TABLE OF CONTENTS INTRODUCTION I. A BRIEF HISTORY OF THE PHYSICAL-TESTIMONIAL DIVIDE II. REASSESSING THE DOCTRINE: A COMMUNICATION-BASED VIEW OF "TESTIMONY" A. Pardo's Substantive View of "Testimony" B. Allen and Mace's Substantive View of "Testimony" C. Why Both Substantive Views Are Ambiguous D. Why the Communication-Based View of "Testimony " Is More Plausible 1. Reconsidering Pennsylvania v. Muniz 2. Reconstructing Estelle v. Smith 3. Shoring Up the Communication-Based View E. Applying the Communication-Based View to the Mind Reader Machine III. JETTISONING THE NORMATIVE ARGUMENTS A. Concerns About Privacy B. Guilt, Innocence, and the "Cruel Trilemma" 1. Concern For Guilty Parties 2. Concern For Innocent Parties C. Coda: Mind-Body Dualism and its Discontents CONCLUSION
Suppose, some day in the not-too-distant future, that John Doe is the prime suspect in a murder investigation. In addition to compelling Doe to compose a voice recording, (1) to submit a handwriting sample, (2) and to turn over computer files (3)--all par for the constitutional course--a judge also issues a warrant compelling Doe to sit for examination by a Mind Reader Machine, an invention that enables police to obtain detailed biometric and neurological information from Doe, which is then translated into a "read-out" of his mental states. Without requiring any cooperation on Doe's part, the Machine will put his thoughts on full display. What would be the constitutional implications of this newfound practice?
Imagined at such a high level of abstraction, the Mind Reader Machine is obviously a dramatization. But realistic analogues become more plausible by the day. (4) We may not be far from a world in which brain-imaging technology will enable law enforcement to parse the thoughts of a silent criminal suspect, to retrieve the suspect's memories, and to determine whether the suspect is lying. (5) Many Fifth Amendment scholars find this a displeasing prospect. Departing from Justice Brennan's famous observation about polygraph tests--"To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment" (6)--these scholars argue that extracting cognitive evidence from an unwilling suspect would offend the Self-incrimination Clause to its pith. To rehearse but a few examples: Sarah Stoller and Paul Wolpe find the Machine "a chilling concept"; (7) Nita Farahany believes the Machine to violate basic "intuitions about mental privacy and autonomy of self; (8) Ronald Allen and Kristen Mace discern "universal agreement" that the Machine is unacceptable; (9) and Michael Pardo goes so far as to call the Machine a "reductio ad absurdum" for narrow theories of self-incrimination. (10)
I am skeptical. Against the scholarly chorus, this Article offers a tempered constitutional defense of mind-reading on both doctrinal and normative grounds. Doctrinally, self-incrimination analysis turns on the distinction between "physical evidence" and "testimonial communication." Only the latter is privileged. (11) The difficulty, however, is that "testimonial" invites competing constructions. The first focuses on the cognitive product of disclosure, the second on the communicative process of disclosure. (12) Existing doctrinal arguments against the Mind Reader Machine rely on the first construction. I demonstrate, by contrast, that the second construction--the "communication-based" view of testimony--better integrates the case law and stands up more persuasively to metaphysical scrutiny. From there, I unpack what the communication-based view entails, concluding that "testimonial communication" stems from an intentional act on the suspect's part that discloses information about the suspect's mental states. Finally, I apply this definition to various forms of the Machine, some more realistic, others more fanciful. …