Cite as 10 J. HIGH TECH. L. 113 (2009)
"[Y]ou must understand, sir, that a person is either with this court or he must be counted against it, there be no road between. This is a sharp time, now, a precise time-we live no longer in the dusky afternoon when evil mixed itself with good and befuddled the world. Now, by God's grace, the shining sun is up, and them that fear not light will surely praise it."
- Arthur Miller, The Crucible, 76 (Heinemann 1992) (1953).
On June 12, 2008, a court in India convicted Aditi Sharma of murdering her fiance and sentenced her to life in prison. (1) As its primary evidence against her, the court relied on a brain scan test that purported to show that Sharma's brain held knowledge of the crime that only the killer's brain could contain. (2) Researchers in the United States have expressed strong opposition to this verdict, noting that the technology employed is far from perfect and should not have been relied upon in this manner. (3)
Since the first vestiges of societal establishment, we have struggled with not only how to punish those who do wrong, but how to determine the identity of the wrongdoer. (4) In the earliest Anglo-American trials, the relied upon means of assessing the guilt of the accused was not a trial by his peers, but one under God. (5) Under judicium Dei, the accused was either subjected to some form of torture, as in trial by ordeal, or to trial by combat. (6) These two forms of "trial" shared the same inspiration: God would not let an innocent suffer, and if the accused were truly not guilty, He would intervene on his behalf. (7)
The commonality that judicium Dei shares with modern attempts at guilt assessment by technological means is that the responsibility for deciding the accused's fate is placed not upon society, but rather on some third party--in the latter case, a machine. Ben Clark, of the Notre Dame University of Australia School of Law, wonders whether in the creation of lie detection technology we have not merely "invented a modern form of witch dunking." (8)
However, although in its present state such technology is not foolproof--claims of accuracy at detecting deception hover around ninety percent (9)--the benefits cannot be ignored. Laboratory tests have shown people to be very poor lie detectors, with success rates averaging that of pure chance. (10) Thus on its face, with the primary purpose of our legal system to separate the guilty from the innocent, any device that allows us to do so with better accuracy should be embraced. In actuality, the issue is far more complicated, and many fear that the general acceptance of lie detection evidence-or that of any other "mind reading" technology-will unleash an Orwellian nightmare. Is it possible to utilize this technology to achieve the most accurate fact-finding possible without completely usurping the role of the jury and the ideals for which the jury system stands?
In Part II of this article, I will explore the history of scientific evidence generally, as well as how the admission standards of the judicial system have adapted with the introduction of new technologies. I will then look more specifically at the history of lie detection, including emerging neuroscience technologies and how they have been both employed and dismissed by the courts. In Part III, I will broadly articulate the areas in which the use of neuroscience technologies conflicts or raises issues with the judicial process, particularly with respect to the role of the jury. Finally, in Part IV, I will examine the pros and cons of judicial utilization of these technologies, as well as the broader philosophical implications of doing so.
A. Admission of scientific evidence generally
Scientific evidence can provide a solid foundation for proving a given point in a case, thereby reducing the variables that must be …