소년의 미성숙 뇌에 관한 연구와 형사책임 - 미국의 Roper 판례에 대한 분석과 우리나라에의 시사점 -
The Adolescence Brain and Criminal Responsibility
0
조회
0
다운로드
5
인용
0
참고문헌
키워드
초록
Neurosciencs has also been offered in criminal just system. In the United States neuroscientific evidence has already reached the courtroom in at least some important legal contexts. For example, preliminary assessments by Nita Farahany indicate a rapid rate of growth, with twice as many reported cases involving neuroscientific evidence in 2009 as in 2006. First, brain images are increasingly proffered by the defense at the criminal responsibility phase, in an effort to prove an insanity defense. Second, brain images are also proffered at the sentencing phase of criminal cases in an effort to support a lenient sentence. A convicted murderer sought to introduce brain images of abnormalities, in hopes of supporting and securing a more lenient sentence. Developmental neuroscience of adolescent behavior is beginning to offer important legally relevant insights. In Roper v. Simmons Case, the Court ruled 5-4 that 8th and 14th amendments of the Constitution prohibited the death penalty for those who were under 18 years of age when committing a capital crime. Several of amicus briefs tell us that developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example,parts of the brain involved in behavior control continue to mature through late adolescence. In Korea, Juvenile Law is prohibited the death penalty and life in prison for those who were under 18 years of age when committing a capital crime. But It is possible for court to hand out death penalty and life in prison at 18 ages at the time of crime. We should consider and propose that Juvenile Law is reformed and accepted a more lenient sentencing in the light of adolescent neuroscientific findings. Neuroscience should be playing some modest role in affecting legislative enactment and juvenile criminal policy.
Abstract
Neurosciencs has also been offered in criminal just system. In the United States neuroscientific evidence has already reached the courtroom in at least some important legal contexts. For example, preliminary assessments by Nita Farahany indicate a rapid rate of growth, with twice as many reported cases involving neuroscientific evidence in 2009 as in 2006. First, brain images are increasingly proffered by the defense at the criminal responsibility phase, in an effort to prove an insanity defense. Second, brain images are also proffered at the sentencing phase of criminal cases in an effort to support a lenient sentence. A convicted murderer sought to introduce brain images of abnormalities, in hopes of supporting and securing a more lenient sentence. Developmental neuroscience of adolescent behavior is beginning to offer important legally relevant insights. In Roper v. Simmons Case, the Court ruled 5-4 that 8th and 14th amendments of the Constitution prohibited the death penalty for those who were under 18 years of age when committing a capital crime. Several of amicus briefs tell us that developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example,parts of the brain involved in behavior control continue to mature through late adolescence. In Korea, Juvenile Law is prohibited the death penalty and life in prison for those who were under 18 years of age when committing a capital crime. But It is possible for court to hand out death penalty and life in prison at 18 ages at the time of crime. We should consider and propose that Juvenile Law is reformed and accepted a more lenient sentencing in the light of adolescent neuroscientific findings. Neuroscience should be playing some modest role in affecting legislative enactment and juvenile criminal policy.
참고문헌 (46)
- Calhoun, V. D., "Aberrant localization of synchronous hemodynamic activity in auditory cortex reliably characterizes schizophrenia", Biological Psychiatry, 55, pp.842~849 (2011)
- Eyal Aharoni, "Walter Sinnott-Armstrong and Michael Gazzaniga, Can Neurological Evidence Help Courts Assess Criminal Responsibility? Lessons from Law and Neuroscience", Ann. N. Y. Acad Sci, 1124, pp.145~160 (2008)
- Teneille Brown, "Through a Scanner Darkly: Function Neuroimaging as Evidence of a Criminal Defendant's Past States", Stan. L. Rev, 62, pp.1119~ (2010)
