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Incriminating Thoughts

59 Pages Posted: 13 Mar 2011 Last revised: 24 Dec 2014

Nita A. Farahany

Duke University School of Law

Date Written: April 2011

Abstract

The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing; it can arise through memorialized photographs, papers, and memories; or it can arise through responses uttered silently or aloud. This spectrum — identifying, automatic, memorialized, and uttered — is more nuanced and more precise than the traditional testimonial/physical dichotomy, and gives descriptive power to the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.

Keywords: testimonial, physical, neuroscience, self-incrimination, Fifth Amendment

Suggested Citation

Farahany, Nita A., Incriminating Thoughts (April 2011). Stanford Law Review Vol. 64, 351 (2012); Vanderbilt Public Law Research Paper No. 11-17. Available at SSRN: https://ssrn.com/abstract=1783101

Nita A. Farahany (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

HOME PAGE: http://www.law.duke.edu/fac/farahany

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