The Effectiveness of Brain Fingerprinting in Criminal Courts

Brian Mazurowski

Utica College

Law of Cybercrime

CRJ 335 – Spring 2014

Brain Fingerprinting Effectiveness in Criminal Law

Brian MazurowskiUtica College

Brain fingerprinting is a technique that is controversially increasing in notoriety. It has helped wrongfully convicted persons prove their innocence. However, many skeptics argue that brain fingerprinting is a not a perfected science and should not be admissible in court. This research allows viewers to come to their own conclusion, as to should brain fingerprinting be admissible in the court of law or not. Brain fingerprinting is administered by the subjects be shown a series of photos, some relating to a crime scene, and then having their brain waves are measured by-electrodes taped to the scalp. Scientists then search for a specific brain wave response, called a “memory and encoding related multifaceted electroencephalographic response, or MERMER. If the subjects show signs of recognition, then they obviously committed the criminal act in question. This research takes a closer look at the technique and how has it been reviewed in the scientific field, as well as law in different countries around the world. It is applicable that brain fingerprinting is admissible in some sovereign states; however its application is inconclusive in others.

Technology has always been the prime tool in the war on crime. The future of policing

could possibly lie within the technique called fingerprinting (Wells, 2004). For example this tool

could be used for tackling predatory pedophiles (Wells, 2004). In actuality, brain fingerprinting

has been used in America for over a decade. This innovative device measures brain waves, and

can indicate when somebody is not telling the truth. The technique was developed by Dr. Larry

Farwell three years ago and uses a highly sensitive scanner that looks directly into the brain

(Wells, 2004).

This procedure is performed by the subjects being shown a series of photos, some relating

to a crime scene, and then their brain waves are measured byelectrodes taped to the scalp (Wells,

2004). An electroencephalograph (EEG) reads neural activity at the moment a subject is exposed

to words or images that would have meaning only for someone involved in a crime, and indicates

whether that word or image is already stored in the subject’s brain (Blackwell, 2008). This

specific brain wave response is a “memory and encoding related multifaceted

electroencephalographic response, known as MERMER” (Ji-ho, 2003).

Therefore, brain fingerprinting exploits the fact that the brain emits an electrical signal

known as a P300, exactly 300 milliseconds after it is confronted with a stimulus that has special

significance to that individual (McKie, 2004). Farwell declares that people, even serial killers,

“remember the major events in their life … that tend to have a solid record in the brain” (McKie,

2004). Hence, a robber will inadvertently emit a P300 signal when shown an image of his victim

or the gun he used to rob him. An innocent person who has never met the victim or used a gun

will not emit such a signal (McKie, 2004).

Farwell told the newspaper, The Observer, that he had already used the technique with

success in mock crimes involving FBI agents, in order to discover who possessed knowledge

hidden from others (McKie, 2004). Therefore, Farwell believes brain fingerprinting could have

vital criminal and security uses. An example would be a terrorist attempting to hijack and crash a

jumbo jet. Officials would be able to discover the terrorist’s intent through his reactions to

photographs of aircraft cockpits (McKie, 2004). In response to these effective tests, the CIA

began to support Farwell with finances, allowing him, to establish his own company, called

Brain Fingerprinting Laboratories, which markets the technique (McKie, 2004).

Supporters of brain fingerprinting make some strong claims for the technique because they

determine with near accuracy, whether or not a subject is telling the truth about witnessing

certain events (Witchalls, 2004). In addition, advocates of brain fingerprinting say that, unlike

the old-fashioned polygraph tests that measure pulse rate, blood pressure and changes in the

skin’s electrical conductivity, brain fingerprinting cannot be fooled by relaxed, well-prepared

criminals (Witchalls, 2004). On the other hand, there are critics against the brain fingerprinting

technique.

Opposition dismisses the merit of the technique, protesting that too few studies have been

done to judge whether it works or not (Witchalls, 2004). One such challenger is Professor Peter

Rosenfeld, of Northwestern University in Evanston, Illinois who believes that insufficient

attention has been paid to brain fingerprinting. Rosenfeld suggests there are factors that could

distort the outcomes of brain fingerprint profiles (McKie, 2004). These factors include memories

that change over time and maybe the discovery that psychopaths may have very different

responses than others. Therefore, Rosenfeld reports that “it will take a substantial amount of

research before this is ready” (McKie, 2004).

