India’s Novel Use of Brain Scans in Courts Is Debated

[Eugen Leitl]

http://www.nytimes.com/2008/09/15/world/asia/15brainscan.html?_r=2&oref=login&pagewanted=print

September 15, 2008

Indiabs Novel Use of Brain Scans in Courts Is Debated

By ANAND GIRIDHARADAS

MUMBAI, India b The new technology is, to its critics, Orwellian. Others view
it as a silver bullet against terrorism that could render waterboarding and
other harsh interrogation methods obsolete. Some scientists predict the end
of lying as we know it.

Now, well before any consensus on the technologybs readiness, India has
become the first country to convict someone of a crime relying on evidence
from this controversial machine: a brain scanner that produces images of the
human mind in action and is said to reveal signs that a suspect remembers
details of the crime in question.

For years, scientists have peered into the brain and sought to identify
deception. They have shot infrared beams through liarsb heads, placed them in
giant magnetic resonance imaging machines and used scanners to track their
eyeballs. Since the Sept. 11 attacks, the United States has plowed money into
brain-based lie detection in the hope of producing more fruitful
counterterrorism investigations.

The technologies, generally regarded as promising but unproved, have yet to
be widely accepted as evidence b except in India, where in recent years
judges have begun to admit brain scans. But it was only in June, in a murder
case in Pune, in Maharashtra State, that a judge explicitly cited a scan as
proof that the suspectbs brain held bexperiential knowledgeb about the crime
that only the killer could possess, sentencing her to life in prison.

Psychologists and neuroscientists in the United States, which has been at the
forefront of brain-based lie detection, variously called Indiabs application
of the technology to legal cases bfascinating,b bridiculous,b bchillingb and
bunconscionable.b (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.)

bI find this both interesting and disturbing,b Henry T. Greely, a bioethicist
at Stanford Law School, said of the Indian verdict. bWe keep looking for a
magic, technological solution to lie detection. Maybe webll have it someday,
but we need to demand the highest standards of proof before we ruin peoplebs
lives based on its application.b

Law enforcement officials from several countries, including Israel and
Singapore, have shown interest in the brain-scanning technology and have
visited government labs that use it in interrogations, Indian officials said.

Methods of eliciting truth have long proved problematic. Truth drugs tend to
make suspects babble as much falsehood as truth. Polygraph tests measure
anxiety more than deception, and good liars may not feel anxious. In 1998,
the United States Supreme Court said there was bsimply no consensus that
polygraph evidence is reliable.b

This latest Indian attempt at getting past criminalsb defenses begins with an
electroencephalogram, or EEG, in which electrodes are placed on the head to
measure electrical waves. The suspect sits in silence, eyes shut. An
investigator reads aloud details of the crime b as prosecutors see it b and
the resulting brain images are processed using software built in Bangalore.

The software tries to detect whether, when the crimebs details are recited,
the brain lights up in specific regions b the areas that, according to the
technologybs inventors, show measurable changes when experiences are relived,
their smells and sounds summoned back to consciousness. The inventors of the
technology claim the system can distinguish between peoplebs memories of
events they witnessed and between deeds they committed.

The Brain Electrical Oscillations Signature test, or BEOS, was developed by
Champadi Raman Mukundan, a neuroscientist who formerly ran the clinical
psychology department of the National Institute of Mental Health and Neuro
Sciences in Bangalore. His system builds on methods developed at American
universities by other scientists, including Emanuel Donchin, Lawrence A.
Farwell and J. Peter Rosenfeld.

Despite the technologybs promise b some believe it could transform
investigations as much as DNA evidence has b many experts in psychology and
neuroscience were troubled that it was used to win a criminal conviction
before being validated by any independent study and reported in a respected
scientific journal. Publication of data from testing of the scans would allow
other scientists to judge its merits b and the validity of the studies b
during peer reviews.

bTechnologies which are neither seriously peer-reviewed nor independently
replicated are not, in my opinion, credible,b said Dr. Rosenfeld, a
psychologist and neuroscientist at Northwestern University and one of the
early developers of electroencephalogram-based lie detection. bThe fact that
an advanced and sophisticated democratic society such as India would actually
convict persons based on an unproven technology is even more incredible.b

After passing an 18-page promotional dossier about the BEOS test to a few of
his colleagues, Michael S. Gazzaniga, a neuroscientist and director of the
SAGE Center for the Study of the Mind at the University of California, Santa
Barbara, said: bWell, the experts all agree. This work is shaky at best.b

None of these experts have met the Indian inventors and the investigators
using the test. One British forensic psychologist who has met them said he
found the presentation highly convincing.

bAccording to the cases that have been presented to me, BEOS has clearly
demonstrated its utility in providing admissible evidence that has been used
to assist in the conviction of defendants in court,b Keith Ashcroft, a
frequent expert witness in the British courts, said in an e-mail message.

Two states in India, Maharashtra and Gujarat, have been impressed enough to
set up labs using BEOS for their prosecutors.

Sunny Joseph, a state forensic investigator in Maharashtra who used to work
with Dr. Mukundan as a researcher on BEOS in Bangalore, said the testbs
results were highly reliable. He said Dr. Mukundan had done extensive
testing, as had the state.

Here in Maharashtra, about 75 crime suspects and witnesses have undergone the
test since late 2006. But the technique received its strongest official
endorsement, forensic investigators here say, on June 12, when a judge
convicted a woman of murder based on evidence that included polygraph and
BEOS tests.

The woman, Aditi Sharma, was accused of killing her former fiancC), Udit
Bharati. They were living in Pune when Ms. Sharma met another man and eloped
with him to Delhi. Later Ms. Sharma returned to Pune and, according to
prosecutors, asked Mr. Bharati to meet her at a McDonaldbs. She was accused
of poisoning him with arsenic-laced food.

Ms. Sharma, 24, agreed to take a BEOS test in Mumbai, the capital of
Maharashtra. (Suspects may be tested only with their consent, but forensic
investigators say many agree because they assume it will spare them an
aggressive police interrogation.)

After placing 32 electrodes on Ms. Sharmabs head, investigators said, they
read aloud their version of events, speaking in the first person (bI bought
arsenicb; bI met Udit at McDonaldbsb), along with neutral statements like
bThe sky is blue,b which help the software distinguish memories from normal
cognition.

For an hour, Ms. Sharma said nothing. But the relevant nooks of her brain
where memories are thought to be stored buzzed when the crime was recounted,
according to Mr. Joseph, the state investigator. The judge endorsed Mr.
Josephbs assertion that the scans were proof of bexperiential knowledgeb of
having committed the murder, rather than just having heard about it.

In the only other significant judicial statement on BEOS, a judge in 2006 in
Gujarat denied the test the status of bconcluded proofb but wrote that it
corroborated already solid evidence from other sources.

In writing his opinion on the Pune murder case, Judge S. S. Phansalktasks. In
August, a committee of the National Research Council in Washington predicted
that, with greater research, brain scans could eventually aid bthe
acquisition of intelligence from captured unlawful combatantsb and bthe
screening of terrorism suspects at checkpoints.b

bAs we enter more fully into the era of mapping and understanding the brain,
society will face an increasing number of important ethical, legal and social
issues raised by these new technologies,b Mr. Greely, the Stanford
bioethicist, and his colleague Judy Illes wrote last year in the American
Journal of Law & Medicine.

If brain scans are widely adopted, they said, bthe legal issues alone are
enormous, implicating at least the First, Fourth, Fifth, Sixth, Seventh and
14th Amendments to the U.S. Constitution.b

bAt the same time,b they continued, bthe potential benefits to society of
such a technology, if used well, could be at least equally large.b