http://www.nytimes.com/2008/09/15/world/asia/15brainscan.html?_r=1&pagewanted=all&oref=slogin
India's Novel Use of Brain Scans in Courts Is Debated
By ANAND GIRIDHARADAS
Published: September 14, 2008
MUMBAI, India — 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 technology's 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 liars'
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 — 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 suspect's brain held
"experiential knowledge" 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
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.)
"I find this both interesting and disturbing," Henry T. Greely, a
bioethicist at Stanford Law School, said of the Indian verdict. "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."
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
"simply no consensus that polygraph evidence is reliable."
This latest Indian attempt at getting past criminals' 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 — as
prosecutors see it — and the resulting brain images are processed
using software built in Bangalore.
The software tries to detect whether, when the crime's details are
recited, the brain lights up in specific regions — the areas that,
according to the technology's 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 people's 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 technology's promise — some believe it could transform
investigations as much as DNA evidence has — 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 — and the validity of the studies — during peer reviews.
"Technologies which are neither seriously peer-reviewed nor
independently replicated are not, in my opinion, credible," said Dr.
Rosenfeld, a psychologist and neuroscientist at Northwestern
University and one of the early developers of
electroencephalogram-based lie detection. "The fact that an advanced
and sophisticated democratic society such as India would actually
convict persons based on an unproven technology is even more
incredible."
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: "Well, the experts all
agree. This work is shaky at best."
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.
"According 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,"
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
test's 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 fiancé,
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
McDonald's. 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. Sharma's head, investigators said,
they read aloud their version of events, speaking in the first person
("I bought arsenic"; "I met Udit at McDonald's"), along with neutral
statements like "The sky is blue," 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. Joseph's assertion that the scans were proof of
"experiential knowledge" 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 "concluded proof" but
wrote that it corroborated already solid evidence from other sources.
In writing his opinion on the Pune murder case, Judge S. S.
Phansalkar-Joshi included a nine-page defense of BEOS.
Ms. Sharma insists that she is innocent.
Even as the debate continues over using scans to trip up obfuscators,
researchers are developing new uses for the technology. No Lie MRI, a
company in California, promises on its Web site to use the scans to
help with developing interpersonal trust and military intelligence,
among other tasks. In August, a committee of the National Research
Council in Washington predicted that, with greater research, brain
scans could eventually aid "the acquisition of intelligence from
captured unlawful combatants" and "the screening of terrorism suspects
at checkpoints."
"As 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," 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, "the legal issues alone
are enormous, implicating at least the First, Fourth, Fifth, Sixth,
Seventh and 14th Amendments to the U.S. Constitution."
"At the same time," they continued, "the potential benefits to society
of such a technology, if used well, could be at least equally large."
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