Incriminating thoughts

Stanford Law Review

Volumn 64, Issue 2, 2012, Pages 351-408

  Farahany, Nita A ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 84857986198     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (455)

1. 384 U.S. 757, 763-64 (1966).
2. Rogers v. Richmond, 365 U.S. 534, 541 (1961).
3. See Schmerber, 384 U.S. at 764
4. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.
5. See, e.g., Ronald J. Allen & M. Kristin Mace, The Self-Incrimination Clause Explained and Its Future Predicted, 94 J. CRIM. L. & CRIMINOLOGY 243, 259-66 (2004) (discussing the problem of defining "testimony")
6. B. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S. CAL. L. REV. 597, 598, 611 (1970) (arguing for a privacy-based theory of self-incrimination and finding it at odds with the testimonial/physical distinction)
7. Charles Gardner Geyh, The Testimonial Component of the Right Against Self-Incrimination, 36 CATH. U. L. REV. 611, 612-14 (1987) (finding the testimonial/physical framework at odds with the purposes of the Self- Incrimination Clause).
8. But see Michael S. Pardo, Self-Incrimination and the Epistemology of Testimony, 30 CARDOZO L. REV. 1023 (2008) (offering a defense of the distinction between physical and testimonial evidence on epistemological grounds).
9. See, e.g., Richard Nagareda, Compulsion "to Be a Witness" and the Resurrection of Boyd, 74 N.Y.U. L. REV. 1575, 1578-80 (1999) (employing an originalist approach to Fifth Amendment interpretation).
10. See, e.g., Dann, supra note 4, at 598, 611
11. Promoting a privacy-based theory behind the Fifth Amendment
12. Geyh, supra note 4, at 612-15
13. Suggesting a new way to interpret the testimonial/physical distinction to improve consistency with the purposes underlying the Fifth Amendment.
14. See, e.g., Sarah E. Stoller & Paul Root Wolpe, Emerging Neurotechnologies for Lie Detection and the Fifth Amendment, 33 AM. J.L. & MED. 359, 365-66 (2007)
15. Discussing the difficulty of fitting newly emerging brain imaging and brain fingerprinting technology into the testimonial/physical framework
16. Matthew Baptiste Holloway, Comment, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-Incrimination, 27 TEMP. J. SCI. TECH. & ENVTL. L. 141, 166 (2008)
17. Arguing that fMRI images are both physical and testimonial.
18. See, e.g., Jody C. Barillare, Comment, As Its Next Witness, the State Calls. the Defendant: Brain Fingerprinting as "Testimonial" Under the Fifth Amendment, 79 TEMP. L. REV. 971, 974 (2006) (focusing on brain fingerprinting technology)
19. Benjamin Holley, It's All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, DEV. MENTAL HEALTH L., Jan. 2009, at 1 (exploring the intersection of brain-based lie detection technologies and self-incrimination).
20. See, e.g., Holloway, supra note 7, at 166
21. I argue that BOLD fMRI data should be considered testimonial. I conclude that BOLD fMRI is a unique form of evidence that is simultaneously physical and testimonial.
22. Cf. Barillare, supra note 8, at 993
23. In addition to disclosing the contents of a suspect's mind, Brain Fingerprinting has the ability to record the presence of a link between facts and to determine whether the person had any role in the crime. A person possessing actual knowledge of the criminal event being examined, however, would subconsciously connect the fact to the criminal event and the resulting electrochemical brain wave would be recorded by the neuroimaging technique employed by Brain Fingerprinting.
24. See, e.g., id. at 993-94
25. Claiming that because brain fingerprinting technology reveals factual assertions of the suspect's mind they are testimonial in nature
26. Holloway, supra note 7, at 166-75
27. Arguing that the communicative nature of the evidence should govern analysis of privilege and that functional imaging techniques reveal communicative content.
28. See, e.g., Allen & Mace, supra note 4, at 260-61
29. Dann, supra note 4, at 598
30. Geyh, supra note 4, at 612-14
31. Pardo, supra note 4, at 1023-24
32. Stoller & Wolpe, supra note 7, at 365-66
33. Barillare, supra note 8, at 982-84
34. Holloway, supra note 7, at 157-61
35. Holley, supra note 8, at 16-17.
36. 384 U.S. 757 (1966).
37. E.g., Blackwell v. State, 67 Ga. 76 (1881)
38. State v. Jacobs, 50 N.C. (5 Jones) 259, 259 (1858).
39. E.g., Ward v. State, 228 P. 498 (Okla. Crim. App. 1924)
40. Turman v. State, 95 S.W. 533, 536 (Tex. Crim. App. 1906).
41. E.g., People v. Akin, 143 P. 795, 796 (Cal. Dist. Ct. App. 1914)
42. State v. Newcomb, 119 S.W. 405, 409 (Mo. 1909)
43. People v. McCoy, 45 How. Pr. 216, 217 (N.Y. Sup. Ct. 1873).
44. E.g., Cooper v. State, 6 So. 110, 111 (Ala. 1889)
45. Day v. State, 63 Ga. 668, 669 (1879).
46. E.g., Ross v. State, 182 N.E. 865, 867-68 (Ind. 1932).
47. E.g., State v. Oschoa, 242 P. 582, 587 (Nev. 1926).
48. E.g., Sprouse v. Commonwealth, 81 Va. 374, 378 (1886).
49. E.g., O'Brien v. State, 25 N.E. 137, 139 (Ind. 1890)
50. State v. Ah Chuey, 14 Nev. 79, 88 (1879)
51. Noe v. Monmouth Cnty. Common Pleas Court, 143 A. 750, 752 (N.J. 1928).
52. E.g., United States v. Kelly, 55 F.2d 67, 70 (2d Cir. 1932)
53. People v. Jones, 296 P. 317, 318-19 (Cal. Dist. Ct. App. 1931).
54. E.g., Magee v. State, 46 So. 529, 532 (Miss. 1908)
55. Walker v. State, 7 Tex. Ct. App. 245, 264-66 (1879).
56. See, e.g., Ward v. State, 228 P. 498, 499-500 (Okla. Crim. App. 1924).
57. See, e.g., State v. Jacobs, 50 N.C. (5 Jones) 259, 259-61 (1858
58. Explaining that even if the evidence itself was competent, the manner in which it was being presented- through the compelled production by the defendant-violated the privilege.
