Printer Friendly

Weighing the admissibility of fMRI technology under FRE 403: for the law, fMRI changes everything--and nothing.

B. Unfair Prejudice: Will the Jury Overvalue This Evidence?

The first factor that must be weighed against the potential probative value of fMRI technology is its potential for unfair prejudice. (208) Relevant and probative evidence can be barred from admission if the jury would accord such evidence with weight disproportionate to its objective value. (209) Fear of jury overvaluation lies at the heart of much of the exclusion of admittedly relevant evidence, especially expert testimony. (210) However, evidence shows that people do not overvalue neuroscientific images. (211) On the other hand, jurors have been shown in fact to overvalue other types of evidence that are heavily relied upon, especially eyewitness testimony and forensic individualization (including DNA profiling). (212) This Part examines jurors' views of this technology in more depth.

1. Jurors Will Not Overvalue Neuroimaging Evidence

Initial scholarship gave credence to the idea that people were overly swayed by neuroscientific explanations and imagery. (213) Those who claim that neuroscientific evidence would have an undue influence on jury members pointed to a "Christmas tree phenomenon," (214) in that juries would be excessively persuaded by such images because they would be presented in the form of beautiful graphs with many bright colors. (215) These claims began even before the advent of fMRI technology. (216) Several studies outlined below have attempted to show how fMRI imaging would engender unfair prejudice. Almost all of these studies, however, suffer from various external and construct validity problems, (217) and none of them found the undue prejudice they sought.

a. Gurley & Marcus (2008)

An early study, conducted by Jessica R. Gurley and David K. Marcus, contended that jurors were more likely to return a result of "not guilty by reason of insanity" when presented with structural images of brain damage to defendants. (218) There are several reasons why this study is not applicable to fMRI lie detection. First, the experiment uses structural images, which depicts the brain at rest, (219) as opposed to the functional time-lapse images that fMRI provides when subjecting subjects to tasks, which is the subject of this Note. Second, the experiment failed to dissociate the brain images from the expert testimony; (220) thus, the question of whether it was the testimony or the images that produced the effect cannot be determined. (221)

b. Weis berg et al. (2008)

Another study, conducted by Deena S. Weisberg et al., asserted that people were more likely to believe explanations of events when they included neuroscientific language than the same explanations without such language. (222) However, the authors themselves recognized the major limitation of their findings, stating, "people may be responding to some more general property of the neuroscience information." (223) Most importantly, this study did not even measure the effect of brain images. (224) Further, subjects were not tested in a legal setting. (225)

c. McCabe & Castel (2008)

A third study, conducted by David P. McCabe and Alan D. Castel, argued that neuroscientific explanations were more influential when accompanied by brain images than when accompanied by bar graphs. (226) There were several problems with these results. First, subjects were asked to compare articles with brain images in each part of the experiment; there was no control condition in which a subject was asked to evaluate the article without a brain image altogether. (227)

Second, much like the pitfall in the Gurley and Marcus study, the neuroscience language contained in the study likely already influenced subjects; (228) this Note is concerned with the effect of imaging. Moreover, critics argue that the images themselves weren't equivalent to each other. (229) Additionally, this experiment was not conducted in a legal setting. (230) Perhaps most importantly, when the raw data from this experiment and an attempted replication of it were combined, other researchers suggested that McCabe and Castel's purported conclusions were unsubstantiated. (231) That is, when other experimenters attempted to replicate the study's results, they instead found that the brain image exerted "little to no independent influence on juror verdicts." (232)

d. McCabe et al. (2011)

A fourth study, conducted by David P. McCabe et al., suggested that verbally offered fMRI lie detection evidence was more influential than lie detection evidence yielded from polygraph or thermal facial imaging technology offered in the same form. (233) This experiment's major shortcoming is that it fails to compare the effect of such verbal evidence with the effect of neuroimages (234) : verbal neuroscientific evidence is already permissible from expert witnesses in criminal cases. (235) Much like the limitation of the Weisberg et al. experiment, this study does not measure the effect of fMRI imaging. Of further note, this influence was negated when the technology's scientific validity was called into question within the experiment's fact pattern. (236)

e. Greene & Cahill (2012)

Another study, conducted by Edith Greene and Brian S. Cahill, argued that mock jurors were less likely to recommend a sentence of death for defendants at high risk of future dangerousness when given neuropsychological and neuroimaging evidence than when they were given neither. (237) However, visual representations of brain abnormalities did not have a more profound impact on jurors' decisions than neuropsychological testing results alone. (238) The authors suggested that any additional information may have affected the jurors decisions. (239) According to these scholars, "[w]hen [brain scans] do have an impact ... it is no greater than the impact of neuropsychological testing data that have been available for many decades." (240)

f. Schweitzer et al. (2011)

The most compelling study exploring the undue influence of neuroimagery found that neuroimagery did not affect jurors' judgments any more than verbal neuroscience-based testimony. (241) Several scholars understood the shortcomings of the aforementioned experiments, and undertook to try to expand or replicate them. (242) The four experiments within the study were designed to account for all of the variables that may have confounded the results of the aforementioned studies. (243) "In each successive experiment[,] the pressures on mock jurors to find guilt [were reduced] (thus potentially liberating them to be increasingly open to influence from the neuroimage evidence)." (244) Even though most of the authors of this study expected these images to unduly influence the mock jurors, (245) they concluded, "neuroimages had no especially potent or consistent impact on verdicts or sentences." (246) Describing this turn of events, another scholar stated, "[g]iven the visual appeal of images and their high-tech origins, the idea that they are inordinately persuasive is plausible. This a priori plausibility may have reduced scrutiny of the experimental designs and results that seem to support it." (247)

2. Jurors Currently Overvalue Other Types of Evidence

Jurors currently ascribe more weight than they should to certain kinds of admissible evidence based on that evidence's lack of objective value. As explained in the sections below, eyewitness testimony is notoriously unreliable, and yet it is continuously admitted, and strongly relied upon by jurors. Jurors also award excessive weight to forensic evidence, such as fingerprint and DNA evidence.

a. Eyewitness Testimony

Empirical research has effectively established that eyewitness testimony is unreliable. (248) Humans have limited cognitive capacities and are subject to biases and limitations, (249) including, importantly, those of memory and perception, (250) which lead them to be poor eyewitnesses. (251) Among other findings, studies have shown that human memory is malleable and rather ephemeral; (252) people are far better at recognizing the faces of people in their own race than they are those of a different race, (253) and a witness' confidence has little to no correlation with the accuracy of his or her testimony. (254) Jurors have very little awareness of these findings, despite the fact that they have been widely established for some period of time. (255) Perhaps most importantly, most people have very little understanding of the stages and faults of human memory storage and recall, (256) leading them to grossly overestimate a witness' ability to retain memories. (257) Even judges and attorneys themselves are not completely familiar with the shortcomings of eyewitness testimony. (258) Given the shortcomings in eyewitness testimony, and the lack of general awareness of those shortcomings, jurors tend to overvalue the intrinsic worth of such evidence. (259) Jurors place more weight on eyewitness testimony than on other types of evidence, and are substantially more likely to convict defendants when they hear such testimony than when none is available. (260) Before the development of forensic DNA testing, mistaken eyewitness identifications were responsible for the convictions of more innocent persons than any other combination of factors. (261) More recent studies of conviction reversals due to DNA testing indicate that a significant percentage of these reversals involved an eyewitness identification that turned out to false (262)--in some studies, as much as eighty-five percent (263)--making eyewitness testimony the "single greatest cause of wrongful convictions in this country." (264) For this reason, courts have increasingly permitted expert testimony that addresses the inaccuracy of eyewitness testimony, human memory, and false confessions. (265)

b. Forensic Evidence

Forensic science is continuously admitted under Daubert and FRE 702 with very little hesitation, despite its deficiencies and lack of scientific validity. (266) Forensic individualization methods, most notably fingerprint and DNA analysis, rely on statistic probabilities and subjects' individuality in order to match a piece of evidence with its origin. (267) DNA typing was recognized as a large breakthrough for criminal investigation immediately after its advent in the (1980) s (268). some scholars have even asserted that DNA typing technology paved the way for the Daubert decision's overhaul in expert witness testimony admissibility standards. (269) Ironically, even though proponents of DNA technology assert that fingerprinting is currently more reliable than DNA, (270) some scholars assert that fingerprinting technology might be deemed inadmissible if its admission were sought under the current Daubert standard. (271) Accordingly, DNA evidence is now touted as the "gold standard" of evidence. (272)

Despite this "aura of credibility," forensic individualization is not without shortcomings. (273) Even though some scholars still challenge the individualization theory underlying forensic science generally, (274) and many of these methods have little to no scientific basis, (275) the applications to DNA, and fingerprint analysis to a lesser extent, (276) have generally been proven reliable. (277) Yet, there is a general lack of standardization and regulation within and among fields of forensic science. (278) Further, given that experts must interpret the evidence, there is the omnipresent specter of human error (279) and susceptibility to psychological biases. (280) For example, in one study, when fingerprint examiners were given the same set of fingerprints again, examiners reached different conclusions ten percent of the time. (281) Forensic experts have often failed to conduct adequate testing, or improperly exaggerate warranted conclusions from the data. (282) In fact, some form of invalid or improper forensic evidence may have contributed to over half of the original convictions later exonerated by DNA evidence. (283)

Because of its deficiencies, jurors have a propensity to overvalue forensic evidence--even DNA profiling. (284) One study showed that, without adequate explanation, many jurors are not able to accurately assess the reliability of DNA profiling methods. (285) Despite this weakness, jurors in the same study that had greater pretrial trust in DNA evidence were more likely to convict the defendant. (286) Alarmingly, in another study, the "increase in [jurors'] perceived probative value [of all the evidence] was most prominent when the DNA evidence was of a moderate or weak standard." (287) Some mock jurors in yet another study practically disregarded statistically significant laboratory error rates when given an extremely low "random match probability;" (288) this was probably caused at least partially by the difficulty many jurors face when trying to comprehend statistical information. (289) Prosecutors exacerbate the problem with various misstatements and exaggerations. (290)

C. Confusing the Issue

The second factor under FRE 403 that must be weighed against the probative value of the use of fMRI for detection of deception under is its potential to confuse the jury, (291) or even judges.

1. Juror Problems

Evidence shows that jurors' fact-finding abilities are generally sound. (292) From there, however, empirical evidence paints a much more dismal picture of the jury, especially its interaction with science and mathematics. Case studies of juror performance in complex cases suggest that jurors have difficulty in comprehending and properly using scientific evidence.(tm) Jurors are particularly challenged when evaluating science based on statistical data. (294) Even more troublesome is what some scholars call the "gatekeeper effect," where jurors imbue low-quality expert testimony with undeserved credibility simply because they think judges inspect evidence themselves before its admission. (295)

Jurors also have trouble identifying serious flaws in experimental setup and how these flaws affect the internal validity of the results. (296) The only major flaw that jurors are able to consistently detect is a missing control group; (297) jurors are not very capable of identifying other confounding variables that have the potential to compromise an experiment's results. (298) For example, jurors have distinct trouble identifying an experimenter's bias. (299) Nevertheless, it may not completely be the jurors' fault; at the very least, they are not alone, as some judges have similar difficulties.

2. Judge Problems

Studies suggest that judges are not much better than jurors at assessing scientific evidence. Even though their self-confidence may overestimate their actual ability, (300) judges are human, after all, and are thus subject to many, if not all, of the same cognitive shortcomings. (301) In the same vein, judges are also prone to misunderstanding statistical information. (302) After surveying four hundred state court judges, some scholars went so far as to say that judges "lack the scientific literacy required for a Daubert analysis." (303) The same study even suggests that only about five percent of those judges could demonstrate a clear understanding of falsifiability or error rates. (304) Judges, like jurors, also "have difficulty identifying methodologically flawed expert testimony." (305) Judges may err on the side of caution when applying a Daubert analysis, with some empirical research suggesting that judges are more likely to exclude evidence the more quantitatively complex it is. (306)

3. No Problem: Jurors Are on the Same Page as Judges

Ultimately, even though juries may get more verdicts objectively wrong than society would be comfortable with, (307) jurors generally perform consistently well when assessed with external criteria of performance. (308) One scholar suggests that juror competence should not be assessed on an absolute scale (that is, as compared to factual truth) or even to that of expert witnesses; competence is more properly assessed across different kinds of evidence, or compared to the competence of judges. (309) Failure to completely comprehend trial evidence, even scientific or technical in nature, does not produce a significant departure from the assessments of judges in the same cases. (310) Even though deficiencies in understanding evidence are undesirable, they ultimately do not have a significant effect on verdicts. (311)

Often, attorneys and judges exacerbate the problem and confuse juries further with their explanations and jury instructions, respectively. (312) Contrary to the popular notion of jurors, the less they understand about expert testimony, the less likely they are to be influenced by it. (313) In fact, one study shows that judges are more likely than jurors to defer to expert testimony, and are also more likely than jurors to convict defendants when given the same scientific evidence. (314) The notion that jurors do not comprehend expert testimony well, or blindly defer to experts, is inconsistent with a substantial body of empirical research on the subject. (315)

4. Paternalism

Given that jurors are sufficiently capable of understanding expert testimony, excluding such testimony on the grounds that the confusion it would engender substantially outweighs the probative value of fMRI is too paternalistic to justify its exclusion. (316) In Scheffer,; two Supreme Court Justices, Justices Stevens and Kennedy, even spoke out in defense of the average juror. (317) Excluding reliably probative evidence using evidentiary rules to "protect the ignorant jury" is becoming a relic of the past. (318)

The apparent concern that jurors lose all sense of reality and simply believe anything and everything they see depicted on a television or computer screen presupposes a certain naivete and basic lack of intelligence on the part of juries that is not only unwarranted as a matter of psychological research, but is also offensive and even elitist. (319)

Evidence suggests that the best way to reduce jury confusion is to improve the clarity of both attorneys' and experts' explanations. (320)

5. The Great Legal Engine: Cross-Examination

Much of the clarity, or obfuscation, comes from the "greatest legal engine ever invented for the discovery of truth," cross-examination. (321) There, attorneys attempt to expose inconsistencies, emphasize deficiencies in arguments, and reduce the effectiveness of lying. (322) Indeed, the Daubert Court itself emphasized the importance of cross-examination in this context. (323)
   Vigorous cross-examination, presentation of contrary evidence, and
   careful instruction on the burden of proof are the traditional and
   appropriate means of attacking shaky but admissible evidence....
   These conventional devices, rather than wholesale exclusion ... are
   the appropriate safeguards where the basis of scientific testimony
   meets the standards of Rule (702). (324)

The drafters of FRE 702 were wary of overzealous trial court judges, warning that their "role as gatekeeper is not intended to serve as a replacement for the adversary system." (325) Several other variables diminish the over-reaching effect of expert witness testimony in the courtroom, (326) including the "hired gun" effect (327) the more biased an expert is in his testimony, the more likely a juror will substantially or completely discount it. (328)

Cross-examination would be important in the early days of fMRI's admissibility in order to temper its effect. First, expert testimony would need to be introduced to explain the nature of the fMRI, the criteria used for scoring, and the background assumptions. (329) Then, cross-examination or rival expert testimony would need to focus on potential issues such as the error rate, possible contamination, invalid assumptions, etc. (330) This process would help expose the shortcomings of fMRI technology and educate the jurors at the same time. (331) The benefits of this process have already been highlighted within the context of fMRI imaging: researchers who claimed to have found a disproportionate effect of fMRI images conceded that informing test subjects of the technology's limitations practically eliminated its effect. (332) If, or when, the technology becomes reliable enough to satisfy FRE 702, the solution is not wholesale exclusion, but to allow the judicial system to properly run its course with the expectation that jurors ultimately decide its evidentiary value for themselves. The confusion created and perpetuated by attorneys, expert witnesses, and judges cannot be grounds for exclusion of sufficiently probative evidence.

