Scientists at Berkeley can read your mind.

Well, not exactly. But reports that they are one step closer to building a mind-reading machine. The scientists used an fMRI machine to measure blood flow in the brain and tracked patterns of neural activity as subjects viewed a series of pictures. Using those patterns, they were able to tell which picture, out of a database of six million, the subject was viewing.

Now, it’s worth mentioning that the practical applications of this discovery are decades away, if that. Some scientists have called the frenzy over fMRI technology “the modern-day equivalent of phrenology,” and one researcher was able to extract data from an fMRI scan of a very dead fish that made it seem like the fish was still thinking. Still, this is too great a law school hypothetical to pass up: What if police officers could skip the hassle of interrogation and just scan your brain for pictures of the crime scene?

The Fourth Amendment issue is probably pretty straight-forward: Cops would need a warrant to reach into your brain. A warrant is needed before the government can perform a search in a place where you have a reasonable expectation of privacy, and if you don’t have a reasonable expectation of privacy in your brain, then it’s difficult to imagine where you would. But once they have the warrant, you hit the Fifth Amendment self-incrimination question, and that’s more complicated. On the one hand, the whole idea behind the Fifth Amendment is to stop the government from compelling somebody to say he or she did something. Forcing your way into someone’s brain sounds like the ultimate version of that. On the other hand, you can make a suspect give you fingerprints or stand in a lineup. You can subpoena a letter written last year saying “I did it,” and use it in court. It’s not crazy to imagine the Supreme Court creating a similar exception to the writing one–you’re not being forced to create the incriminating images in your brain. Instead, you just need to turn them over.

Finally, constitutional issues aside, there are still questions about how accurate brain scans can be when we know that memory itself can be extremely inaccurate. Erroneous eyewitness identifications show that the picture a person has in his mind is not necessarily an accurate representation of what he saw. Studies show that our recollections are a combination of our original experiences and intervening events, coaching, and changes we make ourselves to align what we saw with our idea of the whole. How can we expect a brain scan to extract an accurate image if the image in the brain isn’t accurate in the first place?

Liz Kelly

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2 Responses to Brain Scan Technology Presents Interesting Questions in Criminal Law

  1. issachar says:

    well you best believe it because they can read what you think.. no joke

  2. I don’t believe that a scientist can read our mind