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http://ssrn.com/abstract=908926
 
 

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Genetics and Responsibility: To Know the Criminal from the Crime


Nita A. Farahany


Duke University - School of Law; Duke University - Institute for Genome Sciences & Policy

James Coleman


affiliation not provided to SSRN


Law and Contemporary Problems, Vol. 69, p. 115, June 2006
Vanderbilt Public Law Research Paper No. 06-14
Duke Law School Legal Studies Paper No. 110

Abstract:     
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.

Number of Pages in PDF File: 51

Keywords: Criminal law, responsibility, genetics, behavioral genetics, behavioral predispositions, neurology, neuroscience, frontal lobe damage, addiction, actus reus, voluntary act, mens rea, insanity defense, mitigating evidence, aggravating evidence, sentencing, liability, justifications, excuses, reasonab

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Date posted: June 20, 2006  

Suggested Citation

Farahany, Nita A. and Coleman, James, Genetics and Responsibility: To Know the Criminal from the Crime. Law and Contemporary Problems, Vol. 69, p. 115, June 2006; Vanderbilt Public Law Research Paper No. 06-14; Duke Law School Legal Studies Paper No. 110. Available at SSRN: http://ssrn.com/abstract=908926

Contact Information

Nita A. Farahany (Contact Author)
Duke University - School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
HOME PAGE: http://www.law.duke.edu/fac/farahany
Duke University - Institute for Genome Sciences & Policy ( email )
240 North Building
Box 90141
Durham, CA 27708
United States
James Coleman
affiliation not provided to SSRN
Feedback to SSRN


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