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Law and neuroscience may seem like distinct and peculiar bedfellows. However, upon closer examination, one might find they are not so discordant. The efficacy of legal systems in regulating conduct and behaviour and administering justice and equity frequently depends on assessing evidence about how and why a person behaved or acted as he or she did and neuroscience can shed light on these intricacies of human behaviour and the brain. In light of this, and the wake of tremendous development and awareness of neuroscientific research, a new discipline of Law and Neuroscience called “neurolaw” has evolved in the last decade. Neurolaw is a new multidisciplinary area that studies and examines how a better knowledge of the human neurological system may lead to a more accurate explanation for human behaviour[1], which can then be used to influence and guide law, legislation, and policy.[2] Whether this interaction is ultimately beneficial or detrimental will be determined in large part by the efficacy of transdisciplinary collaborations between neuroscientists and legal academics.

Neurology and Criminology

The mental aspect has a significant consideration in criminal law and thus this law is frequently interested in the mental states of individuals, such as defendants, convicts, witnesses, and prospective jurors. For instance, lawyers may have to reply to queries such as the following: Is the defendant affiliated with a mental disorder? Is he legally insane and thus incompetent to stand trial? What is the odd of recidivism for this specific convict? Is the witness lying about what he/she remembers? Is the prospective juror prejudiced towards certain groups of people? Answers to these questions may be provided with the help of neuroscience techniques. Neuroscience testimony in the courtroom has come into play recently. In criminal trials, many defence attorneys submit brain scans of defendants to demonstrate that they were either not responsible for their acts or those brain abnormalities or disorders warranted reduced punishments. Further with the help of neuroscience, judges would be in a better position while declaring a verdict as it will assist to better comprehend and evaluate the extent of mental suffering inflicted by someone else’s acts.  

Neuroscience’s Application in Tort Cases

Tort law performs several functions in society, including compensating injured parties monetarily, providing insurance coverage, and discouraging miscreants.[3] But it is not always clear what constitutes “harm.” Even though a clear contrast between physical or physiological injury and mental or emotional pain has been provided by laws and has been established by courts, claims of, stand-alone emotional harm are rarely recognized unless in extremely limited circumstances. Citing reasons for the same that “emotional harm is less objectively verifiable than physical harm” and that “some degree of emotional harm is endemic to living in society.” The present law factors emotional harm only if physical harm is evident because mental harm is not tangible like physical ones and its extent cannot be measured. This issue calls for the use of neuroscience. Many neurologists claim that mental injury or harm alters the brain which can be made out through neuroimaging.

Neuroscience and the Identification of Pain

Brain imaging is one method that neuroscience may be used to learn more about how the brain works in various situations. Talking of chronic pain, it has been demonstrated in neuroimaging that it modifies brain function, changes particular neural circuits. It is worth noting that emotional distress, such as severe stress and depression, has a similarly significant influence on brain shape and function.[4] Indeed, several of the same brain regions are affected in both chronic pain and depression, indicating a strong molecular link between physical and mental suffering.[5] Even Post-Traumatic Stress Disorder (PTSD), another form of mental harm, can be demonstrated to alter the brain, indicating that emotional harm is equally physical in origin. Indeed, one court has decided in this manner in the Michigan case Allen v. Bloomfield Hills School District.[6] The court stated that “brain damage constitutes a physical injury.” The “The “plaintiff showed verifiable medical proof that mental or emotional stress can cause physical changes to the brain.”

Neuroscience Evidence to Argue Against Solitary Confinement

Many studies have demonstrated that isolation may lead to physical changes in the brain and how it functions. Lieberman concluded from his research that In the absence of social interaction, people may experience “social pain,” which the brain perceives it  in the same way as physical pain.[7] Further, Akil’s view proposes that the solitary confinement may alter the brain’s structure and function based on the time duration spent in isolation.[8] Zigmond’s extensive study demonstrates that the brains of rodents who were subjected to isolation, whose neuroanatomy is similar to humans, have substantial alterations in their brains.[9] These all theories point only to one direction that mental harm does have a tangible effect on the brain and these can be studied and made out with the help of neuroscience. On the basis of all these theories mentioned above and neurological evidence a draconian and prolonged solitary confinement is being challenged. In 2012, a class action was brought on Pelican Bay State Prison, California’s sole super-maximum security prison on behalf of over 1,300 convicts[10]. However, In the early 1990s, one of the judges ruled that while the Draconian, sterile, and monotonous solitary confines in Pelican Bay were likely to inflict psychological sorrow, they did not constitute a constitutional violation. After further appeals and citing various neuroscientific reports, the verdict was announced on September 1, 2015 putting\ an end to indefinite solitary confinement in California prisons. In the following year of landmark Judgement, President Obama prohibited minors from being held in solitary confinement in federal prisons.

