Les neurosciences au Tribunal : de la responsabilité à la dangerosité, enjeux éthiques soulevés par la nouvelle loi française

AIM: In the past few years, spectacular progress in neuroscience has led to the emergence of a new interdisciplinary field, the so-called "neurolaw" whose goal is to explore the effects of neuroscientific discoveries on legal proceedings and legal rules and standards. In the United States, a number of neuroscientific researches are designed specifically to explore legally relevant topics and a case-law has already been developed. In Europe, neuroscientific evidence is increasingly being used in criminal courtrooms, as part of psychiatric testimony, nourishing the debate about the legal implications of brain research in psychiatric-legal settings. Though largely debated, up to now the use of neuroscience in legal contexts had not specifically been regulated by any legislation. In 2011, with the new bioethics law, France has become the first country to admit by law the use of brain imaging in judicial expertise. According to the new law, brain imaging techniques can be used only for medical purposes, or scientific research, or in the context of judicial expertise. This study aims to give an overview of the current state of the neurolaw in the US and Europe, and to investigate the ethical issues raised by this new law and its potential impact on the rights and civil liberties of the offenders. METHOD: An overview of the emergence and development of "neurolaw" in the United States and Europe is given. Then, the new French law is examined in the light of the relevant debates in the French parliament. Consequently, we outline the current tendencies in Neurolaw literature to focus on assessments of responsibility, rather than dangerousness. This tendency is analysed notably in relation to the legal context relevant to criminal policies in France, where recent changes in the legislation and practice of forensic psychiatry show that dangerousness assessments have become paramount in the process of judicial decision. Finally, the potential interpretations of neuroscientific data introduced into psychiatric testimonies by judges are explored. RESULTS: The examination of parliamentary debates showed that the new French law allowing neuroimaging techniques in judicial expertise was introduced in the aim to provide a legal framework that would protect the subject against potential misuses of neuroscience. The underlying fear above all, was that this technology be used as a lie detector, or as a means to predict the subject's behaviour. However, the possibility of such misuse remains open. Contrary to the legislator's wish, the defendant is not fully guaranteed against uses of neuroimaging techniques in criminal courts that would go against their interests and rights. In fact, the examination of the recently adopted legislation in France shows that assessments of dangerousness and of risk of recidivism have become central elements of the criminal policy, which makes it possible, if not likely that neuroimaging techniques be used for the evaluation of the dangerousness of the defendant. This could entail risks for the latter, as judges could perceive neuroscientific data as hard evidence, more scientific and reliable than the soft data of traditional psychiatry. If such neuroscientific data are interpreted as signs of potential dangerousness of a subject rather than as signs of criminal responsibility, defendants may become subjected to longer penalties or measures aiming to ensure public safety in the detriment of their freedom. CONCLUSION: In the current context of accentuated societal need for security, the judge and the expert-psychiatrist are increasingly asked to evaluate the dangerousness of a subject, regardless of their responsibility. Influenced by this policy model, the judge might tend to use neuroscientific data introduced by an expert as signs of dangerousness. Such uses, especially when they subjugate an individual's interest to those of society, might entail serious threats to an individual's freedom and civil liberties.

Supporting interdisciplinary case studies: development and implementation of a joint learning environment for students in forensic science and criminal law

Scientific reporting and communication is a challenging topic for which traditional study programs do not offer structured learning activities on a regular basis. This paper reports on the development and implementation of a web application and associated learning activities that intend to raise the awareness of reporting and communication issues among students in forensic science and law. The project covers interdisciplinary case studies based on a library of written reports about forensic examinations. Special features of the web framework, in particular a report annotation tool, support the design of various individual and group learning activities that focus on the development of knowledge and competence in dealing with reporting and communication challenges in the students' future areas of professional activity.

A forensic perspective of the AFL investigation into peptides: an antidoping investigation case study.

