This measurable activity can be detected by a Magnetic Resonance Imaging, or MRI, machine. The machine created a powerful magnetic field which aligned the hydrogen atoms in the body. Radio waves are used to alter the alignment of this magnetization which causes the atoms to emit a weak radio signal that can be detected by the machine. The subject lies very still in the MRI machine, essentially a giant cylinder. A movement of more than 3 mm could render the image useless so absolute stillness is a necessity.
The test can take anywhere from 15 minutes to 2 hours and during that time the subject will undergo various stimulants designed to alter the neural activity (MRI 2007). In regards to detecting deceit, the subject would undergo a series of questions while the neural activity is monitored. At least two companies have been established to use fMRI for lie detection purposes, No Lie MRI, Inc. and Cephos Corporation (FRMI 2007). They represent the latest in scientific achievement for detecting the truthfulness of people. Since this technique is so new, there will obviously be questions to its reliability.
However, these questions will work themselves through as more research is done on this particular topic. Unfortunately, several court cases may have determined that this technique may not be admissible in court. On the federal side the court case Daubert v. Merrell Dow Pharmaceuticals changed how scientific “expert” evidence was determined to be admissible. According to D. Arthur Kelsey, the “pre-Daubert courts allowed scientific testimony when the underlying scientific theory or basis of opinion was generally accepted as reliable within the expert’s particular field” (Kesley 2006).
This concept, as noted by Wikipedia entries, is known as the Frye test. It came about in 1923 in the case Frye v. United States which asked if the evidence was relevant and generally accepted. Modern critics complained that the Frye test was antiquated and did not allow for new, cutting-edge scientific evidence to be presented (Frye 2007). Other critics were concerned that if the evidence was allowed purely on relevance alone, too much scientific evidence include so called “junk science” would result. The Frye test was simply too simple for it to be used in the complex, modern world.
An overhaul of that standard was needed. One man pushing for reform was Peter Huber. He wrote a book called Galileo’s Revenge: Junk Science in the Courtroom. The book asserted that junk science was destroying the American courtroom. His theory was based on two premises. First, the average juror was too stupid to understand what is and what is not junk science. The second premise was the result of junk science discourages companies from introducing better products in fear or being sued (Daubert 2007). In 1993, the Supreme Court revisited this issue to answer the modern problem of new scientific evidence.
The ruling gave birth to the Daubert standard. This standard is based on two aspects: relevancy and reliability. The question of relevancy asks whether the evidence has anything to do with the case. Although some expert testimony can be related to a case, it may not necessarily be relevant to it. To determine whether evidence is considered reliable, the Supreme Court determined that the conclusions of the expert witness must have been derived using the scientific method (Daubert 2007). To meet the standard of the scientific method, four things are needed.
First, the test or theory must be falsifiable, refutable, and testable. This is also called empirical testing. Second, it must be “subjected to peer review and publication. ” Third, it must have a “known or potential error rate and the existence and maintenance of standards concerning its operation. ” Finally, the theory and technique is generally accepted by a relevant scientific community” (Daubert 2007). Technically speaking the Frye test contained the last aspect of the scientific method, but it failed to include the first three.
To summarize, the Daubert standard asks five questions from every new technique to determine if it is admissible. First, “has the technique been tested in actual field conditions (and not just in a laboratory)? ” Second, “has the technique been subject to peer review and publication? ” Third, “what is the known or potential rate of error? Is it zero, or low enough to be close to zero? ” Fourth, “do standards exist for the control of the technique’s operation? ” Finally, “Has the technique been generally accepted within the relevant scientific community?
(Daubert 2007)” Initial reaction was that of praise for the reform. However, according to the Tellus Institute the standard in practice has not been favorable. A 2002 RAND study showed a significant increase in the rejection of expert testimony of which 90% fell against the plaintiffs (Daubert 2007). The problem is judges are not scientists yet Daubert asks them to make scientific decisions. Essentially they because “amateur scientists. ” In some states, plaintiffs prefer to use the state court because they tend to be friendlier to expert witnesses (Tellus 2007).
Kelsey asserts that the Daubert shifts the question of who decides whether the scientific evidence is reliable from the scientific community to the judge. Under federal law, using the Daubert standard, the fMRI would questionable as admissible evidence. The problem is with the complex nature of the test itself. Although MRIs are generally accepted within the medical community, this concept is no longer used as a test since the Daubert standard replaced the Frye test. Judges now have to weigh whether or not the fMRI is reliable as evidence.
For evidence to be considered admissible, the conclusions must derive from the scientific method. Unfortunately, one of the biggest critiques of the fMRI is how it does not follow the method of the scientific method. Wikipedia points out that “many theoretical models used to explain fMRI signals are so poorly specified that they are not falsifiable. ” This is a central tenet of the scientific model. This only can exclude it as evidence and any good defense attorney will point that out to a judge. Also, critics claim that fMRI is simply a modern day phrenology.
Phrenology is the theory that claims to be able to determine character and personality traits based on the shape of the head, according to Wikipedia (2007). This concept is derived by how fMRI looks for where hemodynamic activity occurs in the brain as opposed to how. Although this comparison is hardly fair considering one is not based on science and the other is. Nevertheless, it may be enough to have a judge throw it out as evidence. Relevancy also comes into question as the second part of Daubert.
