fMRI lie detection has been hailed as a technological breakthrough that could revolutionize legal cases by providing hard evidence about who is lying and who is telling the truth. But judges, not convinced of the brain scan's real-world validity, are just saying no.Whereas general research about the fMRI has been admitted in the sentencing phase of some criminal trials, fMRI data has yet to be allowed in either the civil or criminal arenas as evidence of an individual's veracity.
Alexis Madrigal over at Wired magazine has been providing excellent, blow-by-blow coverage of the legal battles. In the latest skirmish, a judge in Brooklyn, New York did not even let the proposed fMRI evidence get as far as a Frye hearing, at which the plaintiff would have had to prove it was generally accepted as reliable in the relevant scientific community.
The civil case involves a woman who is suing her employer for alleged retaliation. Her attorney had sought to introduce fMRI data as evidence that a witness was telling the truth. But the defense successfully argued that, even if the fMRI data were accurate, it would infringe on the province of jurors, who in our legal system are supposed to decide the credibility of witnesses.
Critics say the scientific reliability and validity of the fMRI is far from established. If introduced in court, they say, its colorful graphics might mislead jurors and judges and derail justice. But, as Madrigal points out, this latest ruling suggests that, even if scientific reliability and validity issues are eventually settled, legal questions will remain.
Daubert hearing today in psychiatrist's fraud case
Today, the fMRI is being subjected to a Daubert evidentiary hearing in a federal case in Tennessee. Psychiatrist Lorne Semrau, charged with Medicare fraud, is seeking to introduce fMRI data as evidence of lack of intent.
The prosecution, seeking to prevent the fMRI evidence, will be calling two experts to testify about its scientific limitations, according to ScienceInsider. The two are Marcus Raichle of Washington University in St. Louis, a neurologist and veteran neuroimaging researcher, and Peter Imrey, a biostatistician at the Cleveland Clinic Foundation. Both served on a 2003 National Academy of Sciences panel that issued a critical report on the scientific validity of polygraph lie detection. Whichever way the judge rules, it could establish precedent for future cases, Stanford University law professor Henry Greely told ScienceInsider.
As I reported last year, a similar case in California in which a man sought to use fMRI evience to prove his innocence of child abuse charges was unsuccessful.
"These cases demonstrate that the collision between fMRI technology and the legal system is likely to be long and messy," concludes Madrigal, who in addition to writing for Wired is a visiting scholar at UC Berkeley's Office for the History of Science and Technology.This season's hot brain regions
With the fMRI decidedly out of fashion in the legal arena, if you want cocktail party trivia about what topics in brain research are hot, you can get it from Neuroskeptic, a cool neuroscience blog out of the UK. The hippocampus (memory) is popular, but even more popping this season are the orbitofrontal cortex and cingulate cortex. Neuroskeptic theorizes their popularity owes to the fMRI, which makes them easier to study.
Forensic brain-scanning resources
For those of you who are interested in this area, several prominent media have recently featured analyses of forensic use of brain-scanning technology. Nature magazine did a nice overview, asking the frequently raised question of whether it is ready for prime time.
This followed a piece at the online news site Miller-McCune entitled, "A Mind of crime: How brain-scanning technology is redefining criminal culpability."
In its week in review section, the New York Times tagged off of that latter story, asking the provocative question: If all our mental states can ultimately be reduced to neurophysiological conditions, and there is really no such thing as free will, how can people be held accountable for crimes?
That philosophical question is addressed in another interesting article forwarded to me by blog subscriber Marsha from PhysOrg.com, explaining that "Free will is an illusion, biologist says."
And yet more online resources:
"For the law, neuroscience changes nothing and everything," by Joshua Greene and Jonathan Cohen.
Mind Hacks has excellent critical analysis of the science of brain scanning. For example, there's a post on the claim that brain scanning can diagnose Post-Traumatic Stress Disorder: "Brain scan diagnoses misunderstanding of diagnosis."
"Beware 'voodoo' brain science," blog post, March 10, 2009
Wired article: Brain Scans as Mind Readers? Don't Believe the Hype by Daniel Carlat
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