By Sarah Montgomery
Staff Writer

On July 2nd, 2011, Anders Breivik of Norway went on a murderous rampage that killed 77 people and wounded 242. After setting off a car bomb outside government headquarters in Oslo, Breivik went on a shooting rampage on Utøya in an effort to protect Norway from “being overrun by Muslims”. His sentence, announced on August 24th of this year, is a meager 21 years in prison. This is the maximum sentence that can be given in the liberal country of Norway, but is it fair? Although Breivik was declared sane at the end of the trial, making him culpable for his actions, a group of court-appointed psychiatrists had initially found him to be a paranoid schizophrenic.

In the United States, when criminals are being evaluated for intent, “mens rea”, a guilty mind, is one of the key components for assigning blame. In Breviks’ case, his mind was found guilty but is his brain as well? With an increase in technology and the acceleration of science, no one field stands alone, and neither does the brain. Weighing only three pounds, the human brain is insurmountable in cognitive power and energy, requiring almost twenty percent of our energy intake but comprising only two percent of our overall bodyweight (Brune, 2006). Current ideology would postulate that you are your brain and the 100 billion neurons that comprise it. But what about crimes that are committed by schizophrenics, psychopaths, and those deemed mentally retarded? Can guilt still be assigned to those who, biologically speaking, may interact differently with the world due to their genes? The majority says that Anders Breivik is not insane. He meticulously planned his terrorist attack for months and even used computer games to improve accuracy and efficiency.

Mind-reading has been an infatuating subject within the American legal system throughout the decades. Lie-detection, brain scanning, and magnetic stimulation are all techniques that use science to bring light to social questions. Many times, brain scans are presented as evidence in courts to prove brain dysfunction or damage, but how accurate can these tests really be? With functional magnetic resonance imaging (fMRI), a change in magnetization is measured between oxygen-rich and oxygen-poor blood as a sign of activation. An increased “BOLD” response has been scientifically correlated to show an increase in brain activity or function. The inverse is true of areas damaged genetically or by lesions. However, brain structure is not deterministic of behavior, per se. While techniques such as fMRI or PET may detect cerebral blood flow or changes in metabolic rate, damage or malfunction does not inevitably lead to criminal, violent, or even abnormal behavior. For instance, individuals with MTBI, or mild traumatic brain injury, rarely have permanent cognitive, psychological or social problems (Granacher, 2008). If Breviks’ brain was scanned, would the results shed any light on his neurotic behavior? Most experts would say no; However, that is not to say that more seemingly psychotic criminals should not be evaluated with the use of science.

On July 20th, 2012, only two days before the Breivik shooting case sentencing , James Holmes, an ex-neuroscience student at the University of Colorado, opened fire in a movie theatre in Auroria, CO. Holmes is accused of killing 12 people and injuring 50 more ,totaling 142 criminal counts, including 24 counts of first-degree murder. The attack occured at the premiere of “The Dark Knight Rises”. With hair dyed bright red, the self proclaimed “joker” has appeared apathetic and dazed during the subsequent court proceedings, bringing questions about his competency to stand trial. Unlike Anders, Holmes has acted mentally disturbed throughout the past few weeks, and many are asking to see the alleged notebook that Holmes sent to his psychiatrist before the attacks. Scott Robinson, a Denver defense attorney not connected to the case and a legal consultant to NBC News, says references to Holmes’ mental illness by his attorneys and their allusion to a university psychiatrist he had contacted signal that the defense team likely will pursue an insanity strategy (NBC News, 8/13). The United States is much less lenient on criminals who perform horrific acts, and the probability of a death sentence in this circumstance seems high. On the converse, success of the insanity defense strategy historically has been low. In this case, would science help to relieve some of these cryptic questions the court faces or create more? While scanning Holmes brain may lead to compelling results, “Imaging-studies indicate physical states taken at brief periods of time but whose results cannot be evaluated as pre-determined” (Aggharwal, 2009). An fMRI is a snap shot of the brain, so is it fair to evaluate sanity based on a second in time?

Many would agree that science has no place in the court room. The goals of science differ from those of the legal system but the allure of black and white results is becoming increasingly alluring to defense lawyers as society becomes more entagled with technology and privacy. Some would argue that although science may present confounding results to a misinformed jury, a jury is not much better than a brain scan or lie-detection test. For ages we have used the jury system to assess the magnitude of a crime and to assign guilt. But juries are also asked to evaluate the demeanor of a witness which may be influenced by a variety of confounding variables- myths, urban legends, race, culture. If a jury for the case of James Holmes is presented with a brain scan that shows limited blood flow to the prefrontal cortex, an area of the brain where rational thinking has been localized, does that mean he is no longer responsible for his actions? Is he cognitively aware that what he has done is wrong? Is serving an insane person the death penalty acceptable in such a gruesome case? For now, psych evaluations is one of the only ways scientific evidence may be admissible in a court room due to the daubert standard. But, even when psychiatrists are asked to evaluate criminals such as Anders, psychiatrists may not be suited to serving as expert witnesses, since they do not receive training on how brain images are constructed through complex, computerized algorithms (Aggarwal, 240).

In the coming weeks, the Holmes case will unfold. Witness and victims alike will share their horror stories of James Holmes’ assault in front of a jury of “rationally-minded” people. Psychiatric tests will be done, and the admissibility of medical evidence may or may not find its way into the legal proceedings. Although science may help remedy some of the natural biases and prejudices that an average person has, the meaning of the results themselves may be too ambiguous for now. Although multiple issues have sprouted from currents flaws in the legal system, at least they are in front of our face instead of hidden in the crevices of our minds.

Brüne, M., & Brüne-Cohrs, U. (2006). Theory of mind–evolution, ontogeny, brain mechanisms and psychopathology. Neuroscience & Biobehavioral Reviews, 30(4), 437-55

Aggarwal, Neil K. (2009) Neuroimaging, culture, and forensic psychiatry. J Am Acad Psychiatry Law,37, 239-244.

Granacher, Robert P., Jr (2008).Commentary: Applications of functional neuroimaging to civil Litigation of mild traumatic brain injury.J Am Acad Psychiatry Law, 36, 323-328

Photo by Andy Powell

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