By Jeffrey Yang

Image courtesy to National Institute of Health, NIH Image Gallery, Flickr

On June 20th and 21st, Emory University students in the Neuroscience and Behavioral Biology (NBB) summer study abroad program attended the Neuroethics Network session held at the Institut du Cerveau et de la Moelle Épinière (ICM). We attended a number of lectures by many esteemed professors, ranging from researchers to philosophers. Two professors’ talks stood out to me in particular. The first talk, entitled Neuroimaging, Dementia, and the Law, was by Ryan Darby, M.D., an assistant professor of neurology at Vanderbilt University. He touched on dementia, neuroimaging, and the ethical implications of using such technology to identify preclinical states of dementia. The talk following Darby’s was a joint presentation by Debra Wilson, PhD, an associate professor at Canterbury University and Jeanne Snelling, PhD, a lecturer at the University of Otago entitled Legal and Ethical Implications of the Use of Neuroimaging in Criminal Investigations. This talk was on Brain Fingerprinting, which aims to access the memory trace, or means by which memories are stored as biophysical or biochemical changes in the brain in response to external stimuli, to see if a suspect was present at a crime scene. Both of these talks were of interest to me not only because of the significance of the content, but also because I had watched a Black Mirror episode about Brain Fingerprinting technology and a depiction of what could happen if a person was questioned and privy to a different crime.

I was both fascinated and frightened by Brain Fingerprinting technology. On one hand, I had no idea preliminary technology had been developed to depict correlations in someone’s recollection of a word and whether they were lying given a stimulus. On the other, I was frightened by the implications this may have in our criminal justice system. As Drs. Wilson and Snelling pointed out, what does this mean for our 5th amendment right against self-incrimination if undergoing Brain Fingerprinting becomes required by the state? Relating to the Black Mirror episode on Brain Fingerprinting, what if you committed murder at an earlier date and implicated yourself for crime B (which involved a murder in a similar fashion) that you didn’t commit but are currently a suspect for? This brought me back to Dr. Darby’s lecture on dementia and neuroimaging. What if the suspect subject to Brain Fingerprinting had dementia and believed they saw something that wasn’t there? What are the ethical and legal implications of a circumstance such as that?

First, let’s provide some background on Wilson and Snelling’s Brain Fingerprinting technology. It’s actually an electroencephalography (EEG) cap that participants wear while they are presented with a battery of words. The test utilizes the p300 neural signal to see if specific words trigger a brain response. There is a difference in the results when a participant is surprised because a word is significant to them versus when the word is not significant to them (Wilson and Snelling, unpublished).

Image courtesy to Simon Fraser University – UniversityCommunication, Flickr

Because of how fascinated I was with their presentations and potentially conflicting viewpoints, I had to talk to all three presenters. Dr. Darby replied: “First, I have a lot of problems with the EEG p300 signal for memory detection. This signal is not really related to what is a memory, but what is surprising. Showing 100 regular words and one related to a memory might elicit a p300 response, but so would seeing 100 boring words and one emotionally salient word related to a crime. So, I don’t think it’s a very good test. It could be abnormal in dementia patients because they have memory problems or because they don’t generate that same surprise response” (Darby, 2018). Dr. Darby’s response also reminded me of a discussion we had in class about how a person suffering from dementia is no longer the same person.

Meanwhile, Drs. Wilson and Snelling acknowledged potential drawbacks to the test and said that as of right now, the EEG p300 signal test is only used as supplementary material in court for people who have “healthy” brain activity (Wilson & Snelling, 2018). Dr. Snelling stated, “it is simply uncertain what effect dementia would have on memory and recognition in the context of brain fingerprinting” and that “[dementia, drugs, and mental illness] are limits of what is still considered to be an experimental technology.” (Snelling, 2018). A future experiment they have planned is to test people suffering from dementia to see if this test would yield results similar to their initial findings (Wilson & Snelling, 2018). Addressing my Black Mirror question, they assured me that as the test relies on EEG responses to questions, the questions will be specific enough to the crime scene to not yield a false positive (Wilson & Snelling, 2018).

Image courtesy to Pixabay

Although the value of the p300 signal test in criminal cases is debated, there doesn’t seem to be a clear answer on whether the test should even be used in courts at all or the ethics of conducting such a test. Research suggests that Brain Fingerprinting is unproven and questionable (Rosenfeld, 2005), yet is used in states like Iowa (Harrington v. State, 2001) and countries like India (Deceiving the Law, 2008). Another popular example of this is the Netflix documentary series Making a Murderer, in which the main character, Steven Avery, was accused of murder despite him insisting otherwise and was jailed for it for over a decade. Avery’s lawyer then had him go through brain fingerprinting and tried to get it to be admissible as scientific evidence in the courts of Wisconsin. I am fascinated by this new technology, and if the specificity and sensitivity of the p300 test reaches high accuracy, I think this would save a lot of time and resources for law enforcement. The test has already exonerated a man who was wrongfully imprisoned (Wilson & Snelling, 2018), but I am still considering the implications this could have on our 5th amendment rights and whether suspects could opt out of this test in the future. Especially since we already use DNA tests from blood samples in our criminal prosecutions (what appears to be a violation of our 5th amendment rights by using our bodies), will we keep redrawing the line until it reaches our own brains (Rothstein & Carnahan, 2001)? Law enforcement and lawmakers seem to have found a loophole, claiming that taking these bodily samples are not testimonial evidence but material evidence (Strassler, 2008). To what extent, then, do people have a right to their own thoughts? In addition, would a Brain Fingerprinting test even be accurate due to the unreliability of the EEG test in people with different neurological conditions (Holler et al., 2017)?

Over the course of my study abroad trip, this conference was one of the things I was most excited for. The ethical concerns brought up from these lectures really challenged my own viewpoints on certain innovations. This was an experience that really opened my eyes and was particularly educational. I would like to thank Dr. Karen Rommelfanger and the Neuroethics Network Conference for allowing me and the students of Emory University the opportunity to participate in this conference.

Jeffrey is a junior at Emory University pursuing a B.S. in Neuroscience and Behavioral Biology. His current research focuses on neural mechanisms of motivation and effort-based decision making. He is interested in enhancing scientific literacy, cancer metastasis, teaching, and hopes to attend medical school in the future pursuing an MD/PhD.

References

Darby, Ryan. 2018. Personal communication.

Höller, Y., Uhl, A., Bathke, A., Thomschewski, A., Butz, K., Nardone, R., … Trinka, E. (2017). Reliability of EEG Measures of Interaction: A Paradigm Shift Is Needed to Fight the Reproducibility Crisis. Frontiers in Human Neuroscience, 11. https://doi.org/10.3389/fnhum.2017.00441

Rosenfeld, J. P. (2005). “Brain fingerprinting: A critical analysis” (PDF). Scientific Review of Mental Health Practice. 4 (1): 20-37.
Rothstein, M. A. & Carnahan, S. (2001). Legal and policy issues in expanding the scope of law enforcement dna data banks. Brooklyn Law Review 67(1), 127-178. 

Snelling, Jeanne. 2018. Personal Commutation.
Strasser, M. R. (2008, August 5). Fifth Amendment. Retrieved June 26, 2018, from https://www.law.cornell.edu/wex/fifth_amendment
Wilson, Debra & Snelling, Jeanne. 2018. Personal Commutation.