59. See, e.g., Ward, 228 P. at 500
60. Holding that out-of-court production of evidence does not force the accused to bear witness against himself.
61. Turman v. State, 95 S.W. 533, 536 (Tex. Crim. App. 1906
62. Finding related cases inapposite because they dealt with out-ofcourt collection of evidence.
63. See, e.g., Ross v. State, 182 N.E. 865, 868-69 (Ind. 1932
64. Citing 4 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 2263, at 863 (2d ed. 1923
65. For the proposition that various textual distinctions between state constitutional texts protecting against "testifying," "furnishing evidence," "giving evidence," or "being a witness" had a common purpose and meaning.
66. In 1964, the Court held that the Self-Incrimination Clause of the Fifth Amendment was incorporated against the states in Malloy v. Hogan, 378 U.S. 1, 8 (1964).
67. The textual challenge for the Schmerber Court was a peculiar one: to determine whether bodily evi dence, taken forcibly from an accused and used against him in a criminal trial compels the defendant "to be a witness against himself" at odds with the Fifth Amendment.
68. 384 U.S. 757 (1966).
69. Id. at 761.
70. See id. at 763-64.
71. See, e.g., Nagareda, supra note 5, at 1602-03
72. Discussing the Court's misconstruction of the phrase "to be a witness"
73. See, e.g., id. at 1605-23.
74. 218 U.S. 245 (1910).
75. Schmerber, 384 U.S. at 763.
76. The Court also relied on Breithaupt v. Abram, 352 U.S. 432 (1957)
77. the pre-incorporation case perhaps most factually on point with Schmerber.
78. See Schmerber, 384 U.S. at 759-60.
79. 218 U.S. at 252.
80. Id. at 252-53.
81. See, e.g., Dann, supra note 4, at 597.
82. 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2263, at 378 (John T. McNaughton ed., rev. ed. 1961).
83. Schmerber v. California, 384 U.S. 757, 764 n.8 (1966
84. citing 8 WIGMORE, supra note 41, § 2265.
85. Id. at 763 n.7.
86. 384 U.S. 436 (1966).
87. See Schmerber, 384 U.S. at 762-63.
88. In Miranda, the Court said of the interests protected by the privilege: "All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government-state or federal-must accord to the dignity and integrity of its citizens." 384 U.S. at 460.
89. Schmerber, 384 U.S. at 764-65.
90. Id. at 765.
91. See Peter Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 AM. CRIM. L. REV. 31, 41-42 (1982)
92. arguing that the mental privacy aspect of the privilege helps distinguish between testimonial evidence and real or physical evidence
93. Dann, supra note 4, at 598
94. arguing that "the true distinction is not whether the result of investigation is labelled 'real' or 'testimonial,' but whether the accused can or cannot reasonably believe that he can affect the result".
95. But cf. William J. Stuntz, Self-Incrimination and Excuse, 88 COLUM. L. REV. 1227, 1277 (1988)
96. The state may always seize, and may sometimes compel production of, documents whose creation was not compelled. In such cases, the privilege protects only the testimonial aspects of the act of producing the document and not the document itself. In other words, for the privilege to apply, that which is testimonial about the evidence in question must also have been compelled." (footnote omitted)).
97. Less popular but appealing is the claim that anytime cognition-defined as the "acquisition, storage, retrieval and use of knowledge," or "intellectual processes that allow one to gain and make use of substantive knowledge"-is involved, the privilege is available.
98. Allen & Mace, supra note 4, at 247, 267.
99. William Stuntz has persuasively demonstrated that although the historical source of privilege has roots in protecting informational privacy, since Boyd, Fifth Amendment analysis has focused on the coercive pressure applied by the police and the choice between confession and perjury faced by the suspect.
100. William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 YALE L.J. 393, 443-44 (1995).
101. Stuntz, supra note 48, at 1232-42.
102. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)
103. recognizing "our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life"
104. quoting United States v. Grunewald, 233 F.2d 556, 581-82 (2d Cir. 1956) (Frank, J., dissenting), rev'd, 353 U.S. 391 (1957)))
105. see also United States v. Nobles, 422 U.S. 225, 233 (1975)
106. discussing the Fifth Amendment as a protection of the individual's "private inner sanctum"
107. Bellis v. United States, 417 U.S. 85, 90-91 (1974)
108. Couch v. United States, 409 U.S. 322, 327 (1973)
109. United States v. White, 322 U.S. 694, 698 (1944).
110. E.g., Dann, supra note 4, at 611-12
111. arguing for a mental privacy approach while recognizing that the core value of the privilege turns on whether the accused is put in the position of having to choose whether to alter the evidence.
112. The cognition model advanced by Ronald Allen and Kristin Mace seeks to distinguish cognition from mental privacy, but both theories seem to focus on the same concern.
113. See Allen & Mace, supra note 4, at 261-64, 266-67.
114. See Helen Silving, Testing of the Unconscious in Criminal Cases, 69 HARV. L. REV. 683, 700 (1956)
115. [I]n the administration of justice, truth is but a means, whereas dignity is an end. Criminal justice would be devoid of meaning were it incidentally to deny the very human dignity which it is its ultimate purpose to protect.
