Nigeria: Inside The Brain Of An Accused Person: How Neuroscience Can Help In Criminal Convictions

1. Introduction

The statement of an accused person is usually, if not always, tendered in criminal trials to prove the guilt or otherwise of the accused person. In fact, its importance has been reiterated in Olayinka v. The State¹ and in other related cases where the Supreme Court held that, "The statement of a defendant made to the Police, if not confessional, is the very foundation of his defence; hence the prosecution has a duty to make the said statement or statements available to the court." However, the determination of the voluntariness of a confessional statement has prolonged a lot of criminal trials with the conduct of trials-within-trials and unsuccessful no-case submissions. What if neuroscience can shorten the long processes and procedures and fast-track the determination of criminal convictions in trial courts?

2. Prospects of Neuroscience

Neuroscience is the application of experimental psychology on the functions and processes of the brain. In trials, neuroscience can mirror the brain of an accused person through brain scans and brain imaging to determine the innocence or guilt of the accused person. This aspect of neuroscience is well-known as cognitive neuroscience and has promising prospects of facilitating easy identification of serial killers, serial rapists, and criminal-minded individuals in order to assist the administration of criminal justice. When this happens, the future of cognitive neuroscience can be categorized as neuro-law; a sector that should come under the purview of criminology as a field of study. Criminologists are engaged in the study of crime and objectively detecting criminal behaviour and apportioning responsibility; even before the accused person is arraigned in the court of law.²

How is this going to be achieved? Neuro-law practitioners will be in the questioning rooms where the tools of brain scans and brain imaging will be used to read the mind of an accused person with reference to the alleged crime and other related circumstances. These tools will be used to establish the link between the criminal act (actus reus) and the criminal intent (mens rea) which is the overall responsibility of the prosecution. During the actual criminal trial, a cognitive neuroscience expert will be invited as a witness to explain the brain scans and brain imaging to the court to justify a conviction or to impose criminal responsibility.

3. Benefits of Neuroscience

A major benefit of neuroscience is the elimination of wrong convictions due to the strict correctness of the findings of cognitive neuroscience. This is especially because neuroscience experts like Franz Josef Gall have proposed that criminal-minded brains differ from the brains of the rest of the general public. These theories have been used during the 19th century to justify conviction and subsequent execution of individuals. Therefore, it is the popular opinion of experts that structural changes in the brain can result in increased criminal tendencies and violent personality attributes (especially in cases of serial killers and serial rapists). This leads us to the second benefit, which is seclusion of criminal-minded individuals from the rest of the public to prevent or minimise the incidence of crimes in the society.³

A practical way this benefit has helped society is the case of a 40-year old school teacher who had structural changes in his brain, due to the development of a tumour. Upon this development, this school teacher got involved in child pornography and child molestation. After the brain scans and brain imaging identified this defect, the school teacher underwent surgery, and the tumour was removed. Upon removal, his behaviour was deemed to have normalized, and he was released from isolation. After a period of time, he returned to child pornography and child molestation; and during a subsequent examination of his brain, it was revealed that the tumour had grown back. He has been in isolation ever since, preventing him from committing more crimes.⁴

The impact of neuroscience in law is not temporary; it permanently fixes the problem of crime and helps the accused person in a rehabilitation process that does not focus on his personality alone, but on the root causes and propensity for criminal behaviour. This will eliminate violence in society and fast-track the restoration of peace and justice as one of the major purposes of the law.

4. Impact of Neuroscience in Nigerian Criminal Law

It is trite that cognitive neuroscience hopes to achieve a final rehabilitative state of the criminal justice system - a feat which is earnestly needed in the country's criminal justice administration. It will also be beneficial to the state actors, particularly the Nigerian police while investigating criminal cases to prevent wrongful convictions of innocent persons. Furthermore, cognitive neuroscience will help the State meet the standards of proof in criminal cases beyond a reasonable doubt by presenting incontestable, admissible evidence that verifies the charge laid against the accused in court.

However, the acceptance of cognitive neuroscience into the Nigerian legal system is dependent on the effective collaboration of all actors/stakeholders, including the legislators, the Bar, and the Bench. Legislators must expand the horizons of law including Administration of Criminal Justice Act⁵ and Evidence Act⁶ to fit into the present realities of procedures of establishing neuroscience-based evidence. The Bar and the Bench must be willing to embrace best practices in criminal law for the purpose of administration of criminal justice.

The practice of cognitive neuroscience in law has taken root in foreign jurisdictions like the Netherlands, England, Wales, and the United States of America. For example, cognitive neuroscience was the reason why death penalty was ruled out in the case of Commonwealth of Pennsylvania v. Pirela⁷ because of the neuroimaging evidence of the accused's frontal lobe dysfunction. Also, the criminal administration in the Netherlands allows the services of behavioural experts such as psychologists, psychiatrists, and behavioural neurologists to proffer independent expert opinion during the pendency of a criminal trial to ascertain the functional ability of the brain at the time the offence was committed.⁸

The closest practice to this in Nigeria is the plea of insanity, which has a low incidence of utilization.⁹ However, the benefits of cognitive neuroscience can be deployed, especially in instances where the defendant pleads insanity at the time of committing the offence. Cognitive neuroscience determines whether the defendant is telling the truth or not, whether the defendant is fit to stand trial and whether the defendant is criminally responsible or not.

5. Conclusion

The role of cognitive neuroscience is to accurately determine whether a mental dysfunction affected the mens rea of the accused person in the case. It establishes the accused person's criminal responsibility by examining structural features of the brain which might affect the decision-making of the accused person. It is a new aspect of law that provides definitive proof and eliminates delay in the criminal justice procedures and processes.

Footnotes

* Oluwanifemi Obafemi, Personal Assistant to the Managing Partner, SPA Ajibade & Co., Lagos, NIGERIA.

1. (2007) ALL FWLR (Pt. 373) 163 SC.

2. Buckholtz, J. W., & Faigman, D. L. (2014). 'Promises, promises for neuroscience and law', Current Biology, 24(18), R861-R867.

3. Straiton, J., & Lake, F. (2021). 'Inside the Brain of a Killer: The Ethics of Neuroimaging in a Criminal Conviction', available at: https://www.future-science.com/doi/full/10.2144/btn-2020-0171, accessed on 5th April 2023.

4. Glenn, A. L., & Raine, A. (2014). 'Neurocriminology: implications for the punishment, prediction and prevention of criminal behaviour', Nature Reviews Neuroscience, 15(1), 54-63.

5. 2015, VOL. 2 pp. A291-371 available at https://policehumanrightsresources.org/content/uploads/2017/09/Administration-of-Criminal-Justice-Act-2015-2.compressed.pdf?x96812 accessed 29th March 2023.

6. 2011, VOL. 2 pp. A355-562 available at https://www.refworld.org/pdfid/54f86b844.pdf accessed 29th March 2023.

7. (2007) 929 A.2d 629.

8. Derik-Ferdinand, O. I. (2022). 'Admissibility of evidence based on findings of neuroscience: implications for criminal justice in Nigeria', International journal of law and clinical legal education, 3.

9. Ogunwale, A., & Oluwaranti, O. (2020). 'Pattern of utilization of the insanity plea in Nigeria: An empirical analysis of reported cases', Forensic Science International: Mind and Law, 1, 100010.

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