Brain Scans in the Courts: Prosecutor’s Dream or Civil Rights Nightmare? image

Inside Science, March 14, 2018
James Gaines, quoting Francis Shen (Senior Fellow in Law and Applied Neuroscience)


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From the article:

 One of the foundations of the U.S. legal system is the Bill of Rights, which enshrines the idea that there are certain individual liberties and inalienable freedoms that governments and the courts cannot infringe upon, including the freedom from self-incrimination, for example, and the right to a speedy trial by an impartial jury.

But as technology has brought new advances, such as fingerprint identification or DNA analysis, society has had to continually re-examine how such advances may be used or abused in legal proceedings. Today, the ability to scan the human brain and see inside people's minds is forcing society to evaluate how evidence from neuroscience should be used in a court of law and what protections may be needed to ensure it will not undermine a person's rights.

“Once it's admitted, then the next court doesn't necessarily have to do all of that difficult analysis again,” said Francis Shen, a law professor at the University of Minnesota. “They can simply say, 'Hey, look at this previous case that admitted the same type of evidence. We might admit it too.’ So the stakes can be pretty high.”

“If it's testimonial, there are a set of protections that apply. That is, you can't be forced to testify against yourself,” said Shen. The cops would need the suspect’s informed consent. “But if it's just physical evidence, you can't refuse to give your fingerprints.”

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bioethics health law policy neuroscience regulation