116. See, e.g., Robert S. Gerstein, Punishment and Self-Incrimination, 16 AM. J. JURIS. 84, 90-91 (1971).
117. Thomas S. Schrock et al., Interrogational Rights: Reflections on Miranda v. Arizona, 52 S. CAL. L. REV. 1, 49 (1978).
118. Robert S. Gerstein, Privacy and Self-Incrimination, 80 ETHICS 87, 90 (1970).
119. 425 U.S. 391 (1976).
120. Fisher was reinforced by United States v. Quarles, in which Justice O'Connor stated in her concurring opinion that a suspect in custody based on probable cause "cannot seriously urge that the police have somehow unfairly infringed on his right 'to a private enclave where he may lead a private life."
121. 467 U.S. 649, 670 (1984)
122. O'Connor, J., concurring in the judgment in part and dissenting in part
123. quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964).
124. 425 U.S. at 397.
125. Id. at 399.
126. See id. at 397-99.
127. See Stuntz, supra note 48, at 1232-33.
128. Id. at 1234.
129. See id. at 1229.
130. See id. at 1235.
131. Cf. Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)
132. articulating as justifications for the privilege our preference for an adversarial instead of inquisitorial system of justice, equilibrium between individual liberty and government interference, and the belief that the government should shoulder the entire burden of proof when prosecuting a criminal defendant.
133. Stuntz, supra note 48, at 1236.
134. Murphy, 378 U.S. at 55.
135. See, e.g., David Dolinko, Is There a Rationale for the Privilege Against Self- Incrimination?, 33 UCLA L. REV. 1063, 1090-107 (1986)
136. arguing that no satisfactory explanation has been presented of why it is cruel to force an accused person to harm himself
137. Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671, 680 (1968)
138. suggesting that the privilege runs counter to ordinary standards of morality
139. Stephen A. Saltzburg, The Required Records Doctrine: Its Lessons for the Privilege Against Self-Incrimination, 53 U. CHI. L. REV. 6, 7-8 (1986)
140. noting that the notion that "no person may be required to provide evidence against himself" has been persuasively attacked, and arguing that some of the privilege's historical uses are now better served by alternative legal protections such as the First Amendment and the Due Process Clause.
141. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 595 & n.8 (1990)
142. Doe v. United States, 487 U.S. 201, 212 (1988)
143. Andresen v. Maryland, 427 U.S. 463, 475-76 & n.8 (1976).
144. See, e.g., Gerstein, supra note 57, at 90
145. arguing that individuals should have absolute control over revelations of guilt and remorse
146. R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 WM. & MARY L. REV. 15, 39 (1981)
147. arguing that government compulsion to force admissions is intuitively inhumane
148. Schrock et al., supra note 56, at 49
149. claiming that the purpose of the privilege is to enhance autonomy by protecting the individual's right to choose how he "takes responsibility"
150. Muniz, 496 U.S. at 595
151. quoting Doe, 487 U.S. at 212).
152. See id. at 595-96
153. quoting Doe, 487 U.S. at 212).
154. Miranda v. Arizona, 384 U.S. 436, 443 (1966)
155. discussing the origins of the doctrine in England, where the "the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions" became so odious that the right against self-accusation developed by popular demand
156. quoting Brown v. Walker, 161 U.S. 591, 596 (1896)
157. Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)
158. listing "our fear that self-incriminating statements will be elicited by inhumane treatment and abuses" among the justifications of the privilege
159. Ullmann v. United States, 350 U.S. 422, 428 (1956)
160. describing the historical background of the Inquisition and the Star Chamber as the impetus for the Founders to "close the doors against like future abuses by law-enforcing agencies".
161. But see Dolinko, supra note 71, at 1079-80
162. arguing that irrespective of the privilege against self-incrimination's historical origins, due process now adequately protects against physically coercive interrogations.
163. 384 U.S. at 446.
164. Id. at 447.
165. See id. at 448.
166. Stuntz, supra note 48, at 1238
167. suggesting as an example "the immunized witness who must testify against criminal associates, notwithstanding their threat to injure or kill him if he talks".
168. See id. at 1228.
169. Id. at 1239.
170. 83. See Nita A. Farahany & James E. Coleman Jr., Genetics and Responsibility: To Know the Criminal from the Crime, LAW & CONTEMP. PROBS., Winter/Spring 2006, at 115, 150.
171. See Stuntz, supra note 48, at 1245.
172. See id. at 1246-51.
173. See id. at 1239.
174. See id. at 1247.
175. See id. at 1258-59.
176. Id. at 1277.
177. See id. at 1231-32
178. arguing that "a great deal" of Fifth Amendment doctrine is "consistent with what the Justices would have done" had they viewed the privilege within the framework of the excuse-based model.
179. Id. at 1242.
180. See NAT'L INST. ON DEAFNESS & OTHER COMMC'N DISORDERS, NAT'L INSTS. OF HEALTH, HOW YOUR BRAIN UNDERSTANDS WHAT YOUR EAR HEARS 29-30 (2003), available at http://science.education.nih.gov/supplements/nih3/hearing/guide/nih_hear_curr-supp.pdf.
181. See infra text accompanying notes 106-13
182. discussing the Schmerber-Wade- Gilbert trilogy.
183. Real and physical evidence in the form of vital records such as health records, a birth certificate, a driver's license, or a social security number likewise provides identifying information about an individual that might be gathered for a criminal case.
184. See generally Joseph H. Baskin et al., Is a Picture Worth a Thousand Words? Neuroimaging in the Courtroom, 33 AM. J.L. & MED. 239, 248-50 (2007), for a brief introduction to the technologies and complications associated with structural brain imaging.
185. Zwany Metting et al., Structural and Functional Neuroimaging in Mild-to- Moderate Head Injury, 6 LANCET NEUROLOGY 699, 699 (2007).
186. noting that CT scanning can be used in cases with mild and moderate head injuries, although there is substantial variation in the rate at which doctors actually order a CT scan under such circumstances.
