Evidence of Memory from Brain Data

Journal of Law and the Biosciences 2020, doi:10.1093/jlb/lsaa078 https://academic.oup.com/jlb/advance-article/doi/10.1093/jlb/lsaa078/6041176

89 Pages Posted: 9 Jun 2020 Last revised: 7 May 2021

See all articles by Emily R. Murphy

Emily R. Murphy

UC Hastings Law

Jesse Rissman

University of California, Los Angeles (UCLA)

Date Written: May 14, 2020


Much courtroom evidence relies on assessing witness memory. Recent advances in brain imaging analysis techniques offer new information about the nature of autobiographical memory, and introduce the potential for brain-based memory detection. In particular, the use of powerful machine learning algorithms reveals the limits of technological capacities to detect true memories, and contributes to existing psychological understanding that all memory is potentially flawed. This Article first provides the conceptual foundation for brain-based memory detection as evidence. It then comprehensively reviews of the state of the art in brain-based memory detection research before establishing a framework for admissibility of brain-based memory detection evidence in the courtroom and considering whether and how such a use would be consistent with notions of justice. The central question that this interdisciplinary analysis presents is: if the science is sophisticated enough to demonstrate that accurate, veridical memory detection is limited by biological, rather than technological, constraints, what should that understanding mean for broader legal conceptions of how memory is traditionally assessed and relied upon in legal proceedings? Ultimately, we argue that courtroom admissibility is presently a misdirected pursuit, though there is still much to be gained from advancing our understanding of the biology of human memory.

Keywords: Brain, Court, Evidence, fMRI, Machine Learning, Memory Detection, Neural Signature

Suggested Citation

Murphy, Emily R. and Rissman, Jesse, Evidence of Memory from Brain Data (May 14, 2020). Journal of Law and the Biosciences 2020, doi:10.1093/jlb/lsaa078 https://academic.oup.com/jlb/advance-article/doi/10.1093/jlb/lsaa078/6041176, Available at SSRN: https://ssrn.com/abstract=3601016 or http://dx.doi.org/10.2139/ssrn.3601016

Emily R. Murphy (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Jesse Rissman

University of California, Los Angeles (UCLA) ( email )

405 Hilgard Avenue
Box 951361
Los Angeles, CA 90095
United States

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