An empirical study of the use of neuroscientific evidence in sentencing in New South Wales, Australia

Abstract

In the neurolaw literature there are many debates and claims associated with the increasing use of neuroscience in law. These claims can be sorted into three broad categories: predictive claims that assert how neuroscientific evidence will be used or will influence the application of criminal law principles in the future; descriptive claims about how neuroscientific evidence is being used in practice; and normative claims which assert how neuroscientific evidence ought to be used in practice. While it has been at least 40 years since the first use of neuroscience in Australian courts, neurolaw claims have not been substantiated by comprehensive and systematic empirical research on how neuroscience is used in practice. Thus prior to this thesis it was unclear whether the actual approach of the courts is consistent with claims of various neurolaw scholars. To fill this substantial void, this thesis offers an empirically oriented review of seven claims about the introduction and use of neuroscientific evidence applied to sentencing courts in New South Wales, Australia. To pursue this research, a comprehensive and systematic search was conducted on three databases finding 214 decisions before 2016 in which neuroscientific evidence was discussed. These cases were then coded, and analysed. The findings of the study suggest that there are some inconsistencies with the neurolaw claims and how neuroscientific evidence is being used in practice. Although not all these inconsistencies warrant concern, there appears to be a need for practice-oriented instruments and guidelines about the use of neuroscience in practice.