Liar, Liar, Jury's the Trier? The future of neuroscience-based credibility assessment in the court

Northwestern University Law Review

Volumn 106, Issue 3, 2012, Pages 1451-1488

  Meixner, John B ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84866914874     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (288)

1. United States v. Semrau, No. 07-10074 Ml/P, 2010 WL 6845092, at *2 (W.D. Tenn. May 31, 2010).
2. Cephos is one of two companies in the United States that provides a neuroscience-based lie-detection service. Cephos, http://www.cephoscorp.com (last visited Aug. 4, 2012).
3. The other is No-Lie MRI. No Lie MRI, http://noliemri.com/ (last visited Aug. 4, 2012). Both of these companies use functional magnetic resonance imaging (fMRI) to attempt to identify brain activity that is associated with lying.
4. CEPHOS, Supra
5. No Lie MRI, Supra. While Cephos lie-detection tests have been offered (and rejected) as evidence in two cases (Semrau, 2010 WL 6845092, at *3, and Wilson v. Corestaff Servs. L.P., 900 N.Y.S.2d 639, 640 (Sup. Ct. 2010)), there have been no recorded instances of parties attempting to introduce No Lie MRI tests as evidence.
6. Semrau, 2010 WL 6845092, at *4.
7. Id. at *4-8. fMRI is a method used to determine the level of activity in various parts of the brain.
8. See Nikos K. Logothetis & Brian A. Wandell, Interpreting the BOLD Signal, 66 Ann. Rev. Physiology 735+735 (2004).
9. Semrau, 2010 WL 6845092, at *5.
10. Id.
11. Id. at *4.
12. Id. at *6.
13. Id. at *1.
14. See Id. at *9-14. Additionally, because Dr. Semrau was retested after being originally identified as deceptive, Dr. Laken violated Cephos's standard protocol.
15. See Id. at *13. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., the controlling standard for admissibility of expert testimony in federal cases, "the existence and maintenance of standards controlling [a] technique's operation" is a factor to consider in ruling on the admissibility of "a particular scientific technique." 509 U.S. 579, 594 (1993). Presumably, the lack of a followed standard by Dr. Laken in Semrau would cut against admitting the test.
16. Wilson v. Corestaff Servs. L.P., 900 N.Y.S.2d 639, 640 (Sup. Ct. 2010).
17. Id.
18. Id.
19. Id. (internal quotation marks omitted).
20. 2010 WL 6845092.
21. 900 N.Y.S.2d 639.
22. Id. at 642. It should be noted that the Wilson case was a New York state court case, and New York follows the Frye standard for admissibility of expert testimony.
23. See Id. at 640. The Frye test requires that evidence "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
24. In contrast, federal courts follow the Daubert standard under the Federal Rules of Evidence, which asks whether the evidence is generally reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993).
25. Wilson, 900 N.Y.S.2d at 642. The court rejected the evidence solely on this basis, though it briefly mentioned that the evidence would also likely be disqualified because it was not derived from a method generally accepted in the scientific community, as required under Frye.
26. Id.
27. See David C. Raskin, The Polygraph in 1986: Scientific, Professional, and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 Utah L. Rev. 29+31. The polygraph measures "palmar sweating, blood pressure increases and respiratory changes" to determine the veracity of a statement or the presence of concealed information.
28. Id.
29. See William G. Iacono & David T. Lykken, The Case Against Polygraph Tests, in 5 Modern Scientific Evidence: The Law And Science Of Expert Testimony § 40:47 (David L. Faigman et al. eds., 2011-2012). The "control" question is sometimes instead referred to as a "comparison question" because it is not a true control in the scientific sense of the word.
30. Id. at § 40:48. The control question is not as emotionally charged as the relevant question, making it difficult to compare the two.
31. See Id. § 40:73. The CIT does not have the same problem, as is discussed infra Part I.C.
32. See Id. § 40:47.
33. Id.
34. Id.
35. See William G. Iacono, Detection of Deception, in Handbook Of Psychophysiology 688+688 (John Cacioppo et al. eds., 3d ed. 2007).
36. See Id.
37. See Id. at 688-689.
38. See Id.
39. See, e.g., Nat'l Research Council, The Polygraph and Lie Detection xiii, 19, 124-129 (2003)
40. WG Iacono, Supra note 24, at 690+693-694.
41. See Nat'l Research Council, Supra note 28, at 92-95
42. WG Iacono, Supra note 24, at 694.
43. See WG Iacono, Supra note 24, at 693.
44. See Jane Campbell Moriarty, Visions of Deception: Neuroimages and the Search for Truth, 42 Akron L. Rev. 739+743-744 (2009).
45. 293 F. 1013, 1014 (D.C. Cir. 1923). In Frye, the court rejected a "systolic blood pressure deception test" used to detect deception that was highly related to the modern polygraph-based CQT.
