Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection

How will the courts react to the emerging technology ofdetecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highlyreliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the "mystique of science" and that the justice system would be "dehumanized." The legaljustifications for rejecting polygraph evidence are explored in order to illustrate that the judicial resistance to lie detection technologies, including neuro-imaging, can be expected to follow a similar pattern. The author argues that technologies that are widely accepted as reliable cannot be permitted to remain outside the justice system to deliver their own verdicts that are incompatible with those of the courts. The continued legitimacy of the justice system cannot tolerate this. The rules of evidence and, in particular, the constitutional right to make full answer and defense are the legal mechanisms by which this accommodation would take place.