LawyersUSA

A form of Magnetic Resonance Imaging called the "functional MRI," or fMRI, is being marketed to lawyers and judges as the real deal in lie detection.

Unlike a polygraph, the fMRI looks directly at brain functioning, not secondary effects associated with lying such as anxiety, and its process is automated to reduce bias in test administration and results.

While the technology is already several years old, research activity has recently increased dramatically.

"It has really taken off, with more than a thousand articles published every year," said Hank Greely, a law professor and director of the Center for Law and Bioscience at Stanford Law School.

"It's just a matter of time before the fMRI will be used regularly in [litigation]," he said.

Whether the test is reliable enough to be used in legal cases now is a matter of debate among lawyers and scientists.

"I think it is ready today," said Robert Feldman, an attorney with Birnbaum & Godkin in Boston, who has handled wrongful conviction cases for the New England Innocence Project and sees the fMRI as a powerful tool where DNA evidence is unavailable.

But law professor David Faigman disagrees.

"In my opinion, the fMRI is still short of what it would take in terms of research to be admitted in all cases," he said. Faigman teaches evidence at the University of California Hastings College of Law and has published several books on science and the law.

Both Feldman and Faigman serve as legal advisors to CEPHOS, a Tyngsboro, Mass., company that launched its fMRI product two months ago and is marketing heavily to the legal community.

Steven Laken, the company's CEO, said he has been invited to speak to state and federal judges, and about half of the judges said they would admit the fMRI into evidence.

Another company that offers fMRI services, NoLieMRI of La Jolla, Calif., has received calls from lawyers handling rape, murder and arson cases, but no one has sought to admit the test into evidence yet, according to CEO Joel Huizenga.

As yet, the fMRI has apparently never been admitted in court for purposes of lie detection.

How the test works

The basis of the fMRI is that different areas of the brain control distinct functions.

"There's part of your brain that actually stops the truth from coming out. If you are going to lie, it's not just a random thought. You have to put it together and there's a part of the brain that constructs that," said Huizenga, who has a background in molecular biology.

"You lie in the front part of your brain, and you tell the truth in the back part," he added.

The fMRI looks at which area of the brain is more active by comparing which part is using more oxygen and therefore working harder.

A person undergoing an fMRI is placed in an MRI machine and asked a series of yes or no questions which he or she knows in advance.

Laken, who has a PhD in cellular molecular medicine, said his company displays the questions on a computer screen and asks the test-taker to answer by clicking with a mouse, thereby eliminating potential bias.

A movie is recorded of the brain functions, lighting up those areas that show the greatest activity.

If the "lying" area of the brain shows greater activity than the "truth-telling" area, this correlates to intentional deception.

Both companies claim accuracy rates well above 90 percent.

"We're not saying definitively that when that part of the brain is activated, you are being deceptive, but there certainly is a strong association that has proven to be much higher than one would expect," said Laken.

According to Laken, a set of control questions establishes the baseline for the relative degree of activity in the "truth" versus the "lying" portions of an individual's brain, and once that baseline is established each lie will indicate the same comparative level.

The test does not distinguish between truth and factual accuracy.

"What we can say is that this person's brain is reacting in such as way that it appears he believes what he's saying is truthful. That's different than saying that what this person is saying is correct," said Laken.

For example, an eyewitness may believe he or she is fingering the right suspect, which would be "truthful," but the witness could in fact be mistaken.

The major advantage of the fMRI over other types of lie detectors is that the data is crunched by a computer, so while the algorithms can be tweaked, the outcomes don't depend on the subjective judgment of the examiner.

However, Faigman said that although neuroscientists agree that brain activity is localized, there is no "smoking gun part of the brain that indicates lying." If there were, the testing would be 100 percent accurate, he said.

He also suggested that more research is needed on whether outcomes can be affected if the individual is taking drugs or is deliberately attempting to beat the test, as well as whether there are any cultural differences in brain activation patterns.

Ready for prime time?

So are fMRIs ready for prime time?

It depends on whom you ask.

Greely predicts it will take another 10 years for the test to be admissible.

"I'm concerned that jurors will take it too seriously. It's really interesting science, but a lot has not been worked out," he said, noting that each researcher is working on their own ideas without trying to replicate the work of others.

But Feldman said the fMRI is more reliable and scientifically rigorous than other tests currently admitted into evidence, such as skid marks or fingerprint evidence.

He said the main obstacle is the learning curve for lawyers and judges.

"I think people are skeptical because it's a brain scan and it sounds almost futuristic," said Feldman.

Faigman estimates courts are about six months to a year away from letting fMRIs in on a regular basis, but suggested that they could be admitted for limited uses right now, such as pre-trial negotiations in civil cases or habeas petitions in wrongful conviction cases.

"The results of an fMRI ought to be admissible on the theory that it raises substantial doubt if there are other doubts as well – such as a bad eyewitness – that perhaps should lead to a court granting habeas and a new trial," he said.

But he warned that it would be a mistake to treat the fMRI as a "magic bullet."

"It always has to be combined with other evidence. I can't think of any context where it should be allowed to operate all by itself," said Faigman.

Cost will be another issue in how widely the test is used.

NoLieMRI charges $5,000 per test, and an additional $5,000 if the case goes to court.

CEPHOS is currently performing the lie detection tests for free.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com