Hostname: page-component-78c5997874-8bhkd Total loading time: 0 Render date: 2024-11-20T04:37:32.276Z Has data issue: false hasContentIssue false
  • English
  • Français

Emerging Neurotechnologies for Lie Detection and the Fifth Amendment

Published online by Cambridge University Press:  06 January 2021

Sarah E. Stoller  and
Paul Root Wolpe
Get access Rights & Permissions [Opens in a new window]

Extract

The development of a successful lie detector has been a dream of governments and law enforcement since ancient times. A Hindu Veda written around 900 B.C.E. suggests a strategy for detecting lying behavior in suspects:

A person who gives poison may be recognized. He does not answer questions, or they are evasive answers; he speaks nonsense, rubs the great toe along the ground, and shivers; his face is discolored; he rubs the roots of the hair with his fingers; and he tries by every means to leave the house … .

Six hundred years later, the Greeks were attempting to detect lies by feeling the suspect's pulse. What is interesting about both the early Hindu and Greek examples is that the methods employed were empirical; the interrogators were looking for physiological changes in the body that corresponded to the mental state in question.

Type
Article
Information
American Journal of Law & Medicine , Volume 33 , Issue 2-3 , June 2007 , pp. 359 - 375
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Trovillo, Paul V., History of Lie Detection, 29 Am. Inst. Crim. L. & Criminology 848, 849 (1939).Google Scholar

2 Id.

3 See Fisher, George, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 585-86 (1997).CrossRefGoogle Scholar

4 See, e.g., Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 8 n.18 (1985) (describing ordeals such as those involving the ordeal of drowning and hot-irons).

5 Fisher, supra note 3, at 577.

6 See Am. Polygraph Ass’n, Validity and Reliability of Polygraph Testing, http://www.polygraph.org/validityresearch.htm (last visited Feb. 26, 2007). See also Muenster, Kevin, Note and Comment, The Re-Lie-ability of Polygraph Evidence: An Evaluation of Whether Texas's Per Se Rule Against the Admissibility of Polygraph Evidence is Violative of the Texas Rules of Evidence, 58 Baylor L. Rev. 265, 281 (2006)Google Scholar (stating that “[e]ven skeptics of the polygraph who attempt to diminish the test's reliability place polygraph accuracy at seventy percent.”).

7 Ekman, Paul & O’Sullivan, Maureen, Who Can Catch A Liar?, 46 Am. Psychol. 913, 913 (1991).CrossRefGoogle ScholarPubMed

8 Wolpe, Paul R. et al., Emerging Neurotechnologies for Lie-Detection: Promises and Perils, 5 Am. J. Bioethics 39, 39 (2005)CrossRefGoogle ScholarPubMed (stating that “[f]or the first time, using modern neuroscience techniques, a third party can, in principle, bypass the peripheral nervous system-the usual way in which we communicate information-and gain direct access to the seat of a person's thoughts, feelings, intention, or knowledge.”).

9 See, e.g., Kozel, F. Andrew et al., Detecting Deception Using Functional Magnetic Resonance Imaging, 58 Biological Psychiatry 605, 611 (2005)CrossRefGoogle ScholarPubMed (stating that with the use of an fMRI, “it is possible to detect deception within cooperative individuals.”).

10 Id.

11 Izzetoglu, Meltem et al., Functional Near-Infrared Neuroimaging, 13 IEEE Transactions on Neural Systems Rehabilitation Engineering 153, 153-59 (2005).CrossRefGoogle ScholarPubMed

12 Pollina, Dean A. et al., Facial Skin Surface Temperature Changes During a “Concealed Information” Test, 34 Annnals Biomedical Engineering 1182, 1182 (2006).CrossRefGoogle ScholarPubMed

13 See, e.g., Daniel D. Langleben et al., 15 NeuroImage 722, 722 (2002).

14 Editorial, What's on Your Mind?, 9 Nature Neuroscience 981, 981 (2006)CrossRefGoogle Scholar (stating that “[c]onventional neuroimaging analysis correlates external regressors such as task condition with activity in specific brain areas.”).

