It's all in your head: neurotechnological lie detection and the Fourth and Fifth Amendments.
A young woman in India was recently charged with murder. (2) Although every murder case is unique, the facts of this one were not particularly sordid or memorable. The prosecution alleged that the defendant, conspiring with her current fiance, poisoned her former fiance with arsenic. (3) During the criminal investigation, the defendant took--and flunked--two lie detector tests.
The first test employed a polygraph. Although this technology is often used in criminal investigations, it is not particularly reliable, (4) and its results are generally not permitted in guilt determinations in the United States. (5) The second test, however, catapulted this otherwise generic case into international headlines. (6) The test analyzed the defendant's "brain waves," and purported to prove that she possessed actual knowledge of the crime. Relying heavily on these two sets of results, the judge convicted the defendant and sentenced her to life in prison. (7)
Similar brain-based lie detectors are in development in the United States, with multiple private companies marketing their use as lie detectors (8) and some courts already considering the propriety of admitting their results as evidence. (9) Such advancements bring what was once science fiction into the courtroom and raise several challenging questions. For example, is recording brain waves a search under the Fourth Amendment? Does the Fifth Amendment's self-incrimination clause protect defendants from compelled lie detection? Courts will face these questions soon; how they initially resolve the issues will significantly affect the subsequent use of this technology. (10) Exploring these issues and anticipating the appropriate answers now is thus of prime importance.
To answer these questions, this Article proceeds in five parts. Part I examines various types of Neurotechonological Lie Detection (NTLD) (11) that might be used in criminal investigations in the near future, paying particular attention to court decisions evaluating the technology and the differences that may be relevant to future courts considering their use. Part II examines the types of situations in which constitutional questions may arise, leading to Part III, which considers how the Fourth Amendment applies to NTLD, and Part IV, which analyzes the Fifth Amendment questions NTLD raises. Finally, Part V summarizes the conclusions reached and suggests directions for future research.
II. Types of Neurotechnological Lie Detection (12)
Scientists are investigating several different types of neurotechnology-based lie detectors, each of which rely on somewhat different technology and different assumptions about lying, but all of which have the same goal: determining whether or not the subject is telling the truth. The implications attending the development of a successful device are profound, especially in the context of criminal law.
Before examining specific types of NTLD, however, it is necessary to discuss limitations applicable to all of them. First, it is important not to overstate the capability and accuracy of these devices. (13) Many of them, particularly fMRI (14) and "brain fingerprinting," (15) show great promise, but none is as yet widely accepted by the legal or medical communities and none is foolproof. Much work remains to be done before these devices should move from the laboratory to the courtroom. Scientists continue this work at a rapid pace, however, and one should not be lulled into thinking that NTLD is merely a distant fantasy. (16)
Second, and closely related to the first point, it is important to understand what NTLD is and is not. Put simply, NTLD is not "mind reading," at least as that term is generally understood. Despite media excitement to the contrary, (17) "[t]he formalized cognitive query with a corresponding physiological recording that characterizes lie-detection research is a far cry from 'mind reading,' however that term is used.... At present, we have no ability to mind read ... and no prospect of doing so in the foreseeable future." (18) Although not capable of ascertaining the ultimate truth of what someone says, NTLD is potentially capable of shedding greater light on the veracity of one's statements.
Additionally, NTLD has not been tested with the type of individuals often encountered by law enforcement. Thus far, nearly every test has involved young, sober, and mentally and physically healthy populations with only nominal incentive to lie. (19) Many criminal defendants do not fall in these categories and it is unclear what effect, if any, the differences will have. (20)
Finally, NTLD has not yet proven able to handle the shades of truth bound to exist in real-life situations. Complex fabrications are different than mere denials, which are different yet from lies by omission and "spin"; it is not clear if the brain processes these varying types of lies differently or not. (21) Moreover, "what counts as a lie is in part, if not in whole, a matter of social convention.... [I]t is not implausible to claim that these social conventions are culturally determined, and hence what counts as a lie in one culture would not count as one in another." (22) NTLD research has yet to solve these riddles.
Despite these limitations, NTLD research continues apace and, as described in more detail below, American courts are already confronting NTLD technologies and the questions they raise. Understanding the technology is the first step to understanding the legal analysis.
A. Functional Magnetic Resonance Imaging
Functional Magnetic Resonance Imaging (fMRI) creates an image of the brain by examining blood flow and highlighting the parts of the brain receiving oxygenated blood. (23) These parts are presumed to be more active and thus an fMRI image allows one to easily and quickly determine which part of the brain is used during a given task. (24)
The use of fMRI as a lie detector is based on two fundamental assumptions. First, that lies are developed in a part of the brain distinct from the parts that are active when telling the truth, and second, that most or all individuals' brains process lies similarly. Neither of these assumptions is fully confirmed, although the technology is sufficiently advanced that at least two private companies currently market the fMRI as a lie detector. (25)
Moreover, although the use of fMRI as a lie detector in a courtroom setting has not been accepted, the Supreme Court considered the technology as providing evidence of brain development in Roper v. Simmons, (26) demonstrating that the technology--if not the specific application at issue here--is already having a significant effect on the American judicial system.
Despite these promises, fMRI retains many limitations; it is "expensive, highly sensitive to motion artifact, confines the participants to restricted positions, ... and exposes participants to loud noises." (27) For use within the criminal justice system, fMRI's "sensitiv[ity] to motion artifact" is particularly critical as even slight movement by the test subject can render the resulting image unreadable. (28) Merely talking during the scan can sometimes ruin the test. (29) This means that fMRI, in its current state, cannot be used on unwilling subjects. (30) Though it might be possible to fully restrain a subject's movement, via eit physical or chemical means, no reported research indicates if the results obtained would be valid under these circumstances.
Additionally, though used widely, fMRI is potentially quite dangerous. (31) Serious injuries and deaths have occurred during MRI exams, (32) which involve "a subject lying supine in the cavity of a tubular machine housing a sophisticated scanner attached to an extraordinarily powerful magnet," (33) primarily because unrestrained nearby magnetic material can act as a missile when drawn by this magnet. (34) The machine is generally safe, so long as appropriate precautions are taken, but it is less safe for certain individuals, including those with, for example, pacemakers (35) or pieces of metal such as shrapnel embedded in their body, which may become altered or dislodged. (36)
B. Functional Near-Infrared Neuroimaging
In contrast to fMRI, another technology, developed by Britton Chance, professor emeritus of biophysics at the University of Pennsylvania, has the potential to work "in the field" and on a larger scale. (37) Called Functional Near-Infrared Neuroimaging (fNIR), the device also measures blood flow in the brain (and so relies on the same assumptions about blood flow vis-a-vis lying as an fMRI), but makes the measurements by using infrared lights aimed at the head. (38) This process "records much of the same brain activity as fMRI lie detection--but [the device employed] fits in a briefcase and can be deployed on an unwilling [or unaware] subject." (39) It is described as possessing "safe, portable, wearable, minimally intrusive and wireless qualities," which make it "an id candidate for monitoring cortical function in the brain while subjects are engaged in various real life ... tasks." (40)
Initial testing of fNIR indicates a high accuracy rate, (41) and Dr. Chance hopes to "develop a system that can be used discreetly in airports and security checkpoints for 'remote sensing' of brain activity." (42) This technology is still being developed, however, and has not yet been accepted in a courtroom setting. In addition to the limitations it shares with fMRI (such as its assumptions regarding how lying is manifested), fNIR is not as robust as fMRI because it can only examine activity in the pre-frontal cortex. (43) If evidence of lying resides elsewhere in the brain, fNIR will be unable to detect it. (44) On the other hand, fNIR has greater potential for "in the field" use as it does not require expensive, large, cumbersome, and potentially dangerous machinery. Importantly, neither fMRI nor fNIR requires the subject to make statements; they merely require that the subject be thinking of the lie when analyzed. (45)
C. Brain Fingerprinting/ Brain Electrical Oscillation Signature
A third technique approaches the problem from a completely different angle. Instead of examining blood flow, "brain fingerprinting" (BF) uses electroencephalography (EEG) to measure electrical activity emanating from the brain (colloquially known as "brain waves"). (46) While EEG's potential as a lie detector has been widely studied, (47) the most advanced form seems to be that patented by Dr. Lawrence Farwell as "brain fingerprinting." (48)
Dr. Farwell's technology is based on an "event related potential" (ERP) (49) known as the P300. The underlying assumption of this technology is that "each bit of information stored in the brain is stored by specific neurons and that if the brain recognizes a salient piece of information, specific neurons fire in response," creating a P300 ERP. (50) Thus, the technology does not attempt to detect lying per se, but rather whether one has knowledge of a specific event or image. If one denies such knowledge and the test indicates otherwise, lying is inferred.
A brain fingerprinting test requires the subject to wear a headband containing sensors that can detect the brain's electrical activity. Prior to the test itself, the subject is told to carefully consider a list of words, called the "target stimuli," that are irrelevant to the purported memory. The subject is then seated in front of a computer screen and told to press a certain button when a target stimulus appears and to press another if any other stimulus appears. (51) These other, non-target stimuli are known as "probes" and "irrelevants." The probes are directly relevant to the investigation and could include things like photos of the crime scene, a phrase describing the crime, or the victim's name. The irrelevants, as their name suggests, are not germane to the investigation and are like the target stimuli except that the subject has not been specifically instructed to remember them. Unlike fMRI, EEG-based devices pose virtually no physiological risk (or at least none that has been documented) to the subject and are generally cheaper and easier to administer.
