forge new links within new organizations, and do things you have never done before. For a long time, I thought that the only reason people liked Second Life or role-playing video games was because they found human reality insufferable and wanted to escape it. But people who want to escape from humanity do not play games on-line with other people; they sit in a basement and play against a computer. I am beginning to think that people turn to these games because they want more reality as Arendt defined it: we want to start again to make friends, to do new things, to have more power (of a sort), because our own Dilbert-like lives are so narrow and powerless by comparison. The irony is, of course, that people seek this reality in a place that can only provide an approximation of it. But to attack Second Life as a waste of time is only to get at the symptoms of what is really a deeper, more complex problem: the impoverishment of our actual, "First Life" interactions with each other. That is the problem that we need to solve, and we have a long way to go in doing so.

Christina Bieber Lake is Associate Professor of English at Wheaton College, in Wheaton, Illinois, author of The Incarnational Art of Flannery O'Connor, and an IBHF Affiliated Scholar.