BACKGROUND: The World Anti-Doping Agency (WADA) is introducing enhancements to doping investigations in its 2015 Code, which include improved sharing of information between antidoping organisations (including sporting bodies) and enhanced accountability of athlete support staff. These additions will improve the control of links between sports doping and organised crime. In February 2013 the Australian Crime Commission released a report that linked several professional sporting codes, professional athletes with links to organised crime, performance enhancing drugs and illicit substances. Following this report the Australian Football League (AFL) partnered the Australian national antidoping organisation to investigate peptide use in Australian football. METHODS: This review compared the model proposed by Marclay, a hypothetical model for anti-doping investigations that proposed a forensic intelligence and analysis approach, to use the forensic capabilities of the AFL investigation to test the model's relevance to an actual case. RESULTS: The investigation uncovered the use of peptides used to enhance athlete performance. The AFL investigation found a high risk of doping where athlete support staff existed in teams with weak corporate governance controls. A further finding included the need for the investigation to provide a timely response in professional team sports that were sensitive to the competition timing. In the case of the AFL the team was sanctioned prior to the finals as an interim outcome for allowing the risk of use of performance-enhancing substances. Doping violation charges are still being considered. DISCUSSION: Antidoping strategies should include the investigation of corporate officers in team doping circumstances, the mandatory recording of all athlete substance use during competition and training phases, the wider sharing of forensic intelligence with non-sporting bodies particularly law enforcement and collaboration between antidoping and sporting organisations in doping investigations. CONCLUSIONS: The AFL investigation illustrated the importance of the 2015 WADA Code changes and highlighted the need for a systematic use of broad forensic intelligence activities in the investigation of doping violations.

Medical and legal professionals' attitudes towards confidentiality and disclosure of clinical information in forensic settings: a survey using case vignettes.

OBJECTIVE: When potentially dangerous patients reveal criminal fantasies to their therapists, the latter must decide whether this information has to be transmitted to a third person in order to protect potential victims. We were interested in how medical and legal professionals handle such situations in the context of prison medicine and forensic evaluations. We aimed to explore the motives behind their actions and to compare these professional groups. METHOD: A mail survey was conducted among medical and legal professionals using five fictitious case vignettes. For each vignette, participants were asked to answer questions exploring what the professional should do in the situation and to explain their justification for the chosen response. RESULTS: A total of 147 questionnaires were analysed. Agreement between participants varied from one scenario to another. Overall, legal professionals tended to disclose information to a third party more easily than medical professionals, the latter tending to privilege confidentiality and patient autonomy over security. Perception of potential danger in a given situation was not consistently associated with actions. CONCLUSION: Professionals' opinions and attitudes regarding the confidentiality of potentially dangerous patients differ widely and appear to be subjectively determined. Shared discussions about clinical situations could enhance knowledge and competencies and reduce differences between professional groups.

Lost in translation : euro-compatibility, legal security, and the autonomous implementation of EU law in Switzerland

This article presents the legislative and judicial practice relating to the "autonomous implementation" of EU law in Switzerland. Given that "euro-compatibility" is the central consideration behind this legislative policy, one would expect Swiss authorities to have devised legislative and hermeneutical techniques guaranteeing high fidelity to EU "mother law". That is not the case, however, and as this article shows much is lost in the translation from EU to Swiss Law

Compensation for environmental damages under international law

ABSTRACT The purpose of this research is to clarify the contribution of international dispute adjudication mechanisms in regard to environmental protection. Most specifically, the study aims to identify and develop the criterion adopted by the international judge in relation to the compensation for environmental damages. In this perspective, the study identifies some gaps between international responsibility and environmental protection interests. The premise sustained all along the study is that compensation is determinant to conciliate environmental prerogatives with mechanisms of international adjudication, in particular the system of international responsibility. Supported by the analysis of treaties, international decisions and secondary sources, the thesis defends the idea that some elements of international law allow the adjudicator to adapt the compensation to attend certain environmental interests, creating a new approach which was entitled 'fair compensation'. The antithesis of this approach is the idea that compensation in international law is limited exclusively to the strict reparation of the material losses incurred by the victim. As a synthesis, the study defends the specificity of environmental damages in relation to other kind of damages that are subject to compensation under international law. The measure upon which compensation for environmental damages could be classified as a specific type of damage under international law remains to be determined. The main conclusion of the study is that the existing standard of compensation defined by the theory and practice of international law is impossible to be strictly respected in cases involving environmental damages. This limitation is mainly due to the complexity of the notion of environment, which is constantly conflicting with the anthropologic view of legal theory. The study supports the idea that the establishment of a 'fair compensation' which takes into account the political, legal and technical context of the environmental damage, is the best possible approach to conciliate internationally responsibility and environmental interests. This could be implemented by the observance of certain elements by the international judge/arbitrator through a case-by-case analysis.

