Sixth Circuit Upholds fMRI Lie Detection Evidence as Inadmissible | Vanderbilt Journal of Entertainment & Technology Law

On September 7th, in the case of U.S. v. Semrau, the Court of Appeals for the Sixth Circuit issued the first decision by an appellate court–state or federal–on the admissibility of functional Magnetic Resonance Imaging (fMRI) lie detection evidence. The court ruled such evidence inadmissible under both rules 702 and 403 of the Federal Rules of Evidence (FRE).

Dr. Semrau was charged and convicted for healthcare fraud stemming from fraudulent Medicare reimbursement claims. Dr. Semrau claimed that he had not intended to file false reimbursement claims, but had instead done so as the result of complicated and confusing billing codes. To corroborate his claim, he presented evidence that he had been misinformed by one of the healthcare companies he billed through as well as results of fMRI brain scans that his expert witness interpreted as indicating that he was being truthful when claiming that his reimbursements were submitted without the intent to defraud. The trial court, using the Magistrate judge’s Report and Recommendation (R&R), determined that such evidence was inadmissible under both FRE 702 and FRE 403. The primary question for the Court of Appeals was whether this ruling was accurate.

Using fMRI as a lie detector has been a hot topic in the neurosciences for over a decade. It did not take long for the legal field to see the potential inherent value in fMRI lie detection technology. If accurate, the technology would promise the end to false convictions and cast aside the role of the jury as mind-reader, forever. Further, out-of-court applications of this technology have excited governments, corporations, and individuals, leading to the formation of at least two companies (Cephos and No Lie MRI) that market this technology. Even more, initial studies established that fMRI was adept at determining whether an individual was being deceptive, fabricating memories, or had recognized a stimulus, such as a face. So, why did the trial court and appellate court find such evidence inadmissible?

Under Daubert, judges are tasked with the responsibility of controlling what scientific testimony is introduced at trial. In doing so, judges should consider at least five factors of the scientific methodology being introduced. These are the falsifiability of the technique, the extent to which the methodology has been subject to peer review, the known or potential error rate, the existence and maintenance of standards, and, finally, the general acceptance of the technique in the scientific community. Upon review, the trial court found that while fMRI lie detection met some of the factors, it did not yet have a fully known or potential error rate and the technique did not have established standards for its use. Further, the court found that fMRI lie detection had not yet reached the point of general acceptance by the scientific community. The Sixth Circuit agreed with the trial court’s finding on these issues and ultimately determined that while there may be some value to the fMRI evidence, on the whole the expert testimony would not have helped the trier of fact understand the evidence or to determine a fact in issue, as is required under FRE 702.

The Sixth Circuit also upheld the trial court’s determination that the fMRI data was inadmissible under FRE 403. This determination was based on three factors: that the fMRI test was done unilaterally – without the government’s supervision or testing, that lie-detection results generally, and fMRI lie detection results in particular, are highly prejudicial, and that the methodology behind the testing was flawed because it did not allow determinations of Dr. Semrau’s truthfulness towards specific questions or charges.

It is easy for many to presume that the findings of the trial court and the appellate court are a blow to the Law and Neuroscience “movement” of the past several years. What is important to note, however, is that the Law and Neuroscience community is generally in agreement with the determinations of the trial court in Semrau as it regards the use of fMRI-based lie detection technologies. One member of the Law and Neuroscience Project, Marc Raichle, was, in fact, an expert witness for the government, arguing against the introduction of this evidence. For now, Semrau stands primarily as a cautionary tale for those who seek to use the developing science of the brain to make expansive claims that are unsubstantiated by the limitations of current technology and knowledge. However, fMRI technology is only in its infancy and courts will soon enough have to address the issue of fMRI-based lie detection again, hopefully at a time when the science behind it is better understood, and more applicable to real-world scenarios. Until then we can ponder how a legal system might handle a hypothetical technology that can allow deep insights into a brain’s past, present, and future.

Matt Ginther

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