Orwellian fears of mass-government use of neurotechnologies and the rise of a “thought police'' are seemingly moving beyond fiction to the status quo. Novel neurotechnological applications have emerged in the courtroom, in public policy decision-making, and even in legal education through conferences and coursebooks. Municipalities are aware of this move: they have actively funded it. Sustaining this proliferation is millions of dollars worth of research grants from government agencies like The John D. and Catherine T. MacArthur Foundation. [1] Yet, these investments are not without reason. The current applications of neuroimaging technologies—namely fMRI, EEG, and PET scan evidence—are extensive and versatile when verifying the credibility of witness testimony. From proof of inability to waive Miranda rights to inability to form criminal intent, as well as evidence that certain plaintiffs are still experiencing pain after their accidents, the possibilities are endless. [2] The most recent development, the P300 EEG response tool, is already in use by the CIA, though details surrounding usage are currently undisclosed. [3]
Read More
Although jurors are tasked as fact-finders in deciding criminal cases, the human brain is not inherently proficient in discerning truth-telling behavior. A 1991 study, for instance, revealed that Secret Service personnel were only able to detect liars about sixty-four percent of the time. Laypersons, who primarily comprise juries, fared worse, with accuracy rates no better than chance. Technology has attempted to fill this void by developing lie-detecting tests. However, from Lombroso’s 1895 pulse and blood pressure readings to Larson’s 1921 polygraph test, all existing pieces of technology have faced reliability concerns. Specifically, the scientific field of polygraph research likely will never progress far enough, as the “inherent ambiguity of the physiological measures” stifles any hope for improvement through further experimentation. To address these criticisms, functional magnetic resonance imaging (fMRI) has taken center.
Read More