1 Daniel Langleben, a psychiatrist at the University of Pennsylvania who is generally recognized as a leading developer of fMRI, describes the fMRI process in Langleben, Daniel et al., Brain Activity During Simulated Deception: An Event-Related Functional Magnetic Resonance Study, 15 NeuroImage 727, 727 (2002)CrossRefGoogle ScholarPubMed; see also Kulynych, Jennifer, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 Stan. L. Rev. 1249, 1256-57 (1997)CrossRefGoogle Scholar (describing the fMRI technique) and Paul Bandettini, Functional MRI Today, Int’l J. Psychophysiology (July 12, 2006) (giving an overview of the technique's development and increased application since its inception). Researchers have conducted numerous studies using fMRI, see, e.g., Mohamed, Feroze B. et al., Brain Mapping of Deception and Truth Telling About an Ecologically Valid Situation: Functional MR Imaging and Polygraph Investigation—Initial Experience, 238 Radiology 679 (2006)CrossRefGoogle ScholarPubMed. For descriptions of fMRI in the popular press, see, e.g., Robin Henig, Looking for the Lie, N.Y. Times, Feb. 5, 2006, § 6, at 47.

2 See Langleben, Daniel et al., Telling Truth From Lie in Individual Subjects With Fast Event-Related fMRI, 26 Hum. Brain Mapping 262, 262 (2005)CrossRefGoogle ScholarPubMed (finding higher brain activity during deception than during truth-telling).

3 See, e.g., Brain Imaging, Brain Briefings (Society for Neuroscience, Washington, D.C.), May 1996, available at http://apu.sfn.org/index.cfm?pagename=brainBriefings_brainImaging.

4 Id. (suggesting that PET may be less desirable than fMRI for repeated application because it requires repeated injections of a radioactive substance, while fMRI operates without radioactive substances, using magnetic fields instead).

5 Id.

6 Id. (explaining that SPECT scans are less expensive than PET scans, but SPECT scans have a lower resolution than PET scans and are therefore less helpful in pinpointing brain regions associated with different activities).

7 Brain Fingerprinting Laboratories, Scientific Procedure, Research and Applications, http://www.brainwavescience.com/TechnologyOverview.php (last visited on Jan. 20, 2007) (describing the technique as Brain Fingerprinting Laboratories performs it). Founded by Dr. Farwell, Brain Fingerprinting Laboratories is a privately held company.

8 Id.

9 Carey Goldberg, Imaging Could Furnish Proof of Chronic Pain, Boston Globe, Dec. 19, 2006, at 1A (suggesting that brain imaging to verify pain could be available for clinical use in as little as 5-10 years). See, e.g., Henderson, L.A. et al., Distinct Forebrain Activity Patterns During Deep Versus Superficial Pain, 120 Pain 286, 286 (2006)CrossRefGoogle ScholarPubMed (finding different neural activations associated with dull, deep pain than are associated with sharp, superficial pain); Symonds, Laura L. et al., Right Lateralized Pain Processing in the Human Cortex: An fMRI Study, 95 J. Neurophysiology 3823, 3823 (2006)CrossRefGoogle Scholar (using fMRI to determine that acute pain processing may happen in the right hemisphere). See also deCharmes, R. Christopher et al., Control over Brain Activation and Pain Learned by Using Real-Time Functional MRI, 102 Proc. Nat’l Acad. Sci. U.S. 18626, 18630-31 (2005)CrossRefGoogle Scholar (suggesting that with fMRI training, subjects may be able to control activation in different parts of their brains associated with pain perception and regulation). Although the study explored brain activation and pain, it raises more general questions about the manipulability of the results of brain scans through conscious control by the subject. It would be especially problematic for the use of brain imaging in lie detection if subjects could train using fMRI to manipulate a particular brain image.

10 But see Bard, Jennifer S., Rearranging Deck Chairs on the Titanic: Why the Incarceration of Individuals with Serious Mental Illness Violates Public Health, Ethical and Constitutional Principles and Therefore Cannot Be Made Right by Piecemeal Changes to the Insanity Defense, 5 Hous. J. Health L. & Pol’y 1, 27 (2005)Google Scholar (stating that “the current insanity defense is not based on a diagnosis, but rather on evidence of how that diagnosis affects a particular individual's thought patterns”).

11 See, e.g., Finch, Michael, Law and the Problem of Pain, 74 U. Cin. L. Rev. 285, 324 (2005)Google Scholar (stating that “the ghost of malingering is always present” in individuals claiming to suffer from pain and suggesting that brain imaging could assist in detecting malingering in patients claiming to feel pain).

