Neuroscience in the courtroom: an international concern.

• Author: Church, Dominique J.

TABLE OF CONTENTS INTRODUCTION I. A BRIEF HISTORY OF NEUROSCIENCE IN THE COURTROOM A. The Two-Fold Science of Lie Detection B. Past Uses of Neuroscience in the Law C. Recent Attempts to Admit Brain Scan Evidence in Court II. GROWING INTERNATIONAL CONCERN A. Predecessors of fMRI and Brain Fingerprinting B. Neuroscience Conferences Galore III. INTERNATIONAL HUMAN RIGHTS A. Bioethics and Neuroethics on the Same Continuum B. Right to a Fair Trial C. Cognitive Liberty: An Extension of a Privacy Right CONCLUSION A human being ... is a part of the whole, called by us "Universe," a part limited in time and space. He experiences himself, his thoughts and feelings as something separated from the rest--a kind of optical delusion of his consciousness. (1) INTRODUCTION

Before it is seen as a legitimate right, cognitive liberty will cease to exist. (2) In June 2008, India became the first country in the world to convict a criminal defendant of murder on the basis of a brain scan indicating that the defendant, Aditi Sharma, had "experiential knowledge," or memory, of the murder in question. (3) The brain scan convinced the court that Sharma possessed a specific memory of murdering her fiance, "as opposed to ... [merely] hearing the details of his murder from another person." (4) Sharma, who consented to the test, sat in a room wearing a "skullcap" with thirty wires hooked to it that measured her brain activity in response to the following tape-recorded statements pertaining to her relationship with her fiance: "I had an affair with Udit.... I got arsenic from the shop. I called Udit. I gave him the sweets mixed with arsenic. The sweets killed Udit." (5) The test--an EEG--showed Sharma's brain lighting up in various colors during the reading of these statements, allegedly proving her culpability by indicating specific knowledge of her fiance's murder. (6)

Within six months of Sharma's conviction, an Indian court used the same testing to find two more criminal defendants guilty of murder based on "conclusive" findings of experiential knowledge. (7) The Indian court's decision not only to use neuroscientific evidence in the courtroom but also to employ it as a basis upon which to convict criminal defendants of murder sent shock waves throughout the scientific and legal communities. (8) The court's decision prompted substantial debate as to whether reliance on this evidence was appropriate, with an overwhelming majority of commentators believing that without more proof of the technology's reliability, the court's willingness to rely on it was unsoundly premature. (9)

Although the United States has yet to admit evidence of brain scans in either civil or criminal proceedings for lie-detection purposes, scholars suggest that a courtroom display, in which a defendant is connected to electrodes and has his brain scan projected onto a screen for the jury to assess his truth-telling capacity and experiential knowledge of an event, is not far from occurring. (10) American neuroscientist Michael Gazzinga has gone so far as to predict that this new technology will eventually "dominate the entire legal system." (11)

Although Gazzinga's theorized domination has yet to occur domestically, other countries have shown interest in experimenting with neuroscience. (12) Both Israel and Singapore, for instance, have commenced research on the possible uses of neuroscientific evidence. (13) Moreover, in May 2009, an Italian court of appeals became the first European court to use genetic information and brain-imaging scans to reduce a criminal defendant's murder sentence, finding that the evidence indicated an unavoidable propensity toward violence. (14)

The ever-widening international scope of neuroscientific research is unsurprising. The prospect of using science to analyze the "criminal mind," including the histories and motivations of criminals, has obvious allure. (15) Individuals have "looked to inheritance (genetics), anatomical features (phrenology), a history of emotional trauma or unresolved psychic conflict (psychoanalysis), or socioeconomic deprivation (sociology and economics) to explain why some commit crimes and others do not." (16) In future years, however, people will likely turn to neuroscience to provide these answers. (17)