How to assign a likelihood ratio in a footwear mark case: an analysis and discussion in the light of R v T

This article analyses and discusses issues that pertain to the choice of relevant databases for assigning values to the components of evaluative likelihood ratio procedures at source level. Although several formal likelihood ratio developments currently exist, both case practitioners and recipients of expert information (such as judiciary) may be reluctant to consider them as a framework for evaluating scientific evidence in context. The recent ruling R v T and ensuing discussions in many forums provide illustrative examples for this. In particular, it is often felt that likelihood ratio-based reasoning amounts to an application that requires extensive quantitative information along with means for dealing with technicalities related to the algebraic formulation of these approaches. With regard to this objection, this article proposes two distinct discussions. In a first part, it is argued that, from a methodological point of view, there are additional levels of qualitative evaluation that are worth considering prior to focusing on particular numerical probability assignments. Analyses will be proposed that intend to show that, under certain assumptions, relative numerical values, as opposed to absolute values, may be sufficient to characterize a likelihood ratio for practical and pragmatic purposes. The feasibility of such qualitative considerations points out that the availability of hard numerical data is not a necessary requirement for implementing a likelihood ratio approach in practice. It is further argued that, even if numerical evaluations can be made, qualitative considerations may be valuable because they can further the understanding of the logical underpinnings of an assessment. In a second part, the article will draw a parallel to R v T by concentrating on a practical footwear mark case received at the authors' institute. This case will serve the purpose of exemplifying the possible usage of data from various sources in casework and help to discuss the difficulty associated with reconciling the depth of theoretical likelihood ratio developments and limitations in the degree to which these developments can actually be applied in practice.

Dépression, suicide assisté et vieillissement: cas clinique et commentaires = Depression, assisted suicide and ageing: case report and comments

L'hôpital de jour de psychiatrie de l'âge avancé du centre hospitalier universitaire Vaudois (CHUV), en Suisse, prend en charge ambulatoirement les personnes âgées souffrant de troubles psychiatriques. Cet article relate la première expérience de notre équipe d'une patiente qui est décédée à domicile via l'assistance au suicide alors qu'elle était suivie dans notre service pour un épisode dépressif sévère, de probables troubles cognitifs et un trouble de la personnalité émotionnellement labile de type borderline. Cette pratique d'assistance au suicide, autorisée par la loi suisse sous certaines conditions, est reprécisée et quelques directives médicoéthiques professionnelles sont présentées, avec un accent sur la capacité de discernement. © 2010 Elsevier Masson SAS. Tous droits réservés. The old age psychiatric daycare hospital of the Vaud University Hospital (CHUV), in Switzerland, follows up on elderly ambulatory patients with psychiatric disease. This article relates our team's first time experience with a patient who, while she was being treated in our unit for severe depression, cognitive symptoms and a borderline personality disorder, died at home via a suicide organization. Assisted suicide, allowed by the Swiss law, is also discussed in this article and, in addition, a few professional medico-ethics directives, with an emphasis on decision-making capacity are presented. © 2010 Elsevier Masson SAS. All rights reserved.

