Detecting Memories of the Guilty Mind

Nita A. FarahanyAssociate Professor of Law

Associate Professor of PhilosophyVanderbilt University

Stanford UniversityLaw and Memory Conference

April 1, 2011

Detection Technology

Detection Technologies

Self-Incrimination Clause, 5th Amendment

• No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

• What does it mean to compel?

• What does it mean “to be a witness” against oneself?

5th Amendment: Current DoctrineCompel

– Torture, interrogation– By order, force, oblige to

do something– Instrumentality used– Require a response

Witness– An evidentiary dichotomy

that focuses on the form the evidence takes

“To Be a Witness”Testimonial/Physical Dichotomy

• “To be a witness” turns largely on the Court’s bodily evidence cases – the Fifth Amendment reaches only testimonial communication

• From Holt v. United States, 218 U.S. 245 (1910): – Fifth Amendment is a prohibition of the use of physical or moral

compulsion to extort communications from him, and not an exclusion of his body as evidence when it is material

• Schmerber v. California, 384 U.S. 757 (1966) (4th & 5th)– Since the results of the blood test were neither "testimony nor

evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”

Categories of EvidenceTestimonial/Physical Dichotomy

• Physical– Appearance: Use of body to incriminate one's self (includes:

appearance, footprints, voiceprints and/or lineup compulsions "Your money or your life”)

– Private parts: View of private parts of the body (includes: Strip Searches and Body Cavity Searches)

• Quasi-Physical– Physical Functioning: slurring of speech, mannerisms – Traditional Lie-Detection: physiological measure of yes/no answers

• Testimonial – Communications: Spoken or written words or thoughts– Production: Production of papers or other possessions

When pathological gamblers and controls are shown gambling-related images, functional magnetic resonance imaging reveals that the brains of the gamblers have less activity (blue) in regions involved in impulse control. (Photo credit: Potenza et al. Arch Gen Psychiatry. 2003;60:828-836)

Emotional Memory

How does he feel about his wife?

Memories: Recognition

Neural Fingerprinting of Faces/Sounds

Researchers have demonstrated the feasibility of decoding speech content and speaker identity from observation of auditory cortical activation patterns of the listeners.

The human brain forms computationally efficient representations required for speech comprehension and speaker identification

Example of spectrograms of the stimuli from the nine conditions (three vowels x three speakers). Stimuli were presented during the silent intervals of fMRI measurements and were three natural Dutch vowels (/a/, /i/, and /u/) spoken by three native Dutch speakers (sp1: female, sp2: male, and sp3: male)

Does the suspect recognize unknown details of the crime?

Memories: Episodic

Individual Episodic Memories

“We previously demonstrated that it is possible to predict the position of individuals in a virtual-reality environment from the pattern of activity across voxels in the hippocampus. Although this shows that spatial memories can be decoded, substantially more challenging, and arguably only possible to investigate in humans, is whether it is feasible to predict which complex everyday experience, or episodic memory, a person is recalling. Here we document for the first time that traces of individual rich episodic memories are detectable and distinguishable solely from the pattern of fMRI BOLD signals across voxels in the human hippocampus.”

Experimental Protocol(A) Still photographs taken from one of the film clips viewed during prescan training. The clip depicts a woman taking a drink from a disposable coffee cup and then putting it in a rubbish bin (trash can). (B) Timeline of a single trial during fMRI scanning

Does the suspect have a memory of the crime?

Search and Seizure Clause, 4th Amendment

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• What does it mean to “search”?

• What is does it mean to be an “unreasonable” search?

4h Amendment: Current DoctrineSearch

– Property– Persons– Abandoned Property?

Unreasonable

– Expectation of Privacy– Revealed in public

“Search”Are “Brain Waves” Abandoned?

• Whether a “search” has occurred may depend on the investigative technique employed

• From California v. Greenwood, 486 U.S. 35 (1988)– “It may well be that respondents did not expect that the contents of

their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.”

– Exposing “garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.”

Search: Beyond Public Use?• From Kyllo v. United States, 533 U.S. 27 (2001)

– Agents used a thermal imaging device to scan the home to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth.

• The Government claimed thermal imaging must be upheld because it detected “only heat radiating from the external surface of the house” – “Just as a thermal imager captures only heat emanating from a house, so also

a powerful directional microphone picks up only sound emanating from a house.” We rejected such a mechanical interpretation of the Fourth Amendment, which would leave the homeowner at the mercy of advancing technology.

• The Rule:– Device not in general public use– Explore details previously have been unknowable without physical intrusion– Is a “search” and is presumptively unreasonable without a warrant

Discarded? Emanating?

Warrants v. Warrantless search, not whether the search can occur at all

Protection of Memories?

• Constitutional Protections– First Amendment: Freedom of Thought? (Academic Freedom)– Sixth Amendment: Sixth Amendment –In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him

– Ninth Amendment: Ninth Amendment –The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

• Statutory Protections– Neuroscience Information Technology Act? – Right to privacy of thought?– New substantive protections for cognitive liberties?

A Tin Foil Future?