Will the Law Come Running? The Potential Role of 'Brain Fingerprinting' in Crime Investigation and Adjudication in Australia

(2005) 13 Journal of Law and Medicine 204-222.

Posted: 29 Jun 2015

See all articles by Marilyn McMahon

Marilyn McMahon

Deakin University, Geelong, Australia - Deakin Law School

Date Written: January 1, 2005

Abstract

A major feature of the Australian criminal justice system is that jurors assess witness credibility and are the ultimate finders of fact. Recognising the occasional fallibility of humans in detecting truth and deception, the jury’s function may be assisted by highly regulated expert evidence about a variety of scientific techniques. A recent scientific development has been the invention of “brain fingerprinting” (BF) by Dr Larry Farwell in the United States. Brain fingerprinting measures brainwave functioning to detect awareness of crime-relevant information in order to distinguish between guilty and innocent suspects. This article considers whether BF could be used for crime investigation and adjudication in Australia. By examining the rules of expert evidence and the principles relating to “novel scientific evidence”, the admissibility of BF in the various Australian jurisdictions is evaluated. The utility of BF in criminal investigations and counter-terrorism initiatives is also canvassed. The authors conclude that, at the present time, it is unlikely that expert testimony on BF will be admitted in Australian criminal trials. However, the technique potentially offers other benefits to the criminal justice system, thereby warranting its consideration as a “criminal and investigative tool of the future”.

Keywords: Brain fingerprinting, event related potential, novekl scientific evidence

Suggested Citation

McMahon, Marilyn, Will the Law Come Running? The Potential Role of 'Brain Fingerprinting' in Crime Investigation and Adjudication in Australia (January 1, 2005). (2005) 13 Journal of Law and Medicine 204-222., Available at SSRN: https://ssrn.com/abstract=2623895

Marilyn McMahon (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood, Victoria 3125
Australia
61392446184 (Phone)

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