Tuesday, June 26, 2007

New Paper on Neuro-Imaging and Credibility

I see that Charles Keckler has published an article on the use of neural imaging to assess witness credibility. See Charles Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings Law Journal No. 3 (2006). The author's SSRN abstract of this paper states:
The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.
I have not yet read this paper. However, it should be noted in general (i.e., without any intention on my part to cast any aspersions on the quality of this particular paper, which I have not read) veracity is not synonymous with credibility; a variety of variables other than veracity vel non can affect the credibility of a witness. For example: poor memory, poor sensory capacities (e.g., poor eyesight, poor hearing), non-objective (but "honest") interpretation of sensory signals (i.e., "bias" and "interest"), and situational limitations on the ability of a witness to perceive (i.e., in legal parlance, defects in "personal knowledge" -- e.g., given the witness' distance from the event she reports, whether or not the witness was in a position to see "what happened"). As generations of both trial lawyers and psychologists (and writers of fiction -- think Shakespeare -- and other students of human behavior) know, these variables are far from insignificant.


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