An Indian court in July became the first in the world to convict a suspect based on evidence from some widely-unproven brain scanning technology. In one Indian state alone, around 75 crime suspects and witnesses have undergone the controversial technique since 2006. But fellow scientists, ethicists and the forensics community are extremely apprehensive about the technology.
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TALENT: Professor Hank Greely, chairman of Stanford University Law School’s Center for Biomedical Ethics; Professor William Iacono, Professor of Psychology, Law, and Neuroscience of University of Minnesota and former member US Department of Defense Polygraph Institute’s Curriculum and Research Guidance Committee.
CONNORS: The search for truth is never ending, and in a court of law it’s of paramount importance.
So when an Indian judge convicted a woman of murder based on evidence that included submitting to the problematic lie detector test, the polygraph, as well as a largely untried new brain scan technique, Stanford Law School Professor Hank Greely was concerned.
GREELY: If any of these technologies work, our societies will have to confront some really deep and hard questions about privacy. Until we know they work though, we really should focus on making the proponents of these technologies prove that they work.
CONNORS: But let’s back up a little, and to a 2001 United States Senate hearing where former Department of Defence polygraph expert Professor William Iacono told his government there is no distinctive lie response.
Professor Iacono tells Radio Australia what his fundamental issues are with the lie detector.
IACONO: There are two major problems with conventional polygraph tests. One is that they’re biased against innocent people, so that innocent people have a higher probability of failing. And the other is it is relatively straightforward to learn to beat a polygraph test.
CONNORS: So having been part of the numerous experts that helped discredit conventional polygraphs, hearing of a new technique which measured brain functionality directly was interesting.
IACONO: As near as I can understand from the information I have, the method that is used in India is somewhat similar to the technique which has been developed here in the United States that’s called the guilty knowledge test. This is a procedure that is different from the conventional lie detector test because rather than determining whether a person is lying or telling the truth, the point of the procedure is to determine if information about the crime is stored in the person’s brain. And this would be information that the criminal that committed the crime would have, and the police that investigated the crime would have access to. So from that information it’s possible to attach electrodes to a person’s head and see if they have a memory trace that’s associated with the commission of the crime.
CONNORS: It really does sound a little bit Minority Report, a little bit Marathon Man.
Like the fictional movie, where Dustin Hoffman’s character answers both “yes” and “no” under questioning, the Bangalore-based breaktthrough, says Professor Iacono, still subscribes to a basic fault by design – the person taking the test knows they are being tested.
IACONO: There’s problems presenting the person to the test because the person knows they’re a suspect, and they know that some of the information that they’re presented with is going to be pertinent to the crime, and other aspects of information are not going to be pertinent to the crime. And any person that’s subject to a procedure like this is likely to give psychological emphasis to the evidence that’s associated to the crime because they know that that’s the evidence that could incriminate them.
CONNORS: Stanford Law’s Hank Greely.
GREELY: This strikes me as very troubling because there doesn’t appear to be any peer reviewed scientific literatures, it looks very much like a discredited American effort. I don’t think there’s any good reason to believe that it’s going to be accurate, and it surprises me and worries me that Maharashtra and Gujarat have decided, without any apparent scientific backing other than the say-so of the founders of this company, that this technology works.
CONNORS: So while the debate rages over whether or not the technology actually works, the next logical question is… what if it does?
GREELY: There are a lot of constitutional questions that would be raised. Our constitution provides a protection against self incrimination. That’s why in American movies you will see people say ‘I will take the fifth amendment, I refuse to answer’. Well, does that apply to brain scans, or does that only apply to words that you say? If the police get a warrant from a judge they can go search your house. Could they get a warrant to search the inside of your brain? And then I think perhaps most fundamentally there may be a question under our first amendment – freedom of speech, freedom of press, freedom of religion, freedom to have whatever ideas you want. And if that’s an appropriate interpretation of the first amendment, these kinds of mind reading technologies, or lie detection technologies, could potentially violate that amendment as well.
