Offering Neurotechnology to Defendants: On Vulnerability, Voluntariness, and Consent

In the near future, neurotechnologies are expected to be increasingly applied in criminal justice. Such neurotechnologies could “read” or modify the brain and may be helpful in evaluations of insanity or the prediction and prevention of a defendant reoffending. Such techniques could also be offered to defendants in return for milder sentences. Meanwhile, employing far-reaching neurotechnologies in criminal justice without valid informed consent is likely to infringe on a range of fundamental rights, such as the right to privacy, mental integrity, and freedom of thought. Consequently, obtaining valid consent is crucial. However, concerns have been raised about the voluntariness - and therefore validity - of a defendant’s consent because of his/her vulnerable position. In philosophy, offers in certain situations of vulnerability have been called “coercive offers” - and the coerciveness could render consent invalid. In this chapter, we consider the question of the validity of the defendant’s consent regarding the offer of far-reaching neurotechniques, in particular, if the offer is connected to a milder sentence. We discuss the defendant’s vulnerability in relation to legal and ethical concepts such as coercion, exploitation, and manipulation. We conclude by identifying the implications of this discussion for potential infringements of the defendant’s fundamental rights when neurotechnologies are offered.