lshani Ganguli (2007), Harvard University, asserts in the article, "Watching the Brain Lie," that fMRI lie detection does not yet merit a place in the courtroom or elsewhere. Kanwisher stresses: "No published studies come even close to demonstrating the kind of lie detection that would be useful in a real world situation."
In addition, according to Ganguli (2007), a number of various types of lies exist that include omissions, white lies, exaggerations, and denials which potentially involve differing neural processes that scientists have not yet mastered.
Jed Rakoff, U.S. .District Judge for the Southern District of New York, admits that he doubts fMRI tests will conform to the courtroom standards for "scientific evidence (reliability and acceptance within the scientific community) anytime in the near future, or that the limited information they provide will have much impact on the stand."
As most lies in court include omissions or exaggerations of the truth; they would be tricky to recreate in a laboratory. The potential for harm overshadow any foreseeable benefits from fMRI, Rakeff purports. Yet another drawback could materialize if an individual actually believed a lie. Whether or not a machine would identify this data as a truth or a lie is not yet clear.
Stacey a. Tovino (2007), Assistant Professor of Law, Health Law Institute, Hamline University School of Law, contends that fMRI presents a number of practical issues. "Individuals whose brains are being scanned must lie completely still for a period of time within an MRI scanner, which can be loud and claustrophobic. Brain motion resulting from the individual's movement or, even, the individual's respiratory and cardiac cycles, can interfere with data acquisition."
The validity of results from the fMRI also depend on the person's willingness and ability to comply with and complete the assigned mental task.
Henry T. Greely, Deane F. And Kate Edelman Johnson Professor of Law, Stanford University and Judy Illes (2007), Associate Professor (Research) of Neurology, Stanford University, relate another concern as they assert that fMRI-based lie detection is not currently covered by any type of regulatory scheme. In human trials for fMRI, no guidelines cover how an effective and ethical trial could best be conducted.
Moral Aspects of fMRI
In the book, International Handbook on Psychopathic Disorders and the Law, Alan Felthous and Henning Sass (2007) report that fMRI has begun to address ways emotion relates to brain function and the neural underpinnings of learning from punishment; that fMRI techniques facilitate the investigation of the neural basis of moral decisions. As emotion and cognition closely intertwine, cognitive processes and emotional processing influence the control and regulation of behavior. "For healthy subjects, studies with… fMRI show a dynamic interplay between cognition and emotion with a reciprocal association between emotional and cognitive brain areas."
No current study reveals which brain circuits are activated when psychopaths deliberately falsify information, a significant consideration for court evidence.
Dr. William P. Cheshire, Jr., (2007), Associate Professor of Neurology at the Mayo Clinic College of Medicine, asserts that neuroscience knowledge may be measured in degrees of resolution. "Greater neuroimaging resolving power means more finely detailed representations of the human brain. As the brain is the physical correlate of the mind, its grey matter and intricate interconnections are subject to scientific investigation."
More and more, neuroimaging methods can map out, voxel by voxel, the neurobiological pathways that motivate various components of thoughts and d behavior. In addition to examining the quality of fMRI images, the methods and presuppositions of neuroimaging also need to be considered. Cheshire, Jr. further explains:
Implicit in every voxelous reconstruction of the brain is the idea that the brain is virtually, if not essentially, reducible to matter. Reductionism can clarify, but it can also mislead. Vibrant voxels may elucidate pertinent facts. Exclusive attention to them may overlook important truths.
The literature appears to support the researcher's initial thesis that the reality that the visual output from the fMRI scanning method will be entered into court as evidence is not yet clear nor confirmed. The researcher concurs with Kanwisher that mapping the human brain precisely and reliably depicts a lofty goal that may possibly be attained in the near future. Nevertheless, the technologies behind the modern tools the medical industry uses to scan brains and analyze brain activity, even though much more advanced than the polygraph machine, the visual data, just as with the output of a polygraph, present concerns that challenge their value. When used to predict behaviors or sensations, these technical tools rely on the same error-prone method of interpretation: The non-standardized and unproven interpretive techniques and perhaps biased expectations of the examiner.
As proposed at the start of this paper, the lack of consensus in the medical and neuroscientific community regarding brain activity and the individual's behaviors and sensations reveals that contemporary understanding of the human brain prohibits accurate interpretation of retrieved data. As a result, the fMRI cannot currently proffer a consistent and reliable source of information with regard to matters relevant to a court case such as intent, deception, or pain. Challenges confirmed during this paper regarding this area currently impede the ability to predict and analyze behavior and sensations based on data collected directly from the human brain and rendered into images through fMRI technology. This understandable, yet fatal shortcoming, the present study confirms, complements the researcher's argument that such evidence should not be admitted in court.
Abram S. Barth. A Double-Edged Sword: The Role of Neuroimaging in Federal Capital Sentencing, American Journal of Law and Medicine, (2007); available at HighBeam Research: http://www.highbeam.com/doc/1P3-1436644761.html
Alan Felthous & Henning Sass. International Handbook on Psychopathic Disorders and the Law, Volume 1 of the International Handbook of Psychopathic Disorders and the Law, John Wiley and Sons, (2008).
Henry T. Greely & Judy Illes. Neuroscience-Based Lie Detection: The Urgent Need for Regulation, American Journal of Law and Medicine, (2007); available at HighBeam Research: http://www.highbeam.com/doc/1P3-1436644721.html
Ishani Ganguli. Watching the Brain Lie, the Scientist, (2007); available at HighBeam Research: http://www.highbeam.com/doc/1P3-1269077571.html
John R. Richert. Picture it: Why researchers need better imaging techniques, Momentum, National Multiple Sclerosis Society, (2009); available at HighBeam Research: http://www.highbeam.com/doc/1G1-197666158.html
Joseph R. Simpson. Functional MRI Lie Detection: Too Good to be True?, American Academy of Psychiatry and the Law, Volume 36, No. 4, pp. 91-498, (2008); available at http://www.jaapl.org/cgi/content/full/36/4/491
Laurence R. Tancredi & Jonathan D. Brodie. The Brain and Behavior: Limitations in the Legal Use of Functional Magnetic Resonance Imaging, American Journal of Law and Medicine, (2007), available at HighBeam Research: http://www.highbeam.com/doc/1P3-1436644671.html
Mark Pettit Jr. FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, American Journal of Law and Medicine, (2007); available at HighBeam Research: http://www.highbeam.com/doc/1P3-1436644681.html
Stacey a. Tovino. Imaging Body Structure and Mapping Brain Function: A Historical Approach. American, Journal of Law and Medicine, (2007); available at HighBeam Research: http://www.highbeam.com/doc/1P3-1436644641.html
Wiliam P. Cheshire Jr. Can Grey Voxels Resolve Neuroethical Dilemmas?, Ethics & Medicine, Bioethics Press Highland Park, IL., (2007); available at HighBeam Research: http://www.highbeam.com/doc/1P3-1350089161.html