Brain Scans Not Acceptable for Detecting Lies, Says Judge

In the first decision of its kind, a federal magistrate judge has ruled that functional magnetic resonance imaging shouldn't be permitted in the courtroom as a new type of lie detector. U.S. Magistrate Judge Tu Pham yesterday released a 39-page opinion asserting that the technology is unreliable and has not been accepted by the scientific community. Scientists who felt fMRIs weren't ready to be used in court as lie detectors are relieved by the ruling which, while not binding on other jurisdictions, is likely to have an impact.

Lorne Semrau was seeking to include the results of scans as part of his defense in a Medicare and Medicaid fraud case being heard in a federal court in Tennessee. But while Judge Pham agreed that the technique had been subject to testing and peer review, it flunked on the other two points suggested by the Supreme Court to weigh cases like this one: the test of proven accuracy and general acceptance by scientists.

Pham noted, for example, that "there are no known error rates for fMRI-based lie detection outside the laboratory setting." The distinction between lying in a controlled experiment and the real world is an important one, says Owen Jones, a law professor at Vanderbilt University Law School in Nashville. "You have much greater stakes in the lie" when you're really trying to deceive, he says. Those brain scans might not look like the scans of people told to lie, for instance, about whether they'd taken a watch off a lab table.

Jones expects that the companies offering fMRI lie detection will likely conduct new tests "to approximate real-life conditions" for lying, and focus on issues such as whether lie detection results vary depending on the age of the subject. Semrau was 63 when he took the test.

Steven Laken, the president and CEO of Cephos Corp., the company in Tyngsboro, Massachusetts, that conducted Semrau's tests, said the company would press ahead with efforts to admit lie detection fMRIs as evidence in court. "We're not going to stop doing what we're doing," Laken says. "The judge in this case is just one person." Echoing his testimony in this case, Laken noted that the technology is remarkably consistent regardless of the type of lie being told.

Pham's report now goes to the presiding judge in the case, who is expected to adopt it.