Issues of Law Raised by Developments and Use of Neuroscience and Neurotechnology in National Security and Defense - Neurotechnology in National Security and Defense - page 149

CONCLUSION
Neurotechnology developments will require new thinking that may challenge inter-
national norms and standards. Key observations are as follows:
1. Embrace, do not fear neurotechnology.
New technology that confronts traditional beliefs can provoke strong
resistance. The use(s) of fMRI technology aptly illustrate the point. The
technology has aroused disagreement among experts, just as debate over
the admission of a polygraph has done. A key issue is that judges tend to be
wary of the use of technology to determine the credibility of witnesses in
a trial. Courts worry that technology may replace individual assessments.
That concern clearly influenced the judicial thinking in the few cases that
have considered the admissability of fMRI technology.
The principles enunciated in United States v. Scheffer , 521 U.S. 346
(1997), offer the most complete and incisive analysis of both sides of the
issue. It merits discussion as it underscores how sharply new technology
divides opinion (in even the nation's highest court) over whether evidence
derived from new technology is admissible. Airman Edward Scheffer passed
a polygraph examination in which he denied using methamphetamine.
Court-martialed for using illicit drugs, he sought to introduce that evidence
to exculpate himself. Military Rule of Evidence 707 mandated its exclusion.
The legal issue was whether the military judge's decision to exclude based
upon that rule violated Scheffer's Sixth Amendment to present his case.
A divided Supreme Court affirmed his conviction. Although the case
dealt with polygraphs, the reasoning almost certainly applies to the use and
admissabilty of fMRI technology. Speaking for a divided majority, Justice
Thomas held that a defendant's right to present relevant evidence
is not unlimited but subject to reasonable restrictions that “do not abridge an
accused's right to present a defense so long as they are not 'arbitrary' or 'dis-
proportionate to the purposes they are designed to serve. Moreover, we have
found the exclusion of evidence to be unconstitutionally arbitrary or dispro-
portionate only where it has infringed upon a weighty interest of the accused. 41
Upholding the constitutionality of Rule 707 and the conviction, Justice
Thomas held that the rule
serves legitimate interests in the criminal trial process. These interests include
ensuring that only reliable interest is introduced at trial, preserving the jury's
role in determining credibility, and avoiding litigation that is collateral to the
primary purpose of the trial. The rule is neither arbitrary nor disproportionate
in promoting these ends. Nor does it implicate a sufficiently weighty interest
of the defendant to raise a constitutional concern under our precedents. 42
Echoing arguments raised against the admissablity of fMRI, the Court
pointed out that the “scientific community remains extremely polarized