Legal scholars fall on opposite ends of the continuum regarding the ultimate utility of this evidence in the courtroom. (18) Some argue that its accuracy and reliability are intact and pose few problems to admittance. (19) Others, such as John G. New, Professor of Biology at Loyola University of Chicago, contend that, even assuming its eventual scientific reliability, significant evidentiary and constitutional issues are at stake in using this evidence in either civil or criminal proceedings. (20) Still others believe that a greater understanding of potential legal uses of neuroscientific evidence, in conjunction with a sound regulatory scheme, would prove beneficial to the legal arena. (21)

Regardless of one's position in this burgeoning debate, however, the ethical and human rights considerations at stake are difficult to ignore. Technology that is able to detect what a person is thinking could signal the end of mental privacy, particularly if such testing were to become mandatory. In essence, subconscious thoughts would no longer be our own. (22) As Joshua Greene noted,

to a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain.... If that's right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you're rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control. (23) Implications of this technology extend beyond evidentiary and constitutional concerns and delve into a new field that scholars have branded "neuroethics." (24)

In analyzing the current forms of neuroscientific technology that researchers suggest will soon impact the legal community, this Note addresses the history of neuroscience use in the courtroom--in the United States as well as internationally--and the future consequences of its admissibility in court. Part I provides a brief history of neuroscience in the courtroom, including an examination of the two forms of neuroscientific technology currently employed as lie detectors; an overview of courts that have admitted various forms of neuroscience evidence; and a brief synopsis of current attempts to admit this new evidence in court--both nationally and internationally.

Part II explores ways in which scholars have analogized neuroscience to other forms of scientific inquiry, such as DNA and fingerprinting evidence, while noting the inherent differences between past technology and neuroscience and the dangers of drawing too close an analogy. Part II also addresses the growing international attention paid to neuroscience and its application to the law abroad.

Part III addresses the field of neuroethics, arguing that neuroethics, as an extension of bioethics, should fall under the auspices of the United Nations Educational, Scientific and Cultural Organization's (UNESCO) Universal Declaration of Bioethics and Human Rights, as well as the fair trial and privacy provisions in both the Universal Declaration of Human Rights and the European Human Rights Convention. Ultimately, this Note maintains that although this technology, if proven reliable, would provide beneficial information to court proceedings, the cost to an individual's right to cognitive liberty is too great not to heavily scrutinize this technology through the lens of human rights protections.

1. A BRIEF HISTORY OF NEUROSCIENCE IN THE COURTROOM

   As George Orwell postulated in his dystopian novel, Nineteen Eighty-Four, "[t]houghtcrime was not a thing that could be concealed forever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you." (25) Although the Orwellian concept has yet to become a full-fledged reality, neuroscientific evidence and its rapid growth has seemingly limitless possibilities, leaving many to propound that this technology has the ability to become the ultimate lie detector. (26)

   Both legal and scientific scholars scrutinize the use of this new technology in the context of the burgeoning field of neurolaw--a field that examines the interdisciplinary link between neuroscience and the law. (27) Scholars argue that the legal community is reluctant to expand its focus past the social sciences, and as a result, "legal thinkers have generally ignored an array of interdisciplinary approaches that are rapidly changing the way we understand how the mind works and what it means to be human." (28) This reluctance thus impedes what some hold to be the law's basic function: the consumption and application of knowledge from other disciplines. (29) When the process of scientific consumption and application does occur, however, it is fraught with misunderstandings and improper uses of science by "judges, legislators, agency personnel, and other policymakers," a reality that underscores the necessity of proper communication between the disciplines. (30) Even a proper understanding of the science, however, does not mean that the science should be permitted to function in the legal arena without a proper regulatory scheme in place.

   1. The Two-Fold Science of Lie Detection

      There are two primary forms of neuroscientific evidence that operate, in some capacity, as lie-detection devices: (1) functional Magnetic Resonance Imaging, or fMRI, which Daniel Langleben of the University of Pennsylvania applied to his "Guilty Knowledge" test in 2001, (31) finding that particular areas of the brain light up when people lie; (32) and (2) brain fingerprinting, developed by Lawrence Farwell, which measures frequency changes of brain waves upon recognition of "images, pictures, sights, and smells." (33)

      Studies of...