NEUROLAW

AND THE THEORY OF MIND IN THE

COURTROOM

A comparative analysis of Greece and England

Nikolitsa A. Koutropoulou

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“The mind is like an iceberg, it floats with
one-seventh of its bulk above water.”

Sigmund Freud

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 “Neurolaw

and the theory of mind in the courtroom”

A comparative analysis of Greece and England

Nikolitsa A. Koutropoulou

12 , March 2021

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Electronic copy available at: https://ssrn.com/abstract=3926011
Contents

Introduction 1

Neuroscience 3

Neurolaw 6

The relationship between Neuroscience and

Neurolaw 9

Rules based on Neuroscience 13

England and Wales 15
Greece 17

Does the application of the rules cause unfairness in

criminal cases? 18

Conclusion 24

Bibliography 26

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Electronic copy available at: https://ssrn.com/abstract=3926011
 PART 1
Introduction

English rules and laws adumbrate expert

evidence based on areas emerging from
neuroscience. Several times, there have been
cases presented in courts, which were
characterised as quite complex, so they needed
special attention and collection of so-called
'expert evidence.' What is the relationship
between neuroscience and neurolaw, and how are
laws applied? Does this application cause
unfairness in criminal cases? The proof of the
expert evidence's admissibility will be made in
light of Greek jurisprudence to evaluate whether
the English laws' application is carried out
correctly.

Like every animal, humans are diverse and

autonomous since they come to life with their
unique physical condition, without resembling in
all respects their fellow homo sapiens. In terms
of behaviour, individuals display uniqueness by
acting with unprecedented confidence. As human
beings, they show a series of abilities, which
interact with each other. The ability to move,
think, understand, will, feel, or initiate is a sign

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of action, which means that they can act. It has
been known since ancient times that man is a
strange being, seeking knowledge, not only for
others but also for himself. Such a depiction of
the human species, therefore, indicates a
creation, which includes a brain. Individuals are
the way they are and act in a particular manner
because their brains make them, of course, the
human brain – that goes without saying. The
explanation of this process is sought by
neuroscience, which in conjunction with
'neurolaw,' compose a fascinating scientific field
of study.

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 PART 2
Neuroscience

The human brain could be described as the most

complicated structure that human nature has
recognised and studied. The term 'neuroscience'
is generally understood to mean "the scientific
study of the nervous system and the brain," as
the Cambridge Dictionary1 defines it. However,
Yvette Brazier gives a more in-depth definition of
neuroscience in her article 'Neuroscience:
Overview, history, major branches'2, where she
reported that this type of science affects people's
behaviour and their way of thinking.

Moreover, Brazier points out that neuroscience's

primary focus is on the nervous system of human
beings. Neuroscientists aim to answer questions
closely connected to a person's behaviour and
actions by examining the person's brain and
understanding how they think and act under
certain conditions and situations. This particular

1
Cambridge Dictionary (n.d.) [Online].
2
Brazier, Y. (2018) ‘Neuroscience: Overview, history, major
branches.’, Medical News Today, viewed 26 June 2018,
https://www.medicalnewstoday.com/articles/248680

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field of science is undoubtedly crucial for society
and individuals since it is related to daily human
functions.3

For the reason that neuroscience interacts with

most of the human functions, there was a
scientific need to work with other
interdisciplinary fields in order to be able to
answer questions that arose. Nowadays,
neuroscience works with psychology, medicine,
law, and many other disciplines. An example of
such co-operation between neuroscience and
another discipline is be 'neuroimaging,' which is
used to diagnose brain diseases or even study the
human brain.4 The connection between the
interdisciplinary fields is achieved with a new
addition, the so-called neurolaw. In essence, it is

3
Brazier, ‘Neuroscience: Overview, history, major branches.’
viewed 26 June 2018,
https://www.medicalnewstoday.com/articles/248680

4
Brazier, ‘Neuroscience: Overview, history, major branches.’
viewed 26 June 2018,
https://www.medicalnewstoday.com/articles/248680

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a conglomeration of studying the law with the
brain.

