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A Brave New World of Interrogation Jurisprudence?

Published online by Cambridge University Press:  06 January 2021

Sean Kevin Thompson
Sean Kevin Thompson*
Affiliation:
Philosophy and Political Science, Boston College, International Relations, London School of Economics and Political Science, Cornell Law School, International and Comparative Law, Cornell Law School, Cravath, Swaine & Moore LLP
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Extract

I doubt that the uneasiness about electrical lie detectors would disappear even if they were refined to place their accuracy beyond question. Indeed, I would not be surprised if such a development would only heighten the sense of unease and the search for plausible legal objections.

We are told that functional magnetic resonance imaging (fMRI) is “not ready for use, despite optimism about its commercial potential.” This is probably true—it is also, in terms of legal analysis, irrelevant. Although the development of fMRI technology is still in its relative infancy, there is no guarantee that the law governing its use will wait for it to grow up. Thus, the recent backlash against the initial flurry of articles, both academic and general, on the promise and legal issues surrounding fMRI is unwarranted. The conclusion that so many—even many of the contributors to this volume—seem to be drawing, namely, that law, as a field, must abstain from analyzing the legal implications of fMRI until those with more scientific expertise deem it ready to look at, is at best wrong and, at worst, irresponsible.

Type
Article
Information
American Journal of Law & Medicine , Volume 33 , Issue 2-3 , June 2007 , pp. 341 - 357
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2007

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References

1 State v. Lyon, 744 P.2d 231, 238 (Or. 1987) (Linde, J., concurring).

2 See Emilio Bizzi, Letter to the Editor, The Brain on the Stand, N.Y. Times, Mar. 25, 2007, (Magazine) (the author organized a symposium at the American Academy of Arts and Sciences on the use of functional M.R.I. technology to detect lying), available at http://www.nytimes.com/2007/03/25/magazine/25letters.t-1.html?ex=1176264000&en=2930b2eef6515396&ei=5070.

3 See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 430-31 (1984). Decided over twenty years ago, before the rise of digital copying, Sony has become perhaps the leading case in the most technologically advanced copyright litigations, ranging from file sharing to hard-drive-based personal video recorder technology.

4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

5 Id.

6 McCall, James R., Misconceptions and Reevaluation - Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363, 369, 397 (1996).Google Scholar

7 See Townsend v. Sain, 372 U.S. 293, 308 (1963).

8 See McCall, supra note 6, at 368 (“During the fifty years between Frye and the 1974 adoption of the Federal Rules of Evidence, the theory and practice of polygraphy changed dramatically”).

9 See, e.g., United States v. Frogge, 476 F.2d 969, 970 (5th Cir. 1970) (“[T]he rule is well established in federal criminal cases that the results of a lie detector test are inadmissible.”).

10 See Andy Coghlan & James Randerson, How Far Should Fingerprints be Trusted?, NewScientists (Sept. 19, 2005) (“No one disputes that fingerprinting is a valuable and generally reliable police tool, but despite more than a century of use, fingerprinting has never been scientifically validated.”) http://www.newscientist.com/article.ns?id=mg18725174.500 (last visited July 27, 2007).

11 See, e.g., Gross, Samuel R. et al., Exonerations in the United States, 1989 through 2003, 95 J. Crim. L. & Criminology 2 (2005)Google Scholar (noting that mistaken eyewitness identifications was the predominant reason for exonerations for rape); Loftus, G. R. & Harley, E.M., , E.M., Why It's Easier to Identify Someone Close Than Far Away, 12 Psychonomic Bull. & Rev. 43 (2005).CrossRefGoogle Scholar

12 See, e.g., Resinger, Michael D. & Loop, Jeffrey L., Three Card Monte, Monty Hall, Modus Operandi and Offender Profiling: Some Lessons of Modern Cognitive Science for the Law of Evidence, 24 Cardozo L. Rev. 193, 195 (2002-2003)Google Scholar (“The law is, all thing being equal, a profoundly conservative enterprise.”).

13 See Robinson, Richard, fMRI Beyond the Clinic: Will It Ever Be Ready for Prime Time?, 2 PLoS Biology e150 (2004)CrossRefGoogle ScholarPubMed, (“To understand the potential, and the limitations, of fMRI, it's helpful to know how the technique works.”) (emphasis added), available at http://biology.plosjournals.org/perlserv?request=get-document&doi=10.1371/journal.pbio.0020150.

14 See generally People v. Castro, 545 N.Y.S.2d 985 (Sup. Ct. 1989).

15 Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times, Mar. 19, 2007, at A8.

