La prueba neurocientífica en el proceso penalestudio de su viabilidad en los sistemas jurídicos español e italiano

Abstract

The recent discoveries in the neuroscientific field demonstrate that the relationship between the study of the mind and the criminal trial are not only science fiction. The main objective of this research is to establish of how the facts identified through neuroscientific techniques are transformed into procedural evidence, so that they can be used to estimate the credibility of declarative evidence and open up new possibilities for evaluating the subjective elements of a crime (intention and fault). After a brief presentation of the neuroscientific techniques that could be introduced into the criminal trial for these purposes (lie detection and memory detection), different analysis plans will be discussed. First and foremost, it is appropriate to discuss, from constitutional point of view, the impact of these new technologies on fundamental rights. It is essential to identify the limits of an uncritical entry of neurosciences into courtrooms, avoiding the scientism, especially with respect to the guarantees provided for the protection of constitutional rights, and those connected, of the various procedural actors. These rights are configured differently, depending on the defendant (e.g. right to a fair defense and his corollaries) or witness (opposed obligation of truth). On the other hand, it is important that the criminal procedural law does not ignore the unstoppable progress of science, missing the opportunity to investigate the mechanisms that precipitate human action, to make sure that neuroscientific evidence can be able to achieve a level of reliability much higher than “traditional” proof. Thereof, the analysis shifts towards the implications from a criminal procedural law, especially taking into consideration the criteria that the neuroscientific test must respect in order to be admitted to the trial, which are a guide for the judge, in his new role of “conscious user of scientific knowledge”. This relates to the debate about the nexus between science and law, with the superposition of the two cognitive models, which find their union in the reconstruction of the procedural facts, in accordance with the falsification method, expressed mainly during the cross examination. On a methodological level, in each chapter there is a comparative analysis between the Spanish and Italian legal systems, with constant attention to current forensic cases and always considering the experiences in most representative countries from a legal point of view. The investigation opens and closes with a warning: the process has not only a cognitive function, but also that of guaranteeing fundamental rights, especially human dignity. Thus, the entry of neuroscientific knowledge into the criminal trial must be contained within the principles that underpin the positive system. The chief idea in latter being that the human body cannot be degraded by simple evidentiary means predominates. The basic problem is not whether neuroscience is right, but to what extent scientific progress can be considered in criminal procedural law, balancing limits and opportunities.