Men have always been curious about human behavior and brain which controls the behavior. The supposition that brain could control human behavior is not just a supposition anymore, and brain science is continuously developing to prove that supposition. With the development, men are now able to take photos of brain structure and brain response.
Cognition brain science researches men's sensory system, motor nerve system, concentration, memory, linguistic ability, cognitive ability, emotion and perception ability that differs by brain structure and function. The advancement of brain technology such as PET scan, fMRI, MRI influenced research on brain. Before this technological advancement, scientists relied on animal experiment or computer modeling for brain study.
The advancement of science since the early 1990's had a huge impact to brain scientists. Before the advancement, scientists used methods such as computer modeling and animal experiment. However, with new technologies such as PET and fMRI, they were able to achieve significant advancement in brain research. With researches that use video technology, scientists identified that important parts of brain develop through adolescence. Particularly, prefrontal cortex manages impulse control, causal relationship, and circumstantial judgement.
The most frequently used technology to observe human brain structure and its activity is MRI and fMRI. While MRI captures brain structure, fMRI captures the pattern of brain activity. However, this fMRI also has a weakness on accurately capturing brain activity. Althogh some people say it is not enough to be used as evidence, we will look at how technology advanced and brain science is used in criminal cases in the U.S.. And criminal case attorneys use this research result in juvenile cases, murder cases, and sex offender cases for lower the penalty of defendants.
Cognition brain science is broadening its study range from primary sensory motor to brain of people who show actions that are hard to explain. In other countries, scientists have been trying to approach national policy regarding mentally-ill patients' liability by neuroscience using brain image since several decades ago. Especially in the U.S., number of cases in which attorneys try to reduce liability or prove incompetence using brain science evidence is increasing. and interest in brain science evidence is growing in the U.S..
The effort to prove through brain science is continually growing, especially insane peoples lack ability to make appropriate decisions because their brains are damaged. That is, the brains of ordinary and insane peoples have structural, functional differences. Once we admit the difference, then we face the problem whether we can blame the insane people to the same level as we blame ordinary peoples. Another problem is that whether we could prove through brain science that crimes committed in offenders are due to impulse control difficulty caused by brain immaturity. Another problem is whether we could use this brain science evidence in weighing of their offense. Last problem is that Article 10 Section 1 of the Act of Criminal law is too vague. This could lead to judges to consider or not consider insane' brains by judges' own judgement. We must accurately define the concepts first. And also we could say that the mental disorder is proved to certain level by the advancement of brain science and brain image technology. However, the problem is that the court does not accept offender's brain status at the time of crime as evidence. However, responsibility can not disappear or temporarily be restored. The special situation called 'mental disorder' is still maintained, and insane peoples' impulsive mentality and brain immaturity maintain after or before the crime. Thus, we have to say that brain images taken before the crime and after the crime does not have great influence to change decision on responsibility. So, we have to establish a consistent standard in accepting brain science evidence in a court.
Brain science could open a new horizon to criminal liability problem. It could change the existing punishment system that categorizes every criminal as normal person with free will and then mechanically gives punishment to a more effective punishment system. Focusing on treatment and improvement of criminals rather than merely punishing them could lead to suppressing more crimes. Especially in case of adolescents, we can hardly expect them to blend into the society if they are branded as criminals in their adolescence. This will lead them to more crimes, and we can say that the country is cultivating potential criminals. I am not saying that we have to not hold adolescents responsible. However, rather than assessing their actions with the same standard we use to adults, we can consider their special situation, and give them an opportunity to return to the society.
In this research, based on brain science's development, we are looking to identify what effect does brain of insane people' have on crimes through brain science, and by that result whether we can judge insane persons's criminal liability via same standard as ordinary people' standard. Also, if we have to apply different measurement to people having mental disorder, could brain video evidence used as that measurement? In this Article, we are looking to solve these problems focusing on Anglo-American law 's arguments and cases, and whether brain science evidence and theories could be applied in judging Korean's insane people's criminal liability.