187. The CT scan can be used to detect hemorrhage and skull fractures, and is achieved rapidly and easily even with agitated subjects. Id. CT scans are 63% to 75% sensitive to detecting abnormalities in acute head trauma.
188. Id. at 700.
189. Note that, although such imaging techniques might be useful tools, "about 20% of patients who sustain mild-to-moderate head injury without abnormalities on the admission CT have problems with resuming work, suggesting that the conventional CT scan has limited ability in detecting structural and functional abnormalities."
190. CAT (Computerized Axial Tomography) Scans, PBS, http://www.pbs.org/wnet/brain/scanning/cat.html (last visited Feb. 16, 2012).
191. The same technology also allows measurement of changes in cerebral blood flow to particularized areas of the brain as the subject performs tasks, thereby allowing the measurement of brain activity.
192. See Metting, et al., supra note 98, at 700.
193. See MRI (Magnetic Resonance Imaging), PBS, http://www.pbs.org/wnet/brain/ scanning/mri.html (click "Next" as necessary) (last visited Feb. 16, 2012).
194. The MRI uses magnetic fields to realign the hydrogen atoms in the head. Normally, absent a magnetic field, the nuclei of the atoms in the body are aligned in different directions.
195. The magnets of the MRI realign the protons of the hydrogen atoms in the head, so that they spin along the same axis. Id. Once they are aligned, the MRI machine sends a radio pulse to the head, making some of the atoms spin at a particular frequency, depending on their tissue type.
196. When the pulse is turned off, the atoms are returned to their natural alignment, and release energy. The MRI machine detects the energy releases, and the computer processes the signals and produces an image of the tissue types in the region.
197. See Baskin et al., supra note 97, at 254-55.
198. Cf. Metting et al., supra note 98, at 700
199. The difficulty of using MRI to evaluate skull fractures, the limitations in monitoring patients during MRI, and the susceptibility to motion artefacts related to the relatively long exposure time discourage the use of this technique in the acute phase of head injury.
200. See Schmerber v. California, 384 U.S. 757, 765 (1966)
201. See also supra Part I.B.
202. 388 U.S. 218 (1967).
203. 388 U.S. 263 (1967).
204. Wade, 388 U.S. at 220.
205. Id. at 221.
206. See id. at 222-23.
207. Id. at 223 (emphasis added)
208. quoting Schmerber v. California, 384 U.S. 757, 764 (1966) (internal quotation marks omitted)
209. See also United States v. Dionisio, 410 U.S. 1, 5 (1973)
210. reaffirming that compelling a suspect to provide voice exemplars did not violate the Fifth Amendment.
211. 388 U.S. at 266
212. See also United States v. Euge, 444 U.S. 707, 711 (1980)
213. holding that the IRS had authority to compel a taxpayer to provide a handwriting exemplar and that the exercise of that authority "is not in derogation of any constitutional rights"
214. United States v. Mara, 410 U.S. 19, 22 (1973)
215. holding it appropriate under Fourth Amendment search and seizure doctrine for a grand jury to require handwriting exemplars.
216. When analyzing "stop and identify" statutes, the Court has similarly found that to compel a person to disclose his identity to the police does not violate the privilege against self-incrimination except in "unusual circumstances" where identification might in fact be incriminating.
217. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189, 191 (2004).
218. The premise for finding such evidence generally beyond the scope of the privilege is that real or physical evidence speaks for itself rather than by forcing the accused "to be a witness against himself."
219. See id. at 189.
220. The Court found that a police officer could not have used Hiibel's name in any way to incriminate him.
221. See id. at 190.
222. But the Court reserved answering whether all identification-forcing statutes were permissible, stating that "a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual."
223. Id. at 191.
224. Stuntz claims that the "excuse theory offers a fairly plain explanation" of the testimonial/ physical dichotomy. Because one cannot falsify physical characteristics, there is no falsehood (or perjury) to excuse, and so no need to immunize a failure to cooperate.
225. Stuntz, supra note 48, at 1276.
226. 459 U.S. 553, 554 (1983).
227. Id. at 561-62
228. citing People v. Ellis, 421 P.2d 393 (Cal. 1966).
229. Id. at 562.
230. To illustrate this point, the Neville Court explained that the test at issue was a "simple blood-alcohol test," which was "so safe, painless, and commonplace that respondent concede[d], as he must, that the State could legitimately compel" him to comply.
231. Id. at 563 (citation omitted).
232. By contrast, as the Schmerber Court had intimated, a refusal to submit to a test could be compelled testimonial evidence if the test were so dangerous, painful, severe, or contrary to the suspect's religious beliefs that the suspect would prefer "confession" to compliance.
233. See Hugo D. Critchley, Psychophysiology of Neural, Cognitive and Affective Integration: fMRI and Autonomic Indicants, 73 INT'L J. PSYCHOPHYSIOLOGY 88, 88 (2009).
234. See Metting et al., supra note 98, at 699.
235. PET Scan, CLEV. CLINIC, http://www.clevelandclinic.org/health/health-info/docs/3400/3462.asp?index=10123 (last visited Feb. 16, 2012).
236. Stacey A. Tovino, Imaging Body Structure and Mapping Brain Function: A Historical Approach, 33 AM. J.L. & MED. 193, 213 (2007).
237. The author has on file a database including 700 cases between 2004 and 2009 in which neuroscience has been used for these purposes. In sixteen percent of those cases, a neuroimaging scan was introduced.
238. See, e.g., Sexton v. State, 997 So. 2d 1073, 1077 (Fla. 2008)
239. Zink v. State, 278 S.W.3d 170, 177-78 (Mo. 2009).
240. See, for example, Pennsylvania v. Muniz, 496 U.S. 582, 586, 604 (1990)
241. in which the defendant refused to take a breathalyzer test to measure his blood alcohol level, instead offering to wait several hours and then comply. By that time, his bodily evidence of intoxication would have dissipated, rendering the test irrelevant.
