Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings

Neuroethics, Forthcoming

30 Pages Posted: 2 Jan 2019

See all articles by Armin Alimardani

Armin Alimardani

University of New South Wales (UNSW) - Faculty of Law

Jason Chin

Sydney Law School

Date Written: December 15, 2018

Abstract

Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial (as evidence of fitness to stand trial), at trial (to support the defence of insanity and substantial impairment of the mind), and during sentencing. In the second section, we evaluate these applications. We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky.

Keywords: criminal law, neuroscience, neurolaw, sentencing, evidence, law and science, fitness to stand trial

JEL Classification: K10, K14, K42

Suggested Citation

Alimardani, Armin and Chin, Jason, Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings (December 15, 2018). Neuroethics, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3301723

Armin Alimardani

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Jason Chin (Contact Author)

Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
81
Abstract Views
348
rank
305,184
PlumX Metrics