Authors: Kathrynn Mabalot, MS and Katrina Colby, MS

Are brain imaging technologies the future of forensic science? Many forensic experts have argued against and for the use of brain scanning in the court systems. Many have argued that this technology will bring forth advancements in the field of forensics, however, many have argued its validity and its ethical use in the adversarial system. The following is a discussion regarding the controversial topic of utilizing brain imagining technologies in the field of forensics.

According to an article by the Huffington Post, scientists from Vanderbilt, Virginia Technology, and Yale Universities discovered that brain scans have the ability to reveal a suspect’s “state of knowledge.” In other words, knowing the individual’s particular condition he/she is in at a specific moment and his/her understanding of a particular subject. In their breakthrough study, the scientists were able to predict whether research participants knew they were carrying a case containing drugs. This study may hold many implications for the field of forensics in determining a suspect’s guilt; however, experts raised concerns regarding the ethical considerations with using brain scans in the court system. Further, others have argued that the technology “would be impossible to pull off” since it requires that the brain scans would need to occur when the crime is occurring. Brian Farrell, from the University of Iowa, wrote about a murder case in India where brain scans were utilized as forensic evidence in the court of law. In this case, Farrell (2010) discussed the ethical implications in using brain scans as forensic evidence. Farrell argued that brain scan evidence is “admissible as scientific evidence;” though he highlighted that brains scans violate “the principle against self-incrimination” in cases without the consent from the individual. In Farrell’s case example, an Indian court proved that the defendant had “experiential knowledge” of having murdered his significant other using a brain scan as evidence of a criminal defendant’s guilt. Questions regarding its legality have been brought up from experts in the field. Some have argued that the use of brain scans is similar to other biological testing, such as DNA and fingerprinting tests. Others have also argued against utilizing brain scans as forensic evidence due to the subjective interpretation of the events and the individual’s memory or subjective experience; therefore, using brain scans to prove guilt may not be a valid tool to utilize in the court of law (Farrell, 2010). Further, there is very limited scientific evidence in the validity of brain scans as evidence to prove a defendant’s guilt. Additionally, he argued that the use of this technology is “invasive,” especially in non-consensual circumstances.

While it is always important to acknowledge the controversial nature of the topic and the potential societal impact of this advanced technology, a combination of several agencies may be necessary to create a funding mechanism that could impartially assess and guide the development of forensic fMRI technology in the future (Langleben & Moriarty, 2012).  Technology is constantly advancing and researchers are finding ways using technological devices such as brain scans for the advancement of the justice system and all parties involved. The use of brain scanning technology may bring advancements in the justice system; however, more research in the validity of utilizing brain imaging is necessary for ethical use.

Determining the mens rea (i.e., criminal intent, often referred to as “a guilty mind”) of an accused individual has been described as an attempt to read the minds of the defendants involved (Brown & Murphy, 2010).  However, inferences about a defendant’s criminal intent are often explained and more accurate, when gathered by explicit (i.e., observable) behavior.  Functional brain imaging does appear to offer a more direct method of “mind-reading” or determination of mens rea by offering evidence of some neurological processes or phenomena going on inside our heads.  The conclusion that a defendant’s mental state can be reliably measured from a given brain state makes functional brain imaging appear as a different form of evidence that may be more sophisticated.  There is no doubt that functional neuroimaging findings are technologically well informed, but the question remains as to whether the results are reliable and valid.  Brown and Murphy (2010) note that:

“The obvious comparison is to forensic genetics. While DNA testing can reliably identify suspects and place people at crime scenes, the results of a genome-wide association study or a point mutation analysis cannot yet be used to make inferences about complex mental states. Even so, genetics has successfully overhauled the criminal justice system due to the fixed nature of our genes and the validity of our genetic tests. But unlike our genes, our brains and mental states change (p.1131).”

As a result, any identified method to “read our minds” would be dependent on multiple, overlapping and ever changing (working) assumptions: the strength of the condition between brain states and mental states, the completeness of our knowledge of neuroscience, the accuracy of the assessments, and self-reporting that occurs.  If all these identified assumptions were to be met before hypotheses were developed or inferences were made, the library of existing and accurate knowledge about normal and pathological mental states would increase exponentially.

In conclusion, it would appear that the use of brain scans has not yet been validated entirely. While the technology is still at its nascent stages, it has the potential for advancing the filed of forensics and forensic neuroimaging.  Additionally, it is common for individuals with intellectual and developmental delay to not be aware of the consequences of their actions, however, some individuals may be have been aware of the crime and its consequences. The use of brain scanning technologies may bring some light into the defendant’s guilt or innocence.  While, these technologies are fascinating the ethical obligations are considerable for both the provider and the defendant. As previously stated, further research on the validity of neuroimaging in a forensic setting is warranted.

References:

• Farrell, B. R. (2009). Can’t get you out of my head: the human rights implications of using brain scans as criminal evidence. http://www.americanstudents.us/IJHRL4/5.Farrell%20-%20Online.pdf
• Langleben, D. D., Willard, D., Moriarty, J. C. (2012). Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide. Psychology, Public Policy and Law. DOI: 10.1037/a0028841
• Using Brain Imaging for Lie Detection
• Brown,T., Murphy, E. (2010) Through a scanner darkly: functional neuroimaging as evidence of criminal defendant’s past mental states. The Stanford Law Review (62). 1119-1208.
• http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/Brown-Murphy.pdf