Academic journal article Harvard Journal of Law & Technology

Truth, Deceit, and Neuroimaging: Can Functional Magnetic Resonance Imaging Serve as a Technology-Based Method of Lie Detection?

Academic journal article Harvard Journal of Law & Technology

Truth, Deceit, and Neuroimaging: Can Functional Magnetic Resonance Imaging Serve as a Technology-Based Method of Lie Detection?

Article excerpt

TABLE OF CONTENTS  I. INTRODUCTION II. AN OVERVIEW OF FUNCTIONAL NEUROIMAGING    A. What Is fMRI    B. fMRI as a Method of Lie Detection III. FMRI LIE DETECTION SCIENCE IS NOT YET READY TO BE Used in a Legal Setting    A. Deficiencies in Currently Available fMRI Data    B. fMRI Data Faces Challenges Before It Can Be Admitted    in the Legal Arena IV. UNDER CURRENT LAW, FMRI EVIDENCE IS, AND SHOULD BE, INADMISSIBLE    A. Daubert and FRE 702    B. fMRI and FRE 702    C. fMRI and FRE 403    V. FMRI LIE DETECTION EVIDENCE PROPERLY EXCLUDED IN RECENT CASES VI. HOW TO MOVE FORWARD 

I. INTRODUCTION

The United States legal system places great emphasis on juries, tasking them with determining the credibility of witnesses that testify in court. However, extensive research has found that humans are generally good at lying and quite bad at detecting the lies of others. (1) Studies have found that in face-to-face meetings, the average individual is able to detect deception at a rate only slightly better than 50%, the same rate that would be expected by chance. (2) This has led courts to search for a more objective, technology-based method of lie detection, which could potentially improve on humans' natural ability (or inability) to detect deception. (3)

For much of the twentieth century, the best scientific tool available to detect deception was the polygraph machine. (4) However, studies have cast doubt as to the usefulness of polygraph tests. (5) While one study using meta-analysis found the sensitivity and specificity of the polygraph to be 59% and 92% respectively, (6) a National Academy of Sciences report from 2003 estimated the accuracy of polygraphs to be somewhere in the vicinity of 75%. (7) Crucially, this report found that while accuracy could be as high as 99%, it was often as low as 55%, depending on a variety of factors, such as the operator, setting (i.e., experimental versus forensic), and questioning format. (8) As a result, the National Academy concluded that polygraph testing was largely unreliable. (9)

In recent years, there has been significant enthusiasm for the use of functional magnetic resonance imaging (fMRI) as a scientific tool for lie detection. (10) Functional neuroimaging measures the central nervous system (brain and spinal cord) rather than the peripheral correlates of nervous system activity (heart rate, blood pressure, respiration, and galvanic skin response), which polygraph testing measures. (11) Brain-based lie detection was pioneered in the late 1980s using electroencephalography ("EEG"), (12) but fMRI is now the preferred modality, due to its ability to localize blood flow in the brain. (13)

Although there is growing enthusiasm for its use, science has only recently begun to investigate fMRI as a method of lie detection. Because the science remains nascent, there are many uncertainties and issues that must be addressed before fMRI can provide truly reliable evidence of truth-telling. These problems create genuine barriers to the current legal admissibility of fMRI lie detection, and must be addressed before this technology can begin to have a regular impact on jurisprudence.

This Note will examine how fMRI technology and associated neuroimaging modalities can be used as a means of lie detection, with an eye towards its potential use in a court of law. Prior articles examining fMRI lie detection have done so without a robust discussion of the technology, focusing instead on the evidentiary problems. (14) However, without an in-depth understanding of the technological and scientific shortcomings of neuroimaging, it is impossible to make accuaccurate conclusions about the applicability of the technology in the legal arena. In Part II, I will discuss fMRI technology in the medical context, before examining fMRI as a potential means of lie detection. In Part III, I will describe limitations of the technology and the available data concerning fMRI lie detection. …

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