India has introduced brain scanning and mapping techniques (Brain Electrical Oscillations Signature test) in criminal investigations and this has also been admitted in a sessions court. Using it in investigations to help crack the case is one thing, but to base a judgement on it alone is scary, especially when countries with cutting edge neuroscience research have chosen caution before rushing into applying this little known technology. Before the media gushes at new technological developments (only to later turn to fear and moral panic — read here, here, and here), we have to engage with the issue of this “magical solution”, which can help investigators detect lies. This requires the highest standards of proof before people’s lives are ruined by such technologies. So how did the Indian media report it? A Google search for Times of India returns two results. Hindustan Times and Indian Express return none, while The Hindu returned two results. Times of India (Natu:2008) reported on the use of Brain Electrical Oscillations Signature tests by investigators to secure a criminal conviction first:
MUMBAI: The state police can now bank on a forensic tool to achieve speedy convictions. For the first time in Maharashtra, life sentences were meted out to the accused based on the findings of Brain Electrical Oscillation Signature (BEOS) profiling. Reports of these tests, conducted at the state forensic lab in Kalina, were held admissible in sessions courts in two brutal cases of murder.
“BEOS involves the application of electro-encephalogram. Electrodes are attached to different parts of the brain to detect electrical activation in the brain. The accused is asked to wear a cap with 32 electrodes, of which two are placed on each earlobe and rest on various parts of the brain. Probes (short questions) are recorded in a computer and presented to an accused. He is asked to sit with eyes closed and listen to the probes,” director of the state forensic lab, Rukmani Krishnamurthy, told TOI.
In comparison, The Hindu (Raghava M:2008) reported:
BANGALORE: An expert committee studying the efficacy of brain mapping criminal suspects has concluded that it is unscientific and should be discontinued as an investigative tool and as evidence in courts.
The six-member committee headed by National Institute of Mental Health and Neuro Sciences (NIMHANS) Director D. Nagaraj said there was a need to thoroughly examine the procedure and bring it up to established standards.
New York Times (Giridharadas:2008) reported:
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.)
The introduction and admission of evidence based on technologies such as BEOS should have been widely reported and debated by the media. There are issues of reliability and ethics. As rightly argued by Henry T. Greely, a bioethicist at Stanford Law School:
“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.”
Even if we discounted the NYT report as being negative of Indian scientific and investigative achievements, Indian media needs to have a) reported the introduction of such technologies as it concerns every citizen; b) should have demanded a full explanation from the state and experts on the matter. Barbara Sahakian, professor of neuropsychology at Cambridge University, told The Daily Telegraph “Do we want to become a Minority Report society where we’re preventing crimes that might not happen?” (Leapman:2007). As Kenneth R. Foster, Paul Wolpe, and Arthur L. Caplan argue in Spectrum:
One central problem of neuroethics is in establishing the appropriate limits of human intervention in our cognitive (knowledge processing) and affective (emotional) functioning. Should the contents of our minds be sacrosanct, or should police, doctors, employers, school administrators, or parents have the right to probe into a person’s honesty, motivations, phobias, memory, aptitudes, or state of health? How far should we go in using technology to enhance our abilities, and who should have access to and control over the technologies we use?
Some of the prospective ethical dilemmas raised by neuroscience are similar to those that concern many ethicists about genetics. One important question is: how do we minimize the harm to an individual caused by an incorrect test result? Professionals developing the technologies described in this article must take this issue far more seriously than they have so far.
The last word is from Aharoni et al (2008):
Like any new science, neuroscience is vulnerable to abuse. For these reasons, neuroscientists will, and ought to be, burdened with the responsibility not only of generating data but also of criticizing and thwarting those abuses. This dual role for neuroscientists is imperative if neuroscience is to have a positive effect on law.
Aharoni, Eyal; Funk, Chadd; Sinnott-Armstrong, Walter; Gazzaniga, Michael1 (2008) ‘Can Neurological Evidence Help Courts Assess Criminal Responsibility? Lessons from Law and Neuroscience’ Annals of the New York Academy of Sciences, Volume 1124, Number 1, March 2008 , pp. 145-160(16)
Kenneth R. Foster, Paul Wolpe, and Arthur L. Caplan Bioethics and The Brain Spectrum [Online] here
Giridharadas, Anand (2008) ‘India’s Novel Use of Brain Scans in Courts Is Debated’ New York Times, Sep 14 [Online] here
Leapman, Ben (2007) ‘Crooks may face ‘sci-fi’ brain scan’ The Daily Telegraph, 11 Feb, 1:04AM GMT [Online] here
Natu, Nitasha (2008) ‘This brain test maps the truth’ Times of India, 21 Jul, 0348 hrs IST [Online] here
Raghava M (2008) ‘Stop using brain mapping for investigation and as evidence’ The Hindu, Sep 6 [Online] here