12 See, e.g., Tovino, Stacey A., Currents in Contemporary Ethics: The Confidentiality and Privacy Implications of Functional Magnetic Resonance Imaging, 33 J.L. Med. & Ethics 844, 844 (2005)CrossRefGoogle ScholarPubMed (stating that fMRI technology could “unveil racial preferences and prejudices”).

13 See, e.g., Nunez, Jennifer Maria et al., Intentional False Responding Shares Neural Substrates with Response Conflict and Cognitive Control, 25 NeuroImage 267, 267 (2005)CrossRefGoogle ScholarPubMed; see also Farwell, Lawrence & Smith, Sharon, Using Brain MERMER Testing to Detect Knowledge Despite Efforts to Conceal, 46 J. Forensic Sci. 135, 135 (2001)CrossRefGoogle ScholarPubMed (applying BF to deception detection).

14 See Ganis, Giorgio et al., Neural Correlates of Different Types of Deception: An fMRI Investigation, 13 Cerebral Cortex 830, 833 (2003)CrossRefGoogle ScholarPubMed (stating that lying is not a single process or function; it can produce different imaging results depending on the type of lie involved).

15 This article is limited in scope to the treatment of brain-imaging evidence under the Federal Rules of Evidence. See infra note 47 for a brief description of current evidentiary standards in state courts.

16 This rule states in part that “[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court,” (emphasis supplied). Fed. R. Evid. 104(a).

17 Fed. R. Evid. 702.

18 509 U.S. 579 (1993). Daubert has generated a vast literature. See, e.g., Berger, Margaret A., Procedural Paradigms for Applying the Daubert Test, 78 Minn. L. Rev. 1345 (1994)Google Scholar (considering the impact that Daubert might have in civil and criminal contexts); Black, Burt et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 Tex. L. Rev. 715 (1994)Google Scholar; Giannelli, Paul C., Interpreting the Federal Rules of Evidence, 15 Cardozo L. Rev. 1999 (1994)Google Scholar (explaining the historical treatment of expert testimony and the impact of Daubert); Giannelli, Paul C., Forensics Symposium: The Use and Misuse of Forensic Evidence; Admissibility of Scientific Evidence, 28 Okla. City U. L. Rev. 1 (2003)Google Scholar (discussing the effects of Daubert); Graham, Michael H., The Expert Witness Predicament: Determining “Reliable” Under the Gatekeeping Test of Daubert, Kumho, and Proposed Amended Rule 702 of the Federal Rules of Evidence, 54 U. Miami L. Rev. 317 (2000)Google Scholar; Saks, Michael J., The Aftermath of Daubert: An Evolving Jurisprudence of Expert Evidence, 40 Jurimetrics J. 229 (2000).Google Scholar

19 Daubert, 509 U.S. at 582.

20 Id.

21 Id.

22 Id. at 583.

23 Daubert v. Merrell Dow Pharms., Inc., 727 F. Supp. 570, 576 (S.D. Cal. 1989).

24 Daubert v. Merrell Dow Pharms., Inc., 951 F.2d 1128 (9th Cir. 1991).

25 293 F. 1013 (D.C. Cir. 1923).

26 Id. at 1014.

27 Id.

28 Id.

29 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).

30 Id.

31 Id. at 593.

32 Id. at 593-94.

33 Id. at 592-94.

34 Id. at 595.

35 Id. at 595-96.

36 Id. at 596-97.

37 Id.

38 Id. at 597.

39 522 U.S. 136 (1997).

40 Joiner v. Gen. Elec. Co., 864 F. Supp. 1310, 1327 (N.D. Ga. 1994).

41 Joiner v. Gen. Elec. Co., 78 F.3d 524, 529 (11th Cir. 1996).

42 Gen. Elec. Co. v. Joiner, 522 U.S. at 139.

43 526 U.S. 137 (1999).

44 Id. at 147.

45 Id. at 151.

46 Id. at 152.

47 The scope of this article is limited to federal treatment of brain-imaging evidence under Daubert, its progeny and the Federal Rules of Evidence. However, state courts have had mixed responses to the Daubert-Joiner-Kumho trilogy. Some state courts have openly rejected Daubert and continue to apply the Frye test. Others apply Daubert's essential principles (following Kumho and Joiner in varying degrees). Still others refuse to decide between Frye and Daubert, applying a combination of the two standards. See 1 David Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony 12-13 (2002) for a classification of state court trends into five categories according to a comprehensive look at post-Daubert state court decisions. According to that analysis, “[f]ederal courts … are bound to follow [Daubert and its progeny], and states, in increasing numbers, have followed suit.” Id. at 12.