D. Misleading the Jury: The Jurors Are Already Misled

Another factor against which the probative value of fMRI deception detection must be weighed is its potential to mislead the jury. (333) Much like its potential for unfair prejudice, critics worry that jurors will abandon their own abilities and solely rely on evidence fMRI can provide. Determining the weight and credibility of testimony is thought to be the "province of the jury," composed of jurors "presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men." (334) Jurors may not, however, be properly endowed with the natural intelligence necessary for such a task: jurors have been shown to consistently Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)). make poor credibility assessments based on both behavioral cues and contextual information. (335) As such, fMRI technology can assist jurors in making credibility assessments without replacing their role as ultimate arbiters of credibility judgment, as shown in the following sections.

1. Credibility Assessment

Research generally shows that humans are very poor at making credibility assessments, and detecting lies or liars. (336) Even though humans are good at lying, we have serious difficulty discerning lies in others. (337) An average person's ability to detect deception in a face-to-face interaction with another individual is only slightly better than chance. (338) Despite intuitively having more interaction with deception, even those in law enforcement perform only slightly better than average people in the same tasks. (339) Not only are humans bad at detecting deception, we have a false sense of confidence in our abilities, leading us to believe that we are better than we actually are. (340) Generally, humans use "the demeanor of witnesses, their past record of truth telling, the internal coherence of their stories, and the external coherence of their stories with the stories of others" to assess witness credibility. (341)

a. Credibility Assessment Using Demeanor

Social science indicates that laypeople poorly assess credibility when relying on behavioral cues, such as "facial expressions, tone of voice, aversion of gaze, and general nervousness." (342) Instead, people are better able to detect deception when they can discern body language that subconsciously "leaks" information, which a liar would prefer to keep hidden. (343) People assess the veracity of statements based on emotional cues at near chance accuracy. (344) In one experiment, an attempt to train test subjects with a method that assists in discerning verbal and nonverbal cues to detect deception resulted in even lower accuracy and, despite that reduced accuracy, higher confidence than those not trained in the accuracy of their judgments. (345) A meta-analysis of the most current research, which included results from over (24,000) people, found a fifty-four percent accuracy rate in assessing deception judgments. (346)

b. Credibility Assessment Using Context

Research also indicates that laypeople poorly assess credibility when relying on the "context, consistency, and depth of witnesses' statements." (347) Allowing people to take personal biases and context into consideration marginally improves lie detection accuracy, but only in certain situations. (348) Even allowing jurors to cross-check stories by asking questions only marginally improved truth or lie detection accuracy. (349) Assuming arguendo that there would be a marginal improvement if jurors were allowed to ask questions during trial, the most optimistic juror credibility studies find around sixty percent accuracy. (330)


This Note proceeds on the very strong assumption that fMRI deception detection technology will improve to the point of satisfying Daubert and its accompanying case law. On one hand, jurors do not attribute more subjective weight than the objective value of fMRI images, which means that these images do not create unfair prejudice that outweigh their probative value. On the other hand, jurors currently overvalue strongly relied upon forensic evidence such as fingerprints and DNA. Justice Thomas's plurality opinion in Scheffer is ultimately non-binding on any court that will pass upon fMRI's admissibility. (351) Although once thought to be exclusively within the "province of the jury," empirical evidence shows that jurors are simply inept at making consistent and accurate credibility determinations. (352) Courts have several options that can dampen the potential negative impact of its admission, while its admission itself will serve to perfect the technology and its application. (353) Ultimately, once this technology satisfies Daubert, FRE 403 will not be a bar to its admissibility.

A. fMRI Images Remain Innocent Until Proven Guilty

FRE 403 will not preclude the admissibility of fMRI deception detection because its resulting images do not create undue prejudice. Although of deep previous concern to many scholars, (354) new evidence shows that jurors do not give disproportionate value to fMRI images; (355) as such, they cannot be excluded under FRE 403 for creating undue prejudice that substantially outweighs its probative value. The question is not whether the fMRI images create prejudice, as creating prejudice by producing powerful enough evidence to convince a neutral third party of the persuasiveness of an argument is the foundation of our adversarial system. (356) Rather, it is whether they are falsely powerful, in that they are more powerful than other types of visual evidence that the legal system consistently admits, (357) and this disproportionate power is unjustifiable in relation to the evidence's reasonable objective value. Some scholars suggest that the admission of fMRI images would sacrifice procedural justice in favor of substantive justice. (358) However, precluding fMRI images, despite their having no unique additional influence compared to other visual images (359) or other neuroscientific evidence, that are both already routinely admissible, (360) would sacrifice procedural justice owed to the images themselves. Despite developing sufficient reliability to satisfy Daubert, there may still be a problematic gap between its reliability and its ability: "[e]ven a test that is accurate enough to meet the Daubert standard will have serious implications for perceived systemic legitimacy if it is persuasive enough to yield a conviction without other strong supporting evidence but is not accurate enough to ensure that an innocent person is never misdiagnosed." (361)

B. Jurors Overvalue Other Types of Evidence

The gap between the scientific reliability of evidence and the ability of such evidence to secure a criminal conviction may be inevitable, (362) as jurors often overvalue weak or unreliable types of evidence, such as eyewitness testimony and forensic evidence, which are heavily relied upon in securing wrongful convictions. (363) Eyewitness testimony has been called the "single greatest cause of wrongful convictions" in this country. (364) Some types of forensic evidence are routinely admitted despite the fact that they might not satisfy Daubert if their admissibility was decided for the first time today, (365) and weak forensic evidence has led to a "disturbing number of convictions." (366) Yet, these weak types of evidence serve important functions in the law, and so too will fMRI deception detection technology once it satisfies the Daubert threshold. (367)

C. Justice Thomas's Scheffer Opinion Is Not Binding

Indeed, Justice Thomas's apprehension toward lie detection technology and the usurpation of the jury's role in his Scheffer opinion applies to all expert testimony routinely admitted in court. (368) As aforementioned, other types of evidence lend themselves to undeserved deference, yet jurors are still regularly, and fundamentally, trusted to assess such evidence for themselves. (369) However, even though some scholars emphasize the superiority of fMRI deception detection's scientific reliability or validity over either polygraph technology (370) or forensic science (371) as a basis for eventual admissibility, another scholar suggests that the assumption that courts admit these types of evidence because of their reliability may be unwarranted. (372) These other types of evidence will continue to be admitted because of their strong tradition of admissibility, (373) but that same tradition should not also serve to keep fMRI deception detection technology out of the courtroom due simply to its superficial similarity to the polygraph as a lie detector. (374)

As far as Justice Thomas's "province of the jury" concern goes, the Court's decision in Scheffer does not preclude the admission of fMRI lie detection technology. As an opinion joined by only a plurality of the court, it has no binding precedential effect on future court decisions. (375) The Court upheld the military's ban on the use of polygraph technology in court-martial proceedings on the narrow grounds of the government having a legitimate interest in doing so. (376) The oft-quoted phrase of the case, "[a] fundamental premise of our criminal trial system is that 'the jury is the lie detector,"' lies within Justice Thomas's plurality opinion. (377) Indeed, Justice Kennedy emphasized the court's narrow holding in his concurring opinion. (378)

Thus, Scheffer does ot preclude lie detection technology of sufficient reliability from being admissible simply on the notion that it would affect the jury's assessment of witness credibility. (379) The prospect of this technology reaching sufficient reliability ultimately "raises fundamental questions about the role of the jury in our ... justice system[], and indeed about the purpose of the jury trial itself." (380)

D. The Jury Needs Whatever Help It Can Get

FRE 403 will not preclude the admissibility of fMRI deception detection because, instead of misleading the jury, it will provide a confused jury with much-needed assistance in making more accurate credibility assessments. Given the great difficulty jurors have with detecting lies, (381) fMRI deception detection technology will assist the jury's assessment of witness credibility without displacing its role as the ultimate arbiter of truth. The average ability to detect deception based on demeanor is around chance, with the use of contextual factors only marginally improving the ability to detect lies. (382) Once this technology improves, it will certainly assist in the juror's credibility assessment; however, introducing this technology will do anything but replace the jury. (383) The notion of truth exists across a spectrum, (384) and most objectively untrue statements uttered by trial witnesses are "mistakes, exaggerations, or distortions rather than bald-faced intentional lies." (385) Further, as it stands, this technology cannot distinguish between true lies and false memories or assertions of subjective truth. (386) A jury would need to assess other evidence presented that may override the test results, or prove to be more probative. (387) The jury must also determine the credibility of the expert himself, assessing "bias, defects in test methodology, the reliability of the particular machinery used, or even outright corruption and deceit." (388)

fMRI deception detection's probative value will not be substantially outweighed by its potential to confuse the jury under FRE 403 because it is not intrinsically more confusing than other types of evidence, and confusion stemming from evidence may actually be caused by attorneys and judges. The difficulty jurors have with scientific evidence is shared by judges, which reminds us of the famous quote, "Democracy is the worst form of government, except for all those other forms that have been tried from time to time." (389) The right to a jury trial, with all of its faults, is a constitutional right and is here to stay for the foreseeable future. (390) Deceptiveness "should be presented as probabilistic rather than a categorical conclusion that a given witness is truthful or deceptive." (391) The statistical analysis required to produce the fMRI data and images, as well as this probabilistic conclusion of deceptiveness, may initially confuse the jury given its difficulty with mathematics. (392) Nevertheless, the solution for this confusion is not for the legal system to paternalistically exclude any evidence that has the propensity to confuse, as such paternalism undermines the intelligence of the average American. (393) Rather, attorneys must enhance the clarity of their explanations.

E. Additional Suggestions to Lessen Potential Harmful Impacts of fMRI Deception Detection.

Scholars have presented additional suggestions to lessen any potential harmful impact that fMRI deception detection technology may have. Because jurors with more formal education or background in science and mathematics perform better in assessing scientific evidence, (394) some scholars suggest conferring that benefit by neutrally training the jury through a short tutorial before the beginning of the trial. (395) As mentioned in the advisory committee notes of FRE (403) itself, (396) proper cautionary jury instructions may be fashioned for two reasons. First, they are created to remind jurors of the technical and legal limits of this technology, (397) (398) (399) so that they do not overvalue or misapply the evidence produced. (398) Second, to avoid the gatekeeper effect, jurors must understand that they are to assess the reliability and weight given to the evidence by virtue of the testimony given, and not the fact that it merely satisfies Daubert. (399) Even more drastic recommendations include appointing special masters selected for their expertise in the subject matter to serve as expert witnesses, (400) or a moratorium on all non-research uses of fMRI deception detection until a regulatory agency can assess the research and adopt field-wide standards. (401)

F. The Admission of fMRI Will Only Improve Its Reliability

Ultimately, fMRI deception detection's reliability will only improve with its admission; with this increase in reliability, (402) the initial apprehension about fMRI will wane. (403) If DNA, as the "gold standard" of evidence, provides a blueprint for the admissibility of fMRI deception detection, it might be at least another decade or two before the developmental gap between the theory and technology closes enough to reach a level of reliability and validity to be admissible in the judicial system. (404) The challenges presented by the adversarial process through cross-examination or rival expert testimony will serve to refine the underlying process and presentation of this technique, as they did with DNA evidence. (405) (406) One scholar fears that seeking the admission of this technique too quickly might preclude its admission for the foreseeable future, (400) which may mean it is already too late given the Semrau decision. It is more likely, however, that rejecting its admissibility will not be held to strict precedent, and will rather be reconsidered in light of the technique's technological advancement. (407)


Once fMRI deception detection technology reaches a level of reliability sufficient enough to satisfy FRE 702 and Daubert, FRE 403 should not bar its admission. The images that fMRI deception detection techniques produce are not inherently overly prejudicial, and do not produce the ill-advised initial fear of a "Christmas tree effect." (408) fMRI images are no more influential than neuroscience evidence that has already been admissible for decades. (409) It would be hypocritical to disallow fMRI deception detection evidence, yet routinely allow other types of evidence that are often unreliable, and also often overvalued by the jury given their independent objective evidentiary value. (410) Lie detection evidence is not precluded from admission as a matter of stare decisis, given that Justice Thomas's plurality opinion in Scheffer has no binding precedential effect (411)" Considering jurors' woeful credibility assessment abilities, they need the assistance that this technology will be able to provide.