Three essays on major trends in a slow clockspeed industry : the case of industrial automation

The motivation for this research initiated from the abrupt rise and fall of minicomputers which were initially used both for industrial automation and business applications due to their significantly lower cost than their predecessors, the mainframes. Later industrial automation developed its own vertically integrated hardware and software to address the application needs of uninterrupted operations, real-time control and resilience to harsh environmental conditions. This has led to the creation of an independent industry, namely industrial automation used in PLC, DCS, SCADA and robot control systems. This industry employs today over 200'000 people in a profitable slow clockspeed context in contrast to the two mainstream computing industries of information technology (IT) focused on business applications and telecommunications focused on communications networks and hand-held devices. Already in 1990s it was foreseen that IT and communication would merge into one Information and communication industry (ICT). The fundamental question of the thesis is: Could industrial automation leverage a common technology platform with the newly formed ICT industry? Computer systems dominated by complex instruction set computers (CISC) were challenged during 1990s with higher performance reduced instruction set computers (RISC). RISC started to evolve parallel to the constant advancement of Moore's law. These developments created the high performance and low energy consumption System-on-Chip architecture (SoC). Unlike to the CISC processors RISC processor architecture is a separate industry from the RISC chip manufacturing industry. It also has several hardware independent software platforms consisting of integrated operating system, development environment, user interface and application market which enables customers to have more choices due to hardware independent real time capable software applications. An architecture disruption merged and the smartphone and tablet market were formed with new rules and new key players in the ICT industry. Today there are more RISC computer systems running Linux (or other Unix variants) than any other computer system. The astonishing rise of SoC based technologies and related software platforms in smartphones created in unit terms the largest installed base ever seen in the history of computers and is now being further extended by tablets. An underlying additional element of this transition is the increasing role of open source technologies both in software and hardware. This has driven the microprocessor based personal computer industry with few dominating closed operating system platforms into a steep decline. A significant factor in this process has been the separation of processor architecture and processor chip production and operating systems and application development platforms merger into integrated software platforms with proprietary application markets. Furthermore the pay-by-click marketing has changed the way applications development is compensated: Three essays on major trends in a slow clockspeed industry: The case of industrial automation 2014 freeware, ad based or licensed - all at a lower price and used by a wider customer base than ever before. Moreover, the concept of software maintenance contract is very remote in the app world. However, as a slow clockspeed industry, industrial automation has remained intact during the disruptions based on SoC and related software platforms in the ICT industries. Industrial automation incumbents continue to supply systems based on vertically integrated systems consisting of proprietary software and proprietary mainly microprocessor based hardware. They enjoy admirable profitability levels on a very narrow customer base due to strong technology-enabled customer lock-in and customers' high risk leverage as their production is dependent on fault-free operation of the industrial automation systems. When will this balance of power be disrupted? The thesis suggests how industrial automation could join the mainstream ICT industry and create an information, communication and automation (ICAT) industry. Lately the Internet of Things (loT) and weightless networks, a new standard leveraging frequency channels earlier occupied by TV broadcasting, have gradually started to change the rigid world of Machine to Machine (M2M) interaction. It is foreseeable that enough momentum will be created that the industrial automation market will in due course face an architecture disruption empowered by these new trends. This thesis examines the current state of industrial automation subject to the competition between the incumbents firstly through a research on cost competitiveness efforts in captive outsourcing of engineering, research and development and secondly researching process re- engineering in the case of complex system global software support. Thirdly we investigate the industry actors', namely customers, incumbents and newcomers, views on the future direction of industrial automation and conclude with our assessments of the possible routes industrial automation could advance taking into account the looming rise of the Internet of Things (loT) and weightless networks. Industrial automation is an industry dominated by a handful of global players each of them focusing on maintaining their own proprietary solutions. The rise of de facto standards like IBM PC, Unix and Linux and SoC leveraged by IBM, Compaq, Dell, HP, ARM, Apple, Google, Samsung and others have created new markets of personal computers, smartphone and tablets and will eventually also impact industrial automation through game changing commoditization and related control point and business model changes. This trend will inevitably continue, but the transition to a commoditized industrial automation will not happen in the near future.