242. See, e.g., id. at 603-04
243. noting that the Court has found physical field sobriety tests to be permissible and legitimate police procedures.
244. See, e.g., State v. Theriault, 696 P.2d 718, 719 (Ariz. Ct. App. 1984)
245. The great majority of jurisdictions have held that field sobriety tests do not involve testimonial or communicative evidence.
246. State v. Allen, 440 So. 2d 1330, 1334 (La. 1983)
247. This court has indicated that '[i]ntoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify.'" (alteration in original)
248. quoting State v. Spence, 418 So. 2d 583, 589 n.5 (La. 1982)
249. State v. Badon, 401 So. 2d 1178, 1179 (La. 1981)
250. Field sobriety tests are based on the relationship between intoxication and the loss of coordination which intoxication causes. These tests. only compel the suspect to exhibit his physical characteristics of coordination as a source of real or physical evidence.
251. quoting City of Wahpeton v. Skoog, 300 N.W.2d 243, 245 (N.D. 1980)
252. State v. Roadifer, 346 N.W.2d 438, 440 (S.D. 1984)
253. Dexterity tests are real physical evidence and are not protected by the constitutional privilege against self-incrimination.
254. Marco Tamietto & Beatrice de Gelder, Neural Bases of the Non-Conscious Perception of Emotional Signals, 11 NATURE REVS. NEUROSCIENCE 697, 697 (2010).
255. Open questions remain in this research, including whether the emotional state physiologically represented reflects the perceived emotive content of the stimulus, or represents the subject's subjective emotional reaction to it.
256. See id. at 698.
257. Id. at 704.
258. See id. at 703.
259. See Technology: How It Works, WECU TECHS., http://www.epicos.com/epicos/extended/israel/wecu/wecu_technology.html (last visited Feb. 16, 2012)
260. See also Michael Tarm, Mind-Reading Systems Could Change Air Security, U.S. NEWS & WORLD REP. (Jan. 8, 2010), http://www.usnews.com/science/articles/2010/01/08/mind-reading-systems-could-change-air-security.
261. See Technology: How It Works, supra note 136.
262. See David Rose, "Are You a Terrorist?" The Simple Question Being Asked at an Airport Which Could Rumble a Suicide Bomber, MAIL ONLINE (Dec. 15, 2010, 12:34 PM)
263. http://www.dailymail.co.uk/home/moslive/article-1336571/Terrorism-Can-really-stopbomber-asking-Are-terrorist.html#ixzz1bMYUUHxZ.
264. See, e.g., K. Luan Phan et al., Neural Correlates of Individual Ratings of Emotional Salience: A Trial-Related fMRI Study, 21 NEUROIMAGE 768 (2004).
265. See Indre V. Viskontas et al., Human Medial Temporal Lobe Neurons Respond Preferentially to Personally Relevant Images, 106 PNAS 21,329 (2009).
266. Martin Walter et al., Pedophilia Is Linked to Reduced Activation in Hypothalamus and Lateral Prefrontal Cortex During Visual Erotic Stimulation, 62 BIOLOGICAL PSYCHIATRY 698, 698 (2007).
267. Id. at 698-99.
268. Id. at 699.
269. Our results demonstrate. abnormal neural activity in subcortical and cortical regions in pedophilia during sexual arousal. Subcortical regions like the hypothalamus and the dorsal midbrain are involved in the vegetative-autonomic component of sexual arousal in healthy subjects.
270. Id. at 700.
271. Cf. Cantu v. Thaler, 632 F.3d 157, 160-61 (5th Cir. 2011), petition for cert. filed, No. 10-11031 (June 9, 2011). In Cantu, in response to defendant's claim that he received ineffective assistance counsel at his capital trial, trial counsel testified that he decided not to submit the defendant to a psychological examination because he feared the results could have strengthened the State's position that the defendant was a sociopath and thus a future danger warranting the death penalty.
272. cf. United States v. Williams, 731 F. Supp. 2d 1012, 1020 (D. Haw. 2010)
273. allowing compelled government psychiatric exam of defendant, over Fifth Amendment objections, to rebut defendant's mental status evidence but not to establish that the defendant suffers from psychosis or antisocial personality disorder.
274. 451 U.S. 454, 464 n.8 (1981).
275. Id. at 456.
276. Id. at 456-57.
277. Id. at 459-60.
278. Id. at 465-66.
279. Id. at 464 n.8.
280. See Morris Moscovitch et al., Functional Neuroanatomy of Remote Episodic, Semantic and Spatial Memory: A Unified Account Based on Multiple Trace Theory, 207 J. ANATOMY 35, 38 (2005).
281. See Jesse Rissman et al., Detecting Individual Memories Through the Neural Decoding of Memory States and Past Experience, 107 PNAS 9849, 9849 (2010).
282. See Elia Formisano et al., "Who" Is Saying "What"? Brain-Based Decoding of Human Voice and Speech, 322 SCIENCE 970, 970 (2008).
283. See generally Attila Andics et al., Neural Mechanisms for Voice Recognition, 52 NEUROIMAGE 1528 (2010)
284. describing research into the neural mechanisms that support voice speaker recognition and voice content recognition.
285. Formisano et al., supra note 155, at 971.
286. Id. at 971.
287. Future studies should determine the extent to which decoding can be used to classify words or sentences, the building blocks of natural language.
288. Id. at 973.
289. Id. at 972.
290. See id. at 972-73.
291. The study described here includes only three speakers and three sounds. While it demonstrates the ability to detect the different regions of the brain associated with speech content and speaker recognition, it has yet to be applied to test recognition of speech and speakers from real-life situations.
