The Devil’s Advocate: Using Neuroscientific Evidence in International Criminal Trials?

ank Greely writes, “[t]oday we are regularly making new discoveries about the functioning of the human brain, discoveries that have led many lawyers, philosophers, and neuroscientists to speculate about the consequences of our new understanding for the criminal justice system.”1 Greely notes that scholars have focused almost exclusively on questions of responsibility, reaching conclusions “from apocalyptic to ‘business as usual.’”2 Joshua Greene, a philosopher at Harvard University, leans towards the apocalyptic view. Greene asserts that our operative “legal principles exist because they more or less adequately capture an intuitive sense(s) of justice.”3 For him, neuroscience will challenge and “reshape our intuitive sense of justice.”4 While he concedes that the “business as usual” scholars, namely Stephen Morse, are correct that the law currently re-