Interpreting BF test results involves making comparisons between the responses to the target stimuli--which should create a baseline P300 response, known as a "Memory and Encoding Related Multifaceted Electroencephalographic Response" or MERMER--and the probes. If a person has knowledge of or recognizes the probes, a MERMER should be produced that is similar to that resulting from the target stimuli and that is greater than the baseline produced when viewing the irrelevant stimuli. (52) Like fMRI, brain fingerprinting (and EEG-based NTLD in general) retains much promise but currently faces a host of limitations. First, the most advanced system has not undergone peer-review as it is traditionally defined. (53) Dr. Farwell claims that "over 170 scientific studies on Brain Fingerprinting testing ... found [it] to be 100% accurate in determining whether subjects did or did not recognize the probe stimuli," (54) and that "[s]cientific studies, field tests, and actual criminal cases involving over 175 individuals described in various scientific publications and technical reports by [him] have verified the extremely high level of accuracy, utility, cost-effectiveness, and overall credibility of the Brain Fingerprinting system." (55)
Significantly, however, all of these tests were conducted by members of Dr. Farwell's own team, the results have not been verified by others, and his specific method of analysis remains undisclosed. (56) Some scientists have questioned and expressed hostility to Dr. Farwell's research, alleging that he is more interested in profits and fame than scientific research. (57)
A second potential concern is that BF focuses on a subject's recognition (or lack of recognition) of words and pictures. It provides no guidance if the subject has simply forgotten a relevant stimulus that was experienced previously. (58) Such forgetfulness can be caused by time, psychological factors (such as suppression of painful memories), or physiological changes to the brain (stemming from drug use or trauma, for example). Relatedly, brain fingerprinting cannot distinguish why someone responds to the stimulus. The subject might respond to a picture of the crime scene either because the person committed the crime there or because she is familiar with it for other reasons (for example, the subject once met a friend at that location). (59) Media coverage of the case might also have previously introduced the subject to the stimulus or otherwise influenced the subject's reaction to it. (60)
Although this limitation can be partially overcome by intelligent and careful selection of stimuli, errors can still occur. Detectives might not know that the subject has been to a certain location before or previously used a certain type of weapon. They likely could not ask the subject for this information either, because doing so would risk making it salient and thereby also undercut the reliability of the results. Second, the test likely cannot distinguish between individuals who were present at a crime scene as a criminal and those who merely witnessed it. Both are likely to respond to photos and descriptions of the crime, with the test unable to distinguish their respective roles.
Finally, subjects may be able to learn to "beat" the test by making the irrelevant stimuli more salient. (61) In at least one study, effective countermeasures to "defeat" the test included imperceptibly pressing one's left forefinger or middle finger on the leg where the left hand rests (the right forefinger was being used to press response buttons), imperceptibly wiggling one's big toe in one's shoe, or "imagining the experimenter slapping the participant in the face." (62)
Despite these limitations, courts have considered brain fingerprinting evidence, both in America and abroad. For example, the technology was used to generate evidence supporting the defendant's claim of innocence in Harrington v. Iowa. (63) Dr. Farwell's test indicated that Harrington's brain "did not contain information" about the crime. (64) The Iowa Supreme Court provided a brief discussion of the technology, but ultimately overturned Harrington's murder conviction on other grounds. (65) BF may have played a larger role than the court's opinion indicates, however, as a key witness recanted his testimony when told of the test results. (66) BF has also helped broker plea deals outside of court. A test administered to accused serial killer James Grinder confirmed his confession, which he had given and recanted several times. (67) Armed with this information, the prosecution secured a plea agreement for a life sentence. (68)
As with other types of NTLD, India has led the way in the judicial use of brain fingerprinting, employing it even against unwilling subjects as evidence of guilt. (69) The frequency of the use of this technology and its credibility with judges, however, remains unclear. In the United States, the Oklahoma Court of Criminal Appeals refused to consider BF evidence, dismissing it as "unreliable." (70)
Closely related to BF is the Brain Electrical Oscillation Signature (BEOS) test, developed by Indian neuroscientist Champadi Raman Mukundan. (71) BEOS is similarly based on the interpretation of EEG patterns and involves the administration of relevant and irrelevant stimuli, though it uses different software to interpret the results. (72)
BEOS (and NTLD more generally) received extensive press treatment after it was used in the case serving as the introduction to this Article. (73) The judge in that case noted that BEOS tests are not uncommon in India (74) and have been used in two capital cases, although they were only used as "corroborative evidence" of guilt. (75) International commentators and legal experts widely decried this use of NTLD, arguing that the technology is not yet sufficiently reliable for judicial use, especially for high-sentence cases (such as murder) where little corroborating evidence is available. (76)
D. Facial Thermal Imaging
Similar to fNIR in application, but different in its assumptions and scientific basis, is facial thermal imaging (FTI). (77) Jointly developed by the Mayo Clinic and Honeywell Laboratories, FTI differs from the types of NTLD previously discussed in that it does not attempt to measure activity within the brain directly, but instead measures the warming around a subject's eyes caused by "excessive blood flow to certain areas of the face." (78) This approach is premised on research indicating that "auditory startling is associated with a specific facial 'thermal signature'" and that individuals who are lying demonstrate similar warming patterns. (79) Testing indicates that thermal imaging exhibits a precision and reliability comparable to that of the more widely employed polygraph. (80)
FTI technology is potentially capable of "automated, high-throughput screening," (81) "requires no trained staff, physical contact, or special settings," (82) and allows for "instantaneous lie detection without the subject even being aware of the test." (83) Nevertheless, FTI has yet to progress beyond the development stage and there are no judicial opinions addressing its use.
III. Constitutional Issues
Having examined current and emerging NTLD technology, this Article now examines potential Constitutional limitations on its use. Specifically, this Article will examine whether the use of NTLD evidence is likely to run afoul of the search and seizure clause of the Fourth Amendment or the self-incrimination clause of the Fifth Amendment.
It is worth noting first what is not covered by this analysis. The Fourth and Fifth Amendments are trial rights; (84) that is, the government only violates an individual's Fourth or Fifth Amendment rights if the evidence is used by the government in court. (85) Technically, this means that law enforcement officers could illegally enter the homes of suspects and strap them into an NTLD for an examination without violating the Fourth or Fifth Amendments-as long as the evidence obtained is not used against them at trial. Other rules may limit such behavior (including those provided by the Fourteenth Amendment (86) and civil torts (87)), but such rules are not the subject of this Article.
Second, these provisions only limit the actions of the government; private actors, unless they are directed by government officials, are not subject to Fourth or Fifth Amendment limitations. (88) Similarly, the introduction of evidence by the defendant is governed by statutory rules, not Constitutional restrictions. For example, if a criminal defendant seeks to introduce NTLD evidence obtained from the defendant or a trial witness, questions regarding its use will be based on evidentiary and reliability concerns, not these constitutional provisions. (89)
Finally, even if the government's use of such technology is consistent with the Fourth and Fifth Amendments, it is not necessarily admissible in court. Other Constitutional provisions, (90) statutory rules of evidence, (91) and common law rulings (92) affect whether and how such evidence is received.
Thus, this Article ultimately focuses on a specific situation: law enforcement use of NTLD to examine an unwilling (93) person that results in evidence being used against that person in a criminal trial. As commonly occurs in the law, however, this seemingly limited context encompass a host of difficult questions, the answers to which can affect the law for many years to come. Indeed, as will be seen, NTLD invokes and potentially challenges fundamental Constitutional doctrine.
IV. Fourth Amendment
The Supreme Court, and society more generally, highly value personal autonomy, which the Fourth Amendment seeks to protect by restricting government intrusions--particularly those involving criminal investigations-to extraordinary cases. (94) The Fourth Amendment provides that the government shall not conduct unreasonable searches and seizures that infringe "[t]he right of the people to be secure in their persons, houses, papers, and effects." (95) Unless a person has waived this protection, (96) the government may only proceed if the search or seizure is reasonable. Defining what is "reasonable," therefore, is crucial.
As a practical matter, this section primarily applies to fNIR and FTI technologies, as they are the only NTLD likely capable of being used without the subject's permission (that is, in-the-field use) in the foreseeable future. Because BF/BEOS and fMRI require the subject to remain still and quiet, the functional consent of the subject is needed, which eliminates most Fourth Amendment concerns. (97)
Fourth Amendment analysis turns on one's reasonable expectation of privacy; that is, an expectation of privacy that society accepts as reasonable. (98) If one has a reasonable expectation of privacy, then a warrant (or one of the many exceptions that permit a search or seizure without a warrant) is required for police to conduct a search or seizure.
While the Supreme Court has held that individuals retain a reasonable expectation of privacy in body components, including blood (99) and urine, (100) it has indicated that the human body is not "inviolate" against all forms of government evidence-gathering. (101) For example, when one "knowingly expose[s]" something, that person forfeits an expectation of privacy in it. (102) Moreover, law enforcement agents generally may utilize "sense-enhancing" devices, such as binoculars or bionic ears, to detect potentially criminal activity. (103)
The argument could thus be made that one's electrochemical emissions are, in a sense, exposed, such that the police using sense-enhancing devices could measure the emitted brain waves without a warrant. The Supreme Court, however, addressed and rejected an analogous argument in Kyllo v. United States. (104) There, officers, parked on a public street, used infrared technology to scan the outside of the defendant's home for escaping heat, on the assumption that unusually high amounts of heat would indicate the presence of an indoor marijuana growing operation. The Government argued that the heat from the defendant's home was exposed for everyone to see, or at least detect, and that therefore the defendant did not retain a reasonable expectation of privacy in it.