48 Fed. R. Evid. 702 (stating that a witness qualified as an expert may testify “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case”).

49 Fed. R. Evid. 403.

50 See, e.g., United States v. Apperson, 441 F.3d 1162, 1196 (10th Cir. 2006) (stating that even where polygraph evidence might have been found reliable according to a Daubert analysis, it was properly excluded under FRE 403 because the jury might have overvalued the evidence); United States v. Ramirez-Robles, 386 F.3d 1234, 1234 (9th Cir. 2004) (requiring no Daubert hearing prior to a FRE 403 exclusion of polygraph evidence).

51 See, e.g., Lee, Tatia M.C. et al., Lie Detection by Functional Magnetic Resonance Imaging, 15 Human Brain Mapping 157, 157 (2002)CrossRefGoogle ScholarPubMed (suggesting that fMRI will be able to detect lies in even “astute liars” feigning memory impairment); but see Ganis et al., supra note 14, at 835 (stating that “a substantial amount of research both on the deception paradigms and on the analysis methods remains to be conducted before we can fully assess the potential of fMRI as a lie detection device”).

52 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

53 See, e.g., United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (exercising a per se ban on polygraph evidence); United States v. Lea, 249 F.3d 632, 635 (7th Cir. 2001) (finding that exclusion of polygraph evidence did not violate criminal defendant's Sixth Amendment right to Compulsory Process); United States v. Catalan-Roman, 368 F. Supp. 2d 119, 123 (D.P.R. 2005) (excluding polygraph results during the sentencing phase where offered for their truth).

54 National Research Council, The Polygraph and Lie Detection 213 (Nat’l Acads. Press, 2003).

55 See supra notes 1-8 and accompanying text.

56 See, e.g., State v. Porter, 698 A.2d 739, 769 (Conn. 1997) (stating that the most significant problem with admitting polygraph evidence is that it would “invade the fact-finding province of the jury”).

57 Risinger, D. Michael, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99, 131 (2000)Google Scholar (stating that the most important reason for limiting admissibility of lie detectors is that allowing polygraphs “is likely to lead to profound alterations in the entire litigation system, alterations which cannot be predicted and which may not be desirable once they are played out,” including the impact on jurors’ expectations and usurping the jury's role as lie detector); see also Mosteller, Robert P., Commentary: Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof, 3 Ohio St. J. Crim. L. 523, 523 (2006)Google Scholar (“[A]s a result of the accumulation of events brought on by scientific and technological developments, important changes both in the type of evidence offered and the way it is evaluated are beginning to occur that differ in kind from the past.”); but see Keckler, Charles N. W., Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509, 543 (2006)Google Scholar (stating that “[t]he evidence presented by the expert is about the scan, or perhaps at most the statement, and not directly about the witness. Consequently, evidence of this sort allows a jury to make its own assessment of the witness.”).

58 See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995). This language references a novel by Aldous Huxley. See Aldous Huxley, Brave New World (Time, Inc. 1963). First published in 1932, this dystopian novel suggests that using technology to eliminate social problems could result in losing individual identity and human satisfaction.

59 523 U.S. 303 (1998).

60 Id. at 306.

61 Id. at 306-07.

62 United States v. Scheffer, 44 M.J. 442, 445 (1996); see generally George Fisher, Evidence 664-69 (Foundation Press, 2002) (discussion of Scheffer).

63 Scheffer, 523 U.S. at 312.

64 Id. at 312-13 (citing United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973) (emphasis added)); see also Fisher, George, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 584-85 (1997)CrossRefGoogle Scholar (finding that the jury's role as lie detector in criminal cases has been increasing ever since the secularization of the court system. The reason for this, he concludes, is to resolve “the problem of legitimacy and the system's need to reduce hard questions [of credibility] to clear answers that the public will accept.”).

65 Scheffer, 523 U.S. at 313.

66 Id. at 314.

67 Id.

68 See id.

69 Id. at 318.

70 Id. at 319 (citing John H. Wigmore, Treatise on the System of Evidence in Trials at Common Law (Little, Brown, 1923); Charles T. McCormick, McCormick on Evidence (West Group, 1999)).

