The Technology of Truth

Technology“Do you solemnly swear or affirm that you will tell the truth, the whole truth, and nothing but the truth, so help you God?”

Have you ever heard of a trial where a witness says “No” to that question? Of course not. Witnesses and parties are sworn to truth, and judges and juries trust that they will tell that whole truth. Because what alternative does the justice system have? At this time, only expensive, time-consuming and sometimes unreliable polygraph tests. Too many people have been able to trick the polygraph, and it still has not been fully accepted by the scientific or legal communities.

Trusting witnesses is far more reliable and efficient – two qualities the judicial system strives for. But what if there were a more trustworthy way to determine the actual truth?

The New Way Of Discovering The Truth

Enter fMRIs. Functional magnetic resonance imaging could be the future of justice. Not only will we be certain that witnesses are telling the whole truth and nothing but the truth, but the analytics of brain function could even replace jurors as “finders of facts.”

So how would this work? As explained in a fascinating article by Clay Rawlings and Rob Bencini in The Futurist, the brain is capable of both storing information and creating fantasies. Whichever area of the brain a witness accesses while testifying will determine whether they are telling the truth – or not.  Research has suggested that the fMRI is 99 percent accurate in recognizing when a person is lying when responding to questions. Accessing the fantasy generating area of the brain? Lying. If you’re accessing the area of the brain where memories are stored – you’re telling the indisputable truth—no jury required.

What does this mean for the future of the justice system? Could juries become superfluous? If witnesses and experts testify under the fMRI, would there be no need to determine the facts or assess the credibility of witnesses? The judge could collect the evidence, witness and parties’ testimony, and make a decision knowing that the facts are the actual facts. No more juror selection or unpredictable outcomes.

Or, if the long-standing legal tradition of a trial by jury continues, the fMRI technology could also detect juror bias, making jury selection a more streamlined process.

Can New Technology  Be The Future Of The Justice System?

This technology could also help the integrity of the system in other ways according to Rawlings and Bencini in The Futurist.  If a brain scanner were analyzing the testimony of a police officer, for example, she could not fabricate her observations or beliefs that she claimed to be the basis of probable cause and the exclusionary rule—excluding evidence collected in violation of a defendant’s constitutional rights—would automatically and correctly be applied.

Such scenarios seem a bit far-fetched, invoking the themes of a science fiction novel. Moreover, they seem to disregard the fact that differences in witness testimony don’t necessarily mean that one or the other is lying.

What about perception? Anyone who has ever tried a simple personal injury car accident case knows that the testimony of eye witnesses may be extremely different depending on where they were standing and observing the incident.  I am thinking of the witnesses who testified in My Cousin Vinny who weren’t necessarily lying but the veracity of their testimony varied by their perspectives, attention, and sharpness of vision. Would a fMRI show they were telling the truth as they believed it to be? Likely.

Our system isn’t perfect, and neither is technology.  It’s fun to think about how the two work—and will work– together.

 

Commission intern Shannon Buckley of John Marshall Law School contributed to this post.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

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