Not yet for brain scans…..

A court in Brooklyn has deemed inadmissible MRI evidence of the truthfulness of a witness in an employment discrimination case. The details are sketchy but it sounds like the evidence was declined on the ground that credibility is a jury determination. Apparently, the court did not consider the scientific merits or demerits of the technology. See Wired story here (and an earlier story here). We will soon learn more about how courts handle such evidence in an upcoming criminal case. The issues raised may be especially interesting in the criminal context where defendants have certain constitutional interests in presenting exculpatory evidence. As I have argued informally and as Fred Schauer has argued in print (“Neuroscience, lie-detection and the law,” Trends in Cognitive Sciences, 2010), the strength of evidence we’d like to have to support a tort claim is different than the strength of evidence we need to raise a reasonable doubt in a criminal case. Here’s what we know about the case from the Wired article:
Wired.com has learned that more brain scans conducted by the company Cephos will be put to the legal test in a federal case in the western district of Tennessee. On May 13, that court will hear arguments over MRI evidence in a Daubert hearing, the procedure used to assess the admissibility of scientific information in Federal court.
In that case, the U.S. attorney charges that Lorne Semrau, a psychiatrist, sought to defraud Medicare and Medicaid in the way he contracted and billed for his services. Semrau argues he had no intent to defraud the government and underwent a brain scan to prove it. His attorney, J. Houston Gordon, filed paperwork indicating that Stephen Laken, president of Cephos, would testify on the MRI evidence the company obtained. “Dr. Laken will further testify that Dr. Semrau was presented questions using MRI technology and was instructed to respond to questions in either/both a truthful or deceitful manner, depending on the question posed,” Gordon wrote. “The MRI screening demonstrated to a scientific certainty, that Defendant was truthful and possessed no intent to defraud or cheat the government.”

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