46. Id. at 1013-1014. The defendant in the case offered the deception test as evidence of her innocence.
47. Id. The court rejected the test because it "ha[d] not yet gained... scientific recognition."
48. Id. at 1014.
49. The original CQT was developed by John Reid in 1947 in response to the shortcomings of a previous similar polygraph technique called the relevant-irrelevant test. See Charles R. Honts et al., The Case for Polygraph Tests, in 5 Modern Scientific Evidence.
50. Supra note 20, § 40:22. This method was developed for the polygraph and continues to be used primarily with the polygraph.
51. Though palmar sweating tends to be the primary measure used in polygraph tests, blood pressure increases and respiratory changes are also frequently considered. See, e.g., DC Raskin, Supra note 19, at 31.
52. See, e.g., F. Andrew Kozel et al., Detecting Deception Using Functional Magnetic Resonance Imaging, 58 Biological Psychiatry 605+605 (2005)
53. Daniel D. Langleben et al., Telling Truth from Lie in Individual Subjects with Fast Event-Related fMRI, 26 Hum. Brain Mapping 262+262-263 (2005).
54. Daniel D. Langleben et al., True Lies: Delusions and Lie-Detection Technology, 34 J. Psychiatry & L. 351+359 (2006).
55. See, e.g., NK Logothetis & BA Wandell, Supra note 4, at 760 ("The BOLD response provides us unprecedented visibility of the neural activity in the human brain"). The term "BOLD" stands for blood oxygen level dependent-it is a signal that measures blood flow to various areas of the brain.
56. See Id. at 735-736.
57. FA Kozel et al., Supra note 35, at 610.
58. The study involved the use of a "model building group" to identify approximately which neural networks were involved in deception for the experiment's particular paradigm. Id. at 605-606. This method could not likely be used in field scenarios, where individual questions must be unique for each person tested.
59. DD Langleben et al., Supra note 35, at 267.
60. See Jane Campbell Moriarty, Flickering Admissibility: Neuroimaging Evidence in the U.S. Courts, 26 Behav. Sci. & L. 29+39-40 (2008). For a case in which a PET scan was admitted to establish brain trauma, however, see Brown v. Allerton Assocs., No. 17917/03, 2006 WL 3102331 (N.Y. Sup. Ct. Oct. 5, 2006).
61. There are other contexts in which neuroimaging has been used in the courtroom. For a comprehensive review, see Owen D. Jones & Francis X. Shen, Law and Neuroscience in the United States, in International Neurolaw: A Comparative Analysis 349 (Tade Matthias Spranger ed., 2012).
62. The CIT is also frequently referred to in the literature as the "Guilty Knowledge Test" or GKT. See CR Honts et al., Supra note 33, § 40:24.
63. See W Iacono & D Lykken, Supra note 20, § 40:107.
64. John B. Meixner & J. Peter Rosenfeld, A Mock Terrorism Application of the P300-Based Concealed Information Test, 48 Psychophysiology 149+149 (2011).
65. See David T. Lykken, The GSR in the Detection of Guilt, 43 J. Applied Psychol. 385+385 (1959) (using the polygraph to conduct the first published CIT).
66. See Samuel Sutton et al., Evoked-Potential Correlates of Stimulus Uncertainty, 150 Science 1187+1187 (1965). The item must also be infrequently presented in order to generate the P300 component.
67. See Id. at 1188.
68. See, e.g., Lawrence A. Farwell & Emanuel Donchin, The Truth Will Out: Interrogative Polygraphy ("Lie Detection") with Event-Related Brain Potentials, 28 Psychophysiology 531+531-532 (1991).
69. J. Peter Rosenfeld et al., A Modified, Event-Related Potential-Based Guilty Knowledge Test, 42 Int'l J. Neuroscience 157+157-158 (1988).
70. See, e.g., JB Meixner & JP Rosenfeld, Supra note 44, at 152-153 (reporting high levels of detection accuracy among twenty-four participants in a mock terrorist attack without any advance knowledge of the crime-related details)
71. J. Peter Rosenfeld et al., The Complex Trial Protocol (CTP): A New, Countermeasure-Resistant, Accurate, P300-Based Method for Detection of Concealed Information, 45 Psychophysiology 906+913 tbl.3b (2008) (reporting 92% detection accuracy with only 8% false positives).
72. Gershon Ben-Shakhar et al., Trial by Polygraph: Reconsidering the Use of the Guilty Knowledge Technique in Court, 26 Law & Hum. Behav. 527+528+536 (2002).
73. JB Meixner & JP Rosenfeld, Supra note 44, at 151 tbl.1.
74. Eben Harrell, Fighting Crime by Reading Minds, Time Science (Aug. 7, 2010), http://www.time.com/time/health/article/0,8599,2009131,00.html (covering Meixner & Rosenfeld, Supra note 44).