16 See Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

17 U.S. Const. amend. V.

18 Id.

19 See Schmerber v. California, 384 U.S. 757 (1965).

20 See Doe v. United States, 487 U.S. 201 (1988).

21 Id.

22 Pennsylvania v. Muniz, 496 U.S. 582, 587 (1990).

23 Doe, 487 U.S. at 210.

24 Id. at 214.

25 Id. at 213.

26 United States v. Wade, 388 U.S. 218 (1967).

27 Gilbert v. California, 388 U.S. 263 (1967).

28 United States v. Dionisio, 410 U.S. 1 (1973).

29 Pennsylvania v. Muniz, 496 U.S. 582 (1990).

30 Id.

31 Holt, 218 U.S. at 245.

32 United States v. Wade, 388 U.S. 218 (1967).

33 Muniz, 496 U.S. at 582.

34 Schmerber, 384 U.S. at 757.

35 Id. at 760-65.

36 See Jeffrey Rosen, Roberts v. the Future, N.Y. Times, Aug. 28. 2005, § 6, at 24, available at http://www.nytimes.com/2005/08/28/magazine/28ROBERTS.html?ex=1282881600&en=07565b5ccd654b0c&ei=5090&partner=rssuserland&emc=rss.

37 Faye Flam, Your Brain May Soon Be Used Against You, Phila. Inquirer, Oct. 29, 2002, at A01.

38 Id.

39 Id.

40 Id.

41 See, e.g., Doe, 487 U.S. at 213 (“The vast majority of verbal statements thus will be testimonial” because “[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.”).

42 United States v. Nobles, 422 U.S. 225, 233 (quoting Couch v. United States, 409 U.S. 322, 327 (1973)).

43 See Ullmann v. United States, 350 U.S. 422, 428 (1956).

44 The “actual” original justification for the privilege is subject to a great deal of dispute, which I will not examine here. A number of different theories can be proffered to account for its existence, however, more recent scholarship suggests that the cruel trilemma is likely the “original American justification.” See Pizzi, William T. & Hoffman, Morris B., Taking Miranda's Pulse, 58 Vand. L. Rev. 813, 843 (2005).Google Scholar

45 See Muniz, 496 U.S. at 596.

46 Id.

47 See, e.g., Kastigar v. United States, 406 U.S. 441, 461 (1972).

48 Reck v. Pate, 367 U.S. 433, 440 (1961).

49 Blackburn v. Alabama, 361 U.S. 199, 208 (1960).

50 Geneva Convention Relative to the Treatment of Prisoners of War art. 17, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (providing that “[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.”).

51 See, e.g., Ireland v. United Kingdom, 2 Eur. Ct. H.R. (ser. A) 25, 106-08 (1978) (noting that the difference in pain intensity was the primary distinction between different violations of international law).

52 See Dep't of the Army, Field Manual 34-52: Intelligence Interrogation 1-8 (1992) (noting that coercion revolve[s] around eliminating the source's free will). Field Manual 2-22.3: Human Intelligence Collector Operations, a revised interrogation manual apparently designed to allow for the use of enhanced interrogation techniques, has made this manual obsolete. See Dep't of the Army, Field Manual 2-22.3: Human Intelligence Collector Operations (2006).

53 See Doe v. United States, 487 U.S. 201, 210 (1988).

54 See Bandettini, Peter A. & Ungerleider, Leslie G., From Neuron to BOLD: New Connections, 4 Nature: Neuroscience 864, 864 (2001).Google ScholarPubMed

55 Schmerber v. California, 384 U.S. 757, 765 (1965).

56 Id.

57 See Michael S. Pardo, Neuroscience Evidence, Legal Culture, and Criminal Procedure 45 (June 21, 2006), (unpublished working paper, on file with Social Science Research Network Electronic Paper Collection), available at http://ssrn.com/abstract=910958.

58 Schmerber, 384 U.S. at 763.

59 The Warren Court's “revolution” in the realm of civil rights and civil liberties quite likely peaked at the close of Warren's term and began a rapid decline immediately thereafter. See, e.g., Tushnet, Mark, Observations on the New Revolution in Constitutional Criminal Procedure, 94 Geo. L.J. 1627, 1628 (2006).Google Scholar

60 Andresen v. Maryland, 427 U.S. 463, 485 (1976) (Brennan, J., dissenting).

61 Leonard W. Levy, Origins of the Fifth Amendment (1968).

62 Id.

63 Id.

64 See, e.g., R.H. Helmholz, et. al., The Privilege against Self-Incrimination: Its Origins and Development (1997).

65 See Regina v. Edmund Garbett, 169 Eng. Rep. 227, 235 (1847).

66 See David J. Bodenhamer, Book Review, 42 Am. J. Legal Hist. 419, 420 (1998); Albert W. Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege against Self-Incrimination: Its Origins and Development 184 (1997).

67 See generally Allen, Ronald J. and Mace, M. Kristen, The Self-Incrimination Clause Explained and its Future Predicted, 94 J. Crim. L. & Criminology 243 (2004)CrossRefGoogle Scholar (exploring the relationship between the Court's decisions in United States v. Hubbell and Fisher v. United States), Dolinko, David, Is There a Rationale for the Privilege Against Self-Incrimination?, 33 UCLA L. Rev. 1063 (1986)Google Scholar (arguing that “neither appeal to the goals of the criminal justice system nor invocation of broad notions of human rights can justify the privilege against selfincrimination”); Dripps, Donald A., Foreword: Against Police Interrogation—And the Privilege Against Self-Incrimination, 78 J. Crim. L. & Criminology 699, 711-18 (1988)CrossRefGoogle Scholar; Friendly, Henry J., The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671 (1968).Google Scholar

68 See Hoffman, David A., The Best Puffery Article Ever, 91 Iowa L. Rev. 1395, 1417 (2006).Google Scholar

69 See, e.g., Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001) (“Given the danger to the safety of the United States and the nature of international terrorism … I [the President] find … that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts”). Courts-Martial must be conducted according to the Military Rules of Evidence. Exec. Order No. 12,473, 49 Fed. Reg. 17,152 (Apr. 23, 1984). Subject to some statutory restrictions, however, see 10 U.S.C. § 836, the President may establish procedural and evidentiary rules that he deems appropriate in trials by military commission. In re Yamashita, 327 U.S. 1, 18 (1946).