The Court, however, disagreed and formulated a new rule, one that is directly applicable to NTLD. Specifically, the Court held that if the technology in question is not in "general public use," one likely retains a reasonable expectation of privacy in the information it would reveal. (105) Officers can therefore use commonly available sense-enhancing devices, like binoculars, but may not use uncommon devices. NTLD, in all its forms, certainly falls into the latter category, at least for the time being. Thus, because NTLD would measure a "body component" with a not-generally-available device, individuals retain a reasonable expectation of privacy in their electrochemical emissions and the government would need a warrant or warrant exception to utilize NTLD to assess these emissions without the subject's consent. (106)
One exception looms large, however. The Supreme Court has eliminated the warrant requirement for searches at, among other places, national borders and airport security checkpoints. (107) Searches at these locations need not comply with the Fourth Amendment because they are not considered "searches" subject to Fourth Amendment protections. (108)
Both fNIR and FTI are potentially usable on a mass scale in a field setting; indeed FTI is specifically designed for "automated, high-throughput screening," and "requires no trained staff, physical contact, or special settings." (109) It is thus well-suited for border and airport checkpoints. Based on current precedent, the Fourth Amendment would not prohibit the use of NTLD in these situations if used as part of a general security strategy. Answering questions while facing a lie detector may therefore become as common as walking through a metal detector before boarding a plane. (110)
V. Fifth Amendment
Independent of the Fourth Amendment, courts addressing the proposed use of NTLD will also need to consider the Fifth Amendment's requirement that no person "shall be compelled in any criminal case to be a witness against himself." (111) Its application to NTLD presents a much more difficult legal question.
A. Fifth Amendment Rhetoric
When discussing the protections of the Fifth Amendment, courts, especially the Supreme Court, tend to wax lyrical about its importance.
The privilege against self-incrimination "registers an important advance in the development of our liberty--'one of the great landmarks in man's struggle to make himself civilized.'" It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load"; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life"; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent." (112)
Application of the Fifth Amendment, however, does not necessarily coincide with these lofty goals. For example, the Court once opined in weighing the Amendment's application to a given case that "[i]f the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated." (113) But, as the Court then noted, "the privilege has never been given the full scope which the values it helps to protect suggest." (114)
This conflict between rhetoric and application has led to great confusion among scholars. As Professor Stuntz has noted, "[i]t is probably fair to say that most people familiar with the doctrine surrounding the privilege against self-incrimination believe that it cannot be squared with any rational theory." (115) This Article will not attempt to cut this "Gordian knot in the middle of our Bill of Rights," (116) but will instead offer some analysis of the likely impact of the Fifth Amendment on the use of NTLD, applying a framework a court can be expected to employ when deciding these difficult questions. (117)
B. Fifth Amendment Application
The self-incrimination clause--establishing that no one "shall be compelled in any criminal case to be a witness against himself"--contains several requirements that must be met before the protection it provides will come into play: (1) the communication must be in a "criminal case," (2) it must be incriminating ("against himself"), (3) it must be "compelled," and (4) it must be testimonial (given as "a witness"). (118) If any one of these requirements is not present, the protection of the self-incrimination clause is unavailable.
Three of these four requirements are relatively straightforward with regard to NTLD. First, the communication must be used in a criminal case or in some way expose the subject to the risk of criminal prosecution. (119) Mere police involvement does not necessarily bring to bear the protection of the Fifth Amendment. In Chavez v. Martinez, (120) for example, Martinez made statements--without being told about his right to remain silent--that indicated he had used heroin and assaulted a law enforcement officer. (121) Martinez sued the officers for violating his Fifth Amendment right, even though no charges were ever brought against him. The Court rejected this claim: "[W]e fail to see, how, based on the text of the Fifth Amendment, Martinez can allege a violation of this right, since Martinez was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case." (122) The Amendment likewise does not protect one who wishes merely to avoid providing evidence that will lead to criminal charges against someone else. (123)
Thus, "[g]overnment agents [employing NTLD] might be able to probe a person's thoughts with impunity from Fifth Amendment challenge, so long as they refrain from offering any resulting evidence in court." (124) Although law enforcement officials are generally focused on prosecuting criminal violations, which necessitates the collection and introduction of related evidence in a court of law, they might be willing to shift this emphasis to facilitate their ability to develop investigative leads, to verify the accounts provided by defendants and witnesses, or, albeit particularly troubling, merely to harass or intimidate.
The incrimination and compulsion requirements, though applied on a case-by-case basis and not amenable to bright-line rules, are also relatively easily resolved with regard to NTLD. (125) Incrimination occurs when the information obtained "will significantly enhance the likelihood" of prosecution. (126) When NTLD is used by law enforcement to determine whether a suspect is lying about his knowledge of a crime, incrimination is a likely result and thus Fifth Amendment protections would be applicable. Again, however, if the information gathered is not introduced in a criminal prosecution, the Fifth Amendment would not bar the use of NTLD.
Compulsion exists when, "considering the totality of the circumstances[,] the free will of the witness was overborne." (127) Physical force obviously constitutes compulsion, (128) but the intimidating circumstances of a custodial interrogation (129) can as well. (130) Importantly, compulsion can be found even if the suspect has given verbal permission to proceed with the interrogation if it can be concluded that the permission was not freely given. This is the principle on which Miranda and its progeny are based. (131) However, if information is obtained from a person via NTLD and the information was given in a context that did not involve a custodial interrogation or the person freely gave permission to proceed with the questioning, a violation of the Fifth Amendment will not have occurred.
Thus, Fifth Amendment protections are limited to NTLD-related information that is incriminating, compelled, and gathered as part of a criminal case. But even under these circumstances, use of an NTLD will violate the Fifth Amendment only if the NTLD communications are "testimonial." This determination, as the following discussion indicates, is more difficult to resolve in conjunction with NTLD, but has the potential to remove NTLD evidence generally from the protections of the Fifth Amendment.
C. Physical as Opposed to Testimonial Evidence
The Supreme Court has determined that "physical" evidence is not the equivalent of testimony and thus is not subject to Fifth Amendment protection from disclosure. As far back as 1910, the Court held that "[t]he prohibition [on] compelling a man in a criminal court to be [a] witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body [being used] as evidence when it may be material." (132) State and federal courts have thus held that the Fifth Amendment "offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." (133) The distinction, according to the Supreme Court, is that the Fifth Amendment prohibits the government from compelling a suspect to provide "communications" or "testimony," but does not preclude "compulsion which makes a suspect ... the source of 'real or physical evidence.'" (134)
More recently, the Court in Pennsylvania v. Muniz elaborated on this point, noting that it has even "applied the distinction ... where the evidence could be produced only through some volitional act on the part of the suspect." (135) For example, the Court held that "a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police," (136) because the compulsion "'exhibit[ed] his physical characteristics [and did not] disclose any knowledge he might have.'" (137) Likewise, Gilbert v. California (138) held that compelled handwriting exemplars are admissible, because the content of the handwriting sample is not the focus, but rather, "like the voice or body itself, [handwriting style] is an identifying physical characteristic outside [Fifth Amendment] protection." (139)
Directly relevant to NTLD, the Muniz Court noted that different types of evidence can lead to different results under the Fifth Amendment, even if the proposed use of the evidence is the same. Considering the example of blood alcohol testing, the Court declared that "had the police instead asked the suspect directly whether his blood contained a high concentration of alcohol, his affirmative response would have been testimonial even though it would have been used to draw the same inference concerning his physiology." (140)
Also addressing blood alcohol evidence was the seminal case of Schmerber v. California. (141) Schmerber was arrested at a hospital while receiving treatment for injuries sustained in an automobile wreck. (142) At the direction of a police officer, a physician drew a sample of Schmerber's blood, notwithstanding Schmerber's refusal to consent to this procedure; the test results showed the presence of alcohol. (143) On appeal, Schmerber argued that the taking of the blood sample was barred by the Fifth Amendment. The Court disagreed:
Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds. (144)
However, Justice Brennan, writing for the majority in Schmerber, did indicate some directly relevant limitations on the scope of the holding, specifically singling out "lie detector tests" as situations in which "physiological responses ... are essentially testimonial." (145) He asserted that "[t]o compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses ... evoke[s] the spirit and history of the Fifth Amendment ... [and] call[s] to mind the principle that the protection of the privilege 'is as broad as the mischief against which it seeks to guard.'" (146)
This language seems to suggest that the use of non-consensual NTLD results would be excluded under the Fifth Amendment because of its potentially significant intrusions into privacy and autonomy in using a person's thoughts and innate physiological responses to help obtain a criminal conviction. It has been asserted, however, that while this passage indicates that Justice Brennan was uncomfortable with lie detectors, it represented non-binding dicta and did not reflect the position of a majority of the Court. (147) For example, this discussion contradicts the Court's earlier remarks that physical responses are not testimonial and thus not subject to Fifth Amendment protections. (148)
It might be possible to reconcile this apparent inconsistency, however, by noting that a polygraph usually only works when the subject provides verbal responses to the questions asked. The subject's words are thus inextricably linked with the physical manifestations sought to be introduced at trial. That is, lie detectors force subjects into the "cruel trilemma" of self-implication, perjury, or silence (149) in a way that blood tests and fingerprinting--and perhaps NTLD-do not. (150)
For example, in Muniz the prosecution introduced the defendant's slurred speech as evidence of his alcohol use. The Court upheld the admission of the evidence of slurred speech because it was physical evidence. However, the Court indicated that the content of his answers to questions posed at that time was protected. (151) Thus, the contents of any statement are protected by the Fifth Amendment, but the physical characteristics of a defendant, including physical manifestations accompanying a defendant's statements, may be admissible if the two are not intrinsically intertwined.
