A Brooklyn attorney hopes to break new ground this week when he offers a brain scan as evidence that a key witness in a civil trial is telling the truth, Wired.com has learned.This attempt was rejected by the judge, on the grounds that assessing credibility is the role of the jury, not an expert witness. The judge did even seek to determine how reliable fMRI lie-detection is, and the reliability was not compared to that of traditional methods (e.g. letting the jury decide).
If the fMRI scan is admitted, it would be a legal first in the United States and could have major consequences for the future of neuroscience in court.
The lawyer, David Levin, wants to use that evidence to break a he-said/she-said stalemate in an employer-retaliation case. He’s representing Cynette Wilson, a woman who claims that after she complained to temp agency CoreStaff Services about sexual harassment at a job site, she no longer received good assignments. Another worker at CoreStaff claims he heard her supervisor say that she should not be placed on jobs because of her complaint. The supervisor denies that he said anything of the sort.
So, Levin had the coworker undergo an fMRI brain scan by the company Cephos, which claims to provide “independent, scientific validation that someone is telling the truth.”
Thus this case did not even reach the point that Frederick Schauer discusses when he argues that whether fMRI has a place in the courtroom should be determined by legal rather than scientific standards. It is well known that the lie-detection abilities of a jury are weak and unreliable. If the fMRI evidence increased the objectivity at all in judging the witness in this case, it might have made sense to allow the evidence.
However, it looks like we’re still stuck clinging to traditional lie-detection methods, not even willing to question if a new process makes more sense. Still I wouldn't dare suggest that fMRI has a place in the courtroom in the absence of comprehensive peer-reviewed research examining this application. The fMRI evidence was probably garbage in this case – but that doesn’t mean it didn’t deserve questioning, and it doesn’t mean fMRI evidence will be garbage in every future case. Brain scans performed by companies with a financial stake in the outcome should especially be taken with a grain of salt, but we’re likely to see more detailed assessments of this type of evidence in future court cases.