Neurotechnologies, mind reading, and criminal trials. A case study from Italy.

In the last twenty years, we have seen a growing interest in the use of neurotechnologies inside criminal trials across different countries (e.g. Italy, the USA, the Netherlands, and the UK). In this paper, after a brief presentation of the state of the art of neurotechnologies, we will provide an ethical-juridical analysis of the main issues related to their forensic use. We will distinguish two main types of neurotechnologies: neuroimaging technologies (e.g. fMRI functional Magnetic Resonance Imaging and EEG Electroencephalogram) that aim to assess the presence (or the lack thereof) of the mental capacity of the defendants; and mind-reading technologies (a-IAT test, Brain Fingerprinting) that aim to confirm or deny the presence of a specific memory inside the brain of the defendant. In addition, we will review an Italian case study where a “mind-reading” test was performed to assess the presence or absence of a specific single memory related to the crime inside the defendant’s mind. We will discuss the emerging problems related to forensic neurotechnologies such as: understanding the accuracy and reliability of neuroscientific evidence; the effect that this evidence can have on the sentencing process; the validity of the theoretical assumption on which forensic neurotechnologies are based. The experts that use these technologies claim high levels of accuracy (over 90%) in the assessment of a specific memory. However, given the state of the art of neurotechnologies, the results provided must be weighted carefully to avoid excessive enthusiastic claims and to prevent misinformation to hinder the correct assessment of the case. Furthermore, some of the underlying theoretical assumptions on the functioning of the human mind can be challenged, especially the highly reductionistic and deterministic stance on human behaviour that some neurotechnology seems to embrace. This paper will discuss the main question of the author's doctoral research on whether neuroscientific evidence can be admitted inside the Italian and European legal framework and if so, what challenges we ought to face. In particular, we will try to assess whether forensic neurosciences are compatible with the guarantees of those legal frameworks such as the right to non-discrimination and the right to have a fair trial provided by the Italian constitution (Articles 2,3,24 and 111) and by the European framework (Articles 6, and 14 EHCR and Article 20,21 and 47 CFREU). Finally, we will address the recent debate on the feasibility of the design of a new instrument to protect against the possible misuse scenarios of neurotechnologies such as neuro-specific human rights (or neurorights).