292. Id. at 973.
293. See Rissman et al., supra note 154, at 9849.
294. See Brain Fingerprinting Laboratories: Scientific Procedure, Research, and Applications, BRAIN FINGERPRINTING LABORATORIES, http://brainfingerprinting.com/TechnologyOverview.php (last visited Feb. 16, 2012) [hereinafter Brain Fingerprinting Laboratories].
295. Lawrence A. Farwell, Detection of FBI Agents Using Brain Fingerprinting Technology: A New Paradigm for Psychophysiological Detection of Concealed Information, BRAIN FINGERPRINTING LABORATORIES, http://www.brainwavescience.com/FBIStudy.php (last visited Feb. 16, 2012).
296. See Geraint Rees, The Scope and Limits of Neuroimaging, in BRAIN WAVES MODULE 1: NEUROSCIENCE, SOCIETY AND POLICY 7, 13 (2011), available at http://royalsociety.org/uploadedFiles/Royal_Society_Content/policy/publications/2011/4294974932.pdf.
297. Recent research has shown that the P300 is actually one aspect of a longer brainwave response known as a Memory and Encoding Related Multifaceted Electroencephalographic Response (MERMER). A MERMER includes a P300 response, but also includes additional patterns occurring more than 800 ms after the stimulus, providing even more accurate results. Brain Fingerprinting Laboratories, supra note 164.
298. See Benjamin Libet, Do We Have Free Will?, in THE OXFORD HANDBOOK OF FREE WILL 551, 552-55 (Robert Kane ed., 2002)
299. noting that the brainwave preceding a voluntary act appears before the subject is aware of a desire to act.
300. See Chris Morrison, A New Way to Detect Lies Gaining Credibility, VENTUREBEAT (Oct. 8, 2008), http://venturebeat.com/2008/10/08/a-new-way-to-detect-lies-gaining-credibility.
301. See Moscovitch et al., supra note 153, at 39.
302. See Martin Chadwick et al., Decoding Individual Episodic Memory Traces in the Human Hippocampus, 20 CURRENT BIOLOGY 544 (2010).
303. See id. at 545 fig.2.
304. See, e.g., Stephenie A. Harrison & Frank Tong, Decoding Reveals the Contents of Visual Working Memory in Early Visual Areas, 458 NATURE 632 (2009)
305. showing that spatial orientations held in working memory can be decoded from activity patterns in the human visual cortex
306. Demis Hassabis et al., Decoding Neuronal Ensembles in the Human Hippocampus, 19 CURRENT BIOLOGY 546 (2009)
307. [U]sing multivariate pattern classification and high spatial resolution functional MRI, we decoded activity across the population of neurons in the human medial temporal lobe while participants navigated in a virtual reality environment. Remarkably, we could accurately predict the position of an individual within this environment solely from the pattern of activity in his hippocampus even when visual input and task were held constant.
308. Rissman et al., supra note 154
309. reporting the results of two expe riments to investigate whether "neural signatures of recognition memory can be reliably decoded from fMRI data," and concluding that "[m]ultivoxel pattern analysis (MVPA) revealed a robust ability to classify whether a given face was subjectively experienced as old or new. [and that] a participant's subjective mnemonic experiences could be reliably decoded.
310. See Hassabis et al., supra note 175.
311. 425 U.S. 391 (1976).
312. See Balt. Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 555 (1990)
313. United States v. Doe, 465 U.S. 605, 610-12 (1984)
314. Andresen v. Maryland, 427 U.S. 463, 472-74 (1976)
315. Fisher, 425 U.S. at 397.
316. Doe v. United States, 487 U.S. 201 (1988).
317. Barrett v. Acevedo, 169 F.3d 1155, 1168 (8th Cir. 1999)
318. See infra notes 203-04 and accompanying text.
319. 116 U.S. 616 (1886).
320. See id. at 617-18.
321. Id. at 634-35.
322. Id. at 630.
323. Couch v. United States, 409 U.S. 322, 339-40 (1973) (Douglas, J., dissenting) (referring to Boyd, 116 U.S. 616).
324. Boyd, 116 U.S. at 633.
325. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 596-97 (1990) (discussing the cruel trilemma)
326. New York v. Quarles, 467 U.S. 649, 669-70 (1984)
327. O'Connor, J., concurring in the judgment in part and dissenting in part) (same).
328. See In re Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 90 & n.2 (2d Cir. 1993)
329. citing 1 MCCORMICK ON EVIDENCE § 127, at 464 (John William Strong ed., 4th ed. 1992)).
330. 425 U.S. 391 (1976).
331. Id. at 394-95.
332. Id. at 409.
333. Id. at 408.
334. Id. at 409.
335. 401 (alteration in original)
336. quoting United States v. Nobles, 422 U.S. 225, 233 n.7 (1975)).
337. 427 U.S. 463 (1976).
338. Id. at 467.
339. Id. at 465-67.
340. Id. at 473-74
341. see also In re Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 92 (2d Cir. 1993)
342. citing Andresen, 427 U.S. at 473).
343. United States v. Doe, 465 U.S. 605, 606 (1984).
344. Id. at 610, 612 n.9
345. quoting In re Grand Jury, 680 F.2d 327, 334 (3d Cir. 1982)
346. internal quotation marks omitted), aff'd in part, rev'd in part sub nom. United States v. Doe, 465 U.S. 605 (1984).
347. Id. at 618 (O'Connor, J., concurring).
348. 619 (Marshall, J., joined by Brennan, J., concurring in part and dissenting in part) (footnote omitted).
349. See Grand Jury Subpoena, 1 F.3d at 93
350. United States v. Wujkowski, 929 F.2d 981, 983 (4th Cir. 1991)
351. In re Sealed Case, 877 F.2d 83, 84 (D.C. Cir. 1989)
352. In re Grand Jury Proceedings, 759 F.2d 1418, 1419 (9th Cir. 1985).
353. The Second Circuit, for example, pointed to the Court's subsequent opinion in Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990), as evidence that a majority of the Court at that time agreed with the O'Connor concurrence in Doe. Grand Jury Subpoena, 1 F.3d at 92.