D. NTLD Provides Physical Evidence, Not Testimony
Ultimately, determining whether NTLD evidence is admissible "physical" evidence or inadmissible "testimonial" evidence boils down to which analogy is more apt: is NTLD more like speech or more like a blood sample? (152) The former is protected by the Fifth Amendment, while the latter is not. This is a difficult call and a court could rationally decide either way. (153) Taken as a whole, however, the prior rulings discussed above suggest that NTLD evidence is more akin to "physical" evidence, thus rendering it admissible under the Fifth Amendment, albeit subject to some qualifications. Specifically, to be admissible these tests must not be dependent on or associated with the defendant making a "statement" of any kind. Additionally, the tests must be relatively safe and not present an undue risk to the subject.
NTLD evidence is analogous to physical evidence for several reasons. First, it "does not 'read the suspect's mind' in any sense that a layperson would recognize. It simply detects certain physical changes that are indicative of mental processes." (154) What these tests monitor is different from other physical manifestations in degree, not kind. As Thompson notes,
[c]learly, any number of physical manifestations of thoughts are admissible, such as testimony that a killer looked angry or appeared calm. Breaking those statements down to their constitute elements, what witnesses are trying to convey is that the subject they were observing exhibited certain physical characteristics that generally correlate with certain moods, emotions and thoughts. The same is essentially true of fMRI, albeit that the physical characteristics the scanner 'observes' are imperceptible to the average observer. (155)
Thus, NTLD is best conceived of as a sense-enhancement of the observer, not as a "mind reader." NTLD does not read thoughts, but merely manifestations of thoughts, which are recorded as electrical waves or oxygenated blood patterns.
In fact, much of what is detected is not properly categorized as "thoughts" at all, because the "thoughts" are not intentionally produced. The recognition of stimuli detected by BF/BEOS and the brain activity associated with lying detected in fMRI and FTI are not "willed" and appear to occur despite one's best efforts to prevent such responses. The premise of a lie detector is that a subject can say one thing, but the body will indicate another. Just as people have little or no control over the content of their blood, breath, or skin conductivity, all of which the Court has held to be physical evidence, they retain no conscious control over electrical activity or blood flow in the brain. (156) Because there is not "some volitional act" by the subject, there is no testimony. This was what led the Schmerber Court to adopt the physical versus testimonial distinction: beyond providing the physical sample, the subject's "participation ... [is] irrelevant to the results of the test." (157) This holds true only to the extent that the subject cannot "beat" or fool the test, for that ability would constitute a volitional act. NTLD proponents claim that the various NTLDs cannot be manipulated by conscious countermeasures taken by a subject, although further testing is required to confirm this assertion. (158) But assuming conscious countermeasures are indeed ineffective and the responses obtained are not "volitional," NTLD is more like physical than testimonial evidence.
A second criterion for categorizing NTLD as physical evidence is that the NTLD test cannot be dependent on or require any statements from the subject. If a subject must answer "yes" or "no" or make any type of statement during the test (including pushing buttons or other physical acts that are intended as a communication), the test results will necessarily rely on the protected "testimony" (that is, the statement) of the subject. (159) This too closely intertwines the statement and the physical evidence. NTLD results are then only admissible to the extent the conscious statement is admissible. (160) NTLD that merely monitors a silent subject, (161) however, would not violate the Fifth Amendment because it does not require a volitional act and does not expose the defendant to the "cruel trilemma" of choice. (162)
The Schmerber Court included an additional criterion potentially affecting NTLD use. The Court noted that "the pain, danger, or severity" of a procedure could render an otherwise constitutional procedure invalid. (163) The Court, however, did not find the physical penetration associated with inserting a needle to draw blood, at least when done by "a physician in a hospital environment according to accepted medical practices," constituted such a risk. (164)
As discussed above, the risks associated with current NTLD technologies are minimal and controllable; (165) although not non-existent, they are generally no greater than those posed by drawing blood. (166) The most likely possible exception, based on current findings, is fMRI; although potentially quite dangerous, this technology is widely and routinely used and is considered safe so long as certain precautions are followed. (167)
Additionally, just as law enforcement officials do not routinely draw blood, leaving this task to hospital staff, they would similarly need to rely on medical professionals to perform the NTLD procedures and thereby minimize any risks to the suspect unless and until such devices are able to be safely used by individuals without special expertise in their administration. (168) As long as the risks to the suspect are minimal and can be controlled, the Schmerber concerns should not limit NTLD use.
One might also argue that, given the risks and potential adverse implications of NTLD tests, a participating subject would need to provide some type of informed consent before undergoing testing. Informed consent, however, is generally not germane to a Fifth Amendment analysis (169) because typically consent, informed or otherwise, has not been provided by the subject in these cases. The focus of the Fifth Amendment is on whether suspects can be compelled against their wishes to serve as a "witness" against themselves. If the subject has agreed to undergo an NTLD test and the risks of the procedure are minimal, an informed consent requirement is superfluous to a Fifth Amendment analysis. If the risks are greater than that envisioned by Schmerber, however, the use of NTLD may not be permitted at all and, at a minimum, the subject should provide both medical and legal informed consent. (170)
This Article asserts that NTLD constitutes a "search" for purposes of the Fourth Amendment, thus requiring a warrant or warrant exception (such as applies to border or airport searches) before it can be used constitutionally. But if a warrant has been obtained or a warrant exception is applicable and the test does not create an undue risk of harm, evidence derived from NTLD use on a "quiet" subject--a subject whose statements did not provide an integral component of the NTLD test--is not testimonial and therefore is not prohibited by the Fifth Amendment.
These conclusions do not, however, necessarily indicate that NTLD use is wise or good policy. Indeed, policy makers, rather than judges addressing constitutional issues, may ultimately decide the fate of these technologies. Statutory limitations on the use of NTLD technologies may negate the need for the courts to even consider what, if any, constitutional limitations exist regarding this use. For example, a legislature can mandate, through the rules of evidence it adopts, that NTLD results are not permitted as evidence in criminal proceedings. (171) The legislature can adopt a rule as broad (no NTLD of any kind in any case) or as narrow (some or all NTLD are allowed in certain specified cases or across the judicial spectrum) as it desires, provided constitutional parameters are met.
Such action is likely, and perhaps desirable, for several reasons. First, the public in general still seems uncomfortable with the use of brain scanning technology. (172) Though the public's comfort level may grow as people become more accustomed to it, NTLD is for the time being a novel and rather frightening prospect. Second, legislatures may be concerned about the accuracy and reliability of NTLD, much as they are with polygraphs. Even if it can be established that NTLD test results are accurate 99% of the time, this would still result in a significant number of individuals being falsely identified as criminal offenders. These test results would be particularly difficult to combat given that associated expert testimony combined with the vivid color pictures of the brain that the test can generate are likely to have a substantial impact on juries (and judges). (173) In general, the number of false convictions, including those in which advanced technology such as DNA analysis was introduced, continues to climb steadily, perhaps giving legislatures (and courts) pause as to whether the results from even newer and relatively untested technology should be admitted into court proceedings. (174)
As a result, future scholarship in this field should expand from a consideration of the admissibility and constitutionality of various NTLD technologies to explore the statutory responses that legislatures can or should adopt. Scholars have likely neglected this latter focus because of existing obstacles that have thus far largely precluded the judicial use of NTLD. However, as the technology continues to be refined, and as more courts accept at least some use of NTLD, the need for a guide for legislative, as well as judicial, action becomes more urgent. (175) Now is the time to consider these issues, before "fundamental decisions regarding [its use] ... foreclose fresh analyses." (176)
(1) Sean K. Thompson, A Brave New World of Interrogation Jurisprudence?, 33 AM. J.L. & MED. 341, 341-42 (2007).
(2) State of Maharashtra v. Sharma, Sessions Case No. 508/07, June 12, 2008, available at http://court.mah.nic.in/courtweb/orders/pune/pundc is/orders/201501005082007_1.pdf.
(3) Id. at 2.
(4) Joseph H. Baskin, Judith G. Edersheim, & Bruce H. Price, Is a Picture Worth a Thousand Words? Neuroimaging in the Courtroom, 33 AM. J.L. & MED. 239, 265 (2007) ("Used for almost a century, [polygraph] reliability is, at best, eighty-five percent with a false positive rate of up to twenty-five percent.").
(5) Id. ("Since 1923, polygraph results have been inadmissible as evidence in most federal courts. The 1988 Employee Polygraph Protection Act also criticized polygraphs, and a 2003 National Research Council report concluded that polygraphs were bad science and needed replacing.").
(6) See, e.g., Anand Giridharadas, India's Use of Brain Scans in Courts Dismays Critics, INT'L HERALD TRIB., Sept. 15, 2008.
(7) Sharma, at 97.
(8) Cephos Corp., No Lie MRI, and Brain Fingerprinting Labs Inc., are all competing for the NTLD market. No Lie MRI is currently accepting clients while Cephos Corp. is expecting to accept clients soon. Leo Kittay, Admissibility of fMRI Lie Detection: The Cultural Bias Against 'Mind Reading' Devices, 72 BROOK. L. REV. 1351, 1352 (2007); see also infra note 25 and accompanying text.