Ultimately, this Note raises two issues that pervade discussions in the larger legal arena. First, this Note addresses what encapsulates the concept of evidentiary reliability, and how different standards of reliability may be applied to different types of evidence. Second, this Note addresses what the role of the jury, and the jury trial as a whole, is within our justice system. Many of the issues that scholars raise with regard to fMRI deception detection technology are not unique to this technique, which ultimately raises the following question: "Is expert evidence really different?" (412) As a thought experiment goes, if (or when) lie detection technology were to reach perfect accuracy, would there be a role for the jury, or jury trial, whatsoever? (413) Would it even have to reach perfect accuracy, or would it simply have to be more accurate than the juries themselves? This technology may implicate issues that will cause problems at first, (414) but with the right protections and safeguards, (415) it will ultimately serve, and greatly benefit, society by delivering greater justice. In our justice system's search for objective truth, this technology will certainly only uncover more of it, which is a foundational purpose of our adversarial justice system. Precluding its admission would not only be an injustice to those that this technology could assist, from defendants to jurors, but it would also be an injustice to justice itself.

(1.) Charles N.W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509, 553-54 (2006). Keckler assumes that "society possesses an interest in the truth, and that the Anglo-American adversary system purports to serve this interest." Id. But the admissibility of fMRI deception detection technology must be contemplated in a vacuum because the economic litigation approach, under which "litigation is preferred over settlement only so long as the parties have different expectations of trial outcome," may in fact perpetuate confusion. Id.

(2.) See Brian Reese, Using fMRI as a Lie Detector--Are We Lying to Ourselves?, 19 Alb. L.J. Sci. & Tech. 205, 205 (2009).

(3.) See Julie A. Seaman, Black Boxes, 58 Emory L.J. 427,434 (2008).

(4.) Sec Aaron M. Stronge, Absolute Truth or Deus Ex Machina?: The Legal and Philosophical Ramifications of Guilt-Assessment Technology, 10 J. High Tech. L. 113 (2009).

(5.) See generally Frederick Schauer & Barbara A. Spellman, Is Expert Evidence Really Different? 9 (Feb. 1, 2013) (unpublished manuscript), available at

(6.) See id.

(7.) Francis X. Shen, Neuroscience, Mental Privacy, and the Law, 36 Harv. J.L. & Pub. Pol'y 653,655 (2013).

(8.) Daniel D. Langleben & Jane Campbell Moriarty, Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide, 19 Psychol. Pub. Pol'y & L. 222, 223 (2013) (asserting that fMRI will be more successful in detecting lies than electroencephalography and polygraph technology).

(9.) See Katerina Semendeferi et al., Prefrontal Cortex in Humans and Apes: A Comparative Study of Area 10, 114 Am. J. Physical Anthropology 224, 224 (2001).

(10.) See Kate Teffer & Katerina Semendeferi, Human Prefrontal Cortex: Evolution, Development, and Pathology, in 195 Progress in Brain Research 191, 191 (Michael A. Hoffman & Dean Falk eds., 2012).

(11.) Sean A. Spence et al., A Cognitive Neurobiological Account of Deception: Evidence from Functional Neuroimaging, 359 Phil. Transactions Royal Soc'y. B Biological Sci. 1755, 1755-56 (2004).

(12.) See Archie Alexander, Functional Magnetic Resonance imaging Lie Detection: Is A "Brainstorm" Heading Toward the "Gatekeeper"?, 7 Hous. J. Health L. & Pol'y 1,9-10 (2006).

(13.) See Keckler, supra note 1, at 519 (citing Robin Dunbar, On the Origin of the Human Mind, in Evolution and the Human Mind: Modularity, Language, and Meta-Cognition 238-53 (Peter Carruthers & Andrew Chamberlain eds., 2000)).

(14.) Id. at 519 n.36 ("'In human evolution, processes of deception and self-deception were greatly heightened by the advent of language. Language permits individuals to make statements about events distant in time and space, and these are least amenable to contradiction. Thus, language permits verbal deception of many different kinds.'" (quoting Robert Trivers, Social Evolution 416 (1985))).

(15.) See Semendeferi et al., supra note 9, at 193.

(16.) See Maria Jurado & Monica Rosselli, The Elusive Nature of Executive Functions: A Review of our Current Understanding, 17 Neuropsychology Rev. 213,215 (2007).

(17.) See Alexander, supra note 12, at 12-13 (describing the spectrum of conveying information from intentional to unintentional distortions of truth, including "concealment, distortion, fabrication, or manipulation of truthful information"); see also Keckler, supra note 1, at 539 (citing Bella M. DePaolo et al., Cues to Deception, 129 Psychol. Bull. 74, 105 (2003)) (referring to a meta-analysis of 1338 cues of deception, which indicates a large psychological gray area between truth and deceit); Jed S. Rakoff, Lie Detection in the Courts: The Vain Search for the Magic Bullet, in Using Imaging to Identify Deceit: Scientific and Ethical Questions 40, 44 (2009) ("The law recognizes many kinds of lies, ranging from 'white lies' and 'puffing' to affirmative misstatements, actionable half-truths, and material omissions.").

(18.) These categories are the author's own variation of several mentioned throughout the literature. See, e.g., Keckler, supra note 1, at 510.

(19.) See id.

(20.) Eric K. Gerard, Waiting in the Wings? The Admissibility of Neuroimagery for Lie Detection, 27 Dev. Mental Health L. 1, 7 (2008).

(21.) See Keckler, supra note 1, at 510.

(22.) See Gerard, supra note 20.

(23.) Michael S. Pardo, Neuroscience Evidence. Legal Culture, and Criminal Procedure, 33 Am. J. Crim. L. 301, 312-13 (2006).

(24.) See John B. Meixner, Liar, Liar, Jury's the Trier? The Future of Neuroscience-Based Credibility Assessment in the Court, 106 Nw. U. L. Rev. 1451, 1455 (2012).

(25.) See id.

(26.) See id. at 1455-56.

(27.) See id. at 1455.

(28.) See id. at 1456.

(29.) See id. at 1458 n.42.

(30.) See id.

(31.) See id at 1458.

(32.) See id.

(33.) See id. at 1459.

(34.) See id. at 1458 (providing that in such circumstances knowledge of the crime may be inferred).

(35.) See Leo Kittay, Admissibility of fMRI Lie Detection: The Cultural Bias Against "MindReading" Devices, 72 Brook. L. Rev. 1351, 1360-61 (2007).

(36.) See Frequently Asked Questions, Am. Polygraph Ass'n, (last visited Nov. 22,2013).

(37.) Id.

(38.) Gerard, supra note 20, at 20 (citing Steven I. Friedland, Law, Science, and Malingering, 30 Ariz. St. LJ. 337, 357 (1998)).

(39.) Id.

(40.) See id.

(41.) See Spencer J. Brooks, Scanning the Horizon: The Past, Present, and Future of Neuroimaging for Lie Detection in Court, 51 U. Louisville L. Rev. 353, 360 (2013) (asserting that the expectations of the test-giver can influence both his interpretation and the subject's responses); see also Gerard, supra note 20, at 21 (asserting that an examiner's tone of voice, posture, comportment, intonation, and other verbal and non-verbal cues may all affect subject responses); Kittay, supra note 35, at 1362.

(42.) See Gerard, supra note 20, at 21 ("[E]xaminers may differ in the numerical values they assign for a set of answers and their attendant physiological responses.").

(43.) Brooks, supra note 41, at 359.

(44.) Gerard, supra note 20, at 21.

(45.) Kittay, supra note 35, at 1364 ("Subjects have used counter-measures, such as sedatives, to dampen their autonomic responses and stressors, such as flexing muscle or placing tacks in a shoe, to artificially inflate or create stress reactions."); see also Alexander, supra note 12, at 31 (stating that subjects may engage in "the self infliction of pain[] to create a false physiological response to the control questions."); Brooks, supra note 41, at 359; Gerard, supra note 20, at 21.

(46.) United States v. Cordoba, 991 F. Supp. 1199, 1203 (C.D. Cal. 1998), aff'd, 194 F.3d 1053 (9th Cir. 1999) (quoting W. Iacono & D. Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence [section] 14-3 (D. Faigman et al. eds., 1997)).

(47.) Kittay, supra note 35, at 1363 (citing 4 Modern Scientific Evidence [section][section] 40:25-28 (D. Faigman et al. eds., 2005-06)). The American Polygraph Association claims accuracy in the range of eighty-five to eighty-nine percent. Polygraph Validity Research, Am. Polygraph Ass'n, (last visited Nov. 22, 2013).

(48.) Teneille Brown & Emily Murphy, Through a Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant's Past Mental States, 62 Stan. L. Rev. 1119, 1136 (2010).

(49.) Id.

(50.) Id.

(51.) See Alexander, supra note 12, at 35-40.

(52.) Henry T. Greely & Judy Illes, Neuroscience-Based Lie Detection: The Urgent Need for Regulation, 33 Am. J.L. & Med. 377, 387 (2007).

(53.) Alexander, supra note 12, at 36.

(54.) See id. For a discussion of cases that have discussed the admissibility of this technology, see id. at 36-40.

(55.) There is a great deal of publication on the science behind fMRI technology, with varying degrees of detail. For in-depth discussion on fMRI, its various measurements, and the resulting inferences that can be made, see Brown & Murphy, supra note 48, at 1138-55. For detailed discussion on the physics and minutiae of fMRI, see Alexander, supra note 12, at 15-24 (explaining fMRI technology from the atomic level upward). For in-depth explanation of broader neuroscience concepts and technologies, see generally Henry T. Greely & Anthony D. Wagner, Reference Manual on Scientific Evidence: Reference Guide on Neuroscience (3d ed. 2011). For further background, see Mark Pettit, Jr., fMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, 33 Am. J.L. & Med. 319, 340 (2007); Reese, supra note 2, at 227.

(56.) See Brown & Murphy, supra note 48, at 1138.

(57.) See Orrin Devinsky & Mark D'Esposito, Neurology of Cognitive and Behavioral Disorders 57 (2004).

(58.) Owen D. Jones et al., Brain Imaging for Legal Thinkers: A Guide for the Perplexed, 2009 Stan. Tech. L. Rev. 5, 16

(59.) Brown & Murphy, supra note 48, at 1138. For example, even though EEG is less expensive and more mobile, fMRI is vastly superior in its ability to localize the sources of signals in the brain. Langleben & Moriarty, supra note 8. For a discussion of the actual experience of an fMRI scan, see Brown & Murphy, supra note 48, at 1139.

(60.) See Jones et al., supra note 58, at 18.

(61.) See id.

(62.) See id. at 17.

(63.) See id:, see also Greely & Illes, supra note 52, at 381-82 (discussing the differences and trade-offs between spatial and temporal resolution).

(64.) Devinsky & D'Esposito, supra note 57, at 57.

(65.) See Brown & Murphy, supra note 48, at 1138. For further discussion of what is known and the uncertainties of BOLD, see id. at 1139-42. For a discussion of variability in blood flow, see Greely & Illes, supra note 52, at 380-81.

(66.) See Brown & Murphy, supra note 48, at 1138; see also Greely & Illes, supra note 52, at 380.

(67.) See Brown & Murphy, supra note 48, at 1138.

(68.) Id. The brain derives energy through the oxidation of glucose to create adenosine triphosphate (ATP). Greely & Illes, supra note 52, at 380.

(69.) Brown & Murphy, supra note 48, at 1138.

(70.) Adina L. Roskies, Are Neuroimages Like Photographs of the Brain?, 74 Phil. Sci. 860-72 (2007).

(71.) Greely & Illes, supra note 52, at 383; Sean A. Spence, Playing Devil's Advocate: The Case Against fMRI Lie Detection. 13 L. & Criminological Psychol. 11, 12-13 (2008) (explaining the role of cognitive subtraction in fMRI research).

(72.) Greely & Illes, supra note 52, at 383.

(73.) Id.