354. At issue in Bouknight was a juvenile court order requiring the defendant to produce her infant son.
355. 493 U.S. at 551.
356. Referring to O'Connor's concurrence in Doe, the Court stated, "[A] person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded."
357. Id. at 555
358. citing, inter alia, Doe, 465 U.S. at 618 (O'Connor, J., concurring).
359. Only the act of production can give rise to the Amendment's protection because "[w]hen the government demands that an item be produced, 'the only thing compelled is the act of producing the [item]."
360. Id. at 554-55 (second alteration in original)
361. quoting Fisher v. United States, 425 U.S. 391, 410 n.11 (1976).
362. Barrett v. Acevedo, 169 F.3d 1155, 1168 (8th Cir. 1999)
363. See also In re Steinberg, 837 F.2d 527, 530 (1st Cir. 1988)
364. Butcher v. Bailey, 753 F.2d 465, 468-69 (6th Cir. 1985).
365. In its most recent case on point, In re Grand Jury Proceedings, 632 F.2d 1033 (3d Cir. 1980), the Third Circuit found the contents of personal records protected by the Fifth Amendment.
366. Id. at 1044.
367. The Third Circuit has not reexamined this holding in the wake of Doe, and thus, how a Third Circuit court would rule on this issue is unclear. The Fifth, Seventh, Tenth, and Eleventh Circuits also have yet to rule on the issue since the Supreme Court's decision in Doe.
368. See also infra text accompanying notes 217-25 (discussing Fifth Amendment doctrine on papers and their production).
369. United States v. Hubbell, 530 U.S. 27, 35-36 (2000).
370. See 496 U.S. 582, 585-86 (1990).
371. See id. at 603-04.
372. See id. at 605.
373. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
374. Sean M. Polyn et al., Category-Specific Cortical Activity Precedes Retrieval During Memory Search, 310 SCIENCE 1963, 1963 (2005).
375. See id. at 1966
376. Whereas previous applications of classification techniques have focused on brain activity elicited by specific perceptual cues, our study shows that classification algorithms can be used to extract a time-varying trace of the subjects' cognitive state as they search through memory in the absence of specific cues.
377. Yoichi Miyawaki et al., Visual Image Reconstruction from Human Brain Activity Using a Combination of Multiscale Local Image Decoders, 60 NEURON 915 (2008)
378. In this study, we reconstructed visual images by combining local image bases of multiple scales, whose contrasts were independently decoded from fMRI activity by automatically selecting relevant voxels and exploiting their correlated patterns. Binary-contrast, 10 × 10-patch images (2100 possible states) were accurately reconstructed without any image prior on a single trial or volume basis by measuring brain activity only for several hundred random images.
379. Svetlana V. Shinkareva et al., Using fMRI Brain Activation to Identify Cognitive States Associated with Perception of Tools and Dwellings, PLOS ONE (Jan. 2, 2008), http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0001394
380. Here we demonstrate the ability to reliably. identify which of the 10 drawings a participant was viewing, based on that participant's characteristic whole-brain neural activation patterns, excluding visual areas. [and] identify, for the first time, both individual objects and the category of the object the participant was viewing, based only on other participants' activation patterns.
381. Miyawaki et al., supra note 212, at 926.
382. Subjects were shown ten-by-ten checkerboard-pattern images, made up of random, geometric, or alphabet-letter patterns, for a period of six or twelve seconds each, followed by a six- or twelve-second period of rest.
383. Id. at 926-27.
384. Id. at 916-18 & fig.2.
385. See, e.g., Yu M. Chi & Gert Cauwenberghs, Wireless Non-Contact EEG/ECG Electrodes for Body Sensor Networks, 2010 INT'L CONF. ON BODY SENSOR NETWORKS PROC. 297, available at http://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&arnumber=5504776
386. Adam Wang, Handheld Device for Remotely Measuring Brain Function, 2005 SUNFEST 173, available at http://www.seas.upenn.edu/sunfest/docs/SunfestReport05.pdf
387. R.J. Prance et al., Biological and Medical Applications of a New Electric Field Sensor, PROC. ANN. MEETING ON ELECTROSTATICS (Electrostatics Soc'y of Am., Minneapolis, Minn.), June 2008, at N2 available at http://www.case.edu/cse/eche/ESA2008_Proceedings.
388. United States v. Hubbell, 530 U.S. 27, 36 (2000).
389. Fisher v. United States, 425 U.S. 391, 410 (1976).
390. Id. at 411.
391. See 530 U.S. at 45.
392. Id. at 30.
393. Id. at 31.
394. Id. at 41.
395. Id. at 44-45
396. See also United States v. Ponds, 454 F.3d 313, 320 (D.C. Cir. 2006).
397. Stuntz, supra note 48, at 1257.
398. See id. at 1257-59.
399. These include the anterior cingulate cortex, which is involved in attention and monitoring processes, and the left dorsolateral and right anterior prefrontal cortices, areas of executive function involved in working memory and behavioral control. Researchers have hypothesized that these regions are recruited to inhibit a prepotent response (the truth) while simultaneously constructing new information (the lie).
400. Joseph R. Simpson, Functional MRI Lie Detection: Too Good to Be True?, 36 J. AM. ACAD. PSYCHIATRY & L. 491, 492-93 (2008).
401. Christopher Intagliata, Is the MRI Lie Detector Test Reliable?, SCIENCELINE (Nov. 3, 2008), http://www.scienceline.org/2008/11/ask-intagliata-lie-detection-fmri-brain-scan.
