By Jason Wilson
Forgive me if I’m late to the party on this one as the debate seems to have been going on for the last decade (at least in some circles). Last week Physorg posted about an article in the inaugural issue of WIREs Cognitive Science, titled “Neurolaw.” The following passage caught my attention:
One of the most controversial ways neuroscience is being used in the courtroom is through ‘mind reading’ and the detection of mental states. While only courts in New Mexico currently permit traditional lie detector, or polygraph, tests there are a number of companies claiming to have used neuroscience methods to detect lies. Some of these methods involve electroencephalography (EEG), whereby brain activity is measured through small electrodes placed on the scalp. This widely accepted method of measuring brain electrical potentials has already been used in two forensic techniques which have appeared in US courtrooms: brain fingerprinting and brain electrical oscillations signature (BEOS). Brain fingerprinting purportedly tests for ‘guilty knowledge,’ or memory of a kind that only a guilty person could have. Other forms of guilt detection, using functional magnetic resonance imaging (fMRI), are based on the assumption that lying and truth-telling are associated with distinctive activity in different areas of the brain. These and other potential forms of ‘mind reading’ are still in development but may have far-reaching implications for court cases.
A quick search of Westlaw unearthed a number of cases on “brain fingerprinting,” and for those courts squarely faced with the issue, the results appear to be similar:
Brain fingerprinting purports to measure certain patterns of brain activity to determine whether the person recognizes or does not recognize offered information, thus revealing what the person has stored in his or her brain. We agree with [the trial judge] that no authority exists in this jurisdiction to establish the reliability of such testing, and the results of any such testing would not be admissible in evidence. And, defendant did not proffer any competent expert opinion to establish the reliability of brain fingerprinting evidence. (Citations omitted.)
State v. Bates, No. 34-2007 (Sup. Ct. N.J. 2009) (unpub.; 3-23-09). Many of them cite to Harrington v. State, 659 N.W.2d 509, 516 n.6 (Iowa 2003), which characterized the process as “novel computer-based brain testing:”
This testing evidence was introduced through the testimony of Dr. Lawrence Farwell, who specializes in cognitive psychophysiology. Dr. Farwell measures certain patterns of brain activity (the P300 wave) to determine whether the person being tested recognizes or does not recognize offered information. This analysis basically “provide[s] information about what the person has stored in his brain.” According to Dr. Farwell, his testing of [the defendant] established that [the defendant]’s brain did not contain information about [the victim]’s murder. On the other hand, Dr. Farwell testified, testing did confirm that [the defendant]’s brain contained information consistent with his alibi.
It does not surprise me that I have been unaware of neuroscience developments as they related to guilt or innocence in the law, as I spend almost all of it in the civil arena. But I did find several helpful articles on the subject, one being a note from the Yale Journal of Law & Technology, Roberts, Everything New Is Old Again: Brain Fingerprinting & Evidentiary Analogy, 9 Yale J. L. & Tech. 234 (2007), another by Deborah W. Denno titled Crime & Consequences: Science & Involuntary Acts, 87 Minn. L. Rev. 269 (2002), and an article from the NYT by Jeffrey Rosen titled The Brain on the Stand. Unfortunately, in the time I alloted myself, I couldn’t find anything on fMRIs or other forms of “guilt detection.” This seems like an interesting area of the law, and I’ll be curious to see if it progresses beyond junk.
[Image (cc) laimagendelmundo]
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