(Recap: In last week’s Bulletin, we described the focus of our series, that of lie detection. This week’s post wraps up this series as if draws attention to lie detection evidence allowed– or more accurately– not yet allowed, in US courts.)
“There are basically three techniques (utilizing brain responses v. those that rely on a machine interpreting physical responses, i.e. the polygraph) that are currently used, and uncomfortably, the latter two, making their way into courts all over the world as “proof” of testimony veracity; NLP (neuro linguistic programming) , EEG (electroencephalogram) and the newest toy of the lie detection crowd: the fMRI (functional magnetic resonance imaging).” In Part I, we reviewed the oldest and most organic of the techniques: NLP, observing physical eye reactions of the defendant.
This week, we’ll look at:
Based on a court ordered EEG, the results were that ”Aditi Sharma…was charged with the murder of her former fiance Udit Bharati, based upon…brain scans that supposedly show she possessed first-hand memories of the murder.”
For what may be the first time, fMRI scans of brain activity have been used as evidence in the sentencing phase of a murder trial. Defense lawyers for an Illinois man convicted of raping and killing a 10-year-old girl used the scans to argue that their client should be spared the death penalty because he has a brain disorder.
(I specifically chose to spotlight the above case because of the considerable time that has transpired between when the fMRI test administered to the defendant in September, 2009, to the crimes he, allegedly, committed in 1983. Side note: fMRIs in the Illinois case were allowed in the sentencing phase simply to display the defendant’s continual, long term brain deterioration, not measurable guilt as determined by crime recreation.)
Best summed up by Stanford bioethicist, Henry (Hank) Greeley:
“As we enter more fully into the era of mapping and understanding the brain, society will face an increasing number of important ethical, legal and social issues raised by these new technologies,” Mr. Greely, the Stanford bioethicist, and his colleague Judy Illes wrote last year in the American Journal of Law & Medicine.
If brain scans are widely adopted, they said, “the legal issues alone are enormous, implicating at least the First, Fourth, Fifth, Sixth, Seventh and 14th Amendments to the U.S. Constitution.”
“At the same time,” they continued, “the potential benefits to society of such a technology, if used well, could be at least equally large.”
Certain, still truly untested methods (eeg, fmri, pet…) of lie detection yield very subjective results. Lie detection is not akin to DNA evidence. With these newer brain scanning techniques, there are too many factors that can cause false positives reactions (older memories, extremely empathetic predisposition…). We need to tread careful lest what is at best a strong supposition be allowed as hard evidence.
Brain Scan Lie-Detection Deemed Far From Ready for Courtroom
- By Alexis Madrigal
- June 1, 2010 |
A landmark decision has excluded fMRI lie-detection evidence from a federal court case in Tennessee.
The defense tried to use brain scans of the defendant to prove its client had not intentionally defrauded the government. In a 39-page opinion, Judge Tu Pham provided both a rebuke of this kind of fMRI evidence now, and a roadmap for how future defendants may be able to satisfy the Daubert standard, which governs the admissibility of scientific evidence.
Update December, 2011. The above TN decision remains the national standard. As of today’s post, no US court has allowed fMRIs to be used as evidence in the guilt or innocence of a defendant or truthfulness of a plaintiff or witness.
We will keep monitoring this specific situation.
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Filed under: Lie Detection | Tagged: Brain, court, eeg, fmri, Functional magnetic resonance imaging, greeley, Illinois, india, Judy Illes, lie, lie detection, Magnetic resonance imaging, murder, Neuro-linguistic programming, Neuroimaging, stanford, Stanford University | Leave a Comment »