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Univ. of San Diego School of Law

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Monday, May 10, 2010

Brain Scan Lie Detection Evidence Not Admitted (Kolber)

Kolberaj_photo A court in Brooklyn has deemed inadmissible fMRI evidence of the truthfulness of a witness in an employment discrimination case.  The details are sketchy but it sounds like the evidence was declined on the ground that credibility is a jury determination.  Apparently, the court did not consider the scientific merits or demerits of the technology.  See Wired story here (and an earlier story here). 

We will soon learn more about how courts handle such evidence in an upcoming criminal case.  The issues raised may be especially interesting in the criminal context where defendants have certain constitutional interests in presenting exculpatory evidence.  As I have argued informally and as Fred Schauer has argued in print ("Neuroscience, lie-detection and the law," Trends in Cognitive Sciences, 2010), the strength of evidence we'd like to have to support a tort claim is different than the strength of evidence we need to raise a reasonable doubt in a criminal case. 

Here's what we know about the case from the Wired article:

Wired.com has learned that more brain scans conducted by the company Cephos will be put to the legal test in a federal case in the western district of Tennessee. On May 13, that court will hear arguments over fMRI evidence in a Daubert hearing, the procedure used to assess the admissibility of scientific information in Federal court.

In that case, the U.S. attorney charges that Lorne Semrau, a psychiatrist, sought to defraud Medicare and Medicaid in the way he contracted and billed for his services. Semrau argues he had no intent to defraud the government and underwent a brain scan to prove it. His attorney, J. Houston Gordon, filed paperwork indicating that Stephen Laken, president of Cephos, would testify on the fMRI evidence the company obtained.

“Dr. Laken will further testify that Dr. Semrau was presented questions using fMRI technology and was instructed to respond to questions in either/both a truthful or deceitful manner, depending on the question posed,” Gordon wrote. “The fMRI screening demonstrated to a scientific certainty, that Defendant was truthful and possessed no intent to defraud or cheat the government.”

And here are some of my previous comments on fMRI lie detection. (X-posted).

-AJK

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Comments

If the proffer (from Wired) is accurate, the (unnecessary?) Daubert hearing may be one of the easier hurdles for this evidence to overcome. It seems odd to suggest that the jury can somehow weigh this expert's testimony without being told precisely what questions were asked of the defendant (and the answers given). For all the jury could tell from this proffer, the expert could have asked the defendant about a different time frame or transaction than those the govt. contends are fraudulent.

I wonder if the awkward form of the proffer, which obscures the relevant Q&A, is designed to obscure a hearsay problem. If the proffered evidence included the actual questions and answers, it begins to look a lot like out-of-court statements by the defendant ("I did not intend to defraud the government by billing $600 on April 19") offered for the truth of the matter asserted.

For anyone interested, the complicated hearsay issues involved in presenting fMRI lie detection evidence, and possible routes around them, are explored in: The Significance (If Any) For the Federal Criminal Justice System of Advances in Lie Detector Technology, 80 Temple University Law Review 711 (2007).

Posted by: Jeff Bellin | May 10, 2010 2:37:28 PM

This is definitely an interesting technology, but until we know more about how accurate it really is, it should be kept out of court.

Given its potential, however, we shouldn't consign it to the polygraph dustbin just yet.

Posted by: RustyShackleford | May 17, 2010 3:23:13 PM

it's great that the court today is accepting results from science though other people are still skeptical when it comes to scientific findings but hopefully, scientists/doctors conducting the tests will give more concrete explanations as to how this is conducted. but the problem that will arise from this is that not all people can comprehend anything that is science. so hopefully, this will accepted because this will resolve a case faster.

Posted by: krystaljane | May 29, 2010 5:17:42 AM

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