Chuck Bednar for redOrbit.com – @BednarChuck
Recent advances in brain imaging technology is launching a debate about the use of information obtained using these methods by law enforcement officials, according to published reports.
As Inside Science News Services (ISNS) explained, brain imaging has already been successfully used by scientists to collect information from the minds of volunteers in the laboratory. Should that information be accessible to police officers, lawyers, or other investigators during a criminal investigation, and if so, will the brain be protected under the US Constitution?
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Specifically, the debate centers around whether or not information contained within a person’s brain is protected from illegal search and seizure under the Fourth Amendment (meaning that a search warrant would be required to see brain scans), or if thoughts should be included under the Fifth Amendment right against self-incrimination.
“These are issues the United States Supreme Court is going to have to resolve,” Nita Farahany, a professor of law and philosophy at Duke University who specializes in bioethical issues, told the news agency. She predicts that imaging-related data will most likely find its way into courtrooms because of a willing participant who wants to use the information to advance his or her case.
Farahany was one of several legal scholars and neuroscience experts debating the issue earlier this month at the 2015 American Association for the Advancement of Science (AAAS) annual conference in San Jose, California. Among those joining her were Jack Gallant, a neuroscientist at the University of California, Berkeley, and Stanford University law professor Henry Greely.
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While ISNS said that these types of legal issues “are likely decades away” because the functional magnetic resonance imaging (fMRI) process is so sensitive that a non-cooperative individual could distort its results simply by swallowing at the wrong time, the progress being made in the field “is so intriguing” that it prompted the experts to discuss potential “what-if” scenarios.
fMRI decodes information
The human brain constantly sorts, stores and responds to various stimuli, Inside Science noted, and as scientists learn more about how and where it encodes information, fMRI can be used as a tool to decode that information. Currently, it can identify the regions of the brain that are active during different processes, based on the increased amount of highly-oxygenated found there.
During the panel, Gallant said that brain decoding is already capable of getting the old “guess what card a person is looking at” magic trick right nine times out of ten, and Greeley said that a court could be open to using the data during the sentencing part of a death-penalty trial. However, a brain exam would not be permissible in court unless it could work well enough to meet the legal standards for all types of scientific evidence.
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Both Greeley and Gallant said that compelling someone to undergo an fMRI scan, similar to how a urine test or DNA swab is sometime required, is would not be an issue until much later. Even if a brain scan was deemed to be so non-invasive that some may argue it is not actually a search, Farahany believes that courts will likely deem it as such, thus granting the mind protection from “unreasonable” searches and requiring a warrant under the Fourth Amendment.
As for the Fifth Amendment protection against self-incrimination, the Duke professor pointed out that it currently can’t be used to withhold purely physical information, such as fingerprints. She believes that courts could consider brain activity in much the same way, ISNS noted.
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