New neuro tech might be perfect evidence for courtrooms, U study shows

Law professor Francis Shen and his team of researchers say new memory-testing technology can have significant impact.

Bella Dally-Steele

As memory-testing technology becomes increasingly common in courthouses and police precincts, one University of Minnesota law professor is testing the gizmos to prevent misuse.

Professor Francis Shen and a team of neuroscience and law students published a report in June showing jurors trust evidence from new memory-testing technology enough to merit its implementation, but not so much that it threatens to over-influence their vote.

When it comes to introducing new neuro-technology to courts and police houses, Shen said, hitting this legal sweet spot is key.

The technology in question, Electroencephalography Memory Recognition (EEG), is used to detect if a subject recognizes a given image or word by tracking activity in memory hotspots of the brain through a skull cap equipped with sensors, said Emily Twedell, a research professional on the project.

The technology works as a more accurate and specialized lie detector, and could help lawyers or police determine if a subject is lying about recognizing unique stolen property, a victim or a crime scene, Shen said.

“The idea is that law can do its job more effectively with the advent of new technology,” Shen said. “But of course, we have to prevent inappropriate uses.”

Shen said neuroscientists and law officials alike are hesitant to implement EEG for fear of misinforming jurors.

Because neither jurors nor law officials are trained in neuroscience, they could be “seduced” by EEG results they don’t understand — that’s where Shen’s team comes in.

To test whether jurors might be duped into over-trusting EEG data, Shen and his team conducted over 1,400 in person and online surveys. The participants were provided with sample court cases that varied in evidentiary strength and the presence of EEG results that were incriminating or exonerating — with some completely omitting EEG data.

The team found that though jurors were swayed by the EEG information, it generally decided their vote only when the two sides of the case were neck and neck.

Twedell, a dual psychology and neuroscience major from the University of Iowa, said while these are the ideal results, she was surprised.

“I thought it would be more influential to participants than it was,” she said.

If EEG one day ends up in Minnesota courts and police houses, the impact could be incredible, Shen said.

EEG is more trustworthy than traditional “lie detector” polygraph tests and much cheaper than similar neuro-gadgets, like fMRI machines.

Larry Farwell, a biological psychologist pioneering a special strain of EEG technology known as “brain fingerprinting”, said the process costs about $500 per hour.

One session can last up to three hours and is preempted by a crucial, possibly week-long, investigation into images or words to use in the session.

But the test’s accuracy is limited since it doesn’t reveal why a subject recognizes an image or word, Shen said. A specially trained proctor is also needed to ensure the right words and images are used.

Because of these limitations, EEG is not widely used. Farwell said a select few scientists, including him, are trained in conducting brain fingerprinting, and only take on the most important cases, like counterterrorism contracts with federal governments.

But, Farwell said EEG could make waves if it becomes more common.

EEG reaches its full potential when used during the early stages of an investigation, as innocent suspects will not have had access to crucial information about the case, which makes choosing key words and images easier, Farwell said.

“Applying brain fingerprinting early in a case in law enforcement is the most efficient way to do it. When we go to court, it takes a whole lot more time, effort and work on everybody’s part to present the case,” he said.

University of Minnesota Police Department Lieutenant Chuck Miner said although the UMPD doesn’t currently use any lie-detector devices, it is always looking for new gadgets to upgrade investigations.

While it’s up to individual police departments whether to use EEG, Shen’s research could help get the technology into courtrooms in the future.