Additionally, Keith Ashcroft, head of the Center for Forensic Psychopathology in Manchester,

says “there are certain psychological defenses which stop people remembering things, and one of

those is trauma. But whether you can recover those memories from trauma is a massive debate”

(Witchalls, 2004).

Taking a closer look, it had long been thought that memories associated with traumatic

events are those most accurately etched on our minds, but an experiment in 1986 on a group of

US students showed memories of the Challenger shuttle disaster faded significantly after three

years (Witchalls, 2004). Correlating to this experiment, Steven Rose, Director of the Brain and

Behavior Research Group at the Open University in Milton Keynes says, “If you put a set of

electrodes on a person’s head, you will pick up a set of characteristic rhythms. P300 refers

simply to the frequency of the wave and it is a very well-known brain rhythm you can detect

under many, many circumstances when a person is actively concentrating on something,” but

“the suggestion that you can tell from that whether a person is guilty of some crime or other is

complete fantasy” (Witchalls, 2004).

Nevertheless, brain fingerprinting has already claimed several legal successes, including

the case involving Terry Harrington. Harrington was serving a life sentence in Iowa for killing a

retired police officer 25 years earlier (Blackwell, 2008). Harrington was hooked up to electrodes

and was shown words such as, “weeds and grass,” that were connected to the crime scene. The

results indicated that the memories in Harrington’s brain did not correspond to the circumstances

of the killing, and did match his alibi. The defense attorneys then proceeded to confront a key

prosecution witness with the findings, prompting the person to admit they never saw Harrington

at the scene of the crime (Blackwell, 2008). As a result, the witness confessed that he had lied in

the original trial some 25 years earlier.

Based on this evidence, brain fingerprinting was rated as admissible at a post-conviction hearing

and played a key role in having Harrington freed. Although the brain fingerprinting test had been

ruled as admissible evidence, it was never actually put before the jury (Witchalls, 2004).

Farwell argues that, as a source of scientific evidence, brain fingerprinting is more reliable

to a jury than human testimonies” (Witchalls, 2004). Farwell includes that, “there is a good

reason why a jury should give more weight to scientific evidence than testimony because a

testimony may not be truthful, whereas the brain never lies (Witchalls, 2004).” Continuing

Farwell says, “In witness testimonies, you’re given a subjective account of the content of

someone’s memory. In brain fingerprinting, you’re given an objective account (Witchalls,

2004).”

However, there are cases in which brain fingerprinting has been used with less success in

the past as well. In the case of Jimmy Ray Slaughter, under the supervision of Dr. Farwell,

Slaughter was asked a series of questions while his brain activity was monitored (Witchalls,

2004). According to Farwell, the test declared his innocence, with a statistical confidence of

99.9%, implying that he did not recall key details of the crimes. For example, Slaughter did not

know where in the house, Wuertz’s body had been found, where in the room she was laying, or

what was printed on her shirt. In addition, Slaughter did not know here in the house the baby had

been shot (Witchalls, 2004). However, Slaughter failed to convince the courts and was executed

in 2005 (Blackwell, 2008). Moreover, maybe Slaughter’s last name was to blame for his

misfortune.

Although, there is strong criticism, the brain fingerprinting technique has become

admissible evidence in American courts.

Presciently, the usual rule, for the US Supreme Court at least, is that for scientific evidence to be

admissible, it must pass the Daubert criteria. This requires the science to have been tested, peer

reviewed, and published. It has to be accurate and well-accepted by the scientific community

(Witchalls, 2004). Nevertheless, the Daubert criteria do not apply in municipal courts.

British officials have even been communicating with the American government to inquire

about brain fingerprinting (Wells, 2004). Scientists are predicting that brain fingerprinting is 10

times more accurate than a lie detector test (Wells, 2004). British psychologists claim it could be

used in the UK to filter applicants for teaching jobs, or to assess suspects. Glyn Humphreys, an

expert in brain waves at the University of Birmingham, claims that, “as it develops further, brain

fingerprinting could be very useful” (Wells, 2004). According to Humphreys, “the brain gives

off waves of electrical activity which can be measured on the scalp. That actual technique is

relatively well-developed. What is new is trying to read a response to an individual stimulus”

(Wells, 2004).

