A Modest Defense of Mind-Reading

59 Pages Posted: 5 Jun 2013 Last revised: 4 Jul 2013

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Date Written: October 31, 2012

Abstract

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.

Keywords: Fifth Amendment, self-incrimination, constitutional law, constitutional theory, privacy, mind-reading, law and technology

Suggested Citation

Brennan-Marquez, Kiel, A Modest Defense of Mind-Reading (October 31, 2012). Yale Journal of Law & Technology, Vol. 15, Issue 2, 2013; Yale Law School, Public Law Working Paper. Available at SSRN: https://ssrn.com/abstract=2273719

Kiel Brennan-Marquez (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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