Unfair (58 page)

Aditi Sharma and Udit Bharati met:
Pulice, “Right to Silence at Risk,” 865.

They dated as students:
Pulice, “Right to Silence at Risk,” 865.

But Aditi soon broke off:
Pulice, “Right to Silence at Risk,” 865.

Aditi and Pravin dropped out of school:
Pulice, “Right to Silence at Risk,” 865.

Six months later, though:
Angela Saini, “The Brain Police: Judging Murder with an MRI,”
Wired UK
, May 27, 2009,
http://www.wired.co.uk/​magazine/archive​/2009/06/​features/guilty?page=all
; Pulice, “Right to Silence at Risk,” 865.

Udit would not survive:
Saini, “The Brain Police”; Pulice, “Right to Silence at Risk,” 866.

According to prosecutors, Aditi poisoned:
Saini, “The Brain Police”; Pulice, “Right to Silence at Risk,” 866.

The turning point in the case:
Anand Giridharadas, “India's Use of Brain Scans in Courts Dismays Critics,”
New York Times
, September 15, 2008, 2,
http://www.nytimes.com/​2008/09/15​/world/asia/​15iht-15brainscan.16148673.html?_r=1&pagewanted=2
;
Maharashtra
, Sessions Case No. 508/07, 8.

As she sat with thirty-two electrodes:
Giridharadas, “India's Use of Brain Scans,” 2.

“I met Udit at McDonald's”:
Giridharadas, “India's Use of Brain Scans,” 2.

According to investigators administering:
Giridharadas, “India's Use of Brain Scans,” 2; Saini, “The Brain Police.” BEOS was developed by Champadi Raman Mukundan, the former head of the clinical psychology department at the National Institute of Mental Health and Neuro Sciences in Bangalore. Giridharadas, “India's Use of Brain Scans,” 1.

When she heard the details:
Giridharadas, “India's Use of Brain Scans,” 1–2; Saini, “The Brain Police.”

Aditi had not just heard:
Giridharadas, “India's Use of Brain Scans,” 2.

And what is particularly astonishing:
Saini, “The Brain Police.”

The BEOS results provided key evidence:
Giridharadas, “India's Use of Brain Scans,” 2; Pulice, “Right to Silence at Risk,” 866;
Maharashtra
, Sessions Case No. 508/07, 58–67.

Because Aditi was later released:
Emily Murphy, “Update on Indian BEOS Case: Accused Released on Bail,”
Law and Biosciences Blog
, Stanford Law School, April 2, 2009,
http://blogs.​law.stanford.edu/​lawandbiosciences/​2009/04/02/update-on-indian-beos-case-accused-released-on-bail/
; Michael Cook, “Liar, Liar, Brain on Fire!”
Mercatornet
, June 17, 2010,
http://www.mercatornet.com/​articles/view/​liar_liar_brain_on_fire
.

In the United States, courts have resisted:
Carey, “Decoding the Brain's Cacophony,” 4.

Over the last decade:
The Royal Society,
Brain Waves Module
4, 13; Jones et al., “Neuroscientists in Court,” 730.

So, for example, when Grady Nelson:
Jones et al., “Neuroscientists in Court,” 730; Greg Miller, “Brain Exam May Have Swayed Jury in Sentencing Convicted Murderer,”
ScienceInsider
, December 14, 2010,
http://news.sciencemag.org/​technology/2010/​12/brain-exam-may-have-swayed​-jury-sentencing-convicted-murderer
.

Two jurors who came out:
Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

“It turned my decision”:
Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

“The technology really swayed me”:
Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

If either of those jurors:
Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

Although the polygraph has:
Grubin and Madsen, “Lie Detection,” 366.

Polygraphs are regularly used:
Grubin and Madsen, “Lie Detection,” 366.

