Everything New is Old Again: Brain Fingerprinting and Evidentiary Analogy

Yale Journal of Law & Technology, Vol. 9, p. 234, 2007

37 Pages Posted: 19 Mar 2011

See all articles by Alexandra J. Roberts

Alexandra J. Roberts

University of New Hampshire School of Law

Date Written: May 15, 2007

Abstract

Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how fact-finders perceive and evaluate unfamiliar types of proof. When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an aid to understanding and functions instead as an obstacle to knowledge. This article explores the ways in which evidentiary analogy may insidiously shape how courts treat novel forms of scientific evidence.

Keywords: Evidence, Brain Fingerprinting, Metaphor, Cognition, Scientific Evidence

Suggested Citation

Roberts, Alexandra Jane, Everything New is Old Again: Brain Fingerprinting and Evidentiary Analogy (May 15, 2007). Yale Journal of Law & Technology, Vol. 9, p. 234, 2007 . Available at SSRN: https://ssrn.com/abstract=1784359

Alexandra Jane Roberts (Contact Author)

University of New Hampshire School of Law ( email )

2 White Street
Concord, NH 03301
United States

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