Academic journal article Vanderbilt Law Review

Neuronal Testimonial: Brain-Computer Interfaces and the Law

Academic journal article Vanderbilt Law Review

Neuronal Testimonial: Brain-Computer Interfaces and the Law

Article excerpt

Introduction

Advancements in science and technology have provided society with the ability to communicate with conscious patients who are outwardly in a vegetative state. Specifically, brain-scanning technology allows patients who are unable to communicate verbally or via motor actions to answer questions. After interpreting the brain scans, researchers can tell family members, medical professionals, and legal actors how the patient answered the questions. of course, the technology has limitations, and for now patients are only able to answer binary (e.g., yes-or-no style) questions with the technique; but this advancement in communication gives patients who were previously condemned to silence a new voice-both in their own lives and within the confines of the legal system.

As the technology develops, new questions will arise about its use within the legal system. Might individuals in a vegetative state be able to testify in court using this brain-scanning technology? Could they aid police investigations? is it possible for them to share their healthcare wishes with a judge? Many existing frameworks-including evidentiary rules, constitutional rights, and current medical practices- may eventually govern how to use this kind of evidence in criminal trials, investigations, and civil lawsuits. This Note explores three scenarios involving brain-scanning technology, analyzing the obstacles it may face if: (1) presented as evidence in a trial, (2) used as the basis of probable cause in a police investigation, and (3) employed as a vehicle for understanding a patient's current wishes regarding her own medical care.

Part I describes the vegetative state and how functional magnetic resonance imaging ("fMRI") technology is used to communicate with conscious vegetative-state ("CVS") patients. It also addresses the current limitations of this technology. Parts II, III, and IV each begin with a hypothetical scenario that lays out a possible use of this technology within a specific facet of the legal system. Part II examines whether brain-computer interface communication could ever be presented as testimony or evidence in court, specifically within the criminal context. Part III analyzes whether this kind of communication could be used as the basis for probable cause for an arrest warrant or a search warrant. Part IV considers how this communication may be used in end-of-life care, refusal of life-sustaining treatment, and other medical decisions. Finally, this Note concludes with a brief look into the future of brain-computer interface communication as it relates to these areas of legal practice.

I. Brain-Computer Interface Communication

The vegetative state-how it should be defined and what it means for patients-is not well understood in today's medical community.1 While a layperson may equate the vegetative state with a coma, the medical definitions of the two terms differ. The vegetative state often results from cardiac or respiratory arrest, which causes a lack of blood flow (and, thus, a lack of oxygen) to the brain.2 Generally though, the brain stem will remain relatively intact, since it is resistant for a short period of time to a lack of blood flow or oxygen.3 Therefore, CVS patients are not truly "brain dead" and can retain conscious awareness if they receive medical treatment before destruction of the brain stem.4

Despite retaining conscious awareness, patients in this state show no physical signs of consciousness; they are unable to communicate either verbally or via motor actions, though at times they appear to be awake and aware.5 For instance, CVS patients may demonstrate cycles of sleep and wakefulness; ability to breathe on their own; maintenance of blood pressure; responses to light; sporadic movements of (nonparalyzed) facial muscles and limbs; gag and cough reflexes; and eyesight and auditory capabilities.6 Even with the retention of these behaviors, many of these patients remain unable to make purposeful motor movements in response to stimuli due to a loss of certain brain functions. …

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