
DONNA insists that she met friends for lunch on the afternoon of 25 January 2008 and did not violate a restraining order against Marie. But Marie told police that Donna broke the terms of the order by driving up to her car while it was stopped at a traffic light, yelling and cursing, and then driving off.
A polygraph test proved unsatisfactory: every time Marie’s name was mentioned Donna’s responses went sky-high. But when Donna approached of Tyngsboro, Massachusetts, for an fMRI scan, which picks up changes in blood flow and oxygenation in the brain, it was a different story.
“Her results indicated that she was telling the truth about the January 25 incident,” says Steven Laken of Cephos, who maintains that when people are lying, more areas of the brain “light up” than when they are telling the truth (see the scans of Donna’s brain).
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Laken claims that when the police saw Donna’s fMRI results, they dropped the investigation against her – although Donna’s cellphone records also corroborate her story.
Cephos, which started offering commercial testing in the US earlier this year, is one of several companies that claim they can show whether someone is lying using fMRI. Until recently, these firms claimed they could detect lies up to 90 per cent of the time. However, last week, at at the University of Akron in Ohio, Laken announced that Cephos had achieved an accuracy of 97 per cent. The secret, he said, was to ask questions in small chunks rather than as a continuous stream, a tweak that allows the brain to “come back to a resting or normal state before you ask another series of questions”, leading to clearer results. “As far as I know that’s the highest degree of accuracy anyone has managed.”
Laken hopes to pass another, more controversial milestone by early next year: getting what is essentially crude mind-reading admitted as evidence into the US courtroom.
Will he succeed? The decision will be made on a trial-by-trial basis by judges who will likely turn to a set of criteria known as the Daubert standard, which says that scientific evidence accepted in a US court must be testable and produce consistent results, be peer reviewed and published, have known error rates and have gained acceptance by the scientific community.
Laken argues that fMRI meets these criteria and is a widely accepted technology cited in more than 10,000 scientific publications. “When we look at what the courts are requiring, I believe we have met those bars,” he says. Leo Kittay of in New York agrees that Laken is close, although he says judges may also be swayed by other neuroscientists’ disapproval of the technology.
Even if fMRI meets the Daubert standard, it is not clear that it is appropriate to the courtroom – at least right now. “This explosion in neuroscience is something that courts are going to have to consider, and we’re not really ready for it yet,” says of the University of Akron School of Law, who organised last week’s meeting in part to educate judges and lawyers about neuroimaging.
“This explosion in neuroscience is something that courts are going to have to consider and we’re not really ready for it yet”
One criticism is that the vast majority of fMRI studies do not focus on its use in lie detection specifically. Of those that do, barely any involve real-world situations. “Most of the studies have been of students telling fairly innocuous lies,” says , a neuropsychiatrist at the University of Sheffield, UK.
Cephos achieved its 97 per cent accuracy result using men and women in their 30s instructed either to tell a lie or the truth. “This is probably very different from a criminal trying to get off a criminal charge by lying to the police,” says of Stanford Law School in California.
He believes that until many more studies are carried out on a broader range of people, including those who have a personal stake in telling a lie, there should be a ban on non-research use of fMRI-based lie detection. But such studies are extremely hard to conduct, as you can’t expect someone accused of a criminal act to reveal whether they are telling the truth.
People may also be able to trick the test. It is well known that people can defeat the polygraph by controlling their breathing when they are lying, and by trying to artificially increase their heart rate during control questions. Laken argues that fMRI is harder to fool than the polygraph because it monitors changes in the brain during the formulation of a lie, rather than the stress responses associated with lying.
Greely counters this by pointing out there may be other ways to trick fMRI. At least one study suggests that fMRI scans of people who are telling spontaneous lies look quite different to those of people telling a planned lie. “Maybe if you’ve rehearsed a lie and memorised it, it doesn’t look like a lie,” he says.
What’s more, because fMRI is motion-sensitive, you need a cooperative subject. Someone who doesn’t want to be scanned just has to move their head or even their tongue inside their mouth to scupper the results. “It’s very hard to figure out how you’re going to fix that,” says Greely.
Even if independent studies confirm Cephos’s results, there will still be questions about the ethics of using fMRI in court. “It would be an invasion of what we see as a typical jury function: judging credibility,” says Moriarty. “I think people also see it as invasive of people’s privacy on some level that courts find discomforting.”
Greely says he’d be surprised if fMRI was admitted in a courtroom by 2009, but doesn’t rule it out. “I think there’s a chance that there are judges that will admit this,” he says. “There are a lot of judges out there, and sometimes they surprise me.” While the decision of one trial court judge doesn’t bind other judges, it may encourage others to follow suit.
“There’s a chance that judges will admit this as evidence – there are a lot of judges out there, and sometimes they surprise me”
Concerns also loom large that the US military is using fMRI to screen people it suspects of committing terrorist acts to decide who to interrogate, something the Department of Defense has denied. One thing is clear: Cephos’s attempt is just the beginning of fMRI’s influence outside the research world.
See Editorial: Latter-day lie detectors have yet to prove their worth
The Human Brain – With one hundred billion nerve cells, the complexity is mind-boggling. Learn more in our cutting edge special report.
Already in Indian courts
While mind-reading technologies are far from accepted in the courtrooms of most countries, prosecutors in India are ploughing ahead.
In June, 24-year-old Aditi Sharma was convicted of murdering her fiancé Udit Bharati by poisoning him with arsenic-laced food. Among the evidence presented to the judge were the results of a controversial brain scanning technique called brain electrical oscillation signature profiling (BEOS).
Developed by Champadi Mukundan, formerly of the National Institute of Mental Health and Neurosciences in Bangalore, it measures changes in the electrical activity of the brain that occur when a person reads a “probe” sentence such as “I opened the lock of the door with a key”. These changes are said to differ depending on whether the person merely understands the sentence or actually remembers the event. “When you remember something, attention is turned inwards and we look for signs of that,” says Mukundan.
“The technique functions on the assumption that experiential knowledge will be present only in a person who has committed the crime and therefore has a memory related to it,” adds Rukmani Krishnamurthy, director of the State Forensic Science Laboratory in Mumbai.
The state forensic laboratories in Gandhinagar, Gujarat, and Mumbai have BEOS systems and have used them in more than 300 police cases, including at least six court cases. “That’s scary,” says Hank Greely of Stanford Law School in California. “It has got, as far as I can tell, exactly zero peer-reviewed publications discussing it.”
Nevertheless, Sivarathna Vaya of the State Forensic Science Laboratory in Gandhinagar stands by the test. Her team carried out a study on 160 people aged between 15 and 70 and found that the test correctly identifies memories around 90 per cent of the time. “It was found to be highly reliable,” she says. The study has not been published.
Vaya and others maintain that subjects must give informed consent to BEOS before it is conducted, and the test is never relied upon as primary evidence in court. In the case of Aditi Sharma, “the BEOS test findings are considered only as corroborative evidence as there was an adequate amount of primary physical evidence present”, says Krishnamurthy. “We would also like to mention that this is not the first case where BEOS findings have been considered to be corroborative evidence.”
Lawyers have recently tried to get a technique related to BEOS called “brain fingerprinting” into US courtrooms, without success. Aditi Sharma maintains that she is innocent.