As we saw in Juan Rivera's wrongful conviction:
Rob Warden, “Juan Rivera Freed After More Than 19 Years Behind Bars for a Crime It Had Long Been Obvious He Could Not Have Committed,” Bluhm Legal Clinic, Northwestern Law, accessed May 17, 2014,
http://www.law.​northwestern.edu/​legalclinic/​wrongfulconvictions/​exonerations/il/juan-rivera.html
; Duaa Eldeib, “3 Disputed Polygraph Exams in Wrongful Conviction Cases,”
Chicago Tribune
, March 10, 2013,
http://articles.chicagotribune.com/​2013-03-10​/news/ct-met-polygraph​-fox-rivera-gauger-20130310_1_​polygraph-wrongful-conviction-cases-false-confession-cases
.

Kevin Fox, for instance:
Eldeib, “3 Disputed Polygraph Exams”; Fourth Amended Complaint at 12–13, Fox v. Tomczak, No. 04 C 7309, 2006 WL 1157466 (N.D. Ill. Apr. 26, 2006).

The test administrator, however:
Eldeib, “3 Disputed Polygraph Exams”; Fourth Amended Complaint at 12–13,
Fox
, 2006 WL 1157466.

With that seemingly devastating strike:
Eldeib, “3 Disputed Polygraph Exams”; Fourth Amended Complaint at 15–16,
Fox
, 2006 WL 1157466. An investigation by the
Chicago Tribune
in 2013 revealed six apparent wrongful conviction cases implicating the use of the polygraph by police in the Chicago area alone. Duaa Eldeib, “Polygraphs and False Confessions in Chicago,”
Chicago Tribune
, March 10, 2013,
http://articles.chicagotribune.com/​2013-03-10/news/​ct-met-polygraph-confessions-20130310_1_polygraph-unit-chicago-police-police-polygraphists
. The report noted the failure of the Chicago police polygraph examiners to follow
procedures—like recording all tests and having results reviewed by a second person. Eldeib, “Polygraphs and False Confessions.”

Polygraphs are a routine part:
Grubin and Madsen, “Lie Detection,” 364–65.

In New Jersey, for example:
Chris Megerian, “N.J. Parole Board Says Polygraph Tests Effective in Detecting, Preventing Violations by Sex Offenders,”
NJ.com
, November 18, 2009,
http://www.nj.com/​news/index.ssf​/2009/11/nj_parole_board_study_says_pol.html
; Heather Tubman-Carbone, “An Exploratory Study of New Jersey's Sex Offender Polygraph Policy: Report to the New Jersey State Parole Board,” November 13, 2009, 2,
http://media.nj.com/​ledgerupdates_impact/other​/11.18.09%20polygraph%20report.pdf
.

Hooked up to the machine:
Megerian, “Parole Board Says Polygraph Tests Effective”; Tubman-Carbone, “An Exploratory Study,” 9.

Failing the test can mean:
Megerian, “Parole Board Says Polygraph Tests Effective”; Tubman-Carbone, “An Exploratory Study,” 2.

In certain states, they may:
Texas Department of Criminal Justice Parole Division, “Sex Offender Treatment and Polygraph Guidelines,” January 28, 2014, 10,
https://www.tdcj.state.​tx.us/documents​/parole/03.06.09_parole_policy.pdf
.

These technologies are starting:
The message of this chapter is not that novel technology and science that attempts to capture people's hidden thoughts, memories, and intentions must be permanently kept out of our judicial system. Some of this initial research is greatly promising and should continue. For instance, inspired by the Aditi Sharma case, cognitive neuroscientists decided to conduct some initial experiments looking at whether brain images can be used to distinguish between whether someone is looking at a novel image or something they have previously encountered. Cognitive Neuroscience Society, “Memory, the Adolescent Brain and
Lying.” To test this, they had people wear a digital camera around their necks for a few weeks, which took 45,000 photos per person. Study participants were then placed inside an MRI and shown some of those photos along with scenes that they had never seen. By looking at the participant's brain activity, researchers found they could distinguish the familiar and unfamiliar images with a mean accuracy of 91 percent. Cognitive Neuroscience Society, “Memory, the Adolescent Brain and Lying.” This is precisely the type of valuable endeavor that we should support.

As suggested in the introduction, we must also remember that our current approaches to determining people's inner motives and impressions may rest on completely untested assumptions, so in some cases techniques based on encouraging but limited findings or imperfect science may actually be an improvement over the status quo.

