Recently Posted to SSRN:
"Lie-Detection, Neuroscience, and the Law of Evidence"
FREDERICK SCHAUER, University of Virginia School of Law
This paper, prepared for the “State of the Art” Law and Neuroscience Conference at the Rutgers (Camden) University School of Law, has two goals. One is to describe comprehensively the current court cases, scientific research, academic literature, and controversies about the potential use of Functional Magnetic Resonance Imaging (fMRI) for detecting deception in court and other forensic contexts. The other is to suggest that the question of the admissibility of fMRI deception evidence in court cannot be thought of as an exclusively scientific question. The appropriate use or non-use of science in the legal system involves inevitably normative questions about the appropriate levels of accuracy, reliability and validity, questions that must be answered in light of the goals of the legal system and the particular purposes to which the science would be put. The answers require getting the science right, and thus require the involvement of science and scientists, but the ultimate question of when and how the scientific conclusions so produced will be used is a question of legal policy as to which neither scientists (nor, for that matter, lawyers) should be given exclusive authority. Thus, although explicitly focused on law and neuroscience, the paper implicitly addresses a pervading issue in science policy generally – is the use to which science shall or should be put an exclusively, or even partially, scientific question?