Task 7

Question 1

1) What are the possibilities and (scientific) limitations regarding the use of neurotechnologies for lie detection in the courtroom? Is there any relevant difference between the use fMRI and the P300 Guilty Knowledge test in this regard?

Answer 1

• No consistency of results across laboratories and tasks
• Experimental confounds and person related specificity effect
• Inferences about individual subjects can’t be made
• Differences between lies in the laboratory and in real life (often more emotional)
• Countermeasures
• Ecological validity (degree to which study looks like real world scenario)

Question 2

2) Do you see any room for brain-based lie detection in the current legal system? What do you consider problematic in terms of validity and reliability?

Answer 2

Potential application of fMRI-based lie detection is the truthfulness of legal testimony. Judges should take science into consideration if (Frye and Daubert criteria)Used in federal court:

1. Method is testable and has been tested
2. Has been reported in peer-reviewed publications
3. There is a known error rate
4. There are standards for the way in which the method is used
5. Method is generally accepted within the relevant scientific community (not given for fMRI-based lie detection as shown in cases)

Right now, fMRI-lie detection has not been accepted as evidence in court yet but with further testing, development, peer review, and more acceptance by the scientific community, this methodology may be found to be admissible (even if no error rate is given)

Ecological validity – measure of how well the lab conditions mimic real-world situations
External validity – measure of the ability to generalize about lab findings to the population of individual of interest
 In every legal context in which brain-scan evidence is offered, courts must inquire about ecological and external validity

Question 3

3) What were some of the legal issues in the famous United States vs. Semrau case?

Answer 3

a) Background
- Government charged psychologist Dr. Lorne Semrau with Medicare fraud
- Semrau stated that he had not knowingly engaged in prohibited billing practices
- Semrau did fMRI-based lie detection which results were
1. Test 1: Brain showed that he was telling the truth
2. Test 2: He was lying when he said he was telling the truth (uncomfortable finding)
3. Test 3: he was telling the truth when he said that he was telling the truth
- The truth of Semrau´s statements about mental states is distinct from the fact relevant to the case: Semrau´s actual mental states at the time of the billing
b) The admissibility of the evidence
- Court excluded the lie detection data based on the violation of Daubert standards (known error rate + acceptance in scientific community)
- Judges conclude that maybe in the future these techniques may pass the Daubert standards and may be used in court
- However, legal change might come from legislative action rather than a judge´s chambers
One state has a state legislator who has proposed a modification to state law that would excludes certain types of brain-based lie detection evidence from being admissible in certain situations

Question 4

4) How do you look at brain-based lie detection in the light the so-called privilege against self-incrimination (both in US and European human rights law)?

Answer 4

Fifth amendment
For protection evidence must be:
1 incriminating, yes NLBD can be used in criminal prosecution
2 compelled, yes forcing a defendant to NBLD is compulsion
3 testemonial, is brain evidence testemonial or physical?

testemonial evidence requires communication

polygraph and fmri would seem to fall under protection because it needs communication

CIT/GKT not

But brain waves are just physical and do not seem like testimony.

Article 6:
right not to incriminate oneself. rights protect only will-dependant material (compulsory powers may be used).
Will dependant (nature of material): spoken words.
Means based approach becomes more important (communication). Still violation even for will-independant materials if cooperation is needed. > Fishing expeditions.

Nature of material approach:
FMRI will dependant information so protected
p300 will independant so not protected

Means approach:
fmri communication is required so protected
p300 different views

Question 5

5) In what way do legally required brain scans really differ from traditional forms of bodily evidence which commonly include fingerprints and blood samples?

Answer 5

To get brain scans communication with the defendant is needed

Question 6

6) Do you consider a compelled use of neurotechnological lie detection to be a violation of the right of privacy?

Answer 6

Compulsion does not only mean physical compulsion but compulsion may also arise from threats of charges for non-compliance.

A probable cause and warrant is required. Reasonable expectations of privacy apply to deatils about brain activity as much as details about blood, urine, homes etc.

Question 7

7) Do the implications of emerging neurotechnologies in the context of European human rights suggest that existing human rights may not be sufficient to respond to these emerging issues?

Answer 7

Current framework of European Human Rights does not universally prohibit the use of non-consensual brain-reading in criminal justice: particular brain-reading applications could be lawful
There are arguments for recognizing a right to mental privacy that would provide fuller protection against non-consensual forensic brain-reading