402. Anand Giridharadas, Brain Scan a New Wave in Criminal Evidence, INT'L HERALD TRIB., Sept. 8, 2008, at 1.
403. Schmerber v. California, 384 U.S. 757, 764 (1966).
404. See Shinji Nishimoto, An T. Vu, Thomas Naselaris, Yuval Benjamini, Bin Yu & Jack L. Gallant, Reconstructing Visual Experiences from Brain Activity Evoked by Natural Movies, 21 CURRENT BIOLOGY 1641 (2011).
405. Joshua Foer, The Unspeakable Odyssey of the Motionless Boy, ESQUIRE, Oct. 2008, at 212, 213-14.
406. See id. at 214-15.
407. See Lauran Neergaard, Paralyzed Man Uses Mind-Powered Robot Arm to Touch, USA TODAY (Oct. 14, 2011, 5:01 PM), http://www.usatoday.com/money/industries/health/story/2011-10-15/robotic-touch/50774398/1.
408. Pennsylvania v. Muniz, 496 U.S. 582, 585 (1990).
409. Id. at 585-86.
410. Id. at 586.
411. Id. at 587.
412. Id. at 589
413. quoting Doe v. United States, 487 U.S. 201, 210 (1988).
414. Id. at 590.
415. See id. at 589-605.
416. See id. at 592.
417. Id. at 593
418. quoting Brief of Petitioner at 21, Muniz, 496 U.S. 582 (No. 89-213), 1989 WL 428937).
419. 467 U.S. 649 (1984).
420. In Quarles, Justice O'Connor, concurring in the judgment in part and dissenting in part, focused on how the incriminating inference arose. Quarles was charged with criminal possession of a weapon, but moved to suppress his response to a po liceman who asked about the whereabouts of the gun before reading Quarles his Miranda warnings.
421. See id. at 651-52.
422. The majority found Quarles's statement admissible because of a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence.
423. Id. at 655-56.
424. Moreover, the police did not literally coerce the defendant's admissions.
425. See id. at 654
426. cf. Brewer v. Williams, 430 U.S. 387, 399-401 (1977)
427. deciding on Sixth Amendment grounds that statements by a police officer while transporting the defendant were designed to elicit information from the defendant just as deliberately and effectively as if he had formally interrogated him.
428. Massiah v. United States, 377 U.S. 201, 206 (1964)
429. finding that a federal agent who surreptitiously listened to incriminating statements made by a suspect in the absence of counsel violated the suspect's Sixth Amendment rights, because "'if [the Sixth Amendment] is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse," and noting further that the suspect "was more seriously imposed upon. because he did not even know that he was under interrogation by a government agent'" (omission in original)
430. quoting United States v. Massiah, 307 F.2d 62, 72-73 (2d Cir. 1962) (Hays, J., dissenting in part), rev'd, 377 U.S. 201 (1964).
431. Justice O'Connor saw the issue differently. She distinguished between the gun, which the defendant was legitimately compelled to supply because of its real or physical nature, and his admission of the gun's whereabouts in response to questioning.
432. Justice O'Connor invoked Miranda v. Arizona, 384 U.S. 436 (1966), to find that when the state uses investigative techniques to discover real evidence, the privilege against self-incrimination may require it forego the testimonial products of those tests.
433. See Quarles, 467 U.S. at 663-65, 667-69
434. O'Connor, J., concurring in the judgment in part and dissenting in part.
435. The Court likewise invoked a "purpose" analysis to find that the Self- Incrimination Clause was designed to protect against legal compulsion such as that employed by the ecclesiastical courts and the Star Chamber.
436. Muniz, 496 U.S. at 595-96.
437. This protection would ensure that a criminal suspect would not be subject to the cruel trilemma of self-accusation, perjury, or contempt.
438. Hence, whatever else the protection may include, all responses to questions that if asked could place the suspect in the cruel trilemma are privileged.
439. See Nita A. Farahany, Searching Secrets, 160 U. PA. L. REV. (forthcoming Apr. 2012) (manuscript at 27-32) (on file with author) (applying the Fourth Amendment to the spectrum of evidence).
440. 451 U.S. 454, 464 n.8 (1981).
441. See Farhad Manjoo, Smile, You're on Everyone's Camera, SLATE (July 13, 2011 5:36 PM), http://www.slate.com/id/2299134.
442. See Sally Adee, Specs That See Right Through You, NEW SCIENTIST (July 5, 2011), http://www.newscientist.com/article/mg21128191.600-specs-that-See-right-throughyou.html?full=true.
443. Barrett v. Acevedo, 169 F.3d 1155, 1168 (8th Cir. 1999)
444. see also United States v. Doe, 465 U.S. 605, 617 (1984).
445. 631 F.3d 608, 611 (2d Cir.), cert. denied, 131 S. Ct. 1841 (2011).
446. Id. at 613 (alteration in original)
447. quoting Gilbert v. California, 388 U.S. 263, 266-67 (1967).
448. Molly McHugh, Federal Case Will Decide If the Government Can Make You Decrypt Your Laptop, DIGITAL TRENDS (July 13, 2011), http://www.digitaltrends.com/ computing/federal-case-will-decide-if-the-government-can-make-you-decrypt-your-laptop
449. See also Brief of Amicus Curiae Electronic Frontier Foundation in Support of Defendant Fricosu's Opposition to Government's Application Under the All Writs Act Requiring Defendant to Assist in the Execution of Previously Issued Search Warrants, United States v. Fricosu, No. 10-cr-00509-01-REB (D. Colo. July 8, 2011) [hereinafter EFF Brief].
450. EFF Brief, supra note 267, at 6-8.
451. Id. at 11.
452. But See id. at 12 (arguing that the government's offer of immunity is too limited).
453. United States v. Fricosu, No. 10-cr-00509-REB-02, 2012 WL 182121, at *5 (D. Colo. Jan. 23, 2012).
454. Farahany, supra note 254.
455. Stuntz, supra note 48, at 1287.