15 Id.

16 Id.

17 See Izzetoglu et al., supra note 11, at 153.

18 Id.

19 See id.

20 Pearson, Helen, Lure of Lie Detectors Spooks Ethicists, 441 Nature 918, 918-19 (2006).Google Scholar

21 Wolpe et al., supra note 8, at 41.

22 See id.

23 See id.

24 Id.

25 Foster, Kenneth R. et al., Bioethics & the Brain, 40 IEEE Spectrum 34, 34 (2003).CrossRefGoogle Scholar

26 Knight, Jonathan, The Truth About Lying, 428 Nature 692, 692-94 (2004)CrossRefGoogle ScholarPubMed; Brain Fingerprinting Laboratories: Scientific Procedure, Research, and Applications, http://www.brainwavescience.com/TechnologyOverview.php (last visited June 18, 2007).

27 Knight, supra note 26, at 692-694; Brain Fingerprinting Laboratories, supra note 26.

28 Knight, supra note 26, at 692-694; Brain Fingerprinting Laboratories, supra note 26.

29 Knight, supra note 26, at 692-694; Brain Fingerprinting Laboratories, supra note 26.

30 Knight, supra note 26, at 692-694; Brain Fingerprinting Laboratories, supra note 26.

31 Brain Fingerprinting Laboratories, supra note 26.

32 Id.

33 Foster et al., supra note26, at 36.

34 Id.

35 Knight, supra note 26, at 693.

36 Brain Fingerprinting Laboratories: Research and Summary Information, http://www.brainwavescience.com/research.php (last visited June 18, 2007).

37 Interview by Brain Fingerprinting Laboratories with Dr. Lawrence Farwell, http://www.brainwavescience.com/FreqAskedQuestions.php (last visited June 18, 2007).

38 See generally Brain Fingerprinting Laboratories: Scientific Procedure, Research, and Applications, http://www.brainwavescience.com/TechnologyOverview.php (last visited June 18, 2007) (describing general information about brain science).

39 Foster, supra note 25, at 34-39.

40 See Brain Fingerprinting Laboratories, http://www.brainwavescience.com/research.php, (last visited June 18, 2007) (“Scientific studies, field tests and actual criminal cases involving over 175 individuals described in various scientific publications and technical reports by Dr. Lawrence A. Farwell have verified the extremely high level of accuracy, utility, cost-effectiveness, and overall credibility of the Brain Fingerprinting system.”)

41 Wolpe, supra note 8, at 39, 44-45.

42 Id. at 42.

43 Knight, supra note 26, at 692-94.

44 Rosenfeld, J. Peter, et al., Simple, Effective Countermeasures to P300-based Tests of Detection of Concealed Information, 41 Psychophysiology 205, 205-219 (2004).CrossRefGoogle ScholarPubMed

45 Knight, supra note 26. See Foster, supra note 25.

46 659 N.W.2d 509 (Iowa 2003).

47 Wolpe, et al., supra note 8, at 43.

48 Illes, Judy & Racine, Eric, Imaging or Imagining? A Neuroethics Challenge Informed by Genetics, 5 Am. J. Bioethics 5, 18 (2005).CrossRefGoogle ScholarPubMed

49 Wolpe, et al., supra note 8, at 43.

50 Interestingly, however, the brain fingerprinting results may have had some bearing on the case. When confronted with the test results, a key witness recanted his testimony and admitted that he had falsely accused Harrington of committing the crime, thus playing a role in the reversal of the district court's decision. Illes & Racine, supra note 48, at 18 (citing Harrington v. Iowa, 659 N.W.2d 509 (Iowa 2003)).

51 See, e.g., Foster et. al., supra note 25 (discussing technological advancement in NTLD).

52 U.S. Const. amend. V.

53 John B. Taylor, The Right to Counsel and Privilege against Self-Incrimination 16-17 (ABC-CLIO, Inc. 2004).

54 Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964) (stating that our fundamental values include an unwillingness to subject those accused of crime to the cruel trilemma of self accusation, perjury, or contempt).

55 Taylor, supra note 53, at 16-19. Allen, Ronald J. & Mace, M. Kristin, The Self-Incrimination Clause Explained and Its Future Predicted, 94 J. Crim. L. & Criminology 243, 245 (2004).CrossRefGoogle Scholar

56 Allen & Mace, supra note 55, at 245. For a discussion of the proposed rationales and their shortfalls, see Taylor, supra note 53, at 16-19.

57 See, e.g., Schmerber v. California, 384 U.S. 757, 764 (1966) (“The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications or ‘testimony,’ but that compulsion which makes a suspect the source of “real or physical evidence” does not violate it.”).

