A Brave New World of Interrogation Jurisprudence?

Abstract

I doubt that the uneasiness about electrical lie detectors would disappear even if they were refined to place their accuracy beyond question. Indeed, I would not be surprised if such a development would only heighten the sense of unease and the search for plausible legal objections.We are told that functional magnetic resonance imaging (fMRI) is “not ready for use, despite optimism about its commercial potential.” This is probably true—it is also, in terms of legal analysis, irrelevant. Although the development of fMRI technology is still in its relative infancy, there is no guarantee that the law governing its use will wait for it to grow up. Thus, the recent backlash against the initial flurry of articles, both academic and general, on the promise and legal issues surrounding fMRI is unwarranted. The conclusion that so many—even many of the contributors to this volume—seem to be drawing, namely, that law, as a field, must abstain from analyzing the legal implications of fMRI until those with more scientific expertise deem it ready to look at, is at best wrong and, at worst, irresponsible.