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Use of brain scans in courts dismays critics

Use of brain scans in courts dismays critics
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First Published: Mon, Sep 15 2008. 10 43 PM IST

Illustration: Jayachandran/Mint
Illustration: Jayachandran/Mint
Updated: Mon, Sep 15 2008. 10 43 PM IST
Mumbai: The new technology is, to its critics, Orwellian. Others view it as a silver bullet against terrorism that could render waterboarding and other harsh interrogation methods obsolete. Some scientists predict the end of lying as we know it.
Now, well before any consensus on the technology’s readiness, India has become the first country to convict someone of a crime relying on evidence from this controversial machine: a brain scanner that produces images of the human mind in action and is said to disclose signs that a suspect remembers details of the crime in question.
Illustration: Jayachandran/Mint
For years, scientists have peered into the brain and sought to identify deception. They have shot infrared beams through liars’ heads, placed them in giant magnetic resonance imaging (MRI) machines and used scanners to track their eyeballs. Since the 11 September attacks, the US has ploughed money into brain-based lie detection in the hope of producing more fruitful counterterrorism investigations.
The technologies, generally regarded as promising, but unproved, have yet to be widely accepted as evidence—except in India, where in recent years judges have begun to admit brain scans. But it was only in June, in a murder case in Pune, in Maharashtra, that a judge explicitly cited a scan as proof that the suspect’s brain held “experiential knowledge” about the crime that only the killer could possess, sentencing her to life in prison.
Psychologists and neuroscientists in the US, which has been at the forefront of brain-based lie detection, variously called India’s application of the technology to legal cases “fascinating”, “ridiculous”, “chilling” and “unconscionable”. (While attempts have been made in the US to introduce findings of similar tests into court cases, these have been generally by defence lawyers trying to show the mental impairment of the accused, not by prosecutors trying to convict.)
“I find this both interesting and disturbing,” Henry T. Greely, a bioethicist at Stanford Law School, said of the Indian verdict. “We keep looking for a magic, technological solution to lie detection. Maybe we’ll have it someday, but we need to demand the highest standards of proof before we ruin people’s lives based on its application.”
Whatever American scientists think, law enforcement officials from several countries, including Israel and Singapore, have shown interest in the brain-scanning technology and have visited government labs that use it in interrogations, Indian officials said.
Methods of eliciting truth have long proved problematic. Truth drugs tend to make suspects babble as much falsehood as truth. Polygraph tests measure anxiety more than deception, and good liars may not feel anxious. In 1998, the US Supreme Court said there was “simply no consensus that polygraph evidence is reliable”.
This latest Indian attempt at getting past criminals’ natural defences begins with an electroencephalogram (EEG) in which electrodes are placed on the head to measure electrical waves. The suspect sits in silence, eyes shut. An investigator reads aloud details of the crime—as prosecutors see it— and the resulting brain images are processed using software built in Bangalore.
The software tries to detect whether, when the crime’s details are recited, the brain lights up in specific regions— the areas that, according to the technology’s inventors, show measurable changes when experiences are relived, their smells and sounds summoned back to consciousness. The inventors of the technology claim the system can distinguish between people’s memories of events they witnessed and between deeds they committed.
The Brain Electrical Oscillations Signature (Beos) test was developed by Champadi Raman Mukundan, an Indian neuroscientist who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences in Bangalore. His system builds on methods developed at US universities by other scientists, including Emanuel Donchin, Lawrence A. Farwell and J. Peter Rosenfeld.
Despite the technology’s promise—some believe it could transform investigations as much as DNA evidence has—experts in psychology and neuroscience were almost uniformly troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal.
Publication of data from testing of the scans would allow other scientists to judge its merits—and the validity of the studies—during peer reviews.
“Technologies, which are neither seriously peer-reviewed nor independently replicated, are not, in my opinion, credible,” said Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of EEG-based lie detection. “The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible.”
After passing an 18-page promotional dossier about the Beos test to a few of his colleagues, Michael S. Gazzaniga, a neuroscientist and director of the SAGE Center for the Study of the Mind at the University of California, Santa Barbara, said: “Well, the experts all agree. This work is shaky at best.”
None of these experts has met the Indian inventors and the investigators using the test. One British forensic psychologist, who has met them, said he found the presentation highly convincing.
“According to the cases that have been presented to me, Beos has clearly demonstrated its utility in providing admissible evidence that has been used to assist in the conviction of defendants in court,” Keith Ashcroft, a frequent expert witness in the British courts, said in an email message.
Two states, Maharashtra and Gujarat, have been impressed enough to set up labs using Beos for their prosecutors.
Sunny Joseph, a state forensic investigator in Maharashtra who used to work with Mukundan as a researcher on Beos in Bangalore, said the test’s results were highly reliable. He said Mukundan had done extensive testing, as had the state.
Here in Maharashtra, about 75 crime suspects and witnesses have undergone the test since late 2006.
But the technique received its strongest official endorsement, forensic investigators here say, on 12 June, when a judge convicted Aditi Sharma of murder based on evidence that included polygraph and Beos tests.
In the only other significant judicial statement on Beos, a judge in 2006 in Gujarat denied the test the status of “concluded proof”, but wrote that it corroborated already solid evidence from other sources.
In writing his opinion on the Pune murder case, judge S.S. Phansalkar-Joshi included a nine-page defence of Beos.
Sharma insists that she is innocent.
Even as the debate continues over using scans to trip up obfuscators, researchers are developing new uses for the technology. No Lie MRI Inc., a company in California, promises on its website to use the scans to help with developing interpersonal trust and military intelligence, among other tasks.
In August, a committee of the National Research Council in Washington predicted that, with greater research, brain scans could eventually aid “the acquisition of intelligence from captured unlawful combatants” and “the screening of terrorism suspects at checkpoints”.
“As we enter more fully into the era of mapping and understanding the brain, society will face an increasing number of important ethical, legal and social issues raised by these new technologies,” Greely, the Stanford bioethicist, and his colleague Judy Illes wrote last year in the American Journal of Law and Medicine.
If brain scans are widely adopted, they added, “the legal issues alone are enormous, implicating at least the First, Fourth, Fifth, Sixth, Seventh and 14th Amendments to the US Constitution. At the same time, the potential benefits to society of such a technology, if used well, could be at least equally large”.
©2008/The New York Times
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First Published: Mon, Sep 15 2008. 10 43 PM IST