(9) See, e.g., Alexis Madrigal, MRI Lie Detection to Get First Day in Court, WIRED MAGAZINE, Mar. 2009, available at http://blog.wired.com/ wiredscience/2009/03/noliemri.html ("Defense attorneys are for the first time submitting a controversial neurological lie-detection test as evidence in U.S. court."). The use of Functional Magnetic Resonance Imaging as a lie detector has also entered popular culture. See, e.g., House (FOX television broadcast Nov. 18, 2008) (depicting lie detection with fMRI); Mythbusters (Discovery Channel television broadcast Dec. 5, 2007) (showing fMRI test; two of the three cast members successfully "beat" the test).
(10) See Thompson, supra note 1, at 341-42.
(11) This terminology and abbreviation comes from Sarah E. Stoller & Paul R. Wolpe, Emerging Neurotechnologies for Lie Detection and the Fifth Amendment, 33 AM. J. L. & MED. 359, 359 (2007).
(12) The technologies discussed here are not the only types of brain-based lie detection. Scientists continue to investigate new avenues, including Positive Emission Tomography (PET) and Single Photon Emission Computed Tomography (SPECT) scans, both of which measure brain activity. Application of these technologies to lie detection is based on the assumption that lying requires the brain to "work" harder when lying than when telling the truth. Such technologies, though fascinating in their own right, are not discussed here for two reasons. First, research into their application as lie detectors is not as advanced as the technologies discussed here. Second, though distinct technologies, the present analysis does not turn on any of the factors that distinguish PET and SPECT scans from the technologies discussed here.
(13) For an example of overstatement with regard to the abilities of and confidence in NTLD, see Jody C. Barillare, Comment: As Its Next Witness, the State Calls ... the Defendant: Brain Fingerprinting as 'Testimonial' Under the Fifth Amendment, 79 TEMP. L. REV. 971, 975-77 (2006) (comparing brain fingerprinting to "conventional fingerprinting, DNA analysis, or any other widely used forensic science" and claiming that it "can uncover ... hidden knowledge and determine, with scientific certainty, whether the suspect's story matches the information stored in his brain").
(14) See infra Part II.A.
(15) See infra Part II.C.
(16) Indeed, NTLD-like devices are already being sold as children's toys. Rachel Konrad, Next-Generation Toys Read Brain Waves, May Help Kids Focus, ASSOCIATED PRESS FIN. WIRE, Apr. 30, 2007 ("The basis of many brain wave-reading games is electroencephalography, or EEG .... EEG has been a mainstay of psychiatry for decades."); Joel Garreau, Brain Wave of the Future: What if You Could Move Objects with Your Mind? Well, That Time Has Come, WASH. POST, Apr. 23, 2009, at C1.
(17) See, e.g., Tom Paulson, Brain Test Could Be Next Polygraph, SEATTLE POST-INTELLIGENCER, Sept. 15, 2008, at B1; Dina Temple-Raston, Neuroscientist Uses Brain Scan to See Lies Form, NPR NEWS, Oct. 30, 2007, available at http://www.npr.org/templates/story/story.php?storyI d=15744871. But see Margaret Talbot, Duped: Can Brain Scans Uncover Lies?, NEW YORKER, July 2, 2007, available at http://www.newyorker. com/reporting/2007/07/02/070702fa_fact_talbot.
(18) Paul R. Wolpe, Kenneth R. Foster, & Daniel D. Langleben, Response to Commentaries on "Emerging Neurotechnologies for Lie Detection: Promises and Perils?", 5 AM. J. BIOETHICS W5 (2005).
(19) See, e.g., Joseph R. Simpson, Functional MRI Lie Detection: Too Good to Be True?, 36 J. AM. ACAD. PSYCHIATRY & L.491, 493 (2008) ("The studies conducted thus far have been carried out on healthy volunteers who were screened for neurological and psychiatric disorders, including substance use."); F. Andrew Kozel et al., Detecting Deception Using Functional Magnetic Resonance Imaging, 58 J. BIOLOGICAL PSYCHIATRY 605, 612 (2005) ("This study, however, did not evaluate real-world scenarios or lies with severe societal, emotional, or monetary damages. The level of risk for these subjects was relatively small compared with real-life situations in which lie detection would be needed (i.e., criminal or civil cases).").
(20) Simpson, supra note 19, at 494 ("There has been no testing of fMRI lie-detection paradigms in juveniles, the elderly, or individuals with Axis I and/or Axis II disorders, such as substance abuse, antisocial personality disorder, mental retardation, head injury, or dementia. It is unclear whether and how such diagnoses would affect the reliability of the approach.").
(21) Ruth L. Fischbach & Gerald D. Fischbach, The Brain Doesn't Lie, 5 AM. J. BIOETHICS 54, 55 (2005) (noting that morally justified lies, "little white lies," and sociopathic lies "may evoke different emotional states or 'feelings' that are unlikely to be associated with the same neurophysiological signature").
(22) Tom Buller, Can We Scan for Truth in a Society of Liars?, 5 AM. J. BIOETHICS 58, 59 (2005).
(23) This is an oversimplified accounting, but is sufficient for the accompanying legal analysis. For a more in-depth and technical description, see Eric K. Gerard, Waiting in the Wings? The Admissibility of Neuroimagery for Lie Detection, DEV. MENTAL HEALTH L., July 2008, at 9-12, and sources cited therein.
(24) Id. at 10.
(25) Cephos Corp. (http://cephoscorp.com) and No Lie MRI (http://noliemri.com).
(26) 543 U.S. 551 (2005). See Reyhan Harmanci, Complex Brain Imaging Is Making Waves in Court, SAN FRANCISCO GATE, Oct. 17, 2008 ("While Justice Anthony Kennedy didn't explicitly cite fMRI scans in his majority opinion against executing people under 18, many experts think it was an influencing factor.").
(27) Meltem Izzetoglu et al., Functional Near-Infrared Neuroimaging, 13 IEEE TRANSACTIONS ON NEURAL SYS. & REHABILITATION ENGINEERING 153, 153 (2005).
(28) See RICHARD B. BUXTON, INTRODUCTION TO FUNCTIONAL MAGNETIC RESONANCE IMAGING: PRINCIPLES AND TECHNIQUES 299 (2002) ("Any motion during the acquisition of an MR image will produce artifacts. Such motions include subject movement, such as head motion, coughing or swallowing, and physiological motions such as pulsatile blood flow, CSF motions, and respiratory motions.").
(30) Izzetoglu et al., supra note 27, at 153; see also Kozel et al., supra note 19, at 611 ("We have shown that fMRI can be used to detect deception within a cooperative individual.") (emphasis added); but see Simpson, supra note 19, at 496 ("It is not inconceivable that terrorism suspects could be restrained and placed in an MRI scanner in such a way that they would be unable to move their heads enough to foil the scan. Even if they refused to answer questions, it might be possible to determine from the brain's response whether the subject recognizes a sensory stimulus, such as a sound or image.").
(31) Donald McNeil, Jr., M.R.I.'s Strong Magnets Cited in Accidents, N.Y. TIMES, Aug. 19, 2005, at A1.
(33) Gerard, supra note 23, at 9 (providing a description of how this technology works).
(34) McNeil, supra note 31.
(35) Id.; see also Edward T. Martin et al., Magnetic Resonance Imaging and Cardiac Pacemaker Safety at 1.5-Tesla, 43 J. AM. C. CARDIOLOGY 1315, 1315 (2004).
(36) McNeil, supra note 31.
(37) Steve Silberman, The Cortex Cop, WIRED MAGAZINE, Jan. 2006, available at www.wired.com/wired/archive/14.01/lying_pr.html.
(38) Id. ("[fNIR] uses beams of near-infrared light that pass harmlessly through the forehead and skull, penetrating the first few centimeters of cortical tissue. There the light bounces off the same changes in blood flow tracked by fMRI. When it reemerges from the cranium, this light can be captured by optical sensors, filtered for the 'noise' of light in the room, and [be] used to generate scans."). For a more technical description of this process, see Izzetoglu et al., supra note 27, at 153 ("fNIR technology uses specific wavelengths of light, introduced at the scalp, to enable the noninvasive measurement of changes in the relative ratios of deoxygenated hemoglobin (deoxy-Hb) and oxygenated hemoglobin (oxy-Hb) in the capillary beds during brain activity.").
(39) Silberman, supra note 37. Because of its size and relative ease-of-use, the device is much simpler to deploy on unwilling subjects than fMRI, which requires careful procedures and that the subject remain still.
(40) Izzetoglu et al., supra note 27, at 155.
(41) Silberman, supra note 37 ("The first iteration of Chance's lie detector ... was able to accurately detect lying 95 percent of the time.").
(42) Id. ("This technology could be deployed to check for deception during standard question-and-answer exchanges (for example, 'Has anyone else handled your luggage?') with passengers before boarding a plane, or during interviews with those who have been singled out for individual searches.... 'It would certainly represent an invasion of privacy,' [Chance] says.... '[But] [i]f you don't want to take the test, you can turn around and fly another day.' Then he smiles. 'Of course, that's the biggest selector of guilt you could want.'").
(43) Id. ("Though near-infrared light doesn't penetrate the brain as deeply as magnetic resonance, some of the key signatures of deception mapped by fMRI researchers occur in the prefrontal cortex, just behind the forehead.").
(44) See id.
(45) See id.; Izzetoglu et al., supra note 27.
