The end of lying as we know it?

India’s Novel Use of Brain Scans in Courts Is Debated

MUMBAI, India — The new technology is, to its critics, Orwellian. Others view it as a silver bullet against terrorism that could render waterboarding and other harsh interrogation methods obsolete. Some scientists predict the end of lying as we know it.

Now, well before any consensus on the technology’s readiness, India has become the first country to convict someone of a crime relying on evidence from this controversial machine: a brain scanner that produces images of the human mind in action and is said to reveal signs that a suspect remembers details of the crime in question.

For years, scientists have peered into the brain and sought to identify deception. They have shot infrared beams through liars’ heads, placed them in giant magnetic resonance imaging machines and used scanners to track their eyeballs. Since the Sept. 11 attacks, the United States has plowed money into brain-based lie detection in the hope of producing more fruitful counterterrorism investigations.

The technologies, generally regarded as promising but unproved, have yet to be widely accepted as evidence — except in India, where in recent years judges have begun to admit brain scans. But it was only in June, in a murder case in Pune, in Maharashtra State, that a judge explicitly cited a scan as proof that the suspect’s brain held “experiential knowledge” about the crime that only the killer could possess, sentencing her to life in prison.

Psychologists and neuroscientists in the United States, which has been at the forefront of brain-based lie detection, variously called India’s application of the technology to legal cases “fascinating,” “ridiculous,” “chilling” and “unconscionable.” (While attempts have been made in the United States to introduce findings of similar tests into court cases, these generally have been by defense lawyers trying to show the mental impairment of the accused, not by prosecutors trying to convict.)

“I find this both interesting and disturbing,” Henry T. Greely, a bioethicist at Stanford Law School, said of the Indian verdict. “We keep looking for a magic, technological solution to lie detection. Maybe we’ll have it someday, but we need to demand the highest standards of proof before we ruin people’s lives based on its application.”

Law enforcement officials from several countries, including Israel and Singapore, have shown interest in the brain-scanning technology and have visited government labs that use it in interrogations, Indian officials said.

Methods of eliciting truth have long proved problematic. Truth drugs tend to make suspects babble as much falsehood as truth. Polygraph tests measure anxiety more than deception, and good liars may not feel anxious. In 1998, the United States Supreme Court said there was “simply no consensus that polygraph evidence is reliable.”

This latest Indian attempt at getting past criminals’ defenses begins with an electroencephalogram, or EEG, in which electrodes are placed on the head to measure electrical waves. The suspect sits in silence, eyes shut. An investigator reads aloud details of the crime — as prosecutors see it — and the resulting brain images are processed using software built in Bangalore.

The software tries to detect whether, when the crime’s details are recited, the brain lights up in specific regions — the areas that, according to the technology’s inventors, show measurable changes when experiences are relived, their smells and sounds summoned back to consciousness. The inventors of the technology claim the system can distinguish between people’s memories of events they witnessed and between deeds they committed.

The Brain Electrical Oscillations Signature test, or BEOS, was developed by Champadi Raman Mukundan, a neuroscientist who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences in Bangalore. His system builds on methods developed at American universities by other scientists, including Emanuel Donchin, Lawrence A. Farwell and J. Peter Rosenfeld.

Despite the technology’s promise — some believe it could transform investigations as much as DNA evidence has — many experts in psychology and neuroscience were troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal. Publication of data from testing of the scans would allow other scientists to judge its merits — and the validity of the studies — during peer reviews.

“Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible,” said Dr. Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of electroencephalogram-based lie detection. “The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible.”

After passing an 18-page promotional dossier about the BEOS test to a few of his colleagues, Michael S. Gazzaniga, a neuroscientist and director of the SAGE Center for the Study of the Mind at the University of California, Santa Barbara, said: “Well, the experts all agree. This work is shaky at best.”

None of these experts have met the Indian inventors and the investigators using the test. One British forensic psychologist who has met them said he found the presentation highly convincing.

“According to the cases that have been presented to me, BEOS has clearly demonstrated its utility in providing admissible evidence that has been used to assist in the conviction of defendants in court,” Keith Ashcroft, a frequent expert witness in the British courts, said in an e-mail message.

Two states in India, Maharashtra and Gujarat, have been impressed enough to set up labs using BEOS for their prosecutors.

Sunny Joseph, a state forensic investigator in Maharashtra who used to work with Dr. Mukundan as a researcher on BEOS in Bangalore, said the test’s results were highly reliable. He said Dr. Mukundan had done extensive testing, as had the state.

Here in Maharashtra, about 75 crime suspects and witnesses have undergone the test since late 2006. But the technique received its strongest official endorsement, forensic investigators here say, on June 12, when a judge convicted a woman of murder based on evidence that included polygraph and BEOS tests.

The woman, Aditi Sharma, was accused of killing her former fiancé, Udit Bharati. They were living in Pune when Ms. Sharma met another man and eloped with him to Delhi. Later Ms. Sharma returned to Pune and, according to prosecutors, asked Mr. Bharati to meet her at a McDonald’s. She was accused of poisoning him with arsenic-laced food.

Ms. Sharma, 24, agreed to take a BEOS test in Mumbai, the capital of Maharashtra. (Suspects may be tested only with their consent, but forensic investigators say many agree because they assume it will spare them an aggressive police interrogation.)

After placing 32 electrodes on Ms. Sharma’s head, investigators said, they read aloud their version of events, speaking in the first person (“I bought arsenic”; “I met Udit at McDonald’s”), along with neutral statements like “The sky is blue,” which help the software distinguish memories from normal cognition.

For an hour, Ms. Sharma said nothing. But the relevant nooks of her brain where memories are thought to be stored buzzed when the crime was recounted, according to Mr. Joseph, the state investigator. The judge endorsed Mr. Joseph’s assertion that the scans were proof of “experiential knowledge” of having committed the murder, rather than just having heard about it.

In the only other significant judicial statement on BEOS, a judge in 2006 in Gujarat denied the test the status of “concluded proof” but wrote that it corroborated already solid evidence from other sources.

In writing his opinion on the Pune murder case, Judge S. S. Phansalkar-Joshi included a nine-page defense of BEOS.

Ms. Sharma insists that she is innocent.

Even as the debate continues over using scans to trip up obfuscators, researchers are developing new uses for the technology. No Lie MRI, a company in California, promises on its Web site to use the scans to help with developing interpersonal trust and military intelligence, among other tasks. In August, a committee of the National Research Council in Washington predicted that, with greater research, brain scans could eventually aid “the acquisition of intelligence from captured unlawful combatants” and “the screening of terrorism suspects at checkpoints.”

“As we enter more fully into the era of mapping and understanding the brain, society will face an increasing number of important ethical, legal and social issues raised by these new technologies,” Mr. Greely, the Stanford bioethicist, and his colleague Judy Illes wrote last year in the American Journal of Law & Medicine.

If brain scans are widely adopted, they said, “the legal issues alone are enormous, implicating at least the First, Fourth, Fifth, Sixth, Seventh and 14th Amendments to the U.S. Constitution.”

“At the same time,” they continued, “the potential benefits to society of such a technology, if used well, could be at least equally large.”

By Anand Giridharadas
September 15, 2008

http://www.nytimes.com/2008/09/15/world/asia/15brainscan.html?_r=1&oref=slogin

Hat tip: Joanne Cuccia

Posted September 23, 2008 01:42 PM
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