75. United States v. Scheffer, 523 U.S. 303, 313 (1998) (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)).
76. Wilson v. Corestaff Servs. L.P., 900 N.Y.S.2d 639, 642 (Sup. Ct. 2010) (emphasis added).
77. See, e.g., Scheffer, 523 U.S. at 306-07, 313.
78. State v. Porter, 698 A.2d 739, 742, 769 (Conn. 1997) (asserting that the principal problem in introducing polygraph-based lie-detection evidence is that it will "invade the fact-finding province of the jury"). It should be noted that the jury could still be the final determiner of credibility (and guilt) even if lie-detection evidence like the CQT were allowed into evidence. That is, the jury could still weigh the lie-detection evidence with all of the other evidence (e.g., demeanor, consistency of statements, etc.) and make a final decision as to whether they think the witness was being truthful. The argument made in Scheffer, however, is that the jury must be the only determiner of credibility, which would preclude lie-detection evidence, or any other evidence that directly speaks to the credibility of one of the witnesses. For extended discussion on this in the context of both the CQT and CIT, see infra Part II.D.
79. See, e.g., Barnard, 490 F.2d at 912 (excluding the testimony of a psychiatrist and psychologist called to testify to the likelihood that another witness was telling the truth).
80. Porter, 698 A.2d at 769.
81. Scheffer, 523 U.S. at 313.
82. 523 U.S. 303.
83. Id. at 306.
84. The polygraph test that the defendant underwent was a CQT. Id. at 306 & n.1.
85. The Court did not elaborate on the differences between the CQT and the CIT in the opinion, leaving it ambiguous as to whether the holding applies to polygraph tests of all varieties or merely to the polygraph-based CQT. For a discussion of this, see Megan J. Erickson, Note, Daubert's Bipolar Treatment of Scientific Expert Testimony-From Frye's Polygraph to Farwell's Brain Fingerprinting, 55 Drake L. Rev. 763+784-786 (2007).
86. Scheffer, 523 U.S. at 306.
87. Id. at 305+308.
88. Id. at 312-314+318 (concurring Justices joining only in the judgment and in Parts I, II.A, and II.D of the opinion).
89. Id. at 312-313. This was not the only consideration by which the Court reached its holding. The Court also considered the broad latitude of lawmakers in restricting the presentation of evidence without restricting due process.
90. Id. at 308, as well as the lack of scientific consensus regarding the reliability of polygraph tests.
91. Id. at 309-311. Though the Court never distinguished between the CQT and CIT, both of which may be conducted using the polygraph, one may assume that the Court was referring only to the CQT, as the literature cited is regarding the CQT.
92. Id. at 313 (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)).
93. Id.
94. Id. at 318.
95. Id. ("Given the ongoing debate about polygraphs, I agree the rule of exclusion is not so arbitrary or disproportionate that it is unconstitutional.").
96. Id.
97. Id. at 327-330 (Stevens, J., dissenting).
98. 900 N.Y.S.2d 639, 642 (Sup. Ct. 2010).
99. The Frye test outlines a standard where scientific evidence "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). For more discussion of this test, see infra Part III.A.
100. See Wilson, 900 N.Y.S.2d at 641-42.
101. Id. (quoting People v. Williams, 159 N.E.2d 549, 554 (N.Y. 1959)).
102. See Id. at 642. In rejecting the credibility-assessment evidence, the court stated that "it is well established that unless the jurors are unable or incompetent to evaluate the evidence and draw inferences and conclusions, the opinion of an expert, which intrudes on the province of the jury, is both unnecessary and improper".
103. Id. (citing Kulak v. Nationwide Mut. Ins. Co., 351 N.E.2d 735 (1976)).
104. United States v. Scheffer, 523 U.S. 303, 313 (1998).
105. Wilson, 900 N.Y.S.2d at 642.
106. There are other important potential goals of the trial system that may not favor outcome accuracy. For example, there may be a legitimate social goal of procedural justice in the trial system; that is, giving people the opportunity to be heard and maximizing the perceived legitimacy of the judicial system. See Tom R. Tyler & E. Allan Lind, Procedural Justice, in Handbook Of Justice Research In Law 65, 74-88 (Joseph Sanders & V. Lee Hamilton eds., 2001). Maximizing procedural justice could, in some cases, be in conflict with maximizing outcome accuracy. For example, if jurors make less accurate credibility assessments without the aid of expert testimony regarding credibility than they would with the aid of such testimony, their accuracy will be reduced by not admitting the expert testimony. However, the procedural justice may be increased by rejecting the testimony if perceived procedural fairness is strongly tied to receiving a judgment from peers regarding the truthfulness of testimony, rather than from an expert. While it is not clear how procedural justice may be influenced by experts testifying with regard to credibility, a complete discussion of this is beyond the scope of this Comment. The remainder of this Comment will focus on policies that maximize outcome accuracy.
107. See The (Real!) Science Behind Fox's Lie to Me, Popular Mechanics (Oct. 1, 2009, 12:00 AM), http://www.popularmechanics.com/science/4300722.
