Friday, September 07, 2012

The new lie-detector test?

Today saw publication of an opinion addressing "a matter of first impression in any jurisdiction": whether the results from a functional magnetic resonance imaging ("fMRI") lie detection test should have been admitted to prove that the defendant was not lying.  The defendant, a clinical psychiatrist and CEO of two healthcare companies, was accused of healthcare fraud and money laundering.  At trial, the district court rejected his attempt to introduce the results of an fMRI test showing that he was generally truthful when answering that his billing decisions were made without an intent to defraud.

Perhaps unsurprisingly, the new technology -- which purports to take detailed images of the parts of the brain associated with "truth telling" -- did not breeze past Daubert analysis.  Although there was some research backing the validity of the science, the district court found that even the supportive research recognized an error rate that was prohibitively high.  The Sixth Circuit opinion by Judge Stranch got into some slightly more philosophical areas, noting testimony from one of the supporters of the technology that "the issue that one faces with lie detection, is what is the real world baseline truth?"  In the words of pot-smoking college students everywhere: "It's like, what is truth anyway?"

So it looks like federal defender offices won't have to dip into already limited expert-witness budgets to pay for fMRI tests any time soon.  (It is not surprising that this issue was raised by a healthcare CEO and not, say, a meth dealer.)  But this question will continue to be raised, and this case will be an important early battle in the larger war over the capital-t "Truth."  Indeed, Judge Stranch quoted one professor in an ominous parenthetical: "[W]ere an accurate lie detector developed, the jury's unique role in determining witness credibility would be called into question." 

No comments: