Summary
Historically, fundamental decisions regarding the implications of new technologies have occurred very early in the life cycles of those technologies.3 For example, polygraphs have been in legal disrepute since 1923.4 This trend dates to the oft-cited, remarkably brief, almost universally misinterpreted Frye v. United States,5 which has been erroneously read to establish a per se rule against the admissibility of evidence obtained with a conventional lie detector.6 Similarly, the leading Supreme Court authority addressing confessions obtained with truth serum was decided over forty years ago, in the relative infancy of psychopharmaceuticals.7 These technologies have evolved considerably since the courts originally addressed them,8 however, the mere existence of these opinions have tended to foreclose fresh analyses, usually resulting in nothing more than their uncritical invocation rather than a reasoned examination of the law and policy issues.9 The converse is also true. [...] to the extent that incomplete scientific knowledge hinders this analysis, it is not the underdevelopment of fMRI that is the issue but the relationship between the physical brain and what humans regard (perhaps wrongly) as the non-physical manifestations of the self, whether this is called the mind, soul or conscious.\n97 The remarkable element of the decision, however, was Justice Linde's concurring opinion, which argued that even if the polygraph were scientifically reliable, he would refuse to admit the test results into evidence.98 Citing some of the most interesting but least read articles on polygraph admissibility issues,99 Linde argued that polygraph testing compromised the fundamental tenets about human personhood.
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Extract
A Brave New World of Interrogation Jurisprudence?
I. INTRODUCTION: THE FUTURE IS NOW
We are told that functional magnetic resonance imaging (fMRI) is "not ready for use, despite optimism about its commercial potential."2 This is probably true-it is also, in terms of legal analysis, irrelevant. Although the development of fMRI technology is still in its relative infancy, there is no guarantee that the law governing its use will wait for it to grow up. Thus, the recent backlash against the initial flurry of articles, both academic and general, on the promise and legal issues surrounding fMRI is unwarranted. The conclusion that so many-even many of the contributors to this volumeseem to be drawing, namely, that law, as a field, must abstain from analyzing the legal implications of fMRI until those with more scientific expertise deem it ready to look at, is at best wrong and, at worst, irresponsible.The emerging conventional wisdom of disengagement is misguided for two reasons. First, it is based on a naive view of the common law process in general and stare decisis in particular. Historically, fundamental decisions regarding the implications of new technologies have occurred very early in the life cycles of those technologies.3 For example, polygraphs have been in legal disrepute since 1923.4 This trend dates to the oft-cited, remarkably brief, almost universally misinterpreted Frye v. United States,5 which has been erroneously read to establish a per se rule against the admissibility of evidence obtained with a conventional lie detector.6 Similarly, the leading Supreme Court authority addressing confessions obtained with truth serum was decided over forty years ago, in the relative infancy of psychopharmaceuticals.7 These technologies have evolved considerably since the courts originally addressed them,8 however, the mere existence of these opinions have tended to foreclose fresh analyses, usually resulting in nothing more than their uncritical invocation rather than a reasoned examination of the law and policy issues.9The converse is also true. Reliance on fingerprints10 and eyewitness identifications11 are firmly embedded in the legal system, althoug...See the full content of this document
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