70 538 U.S. 760, 770 (2003).

71 See County of Sacramento v. Lewis, 523 U.S. 833, 861 (1998) (Scalia, J., concurring).

72 See, e.g., Coles v. Trecothlike, (1804) 32 Eng. Reprint 592 597 (K.B.) (“Unless the inadequacy of price is such that it shocks the conscience and amounts in itself as conclusive evidence of fraud in the transaction, it is not sufficient ground for refusing specific performance.”).

73 And, indeed, the Court has, at times, enunciated a wide array of standards (“arbitrary and irrational”, “conscience-shocking”, “fundamentally unfair and unjust”, “particularly harsh or oppressive” and “arbitrary in the constitutional sense”) which it appears to regard as signifying the same legal test.

74 Lewis, 523 U.S. at 846.

75 See, e.g., Dean Barnett, FAQ—Torture!, Hugh Hewitt: A Blog of Townhall.com, Sept. 29, 2006, http://hughhewitt.townhall.com/g/423c041f-0328-4f23-a9c1-86a4ebc6cfea (“When it comes to high value targets in the war on terror, wannabe evil-doers who possess or might possess important information, I support any measures necessary to extract that information.”).

76 Lewis, 523 U.S. at 847.

77 Breithaupt v. Abram, 352 U.S. 432, 436 (1957).

78 Lewis, 523 U.S. at 849.

79 Obviously there will be simple cases of rage or entirely irrational deployments of extreme tactics, but those would continue to be captured under even Justice Thomas's formulation of the test.

80 See Breithaupt, 352 U.S. at 441 (Warren, C.J., dissenting).

81 Id.

82 Id.

83 Cf. Breithaupt, 352 U.S. at 436.

84 342 U.S. 165 (1952).

85 Id.

86 See, e.g., Breithaupt, 352 U.S. at 436-38 (allowing an involuntary blood test on an unconscious suspect in a clinical environment).

87 See Chavez v. Martinez, 538 U.S. 760, 775 (2003) (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

88 Id.

89 See Center for Cognitive Liberty & Ethics, Brain Fingerprinting Criticism, http://www.cognitiveliberty.org/issues/mental_surveillance.htm (last visited July 27, 2007).

90 Breithaupt, 352 U.S. at 436.

91 See Francis Crick & Christof Koch, The Problem of Consciousness, Sci. Am., Sept. 1992, at 153, 153–59; see also Gerald D. Fischbach, Mind and Brain, Sci. Am., Sept. 1992, at 48, 48 (describing the mind as “a collection of mental processes”).

92 See J.K. Rowling, Harry Potter and the Goblet of Fire (2000).

93 See, e.g., Goldberg, Steven, Gene Patents and the Death of Dualism, 5 S. Cal. Interdisc. L.J. 25, 36 (1996).Google ScholarPubMed

94 See I think, therefore I am, I think: Consciousness Awaits its Einstein, The Economist: A Survey of the Brain, Dec. 23, 2006, at 11 (noting that “consciousness … is the most elusive concept in biology), available at http://www.ljseek.com/the-economist-on-the-brain-and-neuroscience_188950292.html#brain5.

95 See Wright, George R., Death Penalty and the Way We Think Now, 33 Loy. L.A. L. Rev. 533, 546 (1999-2000)Google Scholar (citing Michael Lockwood, Mind, Body and the Quantum 1 (1989) “One must avoid the mistake of thinking that this is simply a matter of scientists not yet knowing enough about how the brain functions, in psycho-chemical terms. For it seems clear that more knowledge of the same kind that neuroscience currently offers could not—in principle could not—shed any further light on the fundamental problem that consciousness raises.”).

96 744 P.2d 231 (Or. 1987).

97 Id.

98 See id. at 238.

99 See Kaganiec, Henry J., Lie Detector Tests and “Freedom of the Will” in Germany, 51 Nw. U. L. Rev. 446 (1956)Google Scholar; Silving, Helen, Testing of the Unconscious in Criminal Cases, 69 Harv. L. Rev. 683 (1956)CrossRefGoogle Scholar.

100 See Lyon, 744 P.2d at 240.

101 Id.

102 Id.

103 Id.

104 See, e.g., McCall, James R., The Personhood Argument Against Polygraph Evidence, Or “Even If the Polygraph Really Works, Will Courts Admit the Results?”, 49 Hastings L.J. 925, 941-43 (1998)Google Scholar (criticizing Linde's personhood argument).