71 Scheffer, 523 U.S. at 320-21 (Stevens, J., dissenting).

72 Id. at 334-35.

73 Id. at 337 & n.26.

74 Id. at 318.

75 Id. at 311.

76 See, e.g., United States v. Lea, 249 F.3d 632, 639-40 (7th Cir. 2001); United States v. Benavidez-Benavidez, 217 F.3d 720, 725 (9th Cir. 2000); State v. Werner, 851 A.2d 1093, 1104 (R.I. 2004).

77 194 F.3d 926 (8th Cir. 1999).

78 Id. at 928.

79 Id. at 929.

80 Id.

81 Id.

82 Id. at 930.

83 Id.

84 Id.

85 See id.

86 See United States v. Ramirez-Robles, 386 F.3d 1234, 1245-46 (9th Cir. 2004); United States v. Canter, 338 F. Supp. 2d 460, 463 (S.D.N.Y. 2004); see also United States v. Benavidez-Benavidez, 217 F.3d 720, 724-25 (9th Cir. 2000).

87 Benavidez-Benavidez, 217 F.3d at 725 (stating that a court is not required to undertake all possible admissibility inquiries after determining that the evidence fails under FRE 403).

88 See United States v. Cordoba, 194 F.3d 1053, 1056 (9th Cir. 1999); see also United States v. Apperson, 441 F.3d 1162, 1196 (10th Cir. 2006); Montano v. Allstate Indemnity Co., 87 F. Supp. 2d 1238, 1240 (D. N.M. 2000) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993)).

89 E.g., United States v. Lea, 249 F.3d 632, 639 (7th Cir. 2001).

90 See, e.g., United States v. Cordoba, 194 F.3d 1053, 1056 (9th Cir. 1999) (describing its earlier finding, in 104 F.3d 225, 227-28, that “under Daubert, a district court was required to make a particularized factual inquiry into the scientific validity of the proffered polygraph evidence under Rule 702 as well as weigh the probative value of the evidence against its prejudicial effect under Rule 403”); but see United States v. Prince-Oyibo, 320 F.3d 494, 498-501 (4th Cir. 2003) (examining Daubert's effect on its per se ban on polygraph admissibility, and holding that the ban survives a Daubert analysis).

91 See Brain Fingerprinting Laboratories, Frequently Asked Questions, http://www.brainwavescience.com/FreqAskedQuestions.php (last visited Jan. 20, 2007) (describing the differences between polygraphy and BF technology, and claiming as high as 100% accuracy for BF); see also Langleben et al., supra note 2, at 262 (finding that the “predictive ability … of the receiver operator characteristic curve was 85%,” confirming that fMRI, “in conjunction with a carefully controlled query procedure, could be used to detect deception in individual subjects,” in one study); but see also National Research Council, supra note 54, at 159-60 (stating that applied fMRI studies of the kind done to that point have “limited external validity: the experimental lies were not high-stakes ones, and no penalty was presented for a failure to successfully deceive,” such as incarceration, which would be the case if applied in a criminal proceeding).

92 See Brain Fingerprinting Laboratories, Criminal Justice, http://www.brainwavescience.com/criminal-justice.php (last visited Jan. 20, 2007) (claiming a statistical confidence level of 99.9% in one case); see also Ganis et al., supra note 14, at 833 (finding that distinct neural networks support different types of deception); Lee et al., supra note 51, at 160-63 (finding that fMRI will make it very difficult, or impossible, for astute liars to feign memory impairment successfully).

93 See National Research Council, supra note 54, at 210 (warning that courts need to be careful in their validity assessments of polygraph techniques because laboratory test findings on validity “are likely to overestimate accuracy in field practice, but by an unknown amount”).

94 See Risinger, supra note 57, at 129-31 (cautioning that “even a dependable lie detector result would invite jurors to confuse veracity with accuracy even more than they now do,” and questioning whether the introduction of lie detection evidence would lead to compulsion of a lie detection test during discovery from all witnesses). For a view considerably more sympathetic to lie detection evidence, see McCall, James R., The Personhood Argument Against Polygraph Evidence, or “Even If the Polygraph Works, Will Courts Admit the Results?, 49 HASTINGS L.J. 925 (1998).Google Scholar

95 George Fisher believes that many of the problems that Risinger identifies could be resolved, but Fisher doubts that the will exists to resolve them. George Fisher, Evidence: Teacher's Manual 339 (Foundation Press, 2002).

