Neuroscience, Mental Privacy, and the Law

By Shen, Francis X. | Harvard Journal of Law & Public Policy, Spring 2013 | Go to article overview

Neuroscience, Mental Privacy, and the Law


Shen, Francis X., Harvard Journal of Law & Public Policy


III. MIND READING WITH NEUROIMAGING: WHAT WE CAN (AND CANNOT) DO

Having established in Part II a working definition of neuroimaging mind reading, the Article now briefly discusses several recent legal applications of such technology. Part III reviews: (A) fMRI-based lie detection; (B) fMRI-based memory detection; (C) EEG-based memory detection; and (D) fMRI-based decoding and reconstruction of visual stimuli.

A. Lie Detection with fMRI (127)

Neurons, the cells of greatest interest in the brain and nervous system, need oxygen to live. This oxygen is supplied to them via blood flow. fMRI is premised on the logic that tracking relative blood flow to different parts of the brain will reveal relative oxygen uptake, and thus show which neurons are more active (at a given moment in time). (128) Changes in blood oxygen levels in the brain at different moments during a given experimental task allow for inferences about brain-activation patterns.

Different protocols have been used in fMRI lie detection, most of which rely on a paradigm known as the "Concealed Information Test" (CIT) (also known as the "Guilty Knowledge Test" (GKT)). (129) This paradigm is different than the Control Question Test typically used by professional polygraphers. (130)

fMRI lie detection evidence has been proffered in several U.S. cases, has been the topic of much neuroscience research, and has drawn the attention of many commentators. (131) There are a large number of conceptual and technical problems with this approach. Conceptually, one major challenge with neuroimaging lie detection is defining a "lie." (132) In practice, neuroscience lie detection has utilized an "instructed lie" experimental paradigm, (133) in which subjects are told to lie under certain conditions in the experiment. Critics point out that this may limit the inferences we can make about "lying," because an instructed lie in the lab may not involve the same brain activity as a high-stakes lie in real life outside the lab. (134) Additionally, technical issues include general concerns about using fMRI techniques to study higher-order cognitive functions. (135)

Of particular note here is the "reverse inference" fallacy. The reverse inference fallacy is the idea that just because a particular part of the brain is more active during a certain cognitive state, it does not necessarily follow that whenever that brain area is more active, a person is in that cognitive state. (136) The reverse inference fallacy is acute in the lie detection case, as "it is not lying per se that is being decoded from these brain areas but rather the cognitive and emotional processes that are associated with lying." (137)

Despite these limitations, two for-profit fMRI-based lie detection companies are now in operation, (138) and both have proffered evidence in criminal trials on behalf of defendants. (139) So far, the evidence has been ruled inadmissible under both the Daubert standard in federal court (140) and the Frye standard in state court. (141) However, the judge overseeing the evidentiary hearing in the federal case suggested that such evidence may one day become admissible:

   [I]n 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. (142)

For purposes of the Fourth Amendment and Fifth Amendment analysis in Part IV, it is important to note that all of these experimental paradigms involve researcher-subject interaction such as requesting a response to a visual stimulus or question. (143) Although fMRI may be used in what is known as "resting state" analyses (in which the subject just lies in the scanner), such resting-state approaches have not been employed in the lie detection context. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Neuroscience, Mental Privacy, and the Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.