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 PART 3
Neurolaw

Several authors have attempted to define

'neurolaw,' but as yet, this is the most
appropriate definition: Neurolaw is the
interdisciplinary field, which unites the brain
with the law and facilitates the correct
understanding of human behaviour to regulate it
accurately, including the successes and
achievements of neuroscientists in legal studies.5
This scientific field was born in the 1990s as a
branch of bioethics and bio-legal reflection.
Nevertheless, today it is an independent and
autonomous sector, which concerns a wide
integrated knowledge area. Based on traditional
phases of trial and law in action, the substance of
‘neurolaw’ is an evolving science which is
expanding its borders to artificial intelligence.6

The constitutional correlations of neuroscience

are varied and range from personal freedom, and

5
Petoft, A. (2015) “Neurolaw: A brief introduction.”, Current
Journal of Neurology, viewed 05 January 2015,
http://ijnl.tums.ac.ir/index.php/ijnl/article/view/570
6
D'Aloia, A. and Errigo, M., Neuroscience and law. Cham, Springer
Nature, Switzerland, 2020, p. 1 .

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in the moral sense, of the defendant or the
witness, to the identity of the individual, since
the brain and mind characterised more deeply a
human entity, to privacy, freedom of thought and
the dignity of the individual. In this way,
neurolaw goes beyond the criminal law of
responsibility, free will, and sentence
evaluation.7 Also, neurolaw can be considered as
a continuation of law as applied science. From
this starting point, the law, not only in its design
but also in its application, examines how one
discerns what is happening in the world, the
processing that people are subjected to, that is,
how they perceive it mentally and beyond
receiving or abstaining from the corresponding
action.8

According to Michael S. Moore, people remain

responsible for their actions, notwithstanding
that all of those actions have neural
correlations.9 Furthermore, the legal system is
about memory, responsibility, and mental

7
D'Aloia, A. and Errigo, M., pp. 10-11 .
8
D'Aloia, A. and Errigo, M., p. 53 .
9
Donnelly-Lazarov, B., Neurolaw and Responsibility for Action:
Concepts, Crimes, and Courts (σελ.3), Cambridge University Press,
Cambridge, 2018, p. 3 .

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maturity.10 (Brown, 2019) Neurolaw, therefore,
seeks to achieve the correlation of the brain and
law with neuroethics and moral values. However,
it remains difficult to define the relationship
between mind, brain, and law.11

10
Brown, E. ‘The brain, the criminal and the courts’, Knowable
Magazine, viewed 08 September 2019,
https://knowablemagazine.org/article/mind/2019/neuroscience-
criminal-justice
11
Petoft, “Neurolaw: A brief introduction.”, viewed 05 January
2015, http://ijnl.tums.ac.ir/index.php/ijnl/article/view/570

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 PART 4
The relationship between Neuroscience and
Neurolaw

The fundamental question that arises from the

above reports is the relationship between
neuroscience and neurolaw.12 That is, whether
science can connect with law, and consequently,
how neuroscience and neurolaw can work
together, and lastly, why is neuroscience so
important in neurolaw? Neuroscience studies
brain structures, functions, developments, and
abnormalities. That is why it is often used to
help experts talk about individuals' cognitive
functions and clarify behaviour patterns, such as
criminal acts.13 Besides, neuroscience helps solve
complex questions in criminal trials, and
therefore new laws are created to integrate
neuroscience into human thought and behaviour

12
Petoft, “Neurolaw: A brief introduction.”, viewed 05 January
2015, http://ijnl.tums.ac.ir/index.php/ijnl/article/view/570

13
Morse, Stephen J. (2015) “Neuroscience, Free Will, and Criminal
Responsibility”, Faculty Scholarship at Penn Law 1604, viewed o7
December 2015,
https://scholarship.law.upenn.edu/faculty_scholarship/1604

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more effectively.14 At this point, one observes a
first connection between the two scientific fields.

Next, neuroscience is outlined as the most potent

and direct catalyst for a deeper understanding of
the nervous system and its influence on
neurolaw. Essentially, the relationship of law
with neuroscience and with the brain at the point
of intersection creates the interdisciplinary field
of neurolaw, providing a comprehensive approach
to legal facts. Neuroscience presents the picture
of human behaviour’s mental process, while the
law primarily concerns how individuals'
behavioural reaction is regulated. It is on this
basis, therefore, that the field of neurolaw is
formed. In other words, neuroscience is based on
experimental manifestations and is absolute,
while the law is classified in the humanities,
according to the tasks arising from the course of
reasoning and its abstract expressions.15

Given the above, an important question that

arises according to University of Pennsylvania

14
D'Aloia, A. and Errigo, M., pp. 52-70 .
15
Petoft, “Neurolaw: A brief introduction.”, viewed 05 January
2015, http://ijnl.tums.ac.ir/index.php/ijnl/article/view/570

10

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law and psychiatry researcher Stephan J. Morse
is whether the evidence is legally relevant; in
short, does it help answer a question related to
whether the evidence is relevant to the law? He
argues that neuroscience will never rebel against
the law since it is a fact that actions reflect more
than images, and if, in any legal context, there is
a difference between the samples of neuroscience
and behaviour, behaviour always prevails.16 That
is because behaviour shows the individual's
movements and intentions precisely, in contrast
to the brain, which can confuse researchers.