58 For example, during Brain Fingerprinting, instead of presenting the suspect with target stimuli to which he has been told to pay attention, the targets might consist of previously collected images that the test-givers know the suspect will find salient, such as a photograph of his apartment building. The suspect, hooked up to EEG sensors, would then be asked to look at the computer screen without having to press a button indicating whether or not he found the stimulus salient. His brainwaves would be recorded, and, presumably, one could determine whether the brainwaves in response to the probes more closely resembled those in response to the irrelevants or the targets. If they more closely resembled the brainwaves in response to the targets, the implication would be that he found the probes salient.

59 Griswold, Erwin N., The 5th Amendment Today: Three Speeches 3 (Harvard University Press 1955).CrossRefGoogle Scholar See also Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990) (stating that the Star Chamber operated by forcing suspects to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury).

60 Allen & Mace, supra note 56, at 261; Murphy, 378 U.S. at 55.

61 Seidman, Louis M., Points of Intersection: Discontinuities at the Junction of Criminal Law and the Regulatory State, 7 J. Contemp. Legal Issues 69, 130-131 (1996).Google Scholar

62 See generally O’Neill, Michael Edmund, Undoing Miranda, 2000 B.Y.U. L. Rev. 185, 185 (2000)Google Scholar (discussing variations in the Supreme Court's application of the self-incrimination doctrine). See also Taylor, supra note 53, at 16.

63 See Muniz, 496 U.S. at 594.

64 Id. at 582.

65 Id. at 593 (emphasis added).

66 384 U.S. 757 (1966).

67 Id. at 765.

68 Muniz, 496 U.S. at 593.

69 Brent Garland, Neuroscience and the Law: Brain, Mind, and the Scales of Justice 66 (2004).

70 Taylor, supra note 53, at 18-19.

71 Id. at 19.

72 Allen & Mace, supra note 56, at 246-47.

73 Id. at 266-67.

74 Doe v. United States, 487 U.S. 201, 210 n.9 (1988) (stating that they do not disagree with the dissent on this point).

75 409 U.S. 322 (1973).

76 Id. at 327.

77 Schmerber, 384 U.S. at 764.

78 Fisher v. United States, 425 U.S. 391, 417 (1976).

79 Dery, George M., Lying Eyes: Constitutional Implications of New Thermal Imaging Lie Detection Technology, 31 Am. J. Crim. L. 217, 248 (2004).Google Scholar

80 It might also be noted that Justice Brennan is sometimes out of line with the majority in terms of his views on the proper scope of the Fifth Amendment. See, e.g., Fisher v. United States, 425 U.S. 391, 420 (1976).

81 New York City Bar Association, The Committee on Science and Law, Are Your Thoughts Your Own? ‘Neuroprivacy’ and the Legal Implications of Brain Imaging (2005) (citing Harrington v. Iowa, 659 N.W.2d 509 (Iowa 2003)), http://www.abcny.org/pdf/report/Neuroprivacy-revisions.pdf.

82 Hogle, Linda F., Enhancement Technologies and the Body, 34 Ann. Rev. Anthropology 695, 709 (2005).CrossRefGoogle Scholar

83 Garland, supra note 69, at 34.

84 Henry T. Greely, Neuroethics and ELSI: Some Comparisons and Considerations (2004), http://perpich.com/neuroed/archive/139.pdf (last visited June 18, 2007).

85 Major Talks on Addiction, Neuroethics, and Depression Highlight Neuroscience 2003, Neuroscience Q. (Winter 2004), http://web.sfn.org/index.cfm?pagename=neuroscienceQuarterly_04winter_neuroscience.

86 Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964).

87 Stuntz, William J., Self-Incrimination and Excuse, 88 Colum. L. Rev. 1227, 1234 (1988).CrossRefGoogle Scholar

88 Id. at 1236.

89 Seidman, supra note 61, at 131.

90 Id.

91 Id. at 132.

92 Id.

93 Allen & Mace, supra note 56 at 263 (quoting Dann, B. Michael, The Fifth Amendment Privilege against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S. Cal. L. Rev. 597, 598, 611 (1970)).Google Scholar

94 See generally Sheperd, Lois, Sophie's Choices: Medical and Legal Responses to Suffering, 72 Notre Dame L. Rev. 103, 103 (1996)Google Scholar (explaining the story behind the phrase “Sophie's Choice”).

95 Allen & Mace, supra note 56, at 263.

96 Stuntz, supra note 87, at 1239.

97 Allen & Mace, supra note 56, at 261.