(74.) Frederick Schauer, Can Bad Science Be Good Evidence? Neuroscience, Lie Detection, and Beyond, 95 Cornell L. Rev. 1191, 1197 n.31 (2010) (compiling the sources of many studies researching fMRI detection of deception); see, eg., Christos Davatzikos et al., Classifying Spatial Patterns of Brain Activity with Machine Learning Methods: Application to Lie Detection, 28 NeuroImage 663, 668 (2005) (concluding that a nonlinear pattern classification method can detect patterns of brain activity associated with lying); G. Ganis et al.. Neural Correlates of Different Types of Deception: An fMRI Investigation, 13 Cerebral Cortex 830, 832-38 (2003) (yielding results that "show that different patterns of brain activation arise when people tell lies than when they tell the truth"); Joshua D. Greene & Joseph M. Paxton, Patterns of Neural Activity Associated with Honest and Dishonest Moral Decisions, 106 Proc. Nat'l Acad. Sci. U.S. 12506, 12509-10 (2009) (suggesting that individual differences in brain "control network activity" are associated with differences in presence of dishonest behavior); F. Andrew Kozel et al., Brief Communication: A Replication Study of the Neural Correlates of Deception, 118 Behav. Neuroscience 852, 855 (2004) (finding that "[f]or lying, compared with telling the truth, there is more activation in the right anterior cingulate, right inferior frontal, right orbitofrontal, right middle frontal, and left middle temporal areas"); F. Andrew Kozel et al.. Detecting Deception Using Functional Magnetic Resonance Imaging, 58 Biological Psychiatry 605, 611 (2005) [hereinafter Kozel et al.,

Detecting Deception] (concluding that "fMRI can be used to detect deception within a cooperative individual"); F. Andrew Kozel et al., A Pilot Study of Functional Magnetic Resonance Imaging Brain Correlates of Deception in Healthy Young Men, 16 J. Neuropsychiatry & Clinical Neuroscience 295, 304 (2004) [hereinafter Kozel et al., Pilot Study] (concluding that using blood oxygen level dependent fMRI "to investigate brain changes associated with deception is ... possible"); Daniel D. Langleben et al., Telling Truth from Lie in Individual Subjects with Fast Event-Related fMRI. 26 Hum. Brain Mapping 262, 271 (2005) [hereinafter Langleben et al.. Telling Truth] (concluding that fMRI images may be able to distinguish a truth from a lie on the basis that a lie "appears to be a more working memory-intensive activity, characterized by increased activation of the inferolateral cortex implicated in response selection, inhibition, and generation"); Daniel D. Langleben et al., Rapid Communication. Brain Activity During Simulated Deception: An Event-Related Functional Magnetic Resonance Study, 15 NeuroImage 727, 731 (2002) (finding a "neurophysiological difference between deception and truth"); Tatia M.C. Lee et al., Neural Correlates of Feigned Memory Impairment, 28 NeuroImage 305, 310-12 (2005); Tatia M.C. Lee et al., Lie Detection by Functional Magnetic Resonance Imaging, 15 Hum. Brain Mapping 157,163 (2002) (concluding that it is "unfeasible" to control one's cerebral activity to avoid lie detection); Donald H. Marks et al., Determination of Truth From Deception Using Functional MRI and Cognitive Engrams, 5 Internet J. Radiology 1 (2006), available at IJRA/5/1/9241 (showing that "specific activation patterns occur in the brain of individuals looking at specific pictures, and also whether they are contemplating giving a truthful or a deceptive response"); Feroze B. Mohamed et al., Brain Mapping of Deception and Truth Telling about an Ecologically Valid Situation: Functional MR Imaging and Polygraph Investigation--Initial Experience, 238 Radiology 679, 679 (2006) (concluding that "specific areas of the brain involved in deception or truth telling can be depicted with functional MR imaging"); Jennifer Maria Nunez et al., Intentional False Responding Shares Neural Substrates with Response Conflict and Cognitive Control, 25 NeuroImage 267, 273-76 (2005) (finding certain brain regions to be "significantly more active when falsifying information as compared to when answering truthfully"); Sean A. Spence et al., Speaking of Secrets and Lies: The Contribution of Ventrolateral Prefrontal Cortex to Vocal Deception, 40 NeuroImage 1411, 1415-18 (2008) [hereinafter Spence et al., Speaking of Secrets]-, Sean A. Spence et al., Behavioural and Functional Anatomical Correlates of Deception in Humans, 12 NeuroReport 2849, 2851-52 (2001) (finding that individuals telling lies have increased response times and increased activation in specific regions of the brain).

(75.) Compare Langleben et al., Telling Truth, supra note 74, at 271 (asserting that the inferolateral cortex, which is responsible for response selection, inhibition, and generation, is largely implicated in deception), with Jonathan G. Hakun et al., Towards Clinical Trials of Lie Detection with fMRI, 4 Soc. Neuroscience 518 (2009) (hypothesizing that the prefrontal-parietal system, which is responsible for behavioral control and attention, is the locus of deception). Although there is no overwhelming consensus, the regions that have resulted in the most consistent activation are the prefrontal cortex, anterior cingulate cortex, and parietal cortex. See Martha J. Farah et al., Functional MRI-Based Lie Detection: Scientific and Societal Challenges, 15 Nature Reviews Neuroscience 123,123 (2014).

(76.) Pardo, supra note 23, at 313 (2006) (citing Giorgio Ganis et al., Neural Correlates of Different Types of Deception: An fMRf investigation, 13 Cerebral Cortex 830, 831 (2003)) ("For example, spontaneous isolated lies may require different cognitive processes than memorized lies forming a coherent scenario.").

(77.) Brown & Murphy, supra note 48, at 1136 n.63 (2010).

(78.) Spence, supra note 71, at 12-13 (explaining the role of cognitive subtraction in fMRI research).

(79.) Alexander, supra note 12, at 11-12 (2006) (compiling the results of all known fMRI deception detection experiments through 2006); Keckler; supra note 1, at 535 (analyzing the results of several major, widely-cited fMRI lie detection studies through 2005).

(80.) Spence, supra note 71, at 22.

(81.) Keckler, supra note 1, at 535, 539-40 (asserting that one must hold the truth in working memory while constructing a lie in order to be able to compare the two for a response).

(82.) Spence, supra note 71, at 22.

(83.) Frederick Schauer, Lie-Detection, Neuroscience, and the Law of Evidence 17 n.36 (Oct. 22, 2012) (unpublished manuscript), available at 2165391.

(84.) Seaman, supra note 3, at 475 (citing Helen Pearson, Lure of Lie Detectors Spooks Ethicists, 441 Nature 918, 919 (2006)) ("[Djata collected from healthy subjects reveal little about the mindset of someone who genuinely believes they are telling the truth or someone who is confused, delusional or a pathological liar.").

(85.) Id. (citing Sean Spence et ah, 'Munchausen's Syndrome by Proxy' or a 'Miscarriage of Justice'? An Initial Application of Functional Neuroimaging to the Question of Guilt Versus Innocence, 23 Eur. Psychol. 309, 311-13 (2008)).

(86.) See generally Julie Elizabeth Myers, The Moment of Truth for fMRI: Will Deception Detection Pass Admissibility Hurdles in Oklahoma?, 6 Okla. J. L. &

Tech. 47 (2010); see also, J.R.H. Law, Cherry-Picking Memories: Why Neuroimaging-Based Lie Detection Requires a New Framework for the Admissibility of Scientific Evidence Under ERE 702 and Daubert. 14 Yale J. L. & Tech. 1, 39 (2011) ("Some of the newest techniques for controlling false positives have only been developed in the last few years.").

(87.) Langleben & Moriarty, supra note 8, at 223 (asserting that fMRI will be more successful in detecting lies than EEG and polygraph technology).

(88.) Seaman, supra note 3, at 446.

(89.) Langleben & Moriarty, supra note 8, at 223.

(90.) Gerard, supra note 20, at 26 (2008) ("Control over blood flow within one's brain is more difficult to accomplish that control over physiological responses such as one's heart or respiratory rate."). But see Giorgio Ganis et al., Lying in the Scanner: Covert Countermeasures Disrupt Deception Detection by Functional Magnetic Resonance Imaging, 55 Neuroimage 312, 317-18 (2011) (asserting that subjects can be trained to avoid deception detection). Indeed, one scholar points out that due to the sensitivity of fMRI measurement, most small movements such as moving one's head, fingers or tongue, or even doing mental arithmetic, could confound an experiment's results. Sec Nancy Kanwisher, The Use of fMRI in Lie Detection: What Has Been Shown and What Has Not, in Using Imaging to Identify Deceit: Scientific and Ethical Questions, supra note 17, at 7,12.

(91.) Keckler, supra note 1, at 540 (stating the anxiety would create another distinct brain activity pattern, not create a pattern that would be confused with deception).

(92.) Id.

(93.) Neal Feigenson, Brain Imaging and Courtroom Evidence: On the Admissibility and Persuasiveness of fMRI, 2 Int'l J. L. Context 247 (2006) (discussing the objective and "mathematised" nature of fMRI data); Gerard, supra note 20, at 26 (2008).

(94.) Kittay, supra note 35, at 1365 (2007); Myers, supra note 86, at 13 (asserting that the computerization aspect puts fMRI in a different class of evidence than polygraphs, fingerprinting, and even Deoxyribonucleic acid (DNA) sequencing).

(95.) Kittay, supra note 35, at 1389 (2007) ("No matter how closely a jury pays attention, it would not be able to determine which brain region the defendant used to answer a question.").

(96.) Brown & Murphy, supra note 48, at 1189. However, fMRI does require scientists to set thresholds in the acquisition of results, which some analogize to interpretation. Id.

(97.) See, e.g., Charles Adelsheim, Functional Magnetic Resonance Detection of Deception: Great as Fundamental Research, Inadequate as Substantive Evidence, 62 Mercer L. Rev. 885 (2011); Brown & Murphy, supra note 48, at 1189; Law, supra note 86, at 1.

(98.) See Schauer, supra note 74, at 1200 n.46 (citing articles from authors in various scientific disciplines that "insistf] that fMRI is not ready for the 'real world'"); see also, e.g., Michael S. Gazzaniga, The Law and Neuroscience, 60 Neuron 412-13 (2008) (cautioning against the introduction of neuroscience-based lie detection evidence because jurors and judges may erroneously accept such evidence as legally dispositive); James R. Merikangas, Commentary: Functional MRI Lie Detection, 36 J. Am. Acad. Psychiatry & L. 499, 501 (2008) (concluding that fMRI lie detection technology does not meet the Daubert criteria for courtroom testimony); Rakoff, supra note 17, at 40, 44 (arguing that neuroscience-based lie detection "suffers from several defects that would render such evidence inadmissible under [Federal Rule of Evidence] 702"); Joseph R. Simpson, Functional MRI Lie Detection: Too Good to Be True?, 36 J. Am. Acad. Psychiatry & L. 491, 493 (2008) ("[H]ow well fMRI lie detection would work in real-life situations remains an open question."); Spence, supra note 71, at 11 (suggesting that fMRI-based lie detection is inapplicable to the "real world" and lacks scientific reliability because no fMRI-based lie detection study has been replicated).

(99.) See infra note 151. This Note proceeds under the strong assumption that the necessary improvements will be made to satisfy the requirements of scientific evidence under the FRE. This assumption is necessary for my analysis under FRE 403. Without these technological improvements, fMRI technology will likely fail to be admitted under FRE 702, obviating an FRE 403 analysis.

(100.) See Mara Boundy, The Government Can Read Your Mind: Can the Constitution Stop It?, 63 Hastings L.J. 1627, 1643 (2012); Pardo, supra note 23, at 302. For a complete, in-depth survey of this field and a compilation of scholars' assertions regarding the interplay between this technology and the Fourth and Fifth Amendments, see Shen, supra note 7, at 692-707.

(101.) See infra Part III.A.3 for a discussion of reliability and validity of results; see also, Adelsheim, supra note 97, at 892-905; Langleben & Moriarty, supra note 8, at 229-30.

(102.) Langleben & Moriarty, supra note 8, at 230.

(103.) See generally Feigenson, supra note 93; Owen D. Jones & Francis X. Shen, Law and Neuroscience in the United States, in International Neurolaw: A Comparative Analysis 349 (Tade M. Spranger ed., 2012).

(104.) Brown & Murphy, supra note 48, at 1155.

(105.) Brown & Murphy, supra note 48, at 1156-58. One day, fMRI images may be considered testimonial, such as the aforementioned 'guilty knowledge.' Id. at 1156. This would implicate the hearsay doctrine and protections against self-incrimination. Id. at 1156-57. For a discussion on the Constitutional implications of fMRI technology, see generally Shen, supra note 7.

(106.) Brown & Murphy, supra note 48, at 1171.

(107.) Id. at 1164.

(108.) Id. at 1169-70.

(109.) Id.

(110.) .See Fed. R. Evid. 702.

(111.) For a discussion of the current technology's admissibility under Fed. R. Evid. 702, see infra Part III.A.

(112.) Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (emphasis added). Fourteen states still employ this standard. Brown & Murphy, supra note 48, at 1176.

(113.) Fed. R. Evid. 702.

(114.) Fed. R. Evid. 702 advisory committee's note (amended in 2000) (noting that the rule was "amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases applying Daubert').

(115.) See generally Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).

(116.) Id. at 593-95.

(117.) Id. at 593 ("Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.").

(118.) D. Michael Risinger, Goodbye to All That, or A Fool's Errand, by One of the Fools: How I Stopped Worrying About Court Responses to Handwriting Identification (and "Forensic Science" in General) and Learned to Love Misinterpretations o/Kumho Tire v. Carmichael, 43 Tulsa L. Rev. 447,460 (2007).

(119.) Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that judges "may conclude that there is simply too great an analytical gap between the data and the opinion proffered").

(120.) Fed. R. Evid. 403 (emphasis added); see United States v. Semrau, No. 0710074 Ml/P., 2010 WL 6845092 (W.D. Tenn. June 1, 2010).

(121.) See 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence [section] 403.02 (Joseph M. McLaughin & Matthew Bender eds., 2d ed. 1997) (updated LexisNexis 2013).

(122.) Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994) (citing Blancha v. Raymark Indus., 972 F.2d 507, 516 (3d Cir. 1992)); see also John C. Bush, Warping the Rules:

How Some Courts Misapply Generic Evidentiary Rules to Exclude Polygraph Evidence, 59 Vand. L. Rev. 539,559 (2006).

(123.) See Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for fnstitutional Reform and More Judicial Acceptance. 13 Harv. J.L. & Tech. 161,270 (2000).

(124.) Id.

(125.) Id. at 222.

(126.) Id. at 270.

(127.) See. eg., Kittay, supra note 35.

(128.) Keckler, supra note 1, at 511.

(129.) See, eg., Bush, supra note 122; Christopher Domin, Mitigating Evidence? The Admissibility of Polygraph Results in the Penalty Phase of a Capital Trial, 43 U.C. Davis L. Rev. 1461 (2010).

(130.) 523 U.S. 303 (1998).

(131.) Id.

(132.) United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1996).

(133.) Scheffer 523 U.S. at 309.

(134.) Id at 309-12.

(135.) See Alexander, supra note 12, at 31-35; Greely & Illes, supra note 52, at 41213.

(136.) See, e.g., Mary P. Brown & Steven E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 Am. Crim. L. Rev. 1063, 1072 n.24 (2006) (mentioning the use of polygraph technology in the context of plea bargaining and prosecutorial discretion).

(137.) See generally Jones & Shen, supra note 103, at 349 (discussing the legal use of brain technology in several different contexts); Pettit, Jr., supra note 55, at 334-49. For discussion of use of this technology in the civil context, see Jones et al., supra note 58, at 2 (citing O. Carter Snead, Neuroimaging and the Courts: Standard and Illustrative Case Index (2006)).

(138.) Virginia Hughes, Head Case, 464 Nature 340,341 (2010).