By strengthening the relationship between

neuroscience and neurolaw, neuroscientific
technologies emerge, which help understand the
mind. Consequently, legal proceedings
concerning the application of neuroscientific
discoveries have increased. Cognitive
neuroscientists use some new techniques such as
fMRI (Functional Magnetic Resonance Imaging),
polygraphs and EEG (Electroencephalography) to

16
Brown, E. ‘The brain, the criminal and the courts’ , viewed 08
September 2019,
https://knowablemagazine.org/article/mind/2019/neuroscience-
criminal-justice

11

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analyse the relationship between the brain and
mind.17

17
Petoft, “Neurolaw: A brief introduction.”, viewed 05 January
2015, http://ijnl.tums.ac.ir/index.php/ijnl/article/view/570

12

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 PART 5
Rules based on Neuroscience

The neuroscientific technologies mentioned above

are used to obtain expert evidence, which has
been introduced in the courts to preserve the
credibility of witness' testimonies. Therefore,
recourse to neuroscience becomes necessary, as
legal effects are directly linked to neurological
issues so that legal rules can be explained. It is
essential to clarify that the reasons vary
regarding the need for specific rules of
admissibility and disclosure for evidence by
experts in criminal matters. First, expert
witnesses differ from conventional witnesses in a
trial. They are not ordinary citizens who heard,
saw, or said something, instead they are
individuals with specialist training. Experts have
the privilege of providing jurors with evidence of
expertise pertaining only to their field of
knowledge without expecting the court to have
prior experience in it.

Laws and regulations on neuroscience and

neurolaw inevitably vary from country to
country. This fact is entirely normal since each

13

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state is autonomous and has its jurisdictions
adapted based on its needs. Such a case arises
between England and Greece, which are subject
to various jurisdictions. Therefore, the
comparison between the two countries is
interesting.

14

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England and Wales

On one the one hand are England and Wales and

the rules that govern them, according to which
criminal cases are based on jurisdiction and some
general basic rules. Criminal law guidelines
change over the years, so the Criminal Practice
Directive (CPD) 2015 replaced the 2013, and new
directives were issued in 2020. The general rules,
however, constitute the English courts’ base for
criminal decisions. The most important general
rule is that evidence is only valid if it is relevant
to the case at hand.

Beyond that, some rules give judges the freedom

to exclude evidence at their discretion. For
example, during a criminal trial, a judge could
reject expert evidence that could have had
significant negative consequences for the process,
as under the Police and Criminal Evidence Act
1984 and Article 78.18

According to the 2015 legislation on expert

evidence, it is argued that the evidence of an
expert is admissible in criminal proceedings only
if it relates to the issue, which is the subject of

18
T. Spranger, International Neurolaw , Springer Berlin, Heidelberg,
2012, p. 306 .

15

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the commentary of the proceedings. The court
must also provide all information that may not
be known to the court or the jury. Finally, for the
validity of the evidence, the witness should be
able to give an opinion on the matter. It is
further provided that the legislation relating to
the admissibility and the introduction of relevant
evidence includes Article 30 of the Criminal
Justice Act 1988, which states that the
presentation of experts in criminal proceedings is
admissible as evidence, even though the
individual's submission is oral. However, if
submitted as oral evidence, it is admissible only
with the court's permission. Also, under the
Criminal Procedure Rules (part 19), the exercise
of the powers conferred by Article 81 of the Police
and Criminal Evidence Act 1984 and Article 20 of
the Criminal Procedure and Investigation Act
1996 requires the presentation of prerequisite
evidence by experts before trial and in any case
with conditions provided for by those rules.