108. Lie to Me, Paul Ekman Group, http://awstats.paulekman.com/drupal/?q=Lie-to-me (last visited Aug. 4, 2012) (summarizing the former television show's website).
109. 487 U.S. 1012, 1019 (1988).
110. See infra Part II.C.
111. See infra text accompanying notes 95-112.
112. See Miron Zuckerman et al., Verbal and Nonverbal Communication of Deception, 14 Advances Experimental Soc. Psychol. 1, 11 (1981).
113. Extensive review of these early demeanor studies is beyond the scope of this Comment. For a review of these studies, see Bella M. DePaulo et al., Cues to Deception, 129 Psychol. Bull. 74 (2003),
114. M Zuckerman, Supra.
115. See M Zuckerman, Supra note 85, at 41-44 apps. 1A-1B.
116. Id. at 26.
117. Paul Ekman & Maureen O'Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913+915 (1991).
118. Id.
119. Id. at 914-915. The different groups included college students, psychiatrists, judges, robbery investigators, federal polygraphers, and Secret Service agents.
120. Id. at 916 & tbl.2.
121. Id. at 915.
122. Id. at 916-917.
123. Id. at 916 tbl.2.
124. Saul M. Kassin & Christina T. Fong, "I'm Innocent!": Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 Law & Hum. Behav. 499+501-503 (1999). Subjects committed one of four possible crimes, such as vandalizing the wall of a university building.
125. Id. Innocent acts involved going to the same location, but not committing any crime.
126. Id. at 503-504.
127. Id. at 506.
128. Id. at 505.
129. The Reid Technique is the leading method of training law enforcement officials to conduct interrogations, detect deception, and elicit confessions. The method is outlined in a book co-authored by John Reid. See Fred E. Inbau et al., Criminal Interrogation and Confessions 187-190 (5th ed. 2013).
130. SM Kassin & CT Fong, Supra note 95, at 508. It should be noted that this accuracy is less than chance, indicating that the method is actually reducing lie-detection ability, rather than augmenting it.
131. Id. at 509. Confidence was measured by asking each receiver to self-rate his confidence, on a scale from one to ten, after viewing each interrogation.
132. Christian A. Meissner & Saul M. Kassin, "He's Guilty!": Investigator Bias in Judgments of Truth and Deception, 26 Law & Hum. Behav. 469+474 (2002). The investigators had an average of nearly fourteen years of experience and 68% of the investigators had undergone formal training in the detection of deception.
133. Id. at 475+476 tbl.2.
134. Id. at 476.
135. Id. at 475 tbl.2.
136. Meissner and Kassin found this "more liberal response criterion" (i.e., a tendency to assume that others are lying more frequently than telling the truth) in a number of other studies of individuals trained in using demeanor evidence to detect deception. Id. at 472-473 & tbl.1 (citing Paul Ekman et al., A Few Can Catch a Liar, 10 PSYCHOL. SCI. 263 (1999)
137. SM Kassin & CT Fong, Supra note 95
138. Stephen Porter et al., Truth, Lies, and Videotape: An Investigation of the Ability of Federal Parole Officers to Detect Deception, 24 Law & Hum. Behav. 643 (2000).
139. A meta-analysis is "the statistical analysis of a large collection of analysis results from individual studies for the purpose of integrating the findings." Gene V. Glass, Primary, Secondary, and Meta-Analysis of Research, 5 Educ. Researcher 3+3 (1976). Typically, a meta-analysis uses statistical methods to find the size of a particular effect that has been measured by an entire field of research.
140. Charles F. Jr. Bond & Bella M. De Paulo, Accuracy of Deception Judgments, 10 Personality & Soc. Psychol. Rev. 214+216-217+219 (2006).
141. Id. at 219.
142. Id. at 218.
143. See Supra note 106.
144. One criticism of training paradigms like the one used by Kassin and Fong is that they are so short that they are virtually guaranteed to be ineffective. However, in the trial context, the thirty minute training session is likely very close to the maximum of what could be employed by the court, given the demands placed on a jury. Even if time constraints were not a factor, the cost of serious training would likely be prohibitive.
145. See, e.g., Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb. L. Rev. 1157 (1993)
146. Joseph W. Rand, The Demeanor Gap: Race, Lie Detection, and the Jury, 33 Conn. L. Rev. 1 (2000)
147. Chris William Sanchirico, "What Makes the Engine Go?" Cognitive Limitations and Cross-Examination, 14 Widener L. Rev. 507 (2009).
148. See Supra Part II.B.
149. See Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 Cardozo L. Rev. 2557+2564 (2008) ("Today's findings... are far more complex than the then-current research and give us a much greater ability to identify those situations in which we need to worry about mistaken judgments about credibility and those in which we do not.").
150. Id. at 2567-2568.
151. Hee Sun Park et al., How People Really Detect Lies, 69 Comm. Monographs 144+149 (2002).
152. Id. at 149-150.
153. The question read, "Now, think about how you found out that the person lied to you. Describe in as much detail as you can the events surrounding your discovery of the lie: how exactly did you find out that the person lied to you?" Id. at 150.
