Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2016 fMRI and Lie Detection Anthony D. Wagner [email protected] Richard J. Bonnie [email protected] BJ Casey [email protected] Andre Davis [email protected] David L. Faigman See next page for additional authors Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, and the Science and Technology Law Commons Recommended Citation Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson & Gideon Yaffe, fMRI and Lie Detection, MACARTHUR FOUNDATION RESEARCH NETWORK ON LAW & NEUROSCIENCE, FEBRUARY 2016; VANDERBILT LAW RESEARCH PAPER NO. 17-10 (2016). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2015 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Authors Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, and Gideon Yaffe This working paper is available at Scholarship Archive: https://scholarship.law.columbia.edu/faculty_scholarship/ 2015 Attached hereto: fMRI and Lie Detection A Knowledge Brief of the MacArthur Foundation Research Network on Law and Neuroscience Cite as: Anthony Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe, fMRI and Lie Detection: A Knowledge Brief of the MacArthur Foundation Research Network on Law and Neuroscience (2016). Owen D. Jones Director, MacArthur Foundation Research Network on Law and Neuroscience New York Alumni Chancellor's Chair in Law & Professor of Biological Sciences, Vanderbilt University Richard J. Bonnie Stephen J. Morse Harrison Foundation Professor of Medicine and Law Ferdinand Wakeman Hubbell Professor of Law Professor of Psychiatry and Neurobehavioral Sciences Professor of Psychology and Law in Psychiatry Director, Institute of Law, Psychiatry and Public Policy University of Pennsylvania Professor of Public Policy Frank Batten School of Leadership and Public Policy Marcus E. Raichle University of Virginia Professor of Radiology, Neurology, Neurobiology, Biomedical Engineering, and Psychology, Washington University BJ Casey Jennifer A. Richeson Professor of Psychology, Yale University Philip R. Allen Professor of Psychology, Yale University Adjunct Professor, Weill Cornell Medical College, New York City Director, Social Perception and Communication Lab Director, Fundamentals of the Adolescent Brain Lab Elizabeth S Scott Andre Davis Harold R. Medina Professor of Law, Columbia University Judge, United States Court of Appeals for the Fourth Circuit Laurence Steinberg David L. Faigman Distinguished University Professor John F. Digardi Distinguished Professor of Law Laura H. Carnell Professor of Psychology, Temple University Director of the UCSF/UC Hastings Consortium on Law Science & Health Policy Kim A. Taylor-Thompson University of California, Hastings Professor of Clinical Law, New York University Morris B. Hoffman Anthony Wagner District Judge, Second Judicial District, State of Colorado Professor of Psychology Director, Stanford Memory Lab Read Montague Associate Director of the Cognitive & Neurobiological Imaging Center Professor of Physics Stanford University Professor of Psychiatry and Behavioral Medicine Director, Human Neuroimaging Laboratory Gideon Yaffe Director, Computational Psychiatry Unit, Professor of Law Virginia Tech & University College, London Professor of Philosophy & Psychology, Yale University The MacArthur Foundation Research Network on Law and Neuroscience Vanderbilt Law School, 131 21st Avenue South, Nashville, TN 37203 Electronic copy available at: https://ssrn.com/abstract=2881586 Law + fMRI AND Neuro LIE DETECTION THE MACARTHUR FOUNDATION RESEARCH NETWORK ON LAW AND NEUROSCIENCE In September 2012, the Sixth Circuit Court of Appeals, citing Federal Rule of Evidence 702 and Rule 403, agreed with the trial court’s exclusion of fMRI-based lie detection evidence in the fraud case of United States v Semrau. A scant month earlier, Judge Eric M. Johnson of the Maryland Sixth Judicial Circuit, Montgomery County, had refused to admit potentially exculpatory fMRI lie detection evidence in the murder trial of State v Gary Smith. Citing the Frye standard, Johnson wrote, “It is clear to the Court that the use of fMRI to detect deception and verify truth in an individual’s brain has not achieved general acceptance in the scientific community.” While research on fMRI-based lie detection has continued, the general consensus in the scientific community regarding its probative value remains the same. This brief explores why. WHAT IS fMRI? The typical experimental paradigm involves “instructed” lies: a subject is given detailed instructions about how For more than a decade now, scientists have been explor- and when to lie, then placed in a scanner. Does conscien- ing the potential of functional magnetic resonance imaging, tiously following those instructions constitute lying? Many or fMRI, to assess increased activity in brain regions asso- researchers worry that the answer is no, rendering the ciated with the cognitive processes required for lying. experimental results irrelevant. fMRI does not measure neural activity directly. Instead, A distinct but related question arises from the poorly it measures small and variable changes in the ratio of defined nature of the real-world lie. Two equally false oxygenated to deoxygenated blood in the brain when a statements—“Of course I remember you” and “No, I particular task is performed or stimulus presented—the didn’t kill him”—may be as distinct neurally as they are so-called BOLD, or blood oxygen level-dependent, re- morally. Similarly, an often-repeated lie or one first told sponse. Firing neurons, like working muscles, require many years ago might look markedly different from an oxygen; follow the trail of oxygenated hemoglobin, and unpracticed or recent lie. you find neural activity. A statement based on faulty memory (“I never said that”) LIES, DAMNED LIES, AND BEING COOPERATIVE may not trigger any neural activity associated with decep- The most fundamental question scientists raise when tion at all. There is some evidence to suggest that fMRI reviewing fMRI lie detection research is this: Do these scanning will detect the subject’s belief, even if that belief experiments actually examine lies? Electronic copy available The MacArthur at: httpsFoundation://ssrn.com Research Network/abstract on Law and=2881586 Neuroscience / fMRI AND LIE DETECTION / 02.23.16 1 PERSPECTIVES Lateral task, some of the participants committed isn’t borne out by the objective truth. In a 2010 memory MFG IFG–insula the mock crime and others did not, but all experiment supported by the Research Network and con- IPL were instructed to indicate that they did not. The authors were able to correctly detect ducted by neuroscientist Jesse Rissman and colleagues, deception, using fMRI, in 100% of the par- ticipants in the ‘mock crime present’ condi- the brain activity observed when subjects recognized a tion. However, they also mistakenly detected deception in 67% of the participants in the face was comparable to that observed when subjects ‘mock crime absent’ condition. In the lan- believed they had seen a face before but hadn’t. guage of diagnostic testing, the sensitivity of m/SFG this test was high but the specificity was low. Medial Determining the real-world accuracy of a detection test also depends on a critical third factor, which is the probability of the PROBLEMS OF INFERENCE event occurring within the population — the base rate. Indeed, the risks associated It is impossible to infer a specific mental process solely on with a lie-detection test with low specificity the basis of brain activity in a particular region, or even in a will depend on the base rate of lying in the population assessed28,29. Imagine that the test particular set of brain regions. A single brain region is often described in REF. 22 was given to 101 people, 100 of them truthful and 1 deceptive. On involved in a number of mental processes, and a mental FigureFIGURE 1 | Results 1. Results of the ALE of the analysis ALE ofanalysis the functional of the MRIfunctional ‘deception’ MRI literature. “deception” Overlay literature of map the basis of the false-positive rates of Kozel of activation likelihood estimation (ALE) values (orange) on the lateral (top) and medial (bottom) and colleagues22, the test would identify 68 inflatedrevealing PALS regionssurface76 , consistentlyrevealing regions implicated that are consistently in deception implicated acrossNature in deceptionstudies. Reviews The |across Neuroscience meta- studies. process often involves multiple areas of the brain. participants as ‘lying’ — the 1 participant Theanalysis detection was thresholded performed