16

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Greece

On the other hand, however, the Greek

jurisdiction's efforts to include in its legal
framework the relevant legal provisions related
to neuroscientific evidence which can be accepted
during a criminal hearing (an action that came
about because of developments in neuroscience)
are remarkable.19 (International neurolaw, 2012,
p. 179) More specifically, according to Article 177
of the Code of Criminal Procedure (CCP), judges
are able to freely examine various facts that will
be given during the trial. This possibility is also
confirmed by Article 179 of the CCP, which
stipulates that legal proof is acceptable and
admissible. Therefore, it follows from the above
articles that Greek criminal law does not
recommend rejecting neuroscientific evidence in
the courts. Nevertheless, these judicial freedoms
conflict with the provisions providing for the
restriction of various neuroscientific methods in
the courts, which aim to protect the country's
citizens' rights and freedoms.20

19
Spranger, p. 179 .
20
Spranger, pp. 192-193.

17

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 PART 6
Does the application of the rules cause
unfairness in criminal cases?

Edward Coke claimed that the 'actus non facit

reum nisi mens sit rea', or otherwise 'the act is
not guilty unless the mind is also guilty’, is the
only requirement in criminal law, and that is
where neuroscience makes efforts to prove the
real intentions behind the individual's behaviour
and actions.

Just as any claim needs proof, so do rules need

assumptions to evaluate their application.
Therefore, the respective cases will be analysed
below in order to clarify whether the rules of
admissibility of neuroscientific evidence are
unfair in criminal cases. That will be achieved by
comparing Greek and English criminal cases to
more effectively evaluate the rules. The first case
that will be presented below concerns the Greek
jurisdiction.

There is an interesting decision in the Greek

jurisdiction regarding the use of neuroscientific
measures, which is a historical fact for the Greek
criminal courts. The Greek criminal jurisdiction

18

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case regarding the request of the accused to
conduct a falsehood detection test to prove their
innocence is presented as quite important. The
main accusation was murder, and the scientific
method of detecting lies is called Event-Related-
Potentials (ERPs), in which a mechanism is
placed on the scalp to reveal sound, words, and
images as well as possible knowledge of the
individual. The prosecution argued that the use
of the method was inadmissible using Article
137A of the Penal Code, which considers such an
act as torture, even with the defendant's consent,
and is therefore automatically inadmissible. It
was then based on Article 29.1.1 of the Prison
Code, which prohibits any experiment on the
defendant. The defence, however, claimed that it
is not prohibited since it is done with the consent
of the individual in other countries and is the
only means of proving innocence. Because of this,
the accused requested neuropsychiatrists to
conduct the examination. The Mixed Jury Court
of Athens with decision 93/2002 allowed this
procedure and finally, with decision 312/2002,
acquitted the accused, without reference to the
mechanism. Therefore, if the evidence were used,
it would be considered inadmissible since this is

19

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not provided by Greek law and Article 137A of
the Penal Code.

Furthermore, Hill v Baxter [1958] 1 All ER 193

marked the beginning of neuroscientific methods
during criminal proceedings in the English
jurisdiction. Based on the above model, a recent
hypothesis is presented subsequently. In the
English case of R v Clarke Morabir [2013] EWCA
Crim. 162, the court was concerned with whether
expert evidence should or should not be given by
those experts who, in a way, are patently
unqualified. The reason behind this is that in the
case of R v Clarke Morabir, an individual with
expertise in fractures and bone disease gave his
opinion about the cause of the victim's death.
More specifically, the case is as follows, Clarke,
the accused, attacked a person who suffered with
osteoporosis. Clarke then tried to bring round the
victim. However, according to the medical
records, the victim's death was due to damage to
his ribs during the resuscitation attempts.
Consequently, the Court of Appeal ruled that the
expert in question did not have the experience or
expertise to assess all causes of death in a way
that a forensic pathologist would. As a result, the
expert's evidence was inadmissible in this

20

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criminal case, as the expert did not have the
relevant expertise for the expert evidence that he
provided, which is explicitly defined by the
Criminal Practice Directions 2015 s. 19A.1 (iii).