However, in Britain, there is also copious opposition to brain fingerprinting. Civil

liberties groups say they are bitterly opposed to any use of brain fingerprinting in the UK (Wells,

2004). Caoilfhionn Gallagher, a privacy lawyer with the civil rights group named Liberty, said

“this is a good example of discrimination law lagging behind science.” Gallagher goes further in

saying, “for instance, a brain fingerprinting scan might show that someone has a certain sexual

inclination. But just because you have that inclination it doesn’t mean you will go out and fulfill

it” (Wells, 2004). Liberty want to block the brain fingerprinting technology until legislation

catches up to police it properly (Wells, 2004).

Ramaswamy Palaniappan, a computer scientist at the University of Essex, is aiming to

find a more accurate way of taking brain fingerprints. Currently, Palaniappan’s accuracy rate

stands at 99.1 percent. Palaniappan says “the research community has stopped making fun of it”

(Ahuja, 2006). However, brain fingerprinting is unlikely to replace more conventional

biometrics, such as fingerprint or iris recognition, because measuring brain waves is

controversial (Ahuja, 2006). Dr. Palaniappan identified the pulses of interest in a frequency

range of 30 to 50 Hertz, the gamma band, when he was comparing the brain output of alcoholics

with that of healthy people (Ahuja, 2006). Each subject whether addicted to alcohol or not,

showed a distinctive pattern in this frequency range (Ahuja, 2006). Therefore, Palaniappan

suggests the technique could be used as an additional identity check where high security is

needed, such as in military environments. Palaniappan is quoted in saying, “you chop off fingers

but you can’t forge a brain signal (Ahuja, 2006).”

Individual, brain signatures must be sufficiently distinctive from millions of others to

reduce the chances of mistaken identity (Ahuja, 2006). So far, Papaniappan has tested only 100

people, but several other scientists support the idea that a person’s neural emissions are unique

(Ahuja, 2006). Touradj Ebrahimi, at the Swiss Federal Institute of Technology, an expert on

image processing, believes brain fingerprinting could one day rival DNA fingerprinting (Ahuja,

2006).

Also in London, the Newspaper Marketing Agency and Millward Brown have registered

a commercial application to use neurological technology that will allow market researchers to

assess consumer responses to print ads (Donohue, 2006).

Brain fingerprinting, which has also been commissioned by the US neurological research

company Brainwave Science, is designed to calculate what it describes as an ad’s “a-ha factor,”

by evaluating consumer recognition and awareness of print ads (Donohue, 2006). Since brain

fingerprinting has been admissible in US criminal justice cases for a while, this is understand to

be the first time the technology has been used for a commercial purpose (Donohue, 2006). In

addition, Millward Brown said a pilot study of brain fingerprinting found that newspaper ads

greatly enhanced the effect of television ads. Warwick Nash, managing director of Millward

Brown UK, added that neuroscience was providing ad researchers “with an exciting new tool

with which to understand and account for the effects of marketing activity” (Donohue, 2006).

Dr. Daniel Meegan of the University of Guelph proclaims that “neuroimaging has

potential to help determine guilt or innocence, but much more study of its use in real-world

scenarios is needed” (Blackwell, 2008). Meegan also declares in the American Journal of

Bioethics that “brain fingerprinting would likely produce a high rate of false negatives

suggesting someone is innocent when they may not be.” Meegan goes further in saying, “it’s just

not ready yet. There’s more scientific research to be done.” In conclusion, Meegan contends that

the Iowa judge wrongly interpreted America law when he allowed brain fingerprinting to be

entered in a case (Blackwell, 2008).

In Singapore, Government Works received a contract to train and implement brain

fingerprinting technology for the Singapore Police Force (SPF) (Progressive Media, 2013).

Government Works president and CEO Krishna Ika said the Singapore Police Force will utilize

the new technology mainly in areas pertaining to counter terrorism.