(46) Stoller & Wolpe, supra note 11, at 361. EEG measures the firing of neurons in the brain as recorded by electrodes placed on the scalp. For an in-depth technical discussion of this technology, see ERNST NIEDERMEYER & F.H. LOPES DA SILVA, ELECTROENCEPHALOGRAPHY: BASIC PRINCIPLES, CLINICAL APPLICATIONS, AND RELATED FIELDS (5th ed. 2004).
(47) See J. Peter Rosenfeld et al., Simple, Effective Countermeasures to P300-based Tests of Detection of Concealed Information, 41 PSYCHOPHYSIOLOGY 205, 205-06 (2004).
(48) Stoller & Wolpe, supra note 11, at 359.
(49) ERPs are defined as "small changes in the electrical activity of the brain that are recorded from the scalp and that are brought about by some external or internal event." Leun J. Otten & Michael D. Rugg, Interpreting Event-Related Brain Potentials, in EVENT-RELATED POTENTIALS: A METHODS HANDBOOK 3 (Todd Handy ed., 2004).
(50) Stoller & Wolpe, supra note 11, at 362.
(51) Id. This alternate button pushing is not a critical part of the test, as it designed primarily to ensure that the subject is paying attention, but, as discussed, it may be a critical part of the legal analysis. See infra notes 159 and accompanying text.
(52) Id. For an interactive demonstration of this process, see PBS, Incriminating Brain, http://www. pbs.org/wnet/innovation/pop_brainfingerprinting/ index.html.
(53) Peer review generally involves review by independent and (sometimes) anonymous experts in the field. See generally Guarding the Guardians: Research on Editorial Peer Review, Selected Proceedings from the 1st International Congress in Peer Review in Biomedical Publication, 263 JAMA 1317 (1989).
(54) Brain Fingerprinting Laboratories, Research and Summary Information, http://www.brainwavescience.com/research.php.
(56) Stoller & Wolpe, supra note 11, at 363. See also Wolpe et al., supra note 18, at W5 ("If only it were possible, as the inventor of 'brain fingerprinting' alleges, to provide scientifically unambiguous and reliable proof of the existence of specific information in a person's brain! It isn't now and perhaps never will be."); Giridharadas, supra note 6 ("'Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible,' said [Peter] Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of electroencephalogram-based lie detection.").
(57) Barnaby Feder, Truth and Justice by the Blip of a Brain Wave, N.Y. TIMES, Oct. 9, 2001, at F3 ("A number of brain-wave researchers say they are nervous about how aggressively Dr. Farwell and his company are pushing the technology. Dr. Donchin, who was Dr. Farwell's thesis adviser at the University of Illinois and now teaches at the University of South Florida in Tampa, calls Mermer 'business nonsense.' Some brain wave researchers complain that Dr. Farwell's search for real-world applications that appear to prove the value of the technology is diverting attention from the need to do more research.").
(58) Stoller & Wolpe, supra note 11, at 362.
(59) See, e.g., id. at 363 ("[T]he stimulus must not be salient to the suspect for any reason other than its association with the crime. For example, if [the subject] collects the kind of gun being presented to him as a stimulus, that image will most likely elicit a MERMER.").
(61) See Rosenfeld et al., supra note 47, at 205 (finding that countermeasures to undercut the effectiveness of the BF can be easily learned).
(62) Id. at 209.
(63) 659 N.W.2d 509 (Iowa 2003).
(64) Id. at 516 n.6.
(65) Id. at 516.
(66) Stoller & Wolpe, supra note 11, at 364 n.50 (citing Judy Illes & Eric Racine, Imaging or Imagining? A Neuroethics Challenge Informed by Genetics, 5 AM. J. BIOETHICS 5, 18 (2005)).
(67) Feder, supra note 57, at F3.
(68) Beth Dalbey, Brain Fingerprinting Testing Traps Serial Killer in Missouri, FAIRFIELD LEDGER, Aug. 1999, at 1.
(69) See Gary Marchant & Sara Orozco, Brain Scanning in the Courts: The Story So Far, slide 33, http://www.law.asu.edu/files/Centers_and_Progra ms/LST/Conferences_&_Events/brainscan/Marcha nt.pdf (last visited Apr. 15, 2009).
(70) Slaughter v. State, 108 P.3d 1052, 1054 (Okla. App. 2005) (refusing to give weight to brain fingerprinting results without a "'comprehensive report' regarding the nature of the brain fingerprinting test conducted, the manner in which it was administered, and the results").
(71) Giridharadas, supra note 6.
(73) See, e.g., id.; P. Jayaram, India Finds New Ways to Solve Crimes: Police and Forensic Experts Tap Brain to Extract the Truth, STRAITS TIMES (SINGAPORE), Sept. 19, 2008.
(74) Indeed, two Indian states, Maharashtra and Gujarat, have established BEOS labs to assist prosecutors. Giridharadas, supra note 6.
(75) State of Maharashtra v. Sharma, Sessions Case No. 508/07, June 12, 2008, available at http://court.mah.nic.in/courtweb/orders/pune/pundc is/orders/201501005082007_1.pdf, at 64 ("In the past said technique has helped gather corroborative evidence in four sensational cases.... In two cases, capital punishments were awarded to the accused based on the BEOSP findings."); see also Giridharadas, supra note 6 ("[I]n [the Indian state of] Maharashtra, about 75 crime suspects and witnesses have undergone the test since late 2006....").
(76) See, e.g., A.C. Grayling, Mindfields: Return to the Ducking Stool, NEW SCIENTIST, Sept. 20, 2008, at 48; Giridharadas, supra note 6 ("After passing an 18-page promotional dossier about the BEOS test to a few of his colleagues, Michael Gazzaniga, a neuroscientist and director of the SAGE Center for the Study of the Mind at the University of California, Santa Barbara, said: 'Well, the experts all agree. This work is shaky at best.'").
(77) George M. Dery, Lying Eyes: Constitutional Implications of New Thermal Imaging Lie Detection Technology, 31 AM. J. CRIM. L. 217, 219 n.11 (2004).
(80) Id. Polygraphs achieve reliability of approximately 70%. Id. As discussed, the adequacy of the reliability of the polygraph has been questioned. See supra notes 4-5 and accompanying text.
(81) Dery, supra note 77, at 219 n.11 (quoting Ionannis Pavlidis et al., Seeing Through the Face of Deception: Thermal Imaging Offers a Promising Hands-off Approach to Mass Security Screening, 415 NATURE 35 (2002)).
(82) Id. at 220.
(84) Thompson, supra note 1, at 351 ("[T]he Supreme Court held that [the self-incrimination clause] was a 'trial right.' This means that unless the government seeks to introduce the accused's statement at trial, there can be no violation of the Self Incrimination Clause.").
(85) As discussed below, this is not to say that no legal remedy exists for non-trial related violations of these rights by the government (or private actors), just that such remedies are not based on the Fourth and Fifth Amendments and are therefore beyond the scope of this Article.
(86) Thompson, supra note 1, at 351 ("[T]here is strong reason to believe that the protections of the Due Process [sic] are, in fact, applicable outside of the trial context.").
(87) See Martin A. Schwartz, Fundamentals of Section 1983 Litigation, 784 PLI/LIT 11 (2008).
(88) See Thirty-Seventh Annual Review of Criminal Procedure, 37 GEO. L.J. ANN. REV. CRIM. PROC. 3, 3 (2008) (listing cases interpreting the private search exception). However, these private actors could be subject to a civil suit for damages, such as a suit for invasion of privacy.
(89) See, e.g., United States v. Scheffer, 523 U.S. 303 (1998).
(90) Other Constitutional limitations may stem from, for example, the First Amendment's protection of freedom of thought and the due process clauses of the Fifth and Fourteenth Amendments. With regard to the former, see Linda MacDonald Glenn, Keeping an Open Mind: What Legal Safeguards Are Needed? 5 AM. J. BIOETHICS 60, 61 (discussing "freedom of thought" cases in relation to NTLD). For the latter, see Thompson, supra note 1, at 351.
(91) See generally infra Part VI. For a more theoretical discussion of the merits of NTLD versus other methods of evaluation used by judges and juries, see Frederick Schauer, Professor of Law, University of Virginia School of Law, Address at the University of Virginia School of Law: Can Bad Science Be Good Evidence? (Apr. 7, 2009).
(92) See Gerard, supra note 23, at 14-15 (discussing the Frye and Daubert standards).
(93) See infra note 130 and accompanying text.
(94) See, e.g., State v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990) ("The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government....").
(95) U.S. CONST. amend. IV.
(96) See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) ("It is ... well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."). Interestingly, suspects in India must consent to BEOS testing, but many do so "because they assume it will spare them an aggressive police interrogation." Giridharadas, supra note 6.
(97) See infra note 128 and accompanying text. In some situations, a subject may "consent" in a manner or context that a court would find legally insufficient (for example, consenting to a search only after officers claim to have a warrant authorizing that search). See, e.g., WAYNE R. LAFAVE, 4 SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT [section] 8.2 (4th ed. 2008) (discussing "factors bearing upon validity of consent"). In these limited circumstances, the analysis provided here might apply to BF/BEOS and fMRI.
(98) This objective test was established by Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 361 (1967) and retains its force today. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006) ("[T]he ultimate touchstone of the Fourth Amendment is 'reasonableness'....") (citing Katz). The test also includes a subjective component (namely, that the person actually expected privacy), but that component is largely subsumed by the "knowingly exposed" test, discussed infra note 102, as the defendant is assumed to assert the requisite subjective intent to maintain his or her privacy. See LAFAVE, supra note 97, at [section] 2.1(c).