Another case under England and Wales's

jurisdiction is the R v Challen [2011] EWCA
Crim 2919. It is a criminal case related to a
murder. In 2011, Sally Challen was convicted of
murdering her husband at the Guildford Crown
Court. Sally claimed that she had been suffering
from chronic emotional abuse before deciding to
kill him with a hammer. After several years in
prison, a psychiatrist appeared as an expert
witness. She formed an opinion on her mental
state at the time of the murder, finding that she
was mentally disturbed at the time of the crime,
thus allowing solicitors to challenge the sentence.
According to the expert's evidence, the Central
Criminal Court would impose a further trial on
her; however, the Crown accepted the request for
a reduced sentence due to limited liability. Sally,
who had already served nine years and four
months of her life sentence, was released after
the sentence was commuted. Sally's request
showed the importance of expert evidence in
extracting the correct conclusion from a mentally

21

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disturbed perpetrator. Therefore, in this case, the
expert evidence was admissible because Sally's
expert provided the Court and the jurors with
information and additional evidence about the
mental state of the accused, which was outside
the scientific field of judges and jurors (CPD 2015
s19A.1 (i) ).

The first English case presented shoed that

expert evidence was inadmissible, as the expert
was not suitable for providing the expert
evidence. However, neuroscience was admissible
in the latter case, as the accused was acquitted
after using expert evidence. Therefore, the
English rules are partially applicable in
contrasted to the Greek jurisdiction, since in the
one case, the inadmissibility of the expert
evidence is indicated, as in the Greek case, but in
the second case, the admissibility is proved. It
follows, therefore, from the judgments laid down
by the court and how the neuro-scientific
evidence legislation is applied that the evidence
is fair in English criminal law, provided that all
the conditions are met. From the above, it is
shown that, although in Greece the laws favour
the freedom of the citizen, the neuroscientific
evidence is not taken so seriously. In England, on

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the other hand, the rules are strict, but during
the trial, all the evidence is taken into
consideration, and this brings justice not only to
the victim but also to the perpetrator.

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 PART 7
Conclusion

In summary, English rules and laws outlining

the admissibility of expert evidence in criminal
trials emerge through the fields of neuroscience.
The scientific terms of neuroscience and
neurolaw were explained in more detail, while
the relationship between them was also explored,
and the meaning of the rules was clarified.
Finally, the application of the particular rules
was examined through cases that concerned the
legal and neuroscientific community. Thus, it is
concluded that the absoluteness of admissibility
and justice is a difficult task, as both of these
concepts are examined in proportion to the
individual case and are applied according to the
specific conditions provided. The essay is an
explorative comparison of the English and Greek
rules, and so the outcome is based on them.
Therefore, the laws in combination with the
evidence prove to be fairly applicable in the
English cases.

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 ΒIBLIOGRAPHY

Βooks

Cambridge Dictionary (n.d.) [Online]. Available

at
https://dictionary.cambridge.org/dictionary/englis
h/neuroscience

D'Aloia, A. and Errigo, M. (2020) Neuroscience

and law. Cham, Switzerland, Springer Nature.

Donnelly-Lazarov, B. (ed.) (2018) Neurolaw and

Responsibility for Action: Concepts, Crimes, and
Courts, Cambridge, Cambridge University Press.

Spranger, T. (2012) International Neurolaw.

Berlin, Heidelberg, Springer Berlin Heidelberg.

26

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Articles

Brazier, Y. (2018) ‘Neuroscience: Overview,

history, major branches.’, Medical News Today
[Online]. Available at
https://www.medicalnewstoday.com/articles/2486
80

Brown, E. (2019) ‘The brain, the criminal and the

courts’, Knowable Magazine | Annual Reviews
[Online]. Available at
https://knowablemagazine.org/article/mind/2019/
neuroscience-criminal-justice

Morse, Stephen J. (2015) ‘Neuroscience, Free

Will, and Criminal Responsibility’, Faculty
Scholarship at Penn Law. 1604 [Online].
Available at
https://scholarship.law.upenn.edu/faculty_scholar
ship/1604

27

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Petoft, A. (2015) ‘Neurolaw: A brief
introduction.’, Current Journal of Neurology, vol.
14(1), pp. 53-58. [Online] Available at
http://ijnl.tums.ac.ir/index.php/ijnl/article/view/5
70

Cases

R v Challen [2011] EWCA Crim 2919

R v Clarke Morabir [2013] EWCA Crim. 162

Greece
Decision 93/2002 Mixed Jury Court of Athens

Decision 312/2002 Mixed Jury Court of Athens

Legislation

Criminal Justice Act 1988

Criminal Procedure and Investigation Act 1996

Police and Investigation Act 1988

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Practice Directions

Criminal Practice Directions [2013]

Criminal Practice Directions [2015] EWCA 1567

Criminal Practice Directions [2020]

Greece

Code of Criminal Procedure (CCP)

Penal Code
Prison Code

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