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Emerging Neurotechnologies for Lie Detection and the Fifth Amendment

Published online by Cambridge University Press:  06 January 2021

Sarah E. Stoller  and
Paul Root Wolpe
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Extract

The development of a successful lie detector has been a dream of governments and law enforcement since ancient times. A Hindu Veda written around 900 B.C.E. suggests a strategy for detecting lying behavior in suspects:

A person who gives poison may be recognized. He does not answer questions, or they are evasive answers; he speaks nonsense, rubs the great toe along the ground, and shivers; his face is discolored; he rubs the roots of the hair with his fingers; and he tries by every means to leave the house … .

Six hundred years later, the Greeks were attempting to detect lies by feeling the suspect's pulse. What is interesting about both the early Hindu and Greek examples is that the methods employed were empirical; the interrogators were looking for physiological changes in the body that corresponded to the mental state in question.

Type
Article
Information
American Journal of Law & Medicine , Volume 33 , Issue 2-3 , June 2007 , pp. 359 - 375
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2007

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References

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32 Id.

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34 Id.

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50 Interestingly, however, the brain fingerprinting results may have had some bearing on the case. When confronted with the test results, a key witness recanted his testimony and admitted that he had falsely accused Harrington of committing the crime, thus playing a role in the reversal of the district court's decision. Illes & Racine, supra note 48, at 18 (citing Harrington v. Iowa, 659 N.W.2d 509 (Iowa 2003)).

51 See, e.g., Foster et. al., supra note 25 (discussing technological advancement in NTLD).

52 U.S. Const. amend. V.

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58 For example, during Brain Fingerprinting, instead of presenting the suspect with target stimuli to which he has been told to pay attention, the targets might consist of previously collected images that the test-givers know the suspect will find salient, such as a photograph of his apartment building. The suspect, hooked up to EEG sensors, would then be asked to look at the computer screen without having to press a button indicating whether or not he found the stimulus salient. His brainwaves would be recorded, and, presumably, one could determine whether the brainwaves in response to the probes more closely resembled those in response to the irrelevants or the targets. If they more closely resembled the brainwaves in response to the targets, the implication would be that he found the probes salient.

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63 See Muniz, 496 U.S. at 594.

64 Id. at 582.

65 Id. at 593 (emphasis added).

66 384 U.S. 757 (1966).

67 Id. at 765.

68 Muniz, 496 U.S. at 593.

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70 Taylor, supra note 53, at 18-19.

71 Id. at 19.

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73 Id. at 266-67.

74 Doe v. United States, 487 U.S. 201, 210 n.9 (1988) (stating that they do not disagree with the dissent on this point).

75 409 U.S. 322 (1973).

76 Id. at 327.

77 Schmerber, 384 U.S. at 764.

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90 Id.

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92 Id.

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95 Allen & Mace, supra note 56, at 263.

96 Stuntz, supra note 87, at 1239.

97 Allen & Mace, supra note 56, at 261.