(139.) "Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. [section] 3593(c) (2012). For a comprehensive discussion of neuroimaging within the capital punishment context, see O. Carter Snead, Neuroimaging and the "Complexity" of Capital Punishment, 82 N.Y.U. L. Rev. 1265 (2007).

(140.) No. 07-10074 Ml/P., 2010 WL 6845092, at *3 (W.D. Tenn. June 1, 2010). fMRI deception detection results were also deemed inadmissible in a New York criminal case under the Frye standard. Wilson v. Corestaff Servs., L.P., 900 N. Y.S.2d 639, 640 (Sup. Ct. 2010).

(141.) Semrau, 2010 WL 6845092, at *10.

(142.) Id. at *11-12.

(143.) Id. at *13.

(144.) Id.

(145.) Id. at *4, *15-16 (noting that the defendant could have conducted the test and never have disclosed the results if they were not favorable).

(146.) Id. at *15.

(147.) Id. at *16 (asserting that the expert's ability to only offer an opinion on the general truthfulness of answers to twenty questions as opposed to any specific question would cause danger of unfair prejudice that substantially outweighs any probative value of that opinion).

(148.) Id. at *12 n.18 ("In the future, should fMRI-based lie detection undergo further testing, development, and peer review, improve upon standards controlling the technique's operation, and gain acceptance by the scientific community for use in the real world, this methodology may be found to be admissible even if the error rate is not able to be quantified in a real world setting.").

(149.) United States v. Semrau, 693 F.3d 510 (6th Cir. 2012).

(150.) This approach was also taken in Brown & Murphy, supra note 48, at 1179-- 1206. The probative value is determined by Dauberts factors, which are weighed against FRE 403's various concerns.

(151.) Generally speaking, a majority of scholars that have weighed in on the discussion agree that, given the research to date, fMRI deception detection should not be admitted as substantive evidence in a court of law. See Adelsheim, supra note 97, at 886. For more in-depth discussion as to admissibility of deception detection under the current state of fMRI technology, see, e.g., id. at 905-08; Law, supra note 86, at 37-44; Meixner, supra note 24, at 1476-87; Adam Teitcher, Note, Weaving Functional Brain Imaging into the Tapestry of Evidence: A Case for Functional Neuroimaging in Federal Criminal Courts. 80 Fordham L. Rev. 355 (2011).

(152.) Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593 (1993). Falsifiability is the quality of being able to be proven false, which is the single most defining characteristic of science. Karl Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989).

(153.) Semrau, 693 F.3d at 521.

(154.) See, eg., Adelsheim, supra note 97, at 905-08; Kanwisher, supra note 90, at 12.

(155.) Adelsheim, supra note 97, at 906.

(156.) Id. at 907.

(157.) Daubert, 509 U.S. at 593.

(158.) Adelsheim, supra note 97, at 900-01.

(159.) See infra notes 187-96 and accompanying text for a discussion on reliability.

(160.) Jane C. Moriarty, Visions of Deception: Neuroimages and the Search for Truth, 42 Akron L. Rev. 739,759 (2009).

(161.) Several scientists who claim that the technology has successfully attained a high level of accuracy are financially tied to its success. See Schauer, supra note 74, at 1202 n.53 ("For example, Christos Davatzikos, the lead researcher of the Davatzikos study ... serves on the Science Board of No Lie MRI.... Similarly, Frank Kozel, the lead researcher of the three Kozel studies ... serves as a scientific advisor for Cephos.... Finally, No Lie MRI uses technology and methods under a license from Daniel Langleben, lead researcher on many other studies....").

(162.) Daubert, 509 U.S. at 594.

(163.) Schauer & Spellman, supra note 5, at 9.

(164.) "In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity." Daubert, 509 U.S. at 590 n.9 (noting "that scientists typically distinguish between 'validity' ... and 'reliability'"). The term "reliability" has similar but distinct meanings in science and the law. See Schauer, supra note 74. Scientific reliability is defined as having reproducible results. See Law, supra note 86, at 42. Legal reliability is having the quality of "trustworthiness." Daubert, 509 U.S. at 590 n.9.

(165.) Langleben et al., Telling Truth, supra note 74, at 271 (concluding that fMRI images may be able to distinguish a truth from a lie on the basis that a lie "appears to be a more working memory-intensive activity, characterized by increased activation of the inferolateral cortex implicated in response selection, inhibition, and generation").

(166.) Kozel et al., Detecting Deception, supra note 74, at 611 (concluding that "fMRI can be used to detect deception within a cooperative individual"); see also, Langleben & Moriarty, supra note 8, at 223.

(167.) Daubert, 509 U.S. at 590 n.9.

(168.) Although ecological and external validity are similar to each other and sometimes interchangeably used, they are scientifically distinct concepts. Francis X. Shen & Owen D. Jones, Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons, 62 Mercer L. Rev. 861,876-77 (2011).

(169.) External validity is a measure of how much the experimental results can be applied to the general population or individual of interest. Id. Concerns with the external validity of most social science research, a concern not unique to deception detection research, has to do with the scientific construction of "normal." Brown & Murphy, supra note 48, at 1149-51 (asserting that the group data to which an individual is compared may not necessarily be "normal" and "[ejven cutting-edge science has a crude idea of what 'normal' means as captured by group data"); Sydney B. Roth, The Emergence of Neuroscience Evidence in Louisiana, 87 Tul. L. Rev. 197, 215 (2012) ("Being in a certain category of individuals, who might on average be more (or less) susceptible to a certain outcome, does not necessarily mean that everyone in that group of individuals is more (or less) likely to experience that particular outcome.").

(170.) Ecological validity is a measure of how much experimental laboratory conditions mirror the real world environment. Shen & Jones, supra note 168, at 876. One scholar suggests that there might simply be "too great an analytical gap between the data and the opinion proffered" for laboratory deception detection to ever be applicable to real world lying. Adelsheim, supra note 97, at 902 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136,146 (1997)).

(171.) See generally Schauer, supra note 74 (discussing many of the differences between science and the law).

(172.) Brown & Murphy, supra note 48, at 1182-83; David L. Faigman, A Preliminary Exploration of the Problem of Reasoning From General Scientific Data to Individualized Legal Decision-Making, 75 Brook. L. Rev. 1115 (2010) (quoting David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law 69 (1999)) ("[Wjhile science attempts to discover the universals hiding among the particulars, trial courts attempt to discover the particulars hiding among the universals."); Jones & Shen, supra note 103, at 356. For discussion of the use of epidemiological data in proving causation, see Schauer, supra note 83, at 27 n.59.

(173.) As of 2009, two private companies, No Lie MRI and Cephos, offered fMRI deception detection services at the cost of $4000 to $5000 per scan. See Henry T. Greely, Law and the Revolution in Neuroscience: An Early Look at the Field, 42 Akron L. Rev. 687,698 (2009).

(174.) See United States v. Semrau, No. 07-10074 Ml/P, 2010 WL 6845092, at *11 (W.D. Tenn. June 1, 2010); Gerard, supra note 20, at 28; Greely & Illes, supra note 52, at 403 (surveying all published fMRI lie detection research through 2006); Schauer, supra note 74, at 1201. As of this publication, the largest subject group in any peer-reviewed fMRI deception detection article was fifty-two subjects. See Lee et al.. Neural Correlates of Feigned Memory Impairment, 28 NEUROIMAGE 305-13 (2005). However, most experiments were conducted with fewer than thirty subjects. See Spence, supra note 71, at 14-21 (surveying peer-reviewed lie detection research through 2007).

(175.) Semrau, 2010 WL 6845092, at *12; Tommaso Bruni, Cross-Cultural Variation and fMRI Lie-Detection, in TECHNOLOGIES ON THE STAND: LEGAL AND ETHICAL QUESTIONS IN NEUROSCIENCE AND ROBOTICS 137, 140 (B. Van den Berg & L. Klaming eds., 2011), available at 14416; Greely & Illes, supra note 52, at 403 (stating that fMRI lie detection studies through 2006 had little gender or ethnic diversity).

(176.) Adelsheim, supra note 97, at 899; see Greely & Illes, supra note 52, at 403 (discussing the importance of conducting experiments on representative samples). fMRI deception detection research must be conducted on specific sub-populations in order to increase its external validity, including pathological liars, mentally retarded individuals, environmentally damaged individuals, and those with neurodegenerative diseases. See Reese, supra note 2, at 219-27.

(177.) Joel D. Lieberman et al.. Preface to "When Does Sample Matter in Juror Decision-Making Research? Differences Between College Student and Representative Samples of Jurors?' 29 BEHAV. SCI. L. 325, 325-26 (2011) (discussing the applicability of research conducted on college students to the general population). Few significant differences between college student and representative samples have been found. Id. Several behavioral research studies generally conclude that "well-designed experiments using subject pools with low incentives can be reliable in predicting the behavior of people in general in real-world situations." Schauer, supra note 83 (manuscript at 24). Further, concerns about the applicability of studies that solely use undergraduates as test subjects is not unique to fMRI experiments, as most behavioral studies utilize the same populations. Id. at 23.

(178.) See Semrau, 2010 WL 6845092, at *12; Craig A. Anderson, Research in the Psychological Laboratory: Truth or Triviality?, 8 CURRENT DIRECTIONS PSYCHOL. Sci. 3, 7 (1999) (asserting that using only undergraduates in experiments limits individual differences, which in turn can exacerbate problems with both internal validity and external reliability); Schauer, supra note 74, at 1207.

(179.) As of this publication, only four out of approximately twenty known fMRI lie detection experiments have been conducted at the individual level. See, e.g., Davatzikos et al., supra note 74, at 663; Kozel et al., Detecting Deception, supra note 74, at 611; Kozel et al., Pilot Study, supra note 74, at 303; Langleben et al., Telling Truth, supra note 74, at 262. For the importance of distinguishing results on the individual level from the group or population level, see Greely & Illes, supra note 52, at 402.

(180.) Schauer, supra note 74, at 1201.

(181.) See Semrau, 2010 WL 6845092, at *12 ("Many studies entail little motivation or jeopardy at all, while the motivation (e.g. $50 for successful deception) or jeopardy (revealing personal autobiographical information) in other studies is not equivalent to what would be at stake in real applications.") (citations omitted).

(182.) Id.

(183.) David P. McCabe et. al.. The Influence of fMRI Lie Detection Evidence on Juror Decision-Making, 29 Behav. Sci. & L. 566,567 (2011).

(184.) Kanwisher, supra note 90, at 12. One ethical constraint is that, in order to truly test the veracity of this technology's results, experimenters would have to actually know of the commission of a crime and test the criminal before such technology would be permitted as evidence. This creates an ethical dilemma because the experimenters have knowledge of a crime, but would not be permitted to testify to the results in order to conduct clinical trials in fMRI's application to deception detection. See, e.g., Hakun et al., supra note 75, at 519. One physical constraint is the fact that this technology has not been installed in any police precinct due to its prohibitive cost and size, so alleged criminals would have to be transported to and from a laboratory with all the necessary safety precautions that come along with such transportation.

(185.) Greely & Illes, supra note 52, at 404 ("Are lies about participation in a crime the same as lies about the quality of a meal or the existence of a 'prior engagement'? Do lies about sex activate the same regions of the brain as lies about money, lies to avoid embarrassment, or lies about the five of clubs? Do lies of omission look the same under fMRI as lies of commission?"); Kamila E. Sip et al., Detecting Deception: The Scope and Limits, 12 TRENDS COGNITIVE SCI. 48, 50-51 (2008) (arguing that most of these studies have only shown "instructed lies" and not real deception); cf. Schauer, supra note 74, at 1201, 1208 (arguing that even though the difference between instructed lies and real lies poses a "significant construct validity problem," the results of these experiments would be completely valueless "only if there were no correlation at all between causes of the brain activity involved in the real lie and those involved in the instructed lie."); Schauer, supra note 83 (manuscript at 25. But see, e.g., Joshua D. Greene & Joseph M. Paxton, Patterns of Neural Activity Associated with Honest and Dishonest Moral Decisions, 106 PROC. NAT'L ACAD. SCI. 12506,12506 (2009) (describing a study involving genuine dishonesty with subject choice); Spence et al., Speaking of Secrets, supra note 74, at 1411 (conducting a study allowing test subjects to choose when to lie to protect against the potential confounding variable of results reflecting subjects performing instructed actions).

(186.) Ganis et al., supra note 90, at 312 (experimental results showing that subjects can be trained to confound deception detection). In an experiment that involved deceptively answering questions with their fingers, countermeasures included: "to move imperceptibly (i.e., without any overt movement that could be observed) the left index finger, the middle left finger, and the left toe." Id. at 313.

(187.) See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 n.9 (1993). ("[D]oes application of the principle produce consistent results?") The Daubert Court may have originally intended for this criterion to be left out of admissibility determinations of scientific evidence, specifically stating that " evidentiary reliability will be based upon scientific validity; " despite first acknowledging that validity and reliability were two distinct, albeit similar, concepts. Id.

(188.) Langleben & Moriarty, supra note 8, at 229.

(189.) Id. A single experimental session would be a group of individuals being a part of an experiment at the same time, in the same place, while different sessions would occur at different times, and possibly in different places. Id.

(190.) See Greely & Illes, supra note 52, at 402.

(191.) Id. ("A good rule of thumb is to never believe a result until at least one investigator from outside the original group confirms it. Lie detection through fMRI does not pass this test."); Spence, supra note 71, at 24.

(192.) Spence, supra note 71, at 24.

(193.) Id. at 13.

(194.) Schauer, supra note 74, at 1205.

(195.) Id. at 1205 n.77 (asserting that higher standards of reliability should be shown when evidence such as DNA identification principally determines whether a defendant goes to jail).

(196.) Id. (quoting 1 McCormick on Evidence [section] 185, at 729 (Kenneth S. Broun ed., 6th ed. 2006) (analogizing each piece of evidence to a brick in a wall that a defendant tries to build in his defense)).

(197.) Adelsheim, supra note 97, at 908 ("[T]here simply are no standard techniques at this time.").