Although truth is always relevant in a case, are the specific subject’s results from an fMRI during questioning relevant? Based on this, most likely the fMRI would not pass the Daubert standard and not deemed admissible in court. This is unfortunate as the Daubert standard is essentially calling fMRI lie detection “junk science” when it is far from it. It is new science and the federal system does not allow for a practical way for new science to present itself. Rather it applies an old model against the new science. However, some states are making laws that allow techniques such as fMRI to be admissible.
The state of Virginia is one such state that has sought to ensure that its evidence not fall prey to that of the Daubert standard. Kesley points out that Virginia disliked the Frye test more than the federal courts because it believed is yielded far too much power to the scientific community and not to the consensus of the specific jury. As a result in 1993 Virginia passed a law that used a then-existing Federal Rule of Evidence 702 to change its statues on how evidence was looked at. The Supreme Court also looked at the Federal Rule of Evidence and made its ruling on Daubert based on it.
However, the Rule 702 has undergone 2000 amendments to make it into what is now the Daubert standard. Virginia, although it notes Daubert, refuses to accept any changes to the system (2006). Kesley goes on stating that expert testimony in Virginia must meet specific requirements. The assumption of the evidence cannot be speculative or rely on insufficient factual basis. It cannot contain “disregarded” variable, rely on “dissimilar tests,” or create an “illusory impression of exactness. ” Judges do not deem the evidence reliable or unreliable.
Instead they make what is called a “threshold finding. ” Instead of ruling simply whether it is admissible or not, the judge determines whether a reasonable juror could distinguish between reliable and unreliable. Based on this, that state of Virginia would almost certainly accept the fMRI into evidence. Although the fMRI does not necessarily follow that of the scientific standard, this is not a basis to determine if the evidence is admissible in Virginia. So long as its relevancy is not questioned in its use, a judge will likely allow it to be used in court as evidence.
Under Virginia statutes, the judge will only determine whether a reasonable juror could determine if the fMRI is reliable in the particular case. Even though there are questions to the fMRI’s exactness, the judge would still allow it to be presented. The Daubert cases shows how sweeping reforms, although well intended can result to a system worse than the one it replaced. By shifting focus from the experts to the judicial system, the Daubert standard placed a power on judges that they are ill-qualified to handle. It is also an insult to potential jurors that they are simply too stupid to determine for themselves what is and what is not.
Although the scientific evidence can be confusing, the standard removed any chance to prove to a juror the evidence is indeed authentic, reliable, and trustworthy. The federal courts cannot go back to Frye. Frye opened the door to too much interpretation from the scientific community. Although one segment of the scientific community may agree with a piece of evidence, another may not. Which is correct? Are either correct? Frye left too many questions about the evidence and it yielded too much control to the scientific community. The federal system does need to adapt somehow.
They cannot leave it they way it is. In contrast, the state of Virginia has provided a good, fair system for allowing scientific evidence to be presented. They, too, agreed that Frye was inadequate to be effectively used. It may have worked well in 1923, but it was time to move to the 21st century. However, Virginia did not make the mistake of shifting all the decision making from one group to another. Rather it diluted the power yielded by the scientific community and placed some control with the judged. Nevertheless it never removed the importance of the juror to the courtroom.
Whereas the federal system seemed to treat the juror as unintelligent and not suited for big decision making, Virginia did not want to take away the big decision from the jurors. For the fMRI system it represents a new technological advance in lie detection. It also represents a new challenge to the courts. Based on the federal court case rulings, the fMRI system would not be allowed as evidence because it does not follow the scientific method. Despite all of its potential, the federal system removes this power tool because of a rigid standard applied to a dynamic technology.
Most likely, this will only prevent the federal system from advancing. However, it may also motivate the federal system to change how it views evidence. FMRI, however, will be welcomed in Virginia as evidence. Despite its faults the Virginia system is flexible enough to accomidate new technology such as the fMRI, but is not too flexible to allow “junk science” to permeate amongst the other evidence. Between the two systems, in regards to how it is applied to fMRI, the Virginia system is more fair and realistic in today’s courtroom.
Daubert Standard (2007) Wikipedia Foundation. Retrieved Dec. 3, 2007 from http://en. wikipedia. org/wiki/Daubert_standard FRMI (2007) Wikipedia Foundation. Retrieved Dec. 3, 2007 from http://en. wikipedia. org/wiki/FMRI Frye Test (2007) Wikipedia Foundation. Retrieved Dec. 3, 2007 from http://en. wikipedia. org/wiki/Frye_test Haemodynamic Response (2007) Wikipedia Foundation. Retrieved Dec. 3, 2007 from http://en. wikipedia. org/wiki/Haemodynamic_response Kesley, D. Arthur (2006) Virginia’s Answer to Daubert’s Question Behind the Question.
Retrieved on Dec 3, 2007 from http://www. ajs. org/ajs/publications/Judicature_PDFs/902/Kesley_902. pdf Lie Detection (2007) Wikipedia Foundation. Retrieved Dec. 3, 2007 from http://en. wikipedia. org/wiki/Lie_detection Tellus Institute (2003) Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of. Retrieved Dec. 3, 2007 from http://www. defendingscience. org/upload/Daubert-the-Most-Influential-Supreme-Court-Decision-You-ve-Never-Heard-Of-2003. pdf Lie Detection (2007) Wikipedia Foundation. Retrieved Dec. 3, 2007 from http://en. wikipedia. org/wiki/Lie_detection
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