Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law

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

21 Pages Posted: 9 Sep 2012 Last revised: 4 Aug 2015

Amanda C. Pustilnik

University of Maryland Francis King Carey School of Law

Date Written: 2012

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.

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

JEL Classification: K10, K14, K42

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: https://ssrn.com/abstract=2143187

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

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