(198.) Daubert v. Merrell Dow Pharm., 509 U.S. 579, 594 (1993).

(199.) See Adelsheim, supra note 97, at 888-95, 908 (discussing BOLD fMRI and its inherent weaknesses); Brown & Murphy, supra note 48, at 1138-41,1188 (discussing the various layers along the chain of inferences that must be made in order to create an fMRI image and deduce conclusions from it).

(200.) Brown & Murphy, supra note 48, at 1153 ("Statistical thresholds can therefore be manipulated.... If a party does not like the results that are shown at a certain level of zoom, simply altering the statistical precision may provide a more compelling image for one's legal argument."); Law, supra note 86, at 54 (musing that a proponent can pay an expert to "find" certain results by "simply adjusting the statistical thresholds or the baseline task").

(201.) Brown & Murphy, supra note 48, at 1195 (analogizing fMRI images to paintings instead of photographs, since "[u]nlike photographs, the visual properties of functional brain images are instantiated by the use of texture, shading, perspective, and color").

(202.) United States v. Semrau, No. 07-10074 Ml/P, 2010 WL 6845092, at *13 (W.D. Tenn. June 1,2010); see Daubert, 509 U.S. at 594.

(203.) See, e.g., Teitcher, supra note 151, at 366.

(204.) See Greely & Illes, supra note 52, at 413.

(205.) See generally Schauer, supra note 74, at 1191, 1202-09; Schauer & Spellman, supra note 5.

(206.) Adelsheim, supra note 97, at 908.

(207.) Id. at 905-06, 908 (citing Moriarty, supra note 160, at 748).

(208.) Fed. R. Evid. 403.

(209.) Richard D. Friedman, Minimizing the Jury Over-Valuation Concern, 2003 Mich. St. L. Rev. 967,968.

(210.) See Schauer & Spellman, supra note 5, at 5.

(211.) See infra Part III.B.l.

(212.) See infra Part III.B.2.

(213.) See, e.g., Joseph Dumit, Objective Brains, Prejudicial Images, 12 SCI. Context 173 (1999).

(214.) Dean Mobbs et al., Law. Responsibility, and the Brain, 5 Pub. LlBR. SCI. Biology 0693, 0699 (2007), available at fetchObject.action?uri=info%3Adoi%2F10.1371%2Fjournal.pbio.0050103&represent ation=PDF.

(215.) Kevin Davis, Brain Trials: Neuroscience Is Taking a Stand in the Courtroom, A.B.A. J. (Nov. 1, 2012), neuroscience_is_taking_a_stand_in_the_courtroom; see also Gerard, supra note 20, at 28-29.

(216.) Dumit, supra note 213, at 175, 180, 187 (discussing images created by computerized tomography (CT) and positron emission tomography (PET)).

(217.) For a discussion on external and construct validity, see supra notes 168-94 and accompanying text.

(218.) Jessica R. Gurley & David K. Marcus, The Effects of Neuroimaging and Brain Injury on Insanity Defenses, 26 Behav. SCI. L. 85, 93 (2008).

(219.) McCabe et al" supra note 183, at 568.

(220.) Adina L. Roskies et al., Neuroimages in Court: Less Biasing than Feared, 17 Trends Cognitive Sci. 99, 99 (2013), available at trends/cogniti ve-sciences/pdf/PI IS 1364661313000223.pdf ?intermediate=true.

(221.) Id. (citing NJ. Schweitzer & Michael J. Saks, Neuroimage Evidence and the Insanity Defense, 29 Behav. Sci. L. 592, 596-97 (2011)); N.J. Schweitzer et al., Neuroimages as Evidence in a Mens Rea Defense: No Impact, 17 PSYCHOL. Pub. Pol'y & L. 357, 361 (2011) [hereinafter Schweitzer et al., No Impact (stating that the experiments "confounded the presentation of neuroimagery with additional verbal testimony").

(222.) Deena S. Weisberg et al.. The Seductive Allure of Neuroscience Explanations, 20 J. COGNITIVE NEUROSCIENCE 470,476 (2008).

(223.) Id.

(224.) Martha J. Farah & Cayce J. Hook, The Seductive Allure of "Seductive Allure," 8 PERSP. PSYCHOL. SCI. 88, 89 (2013); Roskies et al., supra note 220, at 99; Schweitzer et al., No Impact, supra note 221, at 361.

(225.) Roskies et al., supra note 220, at 99; Schweitzer et al., No Impact, supra note 221, at 360.

(226.) David P. McCabe & Alan D. Castel, Seeing Is Believing: The Effect of Brain Images on Judgments of Scientific Reasoning, 107 COGNITION 343 (2008).

(227.) Robert B. Michael et al.. On the (Non)persuasive Power of a Brain Image, PSYCHONOMIC BULL. REV. (Feb. 2013), 235523242_On_the_(non)persuasive_power_of_a_brain_image. A growing body of evidence suggests that any kind of image increases probative value of accompanying

propositions. See Feigenson, supra note 93, at 233 (discussing the inflation of probative value enjoyed by all visual images). See generally Lucille A. Jewel, Through A Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 245 (2010) (discussing the advantages of visual advocacy). 228. See Michael et al., supra note 227.

(229.) Farah & Hook, supra note 224, at 88 (stating that it was "not strictly true" that the illustrations used in these two conditions were "informationally equivalent").

(230.) See Roskies et al., supra note 220, at 1; see also Schweitzer et al.. No Impact, supra note 221, at 361 ("[Jjudgments of the participants in these experiments [were] made without the competing overlay of crime-guilt-punishment.").

(231.) Michael et al., supra note 227, at 2. The compilation of raw data from identical, yet separately conducted, experiments is called a "meta-analysis." Meixner, supra note 24, at 1466 n.107.

(232.) Michael et al., supra note 227, at 5.

(233.) See McCabe et al., supra note 183, at 574 (2011) (stating additionally that fact patterns containing fMRI lie detection evidence was more influential than fact patterns without any such evidence).

(234.) See id. at 571.

(235.) See O. Carter Snead, Neuroimaging and the "Complexity" of Capital Punishment, 82 N.Y.U. L. Rev. 1265,1272 (2007).

(236.) See McCabe et al., supra note 183, at 574. See infra Part III.C.5 for a discussion on cross-examination and its effects.

(237.) See Edith Greene & Brian S. Cahill, Effects of Neuroimaging Evidence on Mock Juror Decision Making, 30 Behav. Sci. L. 280, 293 (2012).

(238.) See id.

(239.) See id. ("It may be that any additional information pertinent to the defendant's physical and emotional disposition has the effect of personalizing him to jurors and enhancing their impressions of him....").

(240.) Id. at 294 (emphasis added); see also Schauer, supra note 83, (manuscript at 37-38) ("The precise question to be asked about fMRI evidence therefore, is ... whether the inflated value they produce is greater than the inflated value produced by the visual evidence that the legal system routinely admits.").

(241.) See Schweitzer et al.. No Impact, supra note 221.

(242.) See Law, supra note 86, at 53 ("When the general population relies on primary experimental findings rather than review articles and textbook knowledge, scientists must become proactive.").

(243.) fee Schweitzer et al., No Impact, supra note 221, at 365 (describing the study's numerous control conditions). Experimenters conducted the experiments in a legal setting. See id. The "neuroimage condition," where a subject would be shown a brain scan as well as having it described by accompanying testimony based on the brain scan, was compared to various other control groups: (1) one group hearing the identical neuroscience expert testimony accompanied by a graphical depiction of the defendant's brain function; (2) one group hearing the identical neuroscience expert testimony accompanied by a generic image of an empty courtroom; (3) one group hearing an expert witness' testimony that had the same substantive conclusions and diagnoses as the previous group, but which was based on non-neuroimaging techniques; (4) one group hearing the expert witness testimony of a clinical psychologist; and (5) the control group, with the absence of expert testimony altogether. Id.

(244.) Id. at 387.

(245.) See id. at 388.

(246.) Id. at 387.

(247.) Farah & Hook, supra note 224, at 89 (asserting that the cognitive heuristic of "confirmation bias" may have clouded some experimenters' judgments and conclusions).

(248.) See Richard S. Schmechel et al., Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence. 46 JURIMETRICS 177, 179 (2006) (citing Saul Kassin et al., On the "General Acceptance" of Eyewitness Testimony Research: A New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 413-14 (2001)) (asserting that a 2001 survey of established eyewitness researchers found nearly unanimously that several findings of eyewitness testimony deficiencies were reliable and established in scientific literature).

(249.) See Chris W. Sanchirico, "What Makes the Engine Go?" Cognitive Limitations and Cross-Examination, 14 WIDENER L. REV. 507, 510 n.10 (citing over twenty empirical studies and articles that point out how various cognitive limitations and biases cause people to be poor witnesses).

(250.) See Schauer & Spellman, supra note 5, at 12, nn.40, 42-43 (citing many sources that point to the fact that witness perception is poor and not nearly as reliable as most people believe).

(251.) See id. (asserting that the shortcomings in perception and memory may contribute to the negative effects).

(252.) Sec generally Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2007 FED. CTS. L. REV. 3 (2007); see also Jacob L. Zerkle, I Never Forget A Face: New Jersey Sets the Standard in Eyewitness Identification Reform, 47 VAL. U. L. REV. 357 (2012).

(253.) See Tara Anthony et al., Cross-Racial Facial Identification: A Social Cognitive Integration, 18 PERSONALITY & SOC. PSYCHOL. BULL. 296 (1992).

(254.) See Jennifer L. Overbeck, Beyond Admissibility: A Practical Look At the Use of Eyewitness Expert Testimony in the Federal Courts, 80 N.Y.U. L. Rev. 1895, 1900-01 (2005). Other findings include: (1) stressful situations reduce a person's ability to successfully recall facial details; (2) witnesses overestimate how long it took for an event to unfold; and (3) the presentation format affects recall ability because a person is more likely to misidentify a defendant if he is presented in a group. See Schmechel et al., supra note 250, at 178.

(255.) See Schmechel et al., supra note 248, at 192.

(256.) See generally Fradella, supra note 252; Zerkle, supra note 252.

(257.) See Overbeck, supra note 254, at 1904. This is especially true when eyewitnesses display confidence in their memory. See Schauer & Spellman, supra note 5.

(258.) See Richard A. Wise & Martin A. Safer, A Survey of Judges' Knowledge and Beliefs About Eyewitness Testimony, 40 CT. Rev. 6, 9 (2003) (showing that two-thirds of judges surveyed gave incorrect answers for three out of six questions that assess understanding of the link between eyewitness confidence and accuracy).

(259.) See Overbeck, supra note 254, at 1903-04; Schauer & Spellman, supra note 5, at 28; Schmechel et al" supra note 248, at 193-204 (citing a study that showed a substantial majority of a thousand-person jury pool in the District of Columbia lacked a meaningful understanding of eyewitness deficiencies and overestimated the value of eyewitness testimony as a result).

(260.) See Overbeck, supra note 254, at 1897-98.

(261.) See Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 AM. CRIM. L. REV. 1271, 1275 n.18 (2005) (citing several studies of wrongful convictions that suggested that a majority of them involved false eyewitness testimony).

(262.) See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 60 (2008) (stating that seventy-nine percent of the first 200 people exonerated by post- conviction DNA testing were convicted using incorrect eyewitness testimony); see also Overbeck, supra note 254, at 1896 n.2 (citing studies that showed that two-thirds of total exonerations were in cases where convictions were based at least in part on faulty eyewitness identifications).

(263.) See Wes R. Porter, Repeating, Yet Evading Review: Admitting Reliable Expert Testimony in Criminal Cases Still Depends Upon Who Is Asking, 36 Rutgers L. Rec. 48, 52 n.28 (2009) (citing McMurtrie, supra note 261, at 1275 n.17) (asserting that false eyewitness testimony accounted for as much as eighty-five percent of convictions later exonerated by DNA testing).

(264.) See Perry v. New Hampshire, 132 S. Ct. 716, 738 (2012) (Sotomayor, J., dissenting) (citing State v. Henderson, 27 A.3d 872,886 (N.J. 2011)).

(265.) See Pardo, supra note 23, at 318; see also Schauer & Spellman, supra note 5,at 13. See generally Schmechel et al., supra note 250, at 178 (discussing various legal trends that have contributed to reforms in the use of eyewitness identification).

(266.) For an in-depth discussion on the shortcomings of forensic science and the expected disparity in admissibility standards when defendants will seek to admit fMRI technology, see generally Teitcher, supra note 151.

(267.) See id. at 375-85 (listing other bases of methods and evidence including shoe prints, bite marks, tool marks, firearms, handwriting, and hair samples).

(268.) See Brooke G. Malcom, Convictions Predicated on DNA Evidence Alone: How Reliable Evidence Became Infallible, 38 Cumb. L. Rev. 313, 313 (2008).

(269.) See Margaret A. Berger, Expert Testimony in Criminal Proceedings: Questions Daubert Does Not Answer; 33 SETON HALL L. REV. 1125,1129 (2003); see also David L. Faigman, The Tipping Point in the Law's Use of Science: The Epidemic of Scientific Sophistication that Began with DNA Profiling and Toxic Torts, 67 Brook. L. Rev. Ill, 112 (2001).


(271.) See Berger, supra note 269, at 1139. "Looked at through the lens of Daubert, fingerprints clearly should not be admissible and yet fingerprint matches obviously are often accurate and corroborated by other evidence." Id. Despite the fact that "there seem[s] to be an endless number of possible permutations consisting of loops, whorls, arches and deltas," the theory that this "abundance of detail probably makes each individual's fingerprint pattern unique ... has never been scientifically verified." Id:, see also, Roger C. Park & Michael J. Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 47 B.C. L. Rev. 949, 981-82 (2006) ("What lawyers, scholars, and the courts are discovering is that some kinds of evidence, most notably some of the forensic sciences, which had been all but unquestioned under older admissibility tests, appeared to have startling weaknesses when viewed through the lens of the new test."). See generally, Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" is Revealed, 75 S. CAL. L. REV. 605 (2002).