(99) Schmerber v. California, 384 U.S. 757, 767 (1966) ("It could not reasonably be argued ... that the administration of the blood test in this case was free of the constraints of the Fourth Amendment.").
(100) Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 615-18 (1989).
(101) Schmerber, 384 U.S. at 764 (holding that the Fifth Amendment does not prohibit blood tests to determine intoxication levels).
(102) See, e.g., California v. Greenwood, 486 U.S. 35 (1988) (ruling that items in trash containers placed on a curbside were "knowingly exposed" to others, so there was no Fourth Amendment concern raised by police looking through that trash).
(103) See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE [section] 3.2(b) (3d ed. 2008) ("[P]olice use of such devices as flashlights and binoculars is not a search ...").
(104) 533 U.S. 27 (2001).
(105) Id. at 34-35.
(106) One further caveat is necessary. The Schmerber Court, in addressing the forced drawing of blood for evidence of alcohol, indicated that this type of search was reasonable (as a warrant exception) at least in part because it was conducted in a safe manner with minimal risk, trauma, and pain. This point is discussed further infra at note 163.
(107) See Rachael Lynch, Two Wrongs Don't Make a Fourth Amendment Right: Samson Court Errs in Choosing Proper Analytical Framework, Errs in Result, Parolees Lose Fourth Amendment Protection, 41 AKRON L. REV. 651, 675 n.104 (2008) ("[A]dministrative searches, border and checkpoint searches, and other types of searches ... are always considered reasonable.").
(108) Id. ("All of these types of searches involve a specific governmental interest, or a special need, that is outside the ordinary need for investigating crimes.").
(109) Dery, supra note 77, at 219.
(110) Silberman, supra note 37. Some may see the public discomfort with full-body scanning devices being introduced into airports as analogous to the reaction that will accompany a similar use of NTLD. See Joe Sharkey, Whole-Body Scans Pass First Airport Tests, N.Y. TIMES Apr. 6, 2009 at B6 ("Bruce Schneier, a security technology consultant, said the body-imaging machines are the equivalent of 'a physically invasive strip-search.'"). Such a fear is misplaced, however, for while whole-body scans are invasive, they are not particularly analogous to NTLD. Such scans would be much more analogous if NTLD could actually read "thoughts." As it is, though, NTLD can only measure physiological reactions to stimuli, which are then interpreted to provide information. See supra note 18 and accompanying text. This is quite different from whole-body scans, which produce an image of a nude body that requires no interpretation and unambiguously reveals information most people want kept private. For NTLD to act in the same way as these scans, it would need to determine--quickly, accurately, and in an obvious format--what someone is thinking
("I'm planning to bomb the plane," "I hope they serve peanuts on this flight," etc.). Absent such functionality, whole-body scans are fundamentally different from NTLD and the public might, therefore, treat them differently.
(111) U.S. CONST. amend. V. For purposes of this Article, "Fifth Amendment" is used interchangeably with "self-incrimination clause."
(112) Murphy v. Waterfront Com'n, 378 U.S. 52, 55 (1964) (internal citations omitted); see also Ronald J. Allen & M. Kristin Mace, Criminal Law: The Self-Incrimination Clause Explained and Its Future Predicted, 94 J. CRIM. L. & CRIMINOLOGY 243, 244 (2004) (arguing that the values noted in the above quotation "are striking in their vacuity and circularity.").
(113) Schmerber v. California, 384 U.S. 757, 762 (1966).
(114) Id. at 762 (noting that "Miranda implicitly recognizes" this conclusion); see also Allen & Mace, supra note 112, at 244 ("In its efforts to explain the Fifth Amendment, the Supreme Court has relied on stirring rhetoric that may move the heart but leaves the intellect unconvinced.").
(115) William J. Stuntz, Self-incrimination and Excuse, 88 COLUM. L. REV. 1227, 1228 (1988); see also Akhil Reed Amar & Renee B. Lettow, Fifth Amendment, First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857, 857 (1995); Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311, 311 (1991) ("The Self-Incrimination Clause is probably our most schizophrenic amendment.").
(116) Amar & Lettow, supra note 115, at 857.
(117) See Allen & Mace, supra note 112, at 245-46 ("While its justification is, we agree, hopelessly muddled, the scope of the Fifth Amendment (its implications in the real world for government/citizen interactions) can be specified quite clearly.... [T]he Court's treatment of the Self-Incrimination Clause may mirror its treatment of the Fourth Amendment. Both may defy general justificatory theories, yet both lead to relatively predictable results.").
(118) Fischer v. United States, 425 U.S. 391, 408 (1976) ("It is also clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating."); see also Allen & Mace, supra note 112, at 246 ("[T]he Court has concluded that Fifth Amendment violations must contain three elements: compulsion, incrimination, and testimony.").
(119) Smith v. United States, 337 U.S. 137, 147 (1949) ("If a witness could not be prosecuted on facts concerning which he testified, the witness could not fairly say he had been compelled in a criminal case to be a witness against himself. He might suffer disgrace and humiliation but such unfortunate results to him are outside of constitutional protection."); Hale v. Henkel, 201 U.S. 43, 67 (1906) ("The interdiction of the Fifth Amendment operates only where a witness is asked to incriminate himself--in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken way the Amendment ceases to apply.").
(120) Chavez v. Martinez, 538 U.S. 760 (2003).
(121) The "right to remain silent" in the face of police interrogation was established by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966).
(122) Id. at 764.
(123) Rogers v. United States, 340 U.S. 367, 371 (1951) ("The privilege against self-incrimination 'is solely for the benefit of the witness,' and 'is purely a personal privilege of the witness.'").
(124) Dery, supra note 77, at 249. It might be argued that even though neither the Fourth nor the Fifth Amendments are applicable here, a defendant might find recourse in the Fourteenth Amendment's due process protections. To do so, the defendant would need to demonstrate that the use of NTLD "shocks the conscience." See Rochin v. California, 342 U.S. 165, 172 (1952). This is an inherently subjective determination and little helpful precedent exists to determine how a court would or should apply this standard in the context of NTLD. See Thompson, supra note 1, at 351-54 (analyzing "shocks the conscience" precedent and attempting to apply it to NTLD).
(125) See Allen & Mace, supra note 112, at 250.
(126) Marchetti v. United States, 390 U.S. 39, 54 (1968).
(127) United States v. Washington, 431 U.S. 181, 188 (1977).
(128) See, e.g., Mitchell v. United States, 526 U.S. 314, 332 (1999).
(129) A custodial interrogation exists when police are asking a suspect questions about a crime and create an environment in which the suspect feels that he or she is not free to leave. Miranda v. Arizona, 384 U.S. 436, 457 (1966).
(130) Id. ("It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.").
(131) Id. (finding that circumstances can compel one to "consent" to government interrogation even when one does not actually wish to do so).
(132) Holt v. United States, 218 U.S. 245, 252-53 (1910).
(133) Schmerber v. California, 384 U.S. 757, 764 (1966).
(134) Id. "Testimonial" is not defined as broadly as the term might initially indicate. See id. at 761 n.5 ("A dissent suggests that the report of the blood test was 'testimonial' or 'communicative,' because the test was performed in order to obtain the testimony of others, communicating to the jury facts about petitioner's condition. Of course, all evidence received in court is 'testimonial' or 'communicative' if these words are thus used.'").
(135) Pennsylvania v. Muniz, 496 U.S. 582, 591 (1990).
(136) Id. at 591-92 (citing United States v. Wade, 388 U.S. 218, 222 (1967)).
(137) Id. (quoting United States v. Wade, 388 U.S. 218, 222 (1967)).
(138) 388 U.S. 263 (1967).
(139) Id. at 266-67. Allen and Mace attempt to fit the handwriting exemplar cases into a cognition-based theory of the Fifth Amendment by arguing that "[w]hen one only has to present, or refrain from hiding, personal characteristics, there is no disclosure of the results of cognition.... There is no assertion disclosed [by complying with exemplar instructions], only the decision not to let one's will interfere with the naturalness of the response." Allen & Mace, supra note 112, at 270. This explanation is less than satisfying, though, because signing one's name, for example, requires one to think about how to perform that task and whether to try to disguise one's normal handwriting. Both processes require cognition as defined by Allen & Mace, supra note 112, at 267, and should thus, under their theory, receive Fifth Amendment protection.
(140) Pennsylvania v. Muniz, 496 U.S. 582, 593 (1990).
(141) 384 U.S. 757 (1966).
(142) Id. at 758.
(144) Id. at 765 (citations omitted).
(145) Schmerber v. California, 384 U.S. 757, 764 (1964). The Court tried to further limit its holding when it stated that "[although] we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions[, this] in no way indicates that [the Constitution] permits more substantial intrusions, or intrusions under other conditions." Id. at 772. However, subsequent courts have nonetheless relied on the Schmerber holding in other circumstances. See, e.g., Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir. 1991) (upholding cavity search); United States v. Crowder, 543 F.2d 312, 316 (D.C. Cir. 1976) (upholding minor surgery to extract bullet).
(146) Schmerber, 384 U.S. at 764 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562 (1892)).
(147) Dicta is language in a judicial opinion that is not necessary for the court's holding and thus does not constitute binding precedent. In this case, the holding was limited to whether the use of the results of non-consensual blood tests was Constitutional. See William Federspiel, 1984 Arrives: Thought(Crime), Technology, and the Constitution, 16 WM. & MARY BILL RTS. J. 865, 893 (2008) ("Clearly, for Justice Brennan, though-treading technology would violate a defendant's Fifth Amendment right against self-incrimination. But this result does not necessarily follow based on the Court's testimonial/physical test and precedents."); Stoller & Wolpe, supra note 11, at 371 n.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.").
