Brain-Scan Lie Detection Rejected By Brooklyn Court

blair1q writes "A judge in Brooklyn has excluded Functional Magnetic Resonance Imaging (fMRI) lie-detector evidence from a trial there. However, the decision will not set a precedent, as it was made without even conducting a hearing on the method's validity, but on the principle, argued by the defense, that 'juries are supposed to decide the credibility of the witness, and fMRI lie detection, even if it could be proven completely accurate, infringes on that right.' That principle can be tested in later hearings, such as one scheduled for May 13, 2010, in Tennessee; in this case, the defense wants to use fMRI evidence it has already collected to prove its client is innocent. fMRI has been shown to be 76-90% accurate. That number seems significantly larger than the rate of false convictions."

Comments

The statistical value of "resonable dobut" = 0.1%

[LostCluster]

The Supreme Court has given science the legal definition that a "beyond a reasonable doubt" equates to 99.9% certainty... a system that is wrong 10% of the time or more needs at to at least be much times more accurate before it's going to be trusted. You're only allowed one blooper in 1000 by this standard. Nice tech, but it's not there yet.

Re:The statistical value of "resonable dobut" = 0.

[Shakrai]

Nice tech, but it's not there yet.

What happens to the right to remain silent when it is there? The British have already gutted this right. Not that hard to envision the same happening here.....

Because they are unreliable.

[Mekkah]

They don't tell you shit, I've taken a couple of them for government work and it depends on the person, and their ability to concentrate. You can easily get false positives and easily beat it if you have the right mindset.

Re:Because they are unreliable.

[Anonymous Coward]

Yeah, just ask the salmon

Re:Because they are unreliable.

[IICV]

Absolutely no lie detector will ever be able to tell the difference between "this is true" and "at this moment, the suspect believes that this is true". With some mental training (or, you know, schizophrenia) it's entirely possible to temporarily convince yourself that the sky is purple, and there's basically no way any machine will be able to pick up on it in the foreseeable future.

No judgment should ever rely on "the machine says he thinks its true, therefore he is guilty" - no matter how accurate the machine is.

Re:Because they are unreliable.

[carp3_noct3m]

Exactly, I've found that when getting boxed, the biggest issue is when you have some fresh college grad who thinks hes the judge and jury, and if he or she doesnt like you and you flub up at all, sweat a bit too much, wear something they don't like, say an off the wall remark, they get real aggressive. The solution is to find the oldest saltiest bastard around, he can weed through bullshit faster than anyone, you want him to box you. Polygraphs are suedo-science, and everyone knows it.

Re:Because they are unreliable.

[akkornel]

They don't tell you shit...

That's because they're looking at the wrong end.

Re:Because they are unreliable.

[Cassini2]

More importantly, lie detectors can only tell what the subject believes to be true. Given the number of people in America that believe that the world is flat, that Elvis is alive, that George Bush masterminded the 9/11 bombings, that Oswald didn't kill Kennedy, or that off-sea oil-rigs pose no risks, I think it is safe to say: "All sorts of people in America believe things that are not true."

This is a huge problem for witnesses at accidents. 5 different witnesses will give the cops 5 different stories, and then when the case gets to trial, 5 additional slightly different stories. People remember things in different ways, and some believe strange things. It is a fact of life.

Re:Because they are unreliable.

[characterZer0]

Instead, we rely on "these 12 guys who have been struggling to stay awake during the proceedings think it's true, therefore he is guilty."

Re:Because they are unreliable.

[Korey Kaczor]

Just wait until every job one applies for requires these. It's going to happen.

Look at how a lot of businesses already require mumbo-jumbo psychology tests for even 10$/hr wages; once this is cheaper it's going to be adopted for all jobs except flipping burgers or mowing yards.

Re:Because they are unreliable.

[Shadow of Eternity]

Wrong again. Polygraphs can only tell when the subject is showing physical signs of stress through pulse, blood ox, temperature readings, and galvanic skin response.

Maybe I am stressed, I had a bad burrito and I'm terrified that the next fart won't be silent or dry.

An FMRI "lie detector" only shows you what parts of the brain are active on the assumption that certain parts lighting up mean someone is thinking too much and thus making it up.

Maybe my brain IS active, that one girl had some really nice breasts and I wonder what they look like underneath all that clothing...

Re:Because they are unreliable.

[timeOday]

That's why they're called lie detectors instead of false belief detectors. If people had the faith in them that you seem to think they do, then they would be trying to "prove" the existence of god by wiring up a devout believer and simply asking them.

Re:Because they are unreliable.

[Conspiracy_Of_Doves]

"these 12 guys who have been struggling to stay awake during the proceedings, and just want to go home, think it's true, therefore he is guilty."

FIFY

Re:Because they are unreliable.

[SpeZek]

Maybe I am stressed, I had a bad burrito and I'm terrified that the next fart won't be silent or dry.

Clenching your sphincter at the right times will fool a lie detector. It raises your blood pressure, pulse, core temperature, and your conductivity while you sweat under the stress.


Spies and intelligent criminals laugh at lie detection. It's trivial to control your body when you know how it works.

Re:Because they are unreliable.

[Verteiron]

Grant even proved this in an episode of Mythbusters. He successfully tricked the fMRI specialist into thinking he'd stolen the wrong item. He DID get nailed by the traditional lie detector, though.

Re:Because they are unreliable.

[osgeek]

Good point. I see a high conviction rate for horny ADHD slashdotters on the horizon.

Re:Because they are unreliable.

[tool462]

Even if the fMRI lie detectors were allowed, you'd still be relying on those 12 angry men to determine guilt or innocence. fMRI results would lull them into a false sense of certainty, giving them yet one more reason to shut off their brain entirely.

"The machine says he's lying, so he must be lying. Who cares about the rest of the evidence?"

This would be particularly bad in the he-said-she-said types of cases, where there isn't much other evidence besides personal testimony.

Re:Because they are unreliable.

[Kazymyr]

Not to mention that fMRI can show that a dead salmon can have feelings.
http://www.wired.com/wiredscience/2009/09/fmrisalmon/
After seeing this it will take a LOT to convince me there is anything at all valid about the method.

Re:Because they are unreliable.

[Shadow of Eternity]

I'm not a spy or a criminal, and it was still trivially easy to convince a cheap polygraph that I was a female angel with green wings and Dr. Scholls footwear.

Re:Because they are unreliable.

[Ichijo]

Absolutely no X will ever be able to Y

Where have I heard that before?