(272.) See Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621,654 (2007).

(273.) See Jason Schklar & Shari S. Diamond, Juror Reactions to DNA Evidence: Errors and Expectations, 23 L. & HUM. BEHAV. 159,159 (1999).

(274.) See Jonathan J. Koehler & Michael J. Saks, Individualization Claims in Forensic Science: Still Unwarranted, 75 BROOK. L. REV. 1187, 1192 (2010) (asserting that the ability of any forensic science, with the notable exception of DNA typing, to individualize any material as completely unique has never been proven).

(275.) See generally David L. Faigman, Anecdotal Forensics, Phrenology, and Other Abject Lessons from the History of Science, 59 Hastings L. J. 979 (2008); see also Teitcher, supra note 151, at 379 & n.217.

(276.) See Andrew C. Bernasconi, Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants' Constitutional and Statutory Rights, 50 AM. U. L. REV. 979, 1009 (2001) ("Researchers theoretically have the ability to obtain and analyze all of the information fingerprints provide.").


(278.) See id. at 382 & n.244 (citing NAT'L RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCES, supra note 277, at 7-8).

(279.) See Berger, supra note 269, at 1129.

(280.) See Itiel E. Dror & Simon A. Cole, The Vision in Blind Justice: Expert Perception, Judgment, and Visual Cognition in Forensic Pattern Recognition, 17 PSYCHONOMIC BULL. & Rev. 161, 162 (2010), available at 10.3758/PBR.17.2.161; see also Itiel E. Dror & Robert Rosenthal, Meta-Analytically Quantifying the Reliability and Biasability of Forensic Experts, 53 J. FORENSIC Sci. 900, 900 (2008).

(281.) See Bradford T. Ulery et al., Repeatability and Reproducibility of Decisions by Latent Fingerprint Examiners, 7 PUB. LIBR. SCI. ONE e32800, 1 (2012), available at http://www.plosone.Org/article/info:doi/10.1371/journal.pone.0032800.

(282.) See Saul M. Kassin et al.. The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions, 2 J. APPLIED RES. MEMORY & COGNITION 42, 43 (2013).

(283.) See id. (citing BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG (Harvard Univ. Press ed" 2011)); see also, NAT'L RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCES, supra note 277, at 42 (noting that forensic science had led to a "disturbing number of wrongful convictions").

(284.) See Joel D. Lieberman et al., Gold Versus Platinum: Do Jurors Recognize the Superiority and Limitations of DNA Evidence Compared to Other Types of Forensic Evidence?, 14 PYSCHOL. PUB. POL'Y & L. 27, 56-57 (2008).

(285.) See id. at 50.

(286.) See id. at 52.

(287.) Lisa L. Smith et al., Understanding Juror Perceptions of Forensic Evidence: Investigating the Impact of Case Context on Perceptions of Forensic Evidence Strength, 56 J. FORENSIC SCI. 409,413 (2011) (emphasis added).

(288.) See Jonathan J. Koehler et al., The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?, 35 JURIMETRICS J. 201,216 (1995).

(289.) See infra notes 292-99 and accompanying text.

(290.) See Koehler et al., supra note 288, at 211 n.39 (giving examples of prosecutorial claims, such as "DNA is infallible," or "an incorrect match is impossible"). (291.) FED R. EVID. 403.

(292.) See Joe S. Cecil et al., Citizen Comprehension of Difficult Issues: Lessons From Civil Jury Trials, 40 Am. U. L. Rev. 727, 750 (1991); George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 705 (1997); Valerie P. Hans, Science in the Jury Box: Jurors' Comprehension of Mitochondrial DNA Evidence, 35 L. & HUM. BEHAV. 60 (2011).

(293.) See N.J. Schweitzer & Michael J. Saks, Jurors and Scientific Causation: What Don't They Know, and What Can Be Done About It?, 52 JURIMETRICS 433, 434 (2012) (citing Cecil et al., supra note 292, at 752-56) (providing case studies of juror performance in complex cases).

(294.) See, e.g., Hans, supra note 292, at 61; Suzanne O. Kaasa et al., Statistical Inference and Forensic Evidence: Evaluating a Bullet Lead Match, 31 L. & Human Behav. 433, 433 (2006); Joseph Sanders, The Merits of the Paternalistic Justification for Restrictions on the Admissibility of Expert Evidence, 33 SETON HALL L. REV. 881, 907 (2003); Schweitzer & Saks, supra note 293, at 434 (citing Ulrich Hoffrage et al., Communicating Statistical Information, 290 Sci. 2261,2261 (2000)).

(295.) See N.J. Schweitzer & Michael J. Saks, The Gatekeeper Effect: The Impact of Judges' Admissibility Decisions on the Persuasiveness of Expert Testimony; 15 PSYCHOL. PUB. POL'Y & L. 1,1 (2009) (asserting that judges inadvertently endorse the credibility of poor quality evidence by letting it into suits).

(296.) See Bradley D. McAuliff & Tejah D. Duckworth, I Spy With My Little Eye: Jurors' Detection of Internal Validity Threats in Expert Evidence, 34 L. & Hum. Behav. 489 (2010).

(297.) See id. at 497.

(298.) See id.

(299.) See id.

(300.) See Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U. Pa. L. Rev. 165, 190-91 (2006) (extrapolating this conclusion from comparisons between actuarial and clinical predictions of future dangerousness).

(301.) See Chris Guthrie et al., Inside the Judicial Mind: Heuristics and Biases, 86 Cornell L. Rev. 777, 821 (2001) (showing that judges were influenced by cognitive heuristics such as anchoring, framing effects, hindsight bias, representativeness, and egocentric biases); Barbara A. Spellman, On the Supposed Expertise of Judges in Evaluating Evidence, 156 U. PA. L. REV. 1,4-6 (2007).

(302.) See Neil Vidmar & Shari S. Diamond, Juries and Expert Evidence, 66 BROOK. L. REV. 1121,1170 (2001) (CITING THE EVOLVING ROLE OF STATISTICAL ASSESSMENTS AS EVIDENCE IN THE COURTS (STEPHEN E. FIENBERG ED., 1989)).

(303.) See McAuliff & Duckworth, supra note 296, at 489 (citing Sophia Gatowski et al.. Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a AwCDaubert World, 25 L. & Hum. Behav. 433 (2001)).

(304.) See Gatowski et al., supra note 303, at 452; see also Kittay, supra note 35, at 1397. "It is difficult to grasp how a proper Daubert inquiry can take place when 96% of state judges do not understand th[ese] benchmark criteria]." Id. at 1391. The Daubert court referred to falsifiability as a "key question." Daubert v. Merrell Dow Pharm., 509 U.S. 579,593 (1993).

(305.) See McAuliff & Duckworth, supra note 296, at 489 (citing Margaret B. Kovera & Bradley D. McAuliff, The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers?, 85 J. APPLIED PSYCHOL. 574 (2000)).

(306.) See Mara L. Merlino et al.. Judicial Gatekeeping and the Social Construction of the Admissibility of Expert Testimony, 26 Behav. Sci. & Law 200-02 (2008) (suggesting that some judges refuse to admit evidence simply because they have difficulty grasping its qualitative complexity). An alternative explanation that has been suggested is that judges assess scientific evidence with a sufficiency standard instead of a lower admissibility bar to evidence. See Michael D. Green & Joseph Sanders, Admissibility Versus Sufficiency: Controlling the Quality of Expert Witness Testimony in the United States (Wake Forest Univ. Legal Studies Paper No. 2016468; Univ. of Hous. Law Ctr. Paper No. 2016468, 2012), available at

(307.) See Cooper Eilenberg, Lie Detection: A Changing of the Guard in the Guest for Truth in Court?, 33 L. & PSYCHOL. Rev. 139,146 (2009) (citing Bruce D. Spencer, Estimating the Accuracy of Jury Verdicts, 4 J. EMPIRICAL LEGAL STUD. 305, 307 (2007)) (asserting that juries returned an objectively incorrect verdict one out of eight or nine times in a case study of 3500 trials from the 1950s).

(308.) See Neil Vidmar, Expert Evidence, the Adversary System, and the Jury, 95 AM. J. PUB. HEALTH (SUPP. 1) S137 (2005).

(309.) See Cecil et al., supra note 292, at 764.

(310.) See Eilenberg. supra note 307, at 146 n.93 (citing Spencer, supra note 307, at 307) (showing that judges agreed with juries in eighty percent of cases in a study on the accuracy of jury verdicts, as measured by judge-jury agreement even when the "correct" verdict is unknown); Hans, supra note 292, at 61 ("[W]hatever problems jurors have with comprehending trial evidence are not severe enough to produce outcomes that are distinctly different from the assessments of professionally trained judges across a range of cases.").

(311.) See Cecil et al., supra note 292, at 764.

(312.) Hans, supra note 292, at 61 (citing Richard O. Lempert, Civil Juries and Complex Cases: Taking Stock After Twelve Years, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 181 (R. Litan ed., 1993)); Eugene Morgulis, Juror Reactions to Scientific Testimony: Unique Challenges in Complex Mass Torts, 15 B.U. J. Sci. & Tech. L. 252, 265 (2009) (asserting that since most lawyers cannot fully grasp the scientific concepts themselves, they "focus on hurting experts' credibility, muddling the scientific issues and making it more difficult for the jury to evaluate the evidence").

(313.) Sec Shari S. Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 Buff. L. Rev. 717, 747 (2006) ("When the expert's lack of clarity prevents jurors from understanding the testimony, jurors who do not understand it are less likely to be influenced by it.").

(314.) See Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol'y 19, 43 & n.69 (2007) (comparing judge and juror responses after a mock trial conducted using mitochondrial DNA evidence).

(315.) See Vidmar, supra note 308, at S142; see also Vidmar & Diamond, supra note 304, at 1166-67.

(316.) See generally Sanders, supra note 294.

(317.) See United States v. Scheffer, 523 U.S. 303, 318-19 (1998) (Kennedy, J., concurring in part) (concluding that the argument that the jury will be unable to properly weigh lie detector evidence "demeans and mistakes the role and competence of jurors in deciding the factual question of guilt or innocence"); id. at 337 (Stevens, J., dissenting) ("[T]he reliance on a fear that the average jury is not able to assess the weight of this testimony reflects a distressing lack of confidence in the intelligence of the average American.").

(318.) Jeffrey Beilin, The Significance (if Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology, 80 TEMP. L. REV. 711, 722 (2007) (quoting Lee v. Martinez, 96 P.3d 291, 297 (N.M. 2004)) (asserting that evidentiary exclusion for the purposes of "proteetjing] the jury from its perceived ignorance is a relic of a receding era.").

(319.) Galves, supra note 123, at 217-18 (footnotes omitted).

(320.) See supra note 312 and accompanying text.

(321.) California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 J. WIGMORE, EVIDENCE [section] 1367 (3d ed. 1940). But see Schauer, supra note 74, at 1195 (citing Jules Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 STETSON L. REV. 727, 774-82 (2007)) (asserting that cross-examination is not as effective as television writers and viewers believe).

(322.) Schauer, supra note 74, at 1194.

(323.) Beilin, supra note 318, at 721.

(324.) Daubert v. Merrell Dow Pharm., 509 U.S. 579,596 (1993).

(325.) FED. R. EVID. 702 advisory committee's note (amended 2000).

(326.) Emily L. Foster, Anchoring and the Expert Witness Testimony: Do Countervailing Forces Offset Anchoring Effects of Expert Witness Testimony?, 77 TENN L. REV. 623, 625 (2010); Lieberman et al., supra note 286, at 52; cf. Lora M. Levett & Margaret B. Kovera, The Effectiveness of Opposing Expert Witnesses for Educating Jurors About Unreliable Expert Evidence, 32 L. & Hum. Behav. 363, 363 (2008) (asserting that competing expert witnesses caused a general skepticism toward all the evidence, regardless of its objective quality, instead of sensitizing mock jurors to methodological deficiencies in the evidence).

(327.) Schauer & Spellman, supra note 5, at 23 & n.82.

(328.) Id

(329.) Keckler, supra note 1, at 538.

(330.) Id. at 538. See supra Part III.A for a discussion on various methodological problems that could be raised on cross-examination. On the absurdity of the assertion that fMRI technology cannot be cross-examined, see Galves, supra note 123, at 225 (stating that the objection that images cannot be cross-examined like a live witness should be overruled every time it is raised).

(331.) Cheryl Boudreau & Mathew D. McCubbins, Competition in the Courtroom: When Does Expert Testimony Improve Jurors' Decisions?, 6 J. Empirical Legal Stud. 793, 815 (2009) ("[The] back and forth that occurs between witnesses and lawyers during trials ... [is] beneficial not only because [it] close[s] the sophistication gap, but also because of the way this closing of the sophistication gap occurs.").

(332.) McCabe et al, supra note 183, at 575. "Questioning the validity of the fMRI evidence reduced the proportion of guilty verdicts rendered to the level of the control condition that was not presented with any evidence of lying." Id. at 574. But see Michael et al., supra note 227.

(333.) Fed R. Evid. 403.

(334.) United States v. Scheffer, 523 U.S. 303, 313 (1998) (plurality opinion) (citing

(335.) See infra Part III.D.1 for a discussion on jurors' poor credibility assessment.

(336.) Seaman, supra note 3, at 435 n.36.

(337.) Langleben & Moriarty, supra note 8, at 223 (citing ALDERT VRIJ, DETECTING LIES AND DECEIT: PITFALLS AND OPPORTUNITIES (2d ed. 2008)).

(338.) Id. at 2 (citing Paul Ekman & Maureen O'Sullivan, Who Can Catch A Liar?, 46 Am. Psychol. 913 (1991)); Schauer, supra note 74, at 1213 n.114 (citing various studies that place the ceiling of the ability of untrained people to determine truth telling in others around sixty percent).