154. Id.
155. This phenomenon is referred to in the psychological literature as the availability heuristic. For a more complete description, see Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 Cognitive Psychol. 207 (1973).
156. HS Park, Supra note 117, at 150.
157. Shari Seidman Diamond et al., Juror Questions During Trial: A Window into Juror Thinking, 59 Vand. L. Rev. 1927+1937 (2006). Jurors are allowed to present questions in Arizona state civil cases. The rule provides that "[j]urors shall be permitted to submit to the court written questions directed to witnesses or to the court." ARIZ. R. CIV. P. 39(b)(10) (2011).
158. SS Diamond et al., Supra note 122, at 1956-1957.
159. Id.
160. Id. at 1937.
161. See M Minzner, Supra note 115, at 2567-2568.
162. Id. at 2568-2569.
163. Maria Hartwig et al., Detecting Deception via Strategic Disclosure of Evidence, 29 Law & Hum. Behav. 469+473-474 (2005).
164. Id. at 473.
165. Id. at 475. The three pieces of evidence claimed against the student were that one witness had seen the student outside the video store, that one witness had seen the student inside the video store, and that the student's fingerprints were contained on the briefcase from which the wallet was stolen.
166. Id.
167. Id. at 476.
168. Id. at 477.
169. See M Minzner, Supra note 115, at 2571 ("What do these results about demeanor, bias, and context indicate about lie detection in the legal system?... When a legal decision-maker possesses private information and uses it to probe the witness's story, lie detection accuracy will improve If the police and juries have multiple independent sources of information about an event, they are far more likely to accurately decide which witnesses to believe.").
170. Such knowledge could arise from several different sources. Police may reveal evidence to the suspect during interrogation. See Hartwig, Supra note 128, at 470. Additionally, certain types of evidence must be revealed to the defendant prior to trial, such as documents that the prosecution plans to use in its case-in-chief or the testimony of expert witnesses, which will typically include forensic experts. See FED. R. CRIM. PROC. 16(a)(1)(E)-(F).
171. M Hartwig, Supra note 128, at 470 ("In an American study, this disclosure of evidence, often together with a suggestion of guilt, was the typical way to start the interrogation, and occurred in more than 80% of the cases." (citing Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266 (1996))).
172. Id. at 478.
173. Maria Hartwig et al., Strategic Use of Evidence During Police Interviews: When Training to Detect Deception Works, 30 Law & Hum. Behav. 603+608 (2006) ("[The officers] were trained in planning and asking questions concerning the evidence without disclosing it to the suspect. For example, if the case-file included information that a suspect's car had been seen close to a crime scene on the day of the crime, they were taught to plan and ask questions about the suspect's car They then practiced the strategic use of [this] technique on each other several times").
174. Id. at 608-610.
175. Id. at 610.
176. Id. at 613.
177. Id. at 608.
178. See M Hartwig et al., Supra note 128, at 477.
179. 523 U.S. 303, 318-19 (1998) (Kennedy, J., concurring in part and concurring in the judgment) ("[I]t seems the principal opinion overreaches when it rests its holding on the additional ground that the jury's role in making credibility determinations is diminished when it hears polygraph evidence [It] demeans and mistakes the role and competence of jurors").
180. See, e.g., McClesky v. Kemp, 481 U.S. 279, 287, 291 n.7 (1987) (accepting a social science study as demonstrating that "black defendants... who kill white victims have the greatest likelihood of receiving the death penalty" but reading the results narrowly and as insufficient to support a constitutional challenge).
181. Wilson v. Corestaff Servs. L.P., 900 N.Y.S.2d 639, 642 (Sup. Ct. 2010).
182. See Supra note 45 and accompanying text.
183. See Erikson, Supra note 61, at 785-786.
184. See, e.g., Scheffer, 523 U.S. at 309 ("[T]here is simply no consensus that polygraph evidence is reliable." (emphasis added)).
185. See W Iacono, Supra note 24, at 689 ("The [CIT]... has been developed and promoted by Lykken as a scientifically based alternative to the CQT.")
186. D Lykken, Supra note 45, at 385 ("Use of physiological measurements to detect not lying, but the presence of 'guilty knowledge,' requires... [a] more reasonable assumption [than those required by the CQT]."). Notably, the very first paragraph of the very first CIT study ever published focused on the shortcomings of more traditional "lie detector" tests.
187. D Lykken, Supra note 45, at 385.
188. Compare W Iacono & D Lykken, Supra note 20, § 40:45-119 (writing a chapter titled "The Case Against Polygraph Tests," describing shortcomings of the CQT and related tests and instead favoring the CIT)
189. CR Honts et al., Supra note 33, § 40:20-44 (writing a countering chapter entitled "The Case for Polygraph Tests," arguing in favor of the CQT and related tests' validity).
