Chapter 11 The Future of the Fifth Amendment

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 11 The Future of the Fifth Amendment

The core values of the Fifth Amendment can expect to be tested by future advances in cognitive neuroscience. Current neurotechnologies are already able to peer inside our brains and produce significant evidence about our thoughts—even if the reliability of the evidence has not reached levels making it admissible in most courtrooms. For instance, commercial enterprises are currently experimenting with so-called brain fingerprinting, which, by measuring certain electrical oscillations emitted by the brain when subjects are presented with certain stimuli, purport to be able to tell when a person is lying. Additionally, scientists are using blood oxygen level dependent functional magnetic resonance imaging (BOLD-fMRI), which measures the concentrations of oxygenated blood (oxyhemoglobin) within the brain to detect which regions of the brain are activated by various thought processes. While each of these neurotechnologies focus on measuring the brain's reactions to some outside input, it is not science fiction to imagine a future technology able to make reliable observations of the metabolic manifestations of a person's thought patterns (or even memory), simply by placing a human head inside of a special device or scanner. In other words, we can expect a future in which we will be able to extract self-incriminating patterns of brain function from a person without requiring the person to speak or even make a responsive gesture.

Obtaining incriminating evidence from an accused's neurological activities raises profound questions about the protections afforded by the Fifth Amendment. As previously observed, the Self-incrimination Clause protects only "testimonial" or "communicative" disclosures. In other words, if a court-ordered neurological examination could produce reliable evidence of a person's memory of being present at the time and place of a murder, the resulting evidence would be banned pursuant to the Fifth Amendment only if it were deemed to constitute testimony.

Current Fifth Amendment jurisprudence provides contradictory insights into whether such testing would be constitutional. On the one hand, the Supreme Court has ruled that compelled disclosure of physical evidence from which science can discern reliable self-incriminating information does not constitute testimony. In Schmerber v. California, 384 U.S. 757, 763-65 (1966), the Court announced a distinction between "testimony" and "real or physical...