Use of Neuroscience in Courts

Neuroscientific evidence has been successfully used in courts in various cases. In Roper v. Simmons, juvenile death penalty case, the Supreme Court used such neuroscientific evidence to buttress its judgment that imposing capital punishment on a minor is unconstitutional.[11] The court believed that it is unfair to hold adolescents and pre-teens legally accountable as if they were adults since they are not anticipated to acquire their ability to reflect completely or regulate their feelings. Another example of a case in which brain scan evidence or neuroscience was critical to evaluate mental injury is the case of R v Mohammed Sharif.[12] Sharif was accused of conspiracy to defraud, and it was alleged that he was unable to stand trial, but the prosecution expert, a psychologist, determined that it was “clearly a case of malingering with no psychological or mental component.” Following an appeal, the court determined that Sharif had not feigned his handicap and that he was unable to stand trial and thus quashed his conviction. The Sharif case exemplifies an area in which neuroscience may be particularly useful to courts and those administering justice in determining whether mental condition defences are genuine or fabricated. The Indian legal system has also taken notice of this fast evolving science and have applied it in criminal trials. In State of Maharashtra v Sharma[13] a woman was convicted of murder on the basis of circumstantial evidence gleaned from a brain mapping/scan.


All these cases give us a clear picture of the efficacy and usefulness of neuroscience in courtrooms and  how it can be used to evaluate emotional injury and find about the mental state of Individuals. Court rulings have already been influenced by neuroscience and will continue to be influenced by it. Neuroscientific evidence is used to demonstrate the cause and extent of injuries in courts across the world. It is also used to prove the mental condition of defendants. It cannot give evidence of what transpired in mind of an accused; nevertheless, it can provide evidence to support or refute claims concerning mental illness or fitness to plead. It can finally help us demarcate a line between physical and mental harm. However there are many challenges that lay ahead in the field of neurolaw which need to be overcome  and even though it cannot be considered as an absolute evidence and cannot be relied upon blindly in the courtroom , this continual interaction between the fields will undoubtedly benefit both the science and the law.

Author(s) Name: Tanvi Garg (Army Institute of Law, Mohali)


[1] Richard Birke, ‘Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications’ (2010) 25 (477) Ohio St. J. on Disp. Resol., 482–83

[2] Adam J. Kolber, ‘Will There Be a Neurolaw Revolution?’ (2014) 89 (808) Ind. L.J., 822

[3] Rick Swedloff & Peter H. Huang, ‘Tort Damages and the New Science of Happiness’ (2010) 85 (588 ) Ind. L.J. 553

[4] Naomi I. Eisenberger, ‘Broken Hearts and Broken Bones: A Neural Perspective on the Similarities Between Social and Physical Pain’ (2012) 21 (45) Current Directions Psychol. Sci. 42

[5] Amanda C. Pustilnik, ‘Imaging Brains, Changing Minds: How Neuroimaging Can Transform the Law’s Approach to Pain’ (2014) 66 1148 Ala. L. Rev. 1117

[6] Allen v. Bloomfield Hills School District 2008, 760 N.W.2d 811

[7] NI Eisenberger, MD Lieberman, KD Williams, ‘Does rejection hurt? An fMRI study of social exclusion. Science’ (2004) 8 (302) Trends in Cognitive Sciences 290–292

[8] Jules Lobel & Huda Akil, ‘Law and Neuroscience: The Case of Solitary Confinement’ (2018) 61 (147) Daedalus 67

[9] Zigmond R, McEwen BS ‘Selective retention of oestradiol by cell nuclei in specific brain regions of the ovariectomized rats’ (1970) 17 (7)  J Neurochem 889–899.

[10] Ashker v. California  2014,  4:09-cv-05796-CW

[11] Roper v. Simmons 2005, 543 U.S. 551 (2005)

[12] R v Sharif 2010, [2010] EWCA Crim 1709.

[13] State of Maharashtra v Sharma 2008, No. 508/07