A Modest Defense of Mind-Reading
Kiel Robert Brennan-Marquez
New York University School of Law; Yale University - Information Society Project
October 31, 2012
Yale Journal of Law & Technology, Vol. 15, Issue 2, 2013
Yale Law School, Public Law Working Paper
The last decade has witnessed a profusion of commentary on “mind-reading” devices. The scholarly consensus is clear: by essentially “speaking for” defendants, mind-reading devices would offend the basic spirit of the Self-Incrimination Clause. This Article takes the opposing view. First, I reconstruct the Court’s self-incrimination jurisprudence to demonstrate that evidence is only “testimonial” — and thus, privileged — if it involves a “communicative act” from the suspect. Whether or not particular types of mind-reading devices would elicit “communicative acts” is a narrow, technology-specific question. And at least some mind-reading devices almost certainly would not — making their use permissible under the Fifth Amendment. Second, I defend this doctrinal result against normative attack. Many different accounts of the privilege’s theoretical underpinnings exist. I evaluate these accounts in turn, arguing that some are inapposite to mind reading, while others fail in a deeper sense.
Number of Pages in PDF File: 59
Keywords: Fifth Amendment, self-incrimination, constitutional law, constitutional theory, privacy, mind-reading, law and technology
Date posted: June 5, 2013 ; Last revised: July 4, 2013
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