(339.) Keckler, supra note 1, at 514 n.18 (citing Christian A. Meissner & Saul M. Kassin, "He's Guilty!": Investigator Bias in Judgments of Truth and Deception, 26 L. & HUM. BEHAV. 469, 472 (2002) (showing in a review of studies no effect of training, except increased likelihood of labeling all individuals as deceitful, yielding more Type II errors, along with increased false confidence in one's abilities)).

(340.) Seaman, supra note 3, at 435 n.36; see also Meixner, supra note 24, at 1465 (asserting that test subjects were "unable to discern how effectively they determined credibility based on demeanor evidence").

(341.) Schauer, supra note 74, at 1195 (citing James P. Timony, Demeanor Credibility, 49 CATH. U. L. REV. 903,907-13 (2000)).

(342.) Meixner, supra note 24, at 1452, 1463; Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 CARDOZO L. REV. 2557, 2565 (2008) (citing Bella M. DePaulo et al., Cues to Deception, 129 PSYCHOL. BULL. 74 (2003)) ("[F]ew reliable cues to deception exist and in particular, the cues widely believed by the public to signify deception generally do not.").

(343.) Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 72 NEB. L. REV. 1157, 1201 (1993).

(344.) See Paul Ekman & Maureen O'Sullivan, Who Can Catch a Liar?, 46 Am. PSYCHOL. 913 (1991); see also Olin G. Wellborn III, Demeanor, 76 CORNELL L. REV. 1075, 1075 (1991) ("According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments."). See generally Meixner, supra note 24 (describing this experiment in more depth).

(345.) See generally Saul M. Kissin & Christina T. Fong, "I'm Innocent!": Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 Law & HUM. BEHAV. 499 (1999); see also, Meixner, supra note 24, at 1464 n.99 (2012) (citing Kissin & Fong, supra, at 499).

(346.) Meixner, supra note 24, at 1466-67 (2012) (citing Charles F. Bond, Jr. & Bella M. DePaulo, Accuracy of Deception Judgments, 10 PERSONALITY & SOC. PSYCHOL. Rev. 214,216-17,219 (2006)).

(347.) Id at 1468.

(348.) Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 Cardozo L. Rev. 2557, 2568-78 (2008) (asserting that using contextual cues improves deception detection when in line with personal biases, while it reduces deception detection to under-chance accuracy when not in line with said biases).

(349.) Meixner, supra note 24, at 1468-74.

(350.) Id. at 1473 & n.143 (citing Maria Hartwig et al., Detecting Deception via Strategic Disclosure of Evidence, 29 LAW & HUM. BEHAV. 469,477 (2005)).

(351.) See infra Part IV.C; see also United States v. Scheffer, 523 U.S. 303 (1998).

(352.) See infra Part IV.D.

(353.) See infra Parts IV.E, IV.F.

(354.) See supra notes 213-16 and accompanying text.

(355.) See supra notes 241-47 and accompanying text.

(356.) Galves, supra note 123, at 222 ("[Cheating prejudice is exactly what an advocate is doing when she is advocating for her client or when a witness is testifying on behalf of one of the litigants--getting the jury to believe her side of the case and her version of the facts.").

(357.) Schauer, supra note 83 (manuscript at 37-38) ("[The] precise question to be asked about fMRI evidence therefore, is... whether the inflated value they produce is greater than the inflated value produced by the visual evidence that the legal system routinely admits.").

(358.) Meixner, supra note 24, at 1462 n.79 (discussing other potential goals of the justice system besides trial accuracy). "It is not clear whether this reduction in procedural justice would be worth the gain in trial accuracy, though one could argue that modern forensic science has the same problem yet continues to be admitted." Id. at 1487; see also Sanders, supra note 294, at 940-41.

(359.) See, e.g., David Gruber & Jacob A. Dickerson, Persuasive Images in Popular Science: Testing Judgments of Scientific Reasoning and Credibility, 21 Pub. Understanding Sci. 938 (2012) (conducting a study with results showing that there was no discernible impact between fMRI images and artistic renderings or science-fiction movie still shots depicting the brain). See generally Jewel, supra note 227 (discussing the advantages of visual advocacy).

(360.) See supra notes 234-36 and accompanying text (discussing how fMRI images added no additional impact as compared to neuropsychological testing results); see also Chloe Boyle, Juror Perception of fMRI Evidence (Sept. 14, 2011) (unpublished M.S. thesis, California State University, Fullerton) (on file with author) (comparing juror evaluation of conditions with the variables of fMRI imaging and accompanying expert testimony in a legal setting).

(361.) Meixner, supra note 24, at 1487. "Though truth and legitimacy are certainly distinct functions of the jury trial, legitimacy is closely tied to the system's ability (real or apparent) to discover the truth." Seaman, supra note 3, at 472 n.193. This sentiment is traceable back to William Blackstone's well-known maxim, "it is better that ten guilty persons escape, than that one innocent man suffer." 4 WILLIAM BLACKSTONE, COMMENTARIES *358.

(362.) To the author's knowledge, there is no published research on the reasoning underlying the gap between evidentiary reliability and overvaluation. It is possible that it is inevitable given the function of evolution and human cognitive heuristics, for example, to believe in eyewitness testimony.

(363.) See supra Part III.B.2.

(364.) See supra note 264 and accompanying text.

(365.) See supra note 271 and accompanying text.

(366.) See supra note 283 and accompanying text.

(367.) Schauer, supra note 74, at 1209 ("[W]eak (and thus potentially flawed) evidence serves important functions in law. Requiring highly valid scientific processes to certify evidence as 'compelling,' 'conclusive,' or even 'highly reliable' in order for that evidence to be usable would dramatically revamp the legal system as we know it.").

(368.) Beilin, supra note 318, at 721 (asserting that once lie detection technology becomes reliable enough to pass the Daubert standard, the "residual danger that the jury will be misled or confused by a particular lie detector expert is then indistinguishable from that present with other scientific expert testimony routinely admitted"). "Justice Thomas's distinction notwithstanding, the problem of deference to expert opinion is a problem for all expert testimony. There is no reason to believe that jurors will be less able to assess neuroscience evidence than they are to assess DNA evidence or any other scientific evidence." Pardo, supra note 23, at 317.

(369.) Pardo, supra note 23, at 317-18.

(370.) SeeTcitcher, supra note 151.

(371.) See Kittay, supra note 35.

(372.) See Meixner, supra note 24, at 1480.

(373.) Id.

(374.) Id. cf. Kittay, supra note 35, at 1389-95 (asserting that society's apprehension against "mind-reading" devices might serve to make fMRI deception detection inadmissible).

(375.) Beilin, supra note 318, at 719; see Michael L. Eber, When the Dissent Creates the Law: Cross-Cutting Majorities and the Prediction Model of Precedent, 58 EMORY LJ. 207 (2008) (asserting that majority opinions that combine a plurality and concurrence in the judgment do not create binding precedential value).

(376.) United States v. Scheffer, 523 U.S. 303,309 (1998).

(377.) Id. at 313 (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)). Another frequently cited part of the opinion is "[dj]ermining the weight and credibility of witness testimony, therefore, has long been held to be the 'part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.'" Id. (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)). Justice Thomas's plurality opinion was joined by Chief Justice Rehnquist and Justices Scalia and Souter. Id. at 305. For a discussion of the different opinions and resulting conclusions, see Seaman, supra note 3, at 462 & n.148.

(378.) Scheffer, 523 U.S. at 318 (Kennedy, J., concurring) (concurring in the judgment on the grounds that the per se military ban on polygraph evidence served a

legitimate government interest); see also Beilin, supra note 318, at 719 (framing Justice Kennedy's opinion as holding that the "concern that polygraph evidence would erode the jury's role as primary or exclusive lie detector was a valid (i.e., not arbitrary) basis on which a policy maker could exclude such testimony"). 379. Seaman, supra note 3, at 433 n.25 (citing 2 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON Law [section] 875 (2d ed. 1923)) (quoting Dean Wigmore) ("If there is ever devised a psychological test for the valuation of witnesses, the law will run to meet it."). But see Kittay, supra note 35, at 1353 (2007) (asserting that courts might bar admission of fMRI lie detection technology because of "society's suspicion and fear of 'mind reading' technologies"); Meixner, supra note 24, at 1460 ("Thus, even if a lie-detection tool achieved 100% accuracy when used in the hands of an expert, it would likely be precluded from use because it would 'invade the ... province of the jury' and '[b]y its very nature ... diminish the jury's role in making credibility determinations.'").

(380.) Seaman, supra note 3, at 434.

(381.) See supra Part III.D.

(382.) See supra Part III.D1.a.

(383.) See Seaman, supra note 3, at 475-78 (outlining the remaining role the jury will play in our justice system in light of the admission of fMRI lie detection technology).

(384.) See supra Part I.A.2.

(385.) Seaman, supra note 3, at 476.

(386.) See id. at 476 n.215.

(387.) Pardo, supra note 23, at 318.

(388.) Seaman, supra note 3, at 475.

(389.) Sir Winston Churchill, Address Before House of Commons (Nov. 11, 1947), in 444 THE OFFICIAL REPORT, HOUSE OF COMMONS (5TH SERIES) 203, 206-07, available at

(390.) U.S. Const, amend. VI; see also Stronge, supra note 4, at 113 (noting the societal importance of the jury system as one that "enables society at large to be involved in the determination of guilt, and when mistakes are made, either by exonerating a guilty defendant or imprisoning an innocent one, society shares in the responsibility for this mistake").

(391.) Langleben & Moriarty, supra note 8, at 227.

(392.) See supra notes 293-94 and accompanying text.

(393.) United States v. Scheffer, 523 U.S. 303, 337 (Stevens, J., dissenting) ("[T]he reliance on a fear that the average jury is not able to assess the weight of this testimony reflects a distressing lack of confidence in the intelligence of the average American.").

(394.) Hans, supra note 292, at 69.

(395.) Id.; see also Schweitzer & Saks, supra note 293, at 433 (asserting that study results showed that "[t]rained jurors were better able to assess the quality of the research, and these more accurate assessments were reflected in their verdicts").

(396.) Fed. R. Evid. 403 advisory committee's note.

(397.) E. Spencer Compton, Not Guilty by Reason of Neuroimaging: The Need for Cautionary Jury Instructions for Neuroscience Evidence in Criminal Trials, 12 VAND. J. ENT. & TECH. L. 333, 346-54 (2010).

(398.) See Reese, supra note 2, at 205.

(399.) Schweitzer & Saks, supra note 2953, at 13.

(400.) Id.

(401.) Greely & Illes, supra note 52, at 413-21.

(402.) Seaman, supra note 3, at 460 n.134-35 ("Several scholars have observed that the judicial reaction against credibility expertise, and lie detection evidence in particular, has been wholly out of proportion to its purported lack of scientific reliability.").

(403.) Pardo, supra note 23, at 312; see, e.g., Jennifer L. Mnookin, The Image of Truth: Photographic Evidence and the Power of Analogy, 10 YALE J.L. & HUMAN. 1 (1998).

(404.) Law, supra note 86, at 57-58 (noting that there was a thirty-five-year gap between the discovery of the double-helix structure of DNA in 1953 and the first reported appellate court's acceptance of a trial court's admission of DNA-based evidence in 1988).

(405.) Keckler, supra note 1, at 538. This technology could also be initially limited to certain circumstances. Id. (noting that performing fMRI deception detection on a witness that has already proffered testimony negates any constitutional privacy and evidentiary hearsay issues).

(406.) Kittay, supra note 35, at 1396 ("Early rejections might not only stall, but doom the technology's admissibility for years to come.").

(407.) Feigenson, supra note 93, at 236 n.7 (asserting that advancing technologies should and would not be held to strict precedent given the improvements in the underlying technology).

(408.) See supra Part III.B.I.f (discussing the non-prejudicial effect of fMRI images).

(409.) See supra notes 234-36 and accompanying text (discussing how fMRI images added no additional impact as compared to neuropsychological testing results).

(410.) See supra Part III.B.2.

(411.) See supra Part IV.C.

(412.) See generally Schauer & Spellman, supra note 5.

(413.) In most of the recent experiments testing the overvaluation of fMRI images, test subjects were not told that the technology had any faults, and yet, the technology still did not have excessive influence. This may be a problem if, or when, the technology becomes very accurate. In other words, it would be a problem if the jury should \alue the evidence very highly, yet does not. In such a case, advocatory jury instructions or judgments N.O.V. might be appropriate.

(414.) This technology could also exacerbate effects of economic inequalities among defendants. See Adina L. Roskies et. al., supra note 220, at 100. Some argue that it would be easier for defendants to avoid convictions altogether. See, e.g., Schauer, supra note 74, at 1203-04 (quoting Michael H. Graham, Burdens of Proof and Presumptions in Criminal Cases, 45 Crim. L. Bull. 192 (2009)) (asserting that it would be easier for defendant to avoid convictions since they only need "slight" evidence to escape the "beyond all reasonable doubt" standard); Teitcher, supra note 151.

(415.) See generally Shen, supra note 7 and accompanying text.

([dagger]) This title is a play on the title of an influential neuroscience article. See Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Everything and Nothing, 359 Phil. Transactions Royal Soc'y. B Biological Sci. 1775 (2004).

Justin Amirian, J.D. Candidate, 2014, Fordham University School of Law; B.A., 2010, Dartmouth College. Thanks to Professor Michael W. Martin for his guidance. Thanks to the Amirian family for their unconditional love and support.
COPYRIGHT 2013 Fordham Urban Law Journal
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2013 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:III. fMRI Under 403 B. Unfair Prejudice: Will the Jury Overvalue This Evidence? Through Conclusion, with footnotes, p. 743-770; functional magnetic resonance imaging; Federal Rules of Evidence
Author:Amirian, Justin
Publication:Fordham Urban Law Journal
Date:Dec 1, 2013
Previous Article:Weighing the admissibility of fMRI technology under FRE 403: for the law, fMRI changes everything - and nothing.
Next Article:Zombieland/the Detroit bankruptcy: why debts associated with pensions, benefits, and municipal securities never die ... and how they are killing...

Terms of use | Privacy policy | Copyright © 2018 Farlex, Inc. | Feedback | For webmasters