- Feigenson, Neal, "Brain Imaging and Courtroom Evidence: On the Admissibility and Persuasiveness of fMRI", International Journal of Law in Context, 2, pp.233~255 (2006)
- An Emperical study of Brains and Genes in U.S. Criminal Law, "Farahany NA", Vanderbilt University Law School, ~ (2011)
- Teneille Brown, "supra note 3, at 1132", ~
- "United States v. Kasim 2008, McMurtey v. Ryan 2008, United States v. Gigante", ~ (2008)
- Sirigu, A., "Altered awareness of voluntary action after damage to the parietal cortex", Nature Neuroscience, 7, pp.80~84 (2004)
- 이인영, "뇌영상 증거의 과학적 증거로서의 기능과 한계", 형사법연구, 22(4), pp.255~278 (2010), 한국형사법학회
- Arthur Best, "Evidence: Examples & Explanations", pp.173~ (2004), Aspen
- Francis X. Shen, "Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons", MERCER LAW REVIEW, 62, pp.867~ (2011)
- Wayne R. LaFave, "Criminal Law", West Group, 363~ (2000)
- Richard G. Singer, "Criminal Law", pp.434~ (2001), Aspen Law & Business
- Jonas Robitscher, "In Defence of the Insanity Defence", Emory Law Journal, 31(9), pp.52~ (1982)
- Michael L. Perlin, ""And I see Through Your Brain": Access to Experts, Competency to consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process", Stan. Tech. L. Rev, 4, pp.13~24 (2009)
- Robert E. Shepherd. Jr., "The Relevance of Brain Research to Juvenile Defense", Crim. Just, 19(9), pp.51~ (2005)
- Elizabeth R. Sowell, "Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationships during Post adolescent Brain Maturation", J. Neurosci., 21, pp.8819~8829 (2001)
- Allan L. Reiss, "Brain development, gender and IQ in children A volumetric imaging study", BRAIN, 119, pp.1763~ (1996)
- Jay N. Giedd, "Brain development during childhood and adolescence: a longitudinal MRI study", NATURE NEUROSCIENCE, 2, pp.861~ (1999)
- Sally Terry Green, "The Admissibility of Expert Witness Testimony Based on Adolescent Brain Imaging Technology in the Prosecution of Juveniles: How Fairness and Neuroscience Overcome the Evidentiary Obstacles to Allow for Application of A modified common Law Infancy Defense", N. C. J. L. & Tech, 12(1), pp.26~ (2010)
- Tracy Rightmer, "Arrested Development: Juveniles’ Immature Brains Make them Less Culpable than Adults", Quinnipiac Health L. J, 9, pp.28~ (2005)
- Barry C. Feld, "A Slower from of Death: Implication of Roper v. Simmons for Juveniles Sentenced to Life without Parole", Notre Dame Journal of Law, Ethics & Pub. Pol’y, 22(9), pp.32~ (2008)
- William J. Katt, "Roper and the Scientific Amicus", Jurimetrics J, 49, pp.253~ (2009)
- Sally Terry Green, "supra note 31, at 61", ~
- Steven K. Erickson, "Blaming the Brain", Minn. J.L. Sci. & Tech, 27, pp.67~ (2010)
- "Rethinking Juvenile Justice 28-60" (2008)[URL]
- Robert E. Shepherd. Jr., "supra note 27, at 51", ~
- Stephen J. Morse, "Brain Overclaim Syndrome and Criminal Responsibility: A Dignostic Note", Ohio St. J. Crim. L, 3, pp.397~ (2006)
- Barry C. Feld, "A Slower from of Death: Implication of Roper v. Simmons for Juveniles Sentenced to Life without Parole", Notre Dame Journal of Law, Ethics & Pub. Pol’y, 22(9), pp.40~ (2008)
- 이형국, "형법총론", pp.183~ (2007), 법문사
- 손동권, "형법총론", pp.268~ (2007), 율곡출판사
- 정영일, "형법총론", pp.285~ (2010), 박영사
- 이인영, "책임능력에 대한 판단과 정신감정절차", 홍익법학, 11(2), pp.157~190 (2010), 법학연구소
- 이재상, "형법총론", pp.292~, 박영사
- 임웅, "형법총론", pp.271~ (2006), 법문사
- R. A. Duff, "Who is Responsible, For What, To Whom", Ohio St. J. Crim. L, 2, pp.444~ (2005)
- Robert M. Wettstein, "A Psychiatric Perspective on Washington's Sexually Violent Predators Statute", U. Puger Sound L. Rev, 15, pp.597~602 (1992)
- 서보학, "형법총론", pp.381~ (2006), 박영사
- 이상돈, "형법강의", pp.399~ (2010), 법문사
- Walter Sinnott-Armstrong, "Brain Images as Legal Evidence", EPISTEME, 365~ (2008)
- Gerry Maher, "Age and Criminal Responsibility", Ohio St. J. Crim. L, 2, pp.493~ (2005)
- Katherine Hunt Federle, "The Mind of a Child: the Relationship between Brain Development, Cognitive Function, and Accountability under the Law", Ohio St. J. Crim. L, 3, pp.317~319 (2006)
- Sapolsky R, "The frontal cortex and the criminal justice system", Philosophical Transactions of the Royal Society B: Biological Sciences, 359, pp.1787~1796 (2004)