Recently published in SSRN (and recently published in 41 Fordham Urban Law Journal (2013)):
Assuming that society and the justice system possess an inherent interest in truth, what social benefit justifies what would arguably be the most intimate invasion of privacy possible? What is the role of the jury, and what purpose does it serve within the larger confines of our justice system? Is it possible to utilize lie detection technology without displacing the jury’s role and purpose? What does it mean for evidence to be reliable? How reliable must evidence be before we allow it to be considered by the jury? Would that level of reliability be different if the evidence was only shown to a judge? Does the requisite level of reliability differ for different kinds of evidence? In determining reliability, why must a judge use scientific norms to assess legal relevance? If lie detection becomes sufficiently reliable under legal standards, will it be admissible in court? These are but a few of the questions that the advent of deception detection using functional magnetic resonance imaging (fMRI) has raised. This Note only purports to definitively answer the last of these questions: whether lie detection, if it becomes sufficiently reliable under legal standards, will be admissible in court, while shedding light on at least some of the others. As an established scholar in the field of neuroimaging recently pointed out, the comparisons of this technology to the mind-reading lore of 1984, Minority Report, and Inception are premature, generating debates that are ‘‘too untethered from scientific reality.’’ This technology, however, is more likely than any others that have come before it to reliably distinguish a person’s truthful statements from deceptive ones.
Part I of this Note provides an overview of the anatomy of a lie and the technologies used to detect them. Part II discusses the relevant evidentiary rules governing the admissibility of such technology, as well as the evidentiary significance of these technologies under these rules. Part III considers the admissibility of fMRI deception detection technology once it becomes reliable enough to satisfy the standards governing scientific expert testimony. Part IV concludes the discussion, finding that this technology’s probative value will not be outweighed by any potential for undue prejudice, or to confuse or mislead the jury.
Part I of this Note provides an overview of the anatomy of a lie and the technologies used to detect them. Part II discusses the relevant evidentiary rules governing the admissibility of such technology, as well as the evidentiary significance of these technologies under these rules. Part III considers the admissibility of fMRI deception detection technology once it becomes reliable enough to satisfy the standards governing scientific expert testimony. Part IV concludes the discussion, finding that this technology’s probative value will not be outweighed by any potential for undue prejudice, or to confuse or mislead the jury.
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