Ika added, “Government Works is honored to provide this revolutionary technology to Singapore

Police Force – an organization exemplary in itself with one of the lowest crime rates in the world

and among the first few to adopt this technology.” Ika continued, “In my view, applying the best

technology we have, including brain fingerprinting in cases involving suspected terrorists, as the

only path forward that is scientifically sound, morally, viable, and protective of the public

interest (Progressive Media, 2013).”

Coming from the land down under, Detective Senior Sergeant Ron Iddles of the

Homicide Squad said he believed brain fingerprinting would hold value as an investigative tool

and that its primary role would be for the use in eliminating suspects and allowing investigators

to concentrate their efforts where they were most critical (Buttler, 2013). Iddles regarded the

brain fingerprinting technique as more reliable than the lie-detector testing and stated that it

would allow the innocent an avenue with which to clear themselves from suspicion. “You’d

know exactly where your resources have got to go,” Iddles was recorded saying. Iddles even

went as far as to say some crime fighting techniques, such as polygraphs and DNA, were for

many years seen as radical but are now routinely used by police. The Australian State

Government said it has taken a strong interest in brain fingerprinting. However, an Australian

government spokeswoman said, “Victoria Police has advised that brain fingerprinting may prove

to be a valuable tool in the future, but its current application in criminal cases is limited because

the credibility of the technique is not yet established” (Buttler, 2013).

The South Korean National Police Agency (NPA) reported that it wanted to implement

the brain fingerprinting technique (Ji-ho, 2003).

Yoon Shin-kyu, an NPA official responsible for investigative equipment said, “lie-detectors

currently used in Korea measure blood pressure and heart rate, both of which are affected by

psychological factors. But their accuracy has often been questioned” (Ji-ho, 2003). Shin-kyu

continued saying, “the brain fingerprinting technique measures reactions in terms of changes to

brain-wave patterns. Although we need more information on its effectiveness, we expect this to

prove itself as a more advanced way of determining whether a suspect is telling the truth or lying

(Ji-ho, 2003).”

Recently the brain fingerprinting technique has been compared to the lie-detector. Unlike

the discredited lie-detecting technique, which measures changing breath, heart rate and other

variable patterns to determine if a suspect is trying to deceive interrogators, brain fingerprinting

is designed to determine if specific information is stored in a person’s brain (McKie, 2004).

Therefore, brain fingerprinting, has emerged as a potential successor to the discredited lie

detector or polygraph, which no longer counts as admissible evidence in US or British courts

(Ahuja, 2006).

Furthermore, this research has taken a closer look at the technique and how has it been

reviewed into scientific field, and applied in the judicial system in different countries around the

world. While brain fingerprinting is admissible in some sovereign states, the determination of its

concordance in the judicial systems of other states is inconclusive. Therefore this research has

shown how brain fingerprinting is a technique that is controversially increasing in notoriety. This

technique has helped wrongfully-convicted persons prove their innocence.

On the other hand, many skeptics argue that brain fingerprinting is a not a perfected science and

should not be permissible in court. Conclusively, this research allows viewers to come to form

their own positions, as to whether or not brain fingerprinting should be used as legible evidence

in the courtroom.

Works Cited

Ahuja, A. (2006). Think about it, this will make turning on your computer much simpler. The

Times, 21.

Blackwell, T. (2008). Courtrooms not ready for brain images; neuroimaging has potential, but

needs more study. National Post, A5.

Buttler, M. (2013). Crime brainstorm test able to pinpoint culprits better than lie detector. Sunday

Herald Sun, 5.

Donohue, A. (2006). NMA to sue neurological technology for ad research. Brand Republic News

Releases, 1.

Ji-ho, K. (2003). Police say new lie detector reads brain. The Korea Herald.

McKie, R. (2004). It’s the thought that counts for the guilty. The Observer, 9

Progressive Media. (2013). Government works to provide brain fingerprinting

technology to SPF.

Wells, T. (2004). The though police; brain waves could be used to fight crime. Sunday

Mercury, 27

Witchalls, C. (2004). Life: Murder in mind: Could reading the thoughts of criminals help free the

innocent? The Guardian, 6