The existing instructions just aren't:
Cutler and Kovera, “Expert Psychological Testimony,” 55–56.

The main problem is not the criteria:
Daubert
, 509 U.S. at 589–94; Neil Vidmar, “The Psychology of Trial Judging,”
Current Directions in Psychological Science
20, no. 1 (2011): 60, doi: 10.1177/0963721410397283.

In a recent survey, only 5 percent:
Sophia I. Gatowski et al., “Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-
Daubert
World,”
Law and Human Behavior
25, no. 5 (October 2001): 433, 445–47; Vidmar, “Psychology of Trial Judging,” 60.

Moreover, in an experiment involving:
Margaret Bull Kovera and Bradley D. McAuliff, “The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological
Science: Are Judges Effective Gatekeepers?”
Journal of Applied Psychology
85, no. 4 (2000): 574, 579–83; Vidmar, “Psychology of Trial Judging,” 60.

Indeed, in the last few years:
“Judicial Seminars on Emerging Issues in NeuroScience,” American Association for the Advancement of Science, last updated July 22, 2014,
http://www.aaas.org/​page/​judicial-seminars-emerging-issues-neuroscience
; MacArthur Foundation Research Network on Law and Neuroscience, “Education and Outreach,” Vanderbilt University, 2014,
http://www.​lawneuro.org/​outreach.php
; Floyd E. Bloom et al.,
A Judge's Guide to Neuroscience: A Concise Introduction
(Santa Barbara: University of California, 2010); National Research Council of the National Academies,
Reference Manual on Scientific Evidence
, 3rd ed. (Washington: The National Academic Press, 2011).

The first law and neuroscience coursebook:
“Law and Neuroscience,” Vanderbilt University, 2014,
http://www.psy.​vanderbilt.edu/​courses/neurolaw/
.

We could very well bar:
Henry T. Greely, “Law and the Revolution in Neuroscience: An Early Look at the Field,”
Akron Law Review
42 (2009): 698–99. There are other questions to consider related to the treatment of lie detection companies. Should we regulate private entities and the technology they develop to improve accuracy, just as we oversee the safety and effectiveness of medical devices and drugs? Greely, “Law and the Revolution,” 699. Should stepladders continue to face more direct government oversight than lie detectors, or will such review stifle innovation? Occupational Safety and Health Administration, “Safety and Health Regulations for Construction,” accessed May 18, 2014,
https://www.osha.gov​/pls/oshaweb/​owadisp.show_document?p_table=standards&​p_id=10839
. Although, there is no general regulation of lie detectors requiring that they prove their effectiveness, at least one scholar has suggested adopting an FDA-type review of neuroscience
lie detection technology to address unreliability and maximize the benefits of the new scientific approaches. Greely and Illes, “Neuroscience-Based Lie Detection,” 405–20.

For centuries, we've espoused:
Stanley, “High-Tech ‘Mind Readers.' ”

Under traditional English law:
Boyd v. U.S. 116 U.S. 616, 625–29 (1886); Stanley, “High-Tech ‘Mind Readers.' ”

In the United States, the Fourth:
Stanley, “High-Tech ‘Mind Readers.' ”

Many of my students shrug:
Charles Duhigg, “How Companies Learn Your Secrets,”
New York Times
, February 16, 2012,
http://www.nytimes.com/​2012/02/19/​magazine/shopping-habits.​html?pagewanted=all
.

The truth is that many Americans:
Stanley, “High-Tech ‘Mind Readers.' ” The ACLU takes the position that even if lie detection was sufficiently reliable, it ought to be rejected as an “unacceptable violation of civil liberties.” Stanley, “High-Tech ‘Mind Readers.' ”

Given the different cultural backgrounds:
Such an approach seems consistent with a Rawlsian vision of justice. John Rawls,
A Theory of Justice
(Cambridge, MA: Belknap Press, 1971).

There's no reason that prosecutors and defendants:
Certain scholars have made strong arguments in favor of having different standards of admission of scientific evidence for the prosecution and defense. Christopher Slobogin,
Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness
(New York: Oxford University Press, 2007), 131–44.