Ethics

DOV FOX, Yale Law School
Memory detection technologies could transform the character of criminal justice in the United States. Neurological test results provide information on the basis of which to resolve contested factual disputes in criminal trials. Because forensic neurotechnology measures involuntary (and thus uncontrollable) brain activities, these techniques promise superior reliability over traditional polygraph machines, which measure physiological functions that a subject may be able to control and learn to manipulate. Despite Supreme Court concerns, neuroimaging technologies do not threaten to usurp the role of juries as fact-finders. Assuming that EEG and fMRI techniques achieved sufficient levels of reliability to warrant legal admissibility under Frye and Daubert, forensic neurological evidence need not violate constitutional guarantees afforded by the Fourth, Fifth, or Sixth Amendments within the Bill of Rights.