96 Kulynych, supra note 1, at 1249.

97 Id. at 1262.

98 591 N.Y.S. 2d 715 (N.Y. Crim. Ct. 1992).

99 Id. at 717.

100 See id. at 720-22; see also Kulynych, supra note 1, at 1262.

101 See, e.g., Intrator, Joanne et al., A Brain Imaging (Single Photon Emission Computerized Tomography) Study of Semantic and Affective Processing in Psychopaths, 42 Biological Psychiatry 96, 96 (1997)CrossRefGoogle ScholarPubMed (using brain-imaging technology to study psychopaths’ emotional detachment and indifference to the welfare of others); Raine, Adrian et al., Brain Abnormalities in Murderers Indicated by Positron Emission Tomography, 42 Biological Psychiatry 495, 495 (1997)CrossRefGoogle ScholarPubMed (examining the brain function of murderers pleading not guilty by reason of insanity); but see Beecher-Monas, Erica & Garcia-Rill, Edgar, The Law and the Brain: Judging Scientific Evidence of Intent, 1 J. App. Prac. & Process 243, 268-69 (1999)Google Scholar (surveying studies suggesting that “hypofrontality is not specific to psychotic behavior or to violence, so … brain imaging techniques will not be able to differentiate between, for example, (a) a depressive patient; (b) a wheelchair-bound Parkinson's Disease patient; or (c) a psychopath”).

102 See supra notes 9-12 and accompanying text.

103 Kulynych, supra note 1, at 1254.

104 620 N.Y.S.2d 656, 657 (App. Div. 1994); see also Kulynych, supra note 1, at 1254.

105 Jones, 620 N.Y.S.2d at 657.

106 543 U.S. 551 (2005).

107 The other organizations include the American Society for Adolescent Psychiatry, the American Academy of Child & Adolescent Psychiatry, the American Academy of Psychiatry and the Law, the National Association of Social Workers, the Missouri Chapter of the National Association of Social Workers, and the National Mental Health Association. Brief of the American Medical Ass’n at 1, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1633549.

108 Id. at 2.

109 Id. at 4.

110 Id.

111 See Roper, 543 U.S. at 551.

112 989 F. Supp. 436, 438 (E.D.N.Y. 1997).

113 United States v. Gigante, 996 F. Supp. 194, 238 (E.D.N.Y. 1998), aff’d, 166 F.3d 75, 84 (2d Cir. 1999).

114 Kulynych, supra note 1, at 1251.

115 1991 WL 315487, at *1 (D. Mont. 1991).

116 Id. at *4 & n.9.

117 1993 WL 212472 (Fed. Ct. Cl. 1993).

118 Id. at *2.

119 70 F.3d 968 (8th Cir. 1995).

120 Id. at 973.

121 Id.

122 Id.

123 Id. (citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1993)).

124 116 F.3d 330 (8th Cir. 1997).

125 Id. at 332.

126 Id. at 334 n.5.

127 442 F.3d 536 (7th Cir. 2006).

128 Id. at 537.

129 Id. at 538.

130 Black, Deborah N. et al., Conversion Hysteria: Lessons from Functional Imaging, 16 J. Neuropsychiatry & Clinical Neurosciences 245 (2004).CrossRefGoogle ScholarPubMed

131 Sims v. Barnhart, 442 F.3d at 539.

132 Id.

133 373 U.S. 83 (1963).

134 Harrington v. State, 659 N.W. 2d 509, 512 (Iowa 2003).

135 See Moenssens, Andre A., Brain Fingerprinting—Can it be Used to Detect the Innocence of Persons Charged with a Crime?, 70 UMKC L. Rev. 891, 892 (2002).Google Scholar

136 Harrington, 659 N.W. 2d at 525.

137 Id. at 516.

138 2005 U.S. Dist. LEXIS 35588 (S.D.N.Y. Dec. 25, 2005).

139 Id. at *1.

140 Id.

141 105 P.3d 832 (Okla. Crim. App. 2005).

142 Slaughter, 105 P.3d at 834.

143 Id. at 834-35.

144 Id. at 835-36.

145 Id.

146 See, e.g., Nesson, Charles, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357 (1985)CrossRefGoogle Scholar (pointing to “the need to promote public acceptance of verdicts” as another goal of legal proceedings); see also Keckler, supra note 57, at 554; See supra notes 64-70 and accompanying text. See generally Symposium, Truth & Its Rivals: Evidence Reform and the Goals of Evidence Law, 49 HASTINGS L.J. 259 (1998).Google Scholar