I've posted before about neuroscience and the possibility of examining or scanning brains. Here's an article about the conviction of an Indian (that's the nation of India) woman for the murder of her ex-fiance. Included in the evidence admitted against her was a brain scan to which she consented. The court accepted the prosecutors' contention that the scan's results demonstrated that the defendant had memories of the murder.
A law professor at the University of Iowa and the University College, Galway, examines the implications of accepting such evidence in criminal trials under human rights law. Does admitting such evidence still protect the rights of the accused? And more particularly, is such evidence scientifically sound?
Brian Richard Farrell, Univesity of Iowa College of Law and University College, Galway, Irish Centre for Human Rights, has published Can't Get You Out of My Head: The Human Rights Implications of Using Brain Scans as Criminal Evidence, in volume 4 of the Interdisciplinary Journal of Human Rights Law (2010). Here is the abstract.
The June 12, 2008, conviction of a woman for the murder of her former fiancé in India marked the dawn of a new era for the use of scientific technology in law enforcement. For the first time, a brain scan was admitted by a court against a criminal defendant as evidence that she had experiential knowledge of the alleged crime. While the use of such technology is currently very limited, strong interest exists in its development for use in the realms of both law enforcement and national security.
This article analyzes the use of brain scans purporting to show the presence or absence of memory of an event as evidence against criminal defendants under the civil liberties guarantees of international and regional human rights instruments. It begins with an overview of brain scan technology and its potential application in criminal prosecutions. The article then considers the scientific and civil liberties arguments against the use of such evidence in this context. Finally, it draws conclusions as to the legality of the use of brain scan evidence under prevailing human rights norms.
Download the article from SSRN at the link.
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