190. See, e.g., Ralf Mertens & John J.B. Allen, The Role of Psychophysiology in Forensic Assessments: Deception Detection, ERPs, and Virtual Reality Mock Crime Scenarios, 45 Psychophysiology 286+286 (2008) ("Conventional field polygraph examinations, based on the control-question technique (CQT), suffer from many limitations and have been widely criticized in the scientific literature.").
191. See, e.g., LA Farwell & E Donchin, Supra note 48
192. R Mertens & JJB Allen, Supra note 152.
193. Scheffer, 523 U.S. at 313 (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)).
194. 293 F. 1013, 1013-14 (D.C. Cir. 1923) (ruling that the "systolic blood pressure deception test," a precursor to the polygraph-based CQT, had not gained "general acceptance" among physiological and psychological authorities and therefore should not be admitted as evidence).
195. Id. at 1014.
196. 509 U.S. 579 (1993).
197. Id. at 586.
198. Id. at 588 ("Nothing in the text of this Rule establishes 'general acceptance' as an absolute prerequisite to its admissibility... [nor] present[s] any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a 'general acceptance' standard.").
199. FED. R. EVID. 702 committee note (1975).
200. Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, 137 F.R.D. 53, 157 (1991) (describing the proposed amendment to FED. R. EVID. 702 and the accompanying committee notes).
201. Daubert, 509 U.S. at 587-88. Rule 401 is a highly lenient rule of relevancy, requiring only that evidence have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. This rule has been repeatedly determined to be a liberal standard.
202. See Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence Manual § 6.01[5][a] (8th ed. 2007).
203. Daubert, 509 U.S. at 589 ("That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.").
204. Id. at 593-594.
205. Id. at 593.
206. This criterion was specifically mentioned by the Court as being "relevant, though not dispositive" because "some propositions... are... too new, or of too limited interest to be published." Id. at 593-594.
207. Id. at 594. The court did not give any guidelines as to what would constitute an acceptable rate of error.
208. Id. This factor is the very same test from Frye that the Court declared was no longer controlling. The Court explained the factor by stating that the Frye test was unnecessarily strict because a "reliability assessment does not require... an express determination of a particular degree of acceptance within the community."
209. Id. (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). But this factor can have a bearing in the eventual calculus because a known technique that has not been accepted in its field should be viewed with skepticism.
210. JB Weinstein & MA Berger, Supra note 162, § 13.02[4][a]. The rule also codifies the Supreme Court's holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that Daubert's principles apply to all expert testimony admissible under Rule 702. FED. R. EVID. 702 committee note (2000). While the Daubert standard has been codified into the Federal Rules of Evidence and is therefore used in all federal courts, some state courts that have not adopted the rules still use the Frye test in determinations of the admissibility of scientific evidence.
211. See, e.g., Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1045 (Pa. 2003) (requiring general acceptance of an expert's methods).
212. FED. R. EVID. 702.
213. JB Weinstein & MA Berger, Supra note 162, § 13.02[4][c][ii].
214. As of the writing of this Comment, no federal court has held a formal Daubert hearing regarding the admissibility of the CIT.
215. Prior to 2000, there had been no published research using fMRI to detect deception. However, from 2000 to 2008, there were fifteen papers published on the subject. See Kamila E. Sip et al., Detecting Deception: The Scope and Limits, 12 Trends Cognitive Sci. 48+51 tbl.1 (2008).
216. Many articles focusing on the admissibility of fMRI-based lie detection are pessimistic as to potential admissibility, but some offer countering views. Compare Archie Alexander, Functional Magnetic Resonance Imaging Lie Detection: Is a "Brainstorm" Heading Toward the "Gatekeeper"?, 7 Hous. J. Health L. & Pol'y 1, 49-55 (2007) (arguing that fMRI-based lie detection is not generally accepted within the field and that the "analytical gap" from experimental studies to practical application is too great)
217. Joëlle Anne Moreno, The Future of Neuroimaged Lie Detection and the Law, 42 Akron L. Rev. 717+734-736 (2009) (describing the potential uses and limits of cognitive neuroscience in the courtroom)
218. J Moriarty, Supra note 31, at 758-761 (2009) (arguing that the number of fMRI lie-detection studies is too small to be considered reliable, that there has been too little replication of past research, and that these studies are not close enough to real-life situations to be applicable)
219. Cooper Ellenberg, Note, Lie Detection: A Changing of the Guard in the Quest for Truth in Court?, 33 Law & Psychol. Rev. 139+147 (2009) (stating that fMRI-based lie detection does not currently have the necessary accuracy rates to reach admissibility but that there is potential for future admissibility)
220. Leo Kittay, Note, Admissibility of fMRI Lie Detection: The Cultural Bias Against "Mind Reading" Devices, 72 Brook. L. Rev. 1351+1376-1379 (2007) (stating that the general widespread acceptance of fMRI research meets the general acceptance test and that the error rate for fMRI-based lie detection is lower than that of other forensic evidence that is regularly admitted).