(148) See supra notes 133-39 and accompanying text.
(149) The Muniz Court focused on the "cruel trilemma" as the key to self-incrimination analysis. Pennyslvania v. Muniz, 496 U.S. 582, 597 (19990).
(150) Michael Dann proposes that the proper distinction turns on whether the "accused can or cannot reasonably believe that he [or she] can affect the result" of the test, with the protection of the Fifth Amendment only available when such a belief cannot reasonably exist. B. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S. CAL. L. REV. 597, 599 (1970). Assuming that one cannot effectively "beat" NTLD tests, his framework makes sense. But see Allen & Mace, supra note 112, at 263 ("[Dann's theory] fails to explain the cases.... [His] argument based on psychological cruelty generally has been rejected.").
(151) Muniz, 496 U.S. at 599 n.13 ("[T]he incriminating inference stems from the then-existing contents of Muniz's mind as evidenced by his assertion of his knowledge at that time.").
(152) See Thompson, supra note 1, at 344.
(153) See, e.g., Barillare, supra note 13, at 990-95 (outlining some of the basic arguments for both sides of the Fifth Amendment question); Stoller & Wolpe, supra note 11, at 374.
(154) Thompson, supra note 1, at 347 (quoting Peter A. Bandettini & Leslie G. Ungerleider, From Neuron to BOLD: New Connections, 4 NATURE: NEUROSCIENCE 864, 864 (2001)).
(155) Id. at 347-48.
(156) Barillare, supra note 13, at 993 ("Once hooked up to a Brain Fingerprinting machine, the suspect no longer has control over what piece of his psyche he will or will not disclose to the government [because t]he brain waves being measured are involuntarily emitted.") (citations omitted).
(157) Schmerber v. California, 384 U.S. 757, 765 (1966). One could argue that the Supreme Court's decision in Doe v. United States, 487 U.S. 201 (1988), a case focusing on document production, counsels against this conclusion. The Doe Court held that the Fifth Amendment applies when a suspect is forced "to disclose the contents of his own mind" and defined "testimonial" communication as involving an individual's "consciousness of the facts and the operations of his mind in expressing [them]." Id. at 210-11. Doe did not, however, consider physical manifestations vis-a-vis testimonial statements. Moreover, the Court implicitly assumed that all communications are intentional, even if made reluctantly, and are thus subject to Fifth Amendment protection. As discussed above, NTLD measures completely subconscious, unintentional "thoughts" and does not force the subject to disclose anything he could control. The framework established by Schmerber, which is more directly germane to NTLD, should thus supersede an application of Doe to NTLD.
(158) See supra note 61 and accompanying text.
(159) See Stoller & Wolpe, supra note 11, at 365 ("Brain imaging and brain fingerprinting (at least in their current forms) require some type of clear testimonial response from the suspect, such as pressing a button. However, it is possible that modified versions of NTLD would not require such responses and this possibility raises interesting Fifth Amendment issues."); id. at 365 n.58 ("For example, during Brain Fingerprinting ... 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.").
(160) The Court's analysis in Pennsylvania v. Muniz, 496 U.S. 582 (1990), is not to the contrary. Muniz noted that "[h]ad the suspect been asked to provide a writing sample of his own composition, the content of the writing would have reflected his assertion of facts or beliefs and hence would have been testimonial." Id. at 598.
In the same way, one could argue, NTLD measures suspect-generated content and not merely physical manifestations that are independent of any conscious statements by the suspect. Thus, a subject is making a conscious effort to respond to a question, and the resulting brain changes that are being measured are a direct by-product of the subject's testimony. This, it might be asserted, is analogous to examining subject-generated handwriting in that both the content and the form of the writing are potentially incriminating.
But, it can be responded, when a subject is merely providing a writing "sample" and does not consciously choose the content of the writing, this physical evidence is non-testimonial and is not subject to Fifth Amendment protections. In the same way, when passively viewing or hearing stimuli, the subject does not intend to create content and thereby testify. Any physical manifestations generated in response to NTLD should therefore be treated as non-testimonial.
(161) For example, BEOS testing, at least as used in India, apparently does not require the subject to make any statements. Giridharadas, supra note 6 ("For an hour, [the suspect] said nothing. But the relevant nooks of her brain where memories are thought to be stored buzzed when the crime was recounted, according to [Sunny] Joseph, the state investigator.").
(162) See supra note 112 and accompanying text. These results would be admissible even under Allen and Mace's more restrictive approach that would generally disallow lie detectors of all kinds because administering NTLD to a "silent" subject does not compel the subject to consciously reveal his or her thoughts. See generally Allen & Mace, supra note 112, at 268.
(163) Schmerber, 384 U.S. at 765.
(164) Id. at 771.
(165) See, e.g., supra notes 31-36 and accompanying text.
(166) In addition to the risks inherent in drawing blood, some people have religious objections to the taking of blood. See Schmerber, 384 U.S. at 771. It is possible, although unlikely, that such an objection could be raised in connection with a NTLD test, but the resolution of that issue is beyond the scope of this Article.
(167) As discussed, an fMRI can disrupt a pacemaker or dislodge imbedded ferromagnetic shrapnel, for example. See supra notes 31-36 and accompanying text. In addition, because PET and SPECT scans involve the injection of radioactive material, they also can raise health concerns, especially when multiple scans are conducted. See Izzetoglu et al., supra note 27.
(168) For purposes of reliability and credibility, law enforcement officials would also need to rely on properly trained professionals to apply and interpret the data obtained.
(169) In contrast, whether consent was obtained is often integral to a Fourth Amendment analysis and its focus on whether there was an unreasonable search and seizure. See David John Housholder, Reconciling Consent Searches and Fourth Amendment Jurisprudence: Incorporating Privacy into the Test for Valid Consent Searches, 58 VAND. L. REV. 1279, 1280 ("Perhaps the most significant exception to the requirements of the Fourth Amendment is the consent search, which requires no warrant, exigent circumstances, probable cause, or reasonable suspicion.") (citations omitted); supra note 97.
(170) Medical informed consent is usually required before diagnostic tests or medical treatment can be administered to a patient. BARRY R. FURROW ET AL., HEALTH LAW 310 (2d ed. 2000). Legal consent may involve a knowing, voluntary, and intelligent waiver of both the Fourth and Fifth Amendment rights of the subject.
(171) Although not the focus of this Article, a legislature can preclude the use of NTLD evidence in civil proceedings as well.
(172) See, e.g., Stoller & Wolpe, supra note 11, at 364 ("[T]he public most likely sees subjective thought as a domain of privacy, and will demand new laws to protect technological incursions because existing laws are probably insufficient."); see also Leo Kittay, Admissibility of fMRI Lie Detection: The Cultural Bias Against "Mind Reading" Devices, 72 BROOK. L. REV. 1351 (2007); but see Thompson, supra note 1, at 349 ("[T]o the extent that the average American views fMRI as engaged in nothing more than physical information gathering, i.e. to the extent fMRI is nothing more than a technologically advanced lie detector, its use, assuming reliability is established, is likely to be viewed as non-issue.").
(173) Reports have indicated that jurors and judges rely heavily on the related scientific test results to reach their conclusions. See, e.g., Donald Kennedy, Neuroimaging: Revolutionary Research Tool or a Post-Modern Phrenology? 5 AM. J. BIOETHICS 19, 19 (2005) ("Indeed, this characteristic of the brain-imaging technologies--that they give an unjustified sense of precision and would be subject to false positives--gives rise to a whole set of secondary ethical issues."); see also, Jeffrey Rosen, The Brain on the Stand, N.Y. TIMES, March 11, 2007, at 6 ("'Here was this nice color image we could enlarge, that the medical expert could point to,' Christopher Plourd, a San Diego criminal defense lawyer, told The Los Angeles Times in the early 1990s. 'It documented that this guy had a rotten spot in his brain. The jury glommed onto that.'"); James R. Merikangas, Commentary: Functional MRI Lie Detection, 36 J. AM. ACAD. PSYCHIATRY & L. 499, 499 (2008) (discussing "CSI effect" and fMRI lie detection as "Technicolor phrenology").
(174) See, e.g., Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 34-84 (2009) (discussing wrongful convictions in which forensic analysts testified for the prosecution).
(175) Although beyond the scope of this Article, a host of other judicial uses of NTLD create additional interesting legal and policy questions. For example, can courts order the use of NTLD on potential jurors to determine pre-existing bias? Should defendants have a right to access NTLD, either to demonstrate their own innocence or to evaluate those testifying against them? What if a technology could be developed that prevents the brain from lying? Could it be used, even mandated? See, e.g., Rosen, supra note 173, at 6 ("Mark George, an adviser to the Cephos company and also director of the Medical University of South Carolina Center for Advanced Imaging Research, has submitted a patent application for a [transcranial magnetic stimulation] procedure that supposedly suppresses the area of the brain involved in lying and makes a person less capable of not telling the truth.").
(176) Thompson, supra note 1, at 341-42.
Benjamin Holley, J.D., University of Virginia School of Law. Correspondence may be directed to firstname.lastname@example.org. The author would like to thank Professor Thomas L. Hafemeister and the anonymous peer reviewers for their helpful and insightful comments.
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|Publication:||Developments in Mental Health Law|
|Date:||Jan 1, 2009|
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