Brain Imaging and the Bill of Rights

Abstract

Novel methods of memory detection promise to transform criminal justice. Neural test results provide information on the basis of which to resolve contested factual disputes in criminal trials. Because forensic neurotechnology measures involuntary brain activities, these techniques promise superior reliability over traditional polygraph machines, which measure physiological functions that a subject may be able to control and learn to manipulate. I consider whether evidence produced by these technologies is admissible in criminal or civil trials and the conditions under which their use would and would not violate constitutional guarantees afforded by the Fourth, Fifth, and Sixth Amendments.

Keywords: brain imaging, criminal justice, memory detection, juries, EEG, fMRI

JEL Classification: K14, O31