221. I should also note that some of the studies described here do not follow the traditional CQT format, but are instead hybrids between the CQT and other types of lie-detection protocols. While a more nuanced approach would be necessary for a complete assessment of the admissibility of these tests, the critical distinction here is that these fMRI-based tests all seek to determine whether a person is being truthful, as the CQT does, instead of determining whether a person recognizes information related to a crime, as the CIT does. Thus, I loosely use the term CQT to refer to these fMRI-based CQT-like tests.
222. Henry T. Greely & Judy Illes, Neuroscience-Based Lie Detection: The Urgent Need for Regulation, 33 Am. J.L. & Med. 377+413 (2007) ("The federal government-or, barring that, state governments-should ban any non-research use of new methods of lie detection, including specifically fMRI-based lie detection, unless or until the method has been proven safe and effective to the satisfaction of a regulatory agency and has been vetted through the peer-reviewed scientific literature.").
223. See sources cited Supra note 174.
224. A Google Scholar search for "fMRI" yields thousands of citations in scholarly journals, and fMRI is regularly used in neuroscience research.
225. See, e.g., Leo Kittay, Supra note 174, at 1383.
226. For example, Frye held that a systolic blood pressure test to measure deception was not generally accepted despite the fact that the measurement of blood pressure was undoubtedly widely accepted in medicine at the time.
227. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
228. See FA Kozel et al., Supra note 35, at 610 (describing a 90% accuracy rate)
229. DD Langleben et al., Supra note 35, at 269 (reporting a 78% accuracy rate). Additionally, these studies have only occurred in lab settings and have never tested real-world deception.
230. The Daubert opinion only mentions that courts "should consider the known or potential rate of error." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993). The case is silent, however, as to what rate of error is sufficient to meet the test.
231. See L Kittay, Supra note 174, at 1382. A number of types of commonly admitted forensic evidence have recently come under scrutiny for being inaccurate. A 2009 report from the National Research Council called for a major overhaul of the forensic sciences, stating that: "In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions "Nat'l Research Council, Strengthening Forensic Science In The United States: A Path Forward 53 (2009).
232. Cf. United States v. Llera Plaza, 188 F. Supp. 2d 549, 571-72 (E.D. Pa. 2002) (recognizing the potential for inaccurate fingerprint evidence, but still allowing its use by an expert at trial).
233. One related problem may be that the probative accuracy may not be enough to overcome the prejudicial influence of the test. Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." FED. R. EVID. 403. Particularly in unilaterally obtained lie-detection tests, where the test is sought by one of the parties and will not be used if the outcome is not to that party's liking, the probative value is small because the party has nothing to lose by taking the test.
234. See, e.g., JP Rosenfeld et al., Supra note 48.
235. A Westlaw search of the "All State and Federal Cases" database conducted on July 6, 2012, for "concealed information test" yielded only one result. A search in the same database for "guilty knowledge test" (a synonymous term for the CIT) yielded seven additional responses. A search for "polygraph" on the same database returned over 10,000 cases.
236. No. PCCV 073247, at *5-10 (Iowa Dist. Ct. Mar. 5, 2001).
237. 105 P.3d 832, 835-36 (Okla. Crim. App. 2005).
238. The Slaughter court noted that "Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit." Id. at 834-835.
239. The court also opined that there was no evidence that Brain Fingerprinting had been tested, subjected to peer-review, or otherwise met the Daubert factors and thus would fail such an analysis. Id. at 836.
240. Brain Fingerprinting, http://www.governmentworks.com/bws/ (last visited Aug. 15, 2012). A brain fingerprinting test is similar to other P300-based CITs. A subject is shown probe items that relate to a particular crime or event and irrelevant items of the same class that do not relate to the crime or event. A larger P300 is expected to occur to probe items if the subject has knowledge of the crime or event in question.
241. See Lawrence A. Farwell & Sharon S. Smith, Using Brain MERMER Testing to Detect Knowledge Despite Efforts to Conceal, 46 J. Forensic Sci. 135+136 (2001). However, in addition to the P300, brain fingerprinting uses a secondary brain response, termed by Farwell as the MERMER effect.
242. See Id. at 135. The basis for the MERMER effect is never explained by Farwell as it is the proprietary secret of the Brain Fingerprinting company.
243. See J. Peter Rosenfeld, 'Brain Fingerprinting': A Critical Analysis, 4 Sci. Rev. Mental Health Prac. 20+23 (2005).
244. Some articles have discussed the admissibility of the P300-based CIT under Daubert, but have not discussed each factor in detail. See, e.g., Erikson, Supra note 61
245. Eric K. Gerard, Waiting in the Wings? The Admissibility of Neuroimagery for Lie Detection, 27 Dev. Mental Health L., July 2008, at 1.
246. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability." (quoting KARL R. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE 37 (5th ed. 1989) (emphasis omitted))).
247. A science is generally understood to be falsifiable when it is "capable of empirical test" such that the theories on which the method is based could be objectively proven wrong. See Id. (quoting CARL GUSTAV HEMPEL, PHILOSOPHY OF NATURAL SCIENCE 49 (1966)).
248. See David L. Faigman et al., Admissibility of Scientific Evidence, 1 Modern Scientific Evidence.
249. Supra note 20, § 1:16.
250. Ground truth is known in a CIT where the researchers know, a priori, whether a participant possesses the concealed information they are attempting to detect. Thus, the researchers can determine whether their test came to the correct result, unlike in cases where ground truth is not known.
251. See, e.g., JB Meixner & JP Rosenfeld, Supra note 44, at 2.
252. See, e.g., LA Farwell & E Donchin, Supra note 48
253. JB Meixner & JP Rosenfeld, Supra note 44
254. JP Rosenfeld et al., Supra note 48.
255. Daubert, 509 U.S. at 593.
256. A search on Google Scholar for "P300-based concealed information test" and "P300-based guilty knowledge test" conducted on July 6, 2012, revealed more than fifty peer-reviewed publications of empirical tests of the CIT on only the first five pages of results, and many more papers have undoubtedly been published. These publications have come from a number of labs both within the United States and abroad, indicating peer-reviewed replication of the validity of the CIT.
257. See JB Meixner & JP Rosenfeld, Supra note 44
258. JP Rosenfeld et al., Supra note 49
259. Michael R. Winograd & J. Peter Rosenfeld, Mock Crime Application of the Complex Trial Protocol (CTP) P300-Based Concealed Information Test, 48 Psychophysiology 155 (2010). It should be noted that the research coming from this lab is, in part, my own. However, other labs have also tested the P300-based CIT.
260. See, e.g., John J. Allen et al., The Identification of Concealed Memories Using the Event-Related Potential and Implicit Behavioral Measures: A Methodology for Prediction in the Face of Individual Differences, 29 Psychophysiology 504 (1992)
261. LA Farwell & E Donchin, Supra note 48
262. Kenta Kubo & Hiroshi Nittono, The Role of Intention to Conceal in the P300-Based Concealed Information Test, 34 Applied Psychophysiology & Biofeedback 227 (2009).
263. See Harrington v. State, No. PCCV 073247, at *8-9 (Iowa Dist. Ct. Mar. 5, 2001). A full explanation of the basis of the MERMER algorithm and the difference between Brain Fingerprinting and the more mainstream P300-based CIT is beyond the scope of this Comment. For an excellent discussion of this topic, see Rosenfeld, Supra note 190.
264. Harrington, No. PCCV 073247, at *9.
265. Id.
266. See JP Rosenfeld, Supra note 190.
267. See, e.g., W.G. Iacono & D.T. Lykken, The Validity of the Lie Detector: Two Surveys of Scientific Opinion, 82 J. Applied Psychol. 426+426-428 (1997).
268. Id. at 430 tbl.2.
269. Id.
270. Id.
271. See DL Faigman, Supra note 193, § 1:20.
272. See Id. § 1:21.
273. Id.
274. See, e.g., JB Meixner & JP Rosenfeld, Supra note 44.
275. Id. at 150-151 & tbl.1.
276. JP Rosenfeld et al., Supra note 49, at 913 tbl.3b.
277. See, e.g., JJ Allen et al., Supra note 199
278. LA Farwell & E Donchin, Supra note 48, at 539 tbl.2
279. JP Rosenfeld et al., Supra note 48, at 161
280. J. Peter Rosenfeld et al., Simple, Effective Countermeasures to P300-Based Tests of Detection of Concealed Information, 41 Psychophysiology 205+209 & tbl.1 (2004). One recent test reported an accuracy rate as low as 50%.
281. R Mertens & JJ Allen, Supra note 152, at 293 tbl.3.
282. See WG Iacono, Supra note 24, at 689 ("A properly administered [CIT] with a sufficient number of items has almost no chance of producing a false positive outcome.").
283. JB Meixner & JP Rosenfeld, Supra note 44, at 151 tbl.1. There is no reason that other CITs could not follow the same approach; one could employ a block for every crime-related detail that a suspect is likely to recognize.
284. See, e.g., JP Rosenfeld et al., Supra note 48.
285. Eitan Elaad, Detection of Guilty Knowledge in Real-Life Criminal Investigations, 75 J. Applied Psychol. 521+526 (1990) (correctly detecting only 50% of guilty individuals).
286. United States v. Semrau, No. 07-10074 Ml/P, 2010 WL 6845092, at *11 (W.D. Tenn. June 1, 2010) ("[T]here are no known error rates for fMRI-based lie detection outside the laboratory setting, i.e. in the 'real-world' or 'real-life' setting.").
287. See JB Meixner & JP Rosenfeld, Supra note 44, at 154.
288. Supra note 79 (discussing potential goals of the trial system that are not related to outcome accuracy).