Issues of Law Raised by Developments and Use of Neuroscience and Neurotechnology in National Security and Defense - Neurotechnology in National Security and Defense - page 148

Lakens work now focuses on DNA evidence, which courts today accept as
scientific fact. He points out that
it took over ten years for DNA evidence to be accepted in court. Partially that was
because Judges were concerned that jurors would hear scientific data that might
overwhelm their independent judgment as to the credibility of testimony. The fMRI
technology, which our testing showed had a 97% reliability, faces the same resistance.
It's unfortunate, because fMRI does work and is a useful, relevant, scientifically valid
way to ascertain whether a person is telling the truth. 37
The case in which TB has been most visibly engaged is a murder proceeding
involving the second-time conviction of Gary Smith in the 2006 shooting death of
fellow Army Ranger Michael McQueen, whom Smith says committed suicide. 38
Employing the Frye standard, the District Court declined to admit evidence derived
from fMRI testing that concluded that Smith was innocent. The Court stated that it
was “not swayed” by 25 peer-reviewed scientific journal articles that have studied
fMRI for lie detection and truth verification.39 39
The Court stated:
[The] Defendant offers that none of these twenty-five articles 'conclude that the tech-
nology does not work.' The Court is not persuaded that the fact that there is no evi-
dence a scientific method does 'not work' is evidence that it is reliable and valid. The
standard required for admissibility in a court of law is higher than the method simply
working. There must be evidence of the method's reliability and validity as determined
by its general acceptance in the relevance scientific community. 39
Smith is appealing his conviction to the Maryland Supreme Court. Upon this writing,
the case is pending.
The fMRI cases illustrate that admitting evidence derived from emerging neuro-
technology may prove challenging, especially where the evidence addresses credibility
issues as to a witness's thoughts or intentions. Clearly, what concerns courts, beyond
whether the evidence is reliable, is whether it intrudes upon the jury's traditional role
in assessing the credibility of witnesses. The fMRI technology is only one emerging
approach for lie detection. New nonintrusive neurotechnology that will become opera-
tional in the next twelve-to-eighteen months will help ascertain, for example, whether an
interviewee is telling the truth. Current polygraph technology is considered to have a reli-
ability factor of about 72% and is not admissible in Court. The developers of this new
neurotechnology believe it may have a 90% reliability. 40 Whether the evidence derived
from use of such technology would be admissible in court remains to be seen.
At present, the broad issue of legal admissibility of evidence derived from neu-
rotechnology remains incipient. However, continued progress in neuroscience and
neurotechnology, recurrent calls for applications of neurotechnology to be used—or
not used—to foster public safety, national security and defense, a sustained penetra-
tion of neurotechnology into the legal sphere, and the dedication of disciplines of
neuroethics and neurolaw to such issues and questions all contribute to both the
expansion of these controversies and the need for prompt and ongoing thinking to
surmount the legal challenges posed.