Abstract

http://ssrn.com/abstract=2143187
 


 



Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law


Amanda C. Pustilnik


University of Maryland Francis King Carey School of Law

2012

Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law, in The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds. Cambridge University Press, 2013 Forthcoming
U of Maryland Legal Studies Research Paper No. 2012-61

Abstract:     
The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Law enforcement use of these technologies will not just require extending existing constitutional doctrine to cover new facts but will challenge these doctrines’ foundations. This short chapter discusses cognitive privacy and liberty under the Fourth and Fifth Amendments, showing how current jurisprudence under both amendments stumbles on limited and limiting distinctions between the body and the mind, the physical and the informational. Brain processes and emanations sit at the juncture of these categories. This chapter proposes a way to transcend these limitations while remaining faithful to precedent, extending these important constitutional protections into a new era of direct access to the brain/mind.

Number of Pages in PDF File: 21

Keywords: Neuroimaging, neuroscience, Fourth Amendment, Fifth Amendment, criminal procedure, Constitutional law, brain imaging

JEL Classification: K10, K14, K42

Accepted Paper Series





Download This Paper

Date posted: September 9, 2012 ; Last revised: September 30, 2012

Suggested Citation

Pustilnik, Amanda C., Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law (2012). Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law, in The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds. Cambridge University Press, 2013 Forthcoming; U of Maryland Legal Studies Research Paper No. 2012-61. Available at SSRN: http://ssrn.com/abstract=2143187

Contact Information

Amanda C. Pustilnik (Contact Author)
University of Maryland Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
Feedback to SSRN


Paper statistics
Abstract Views: 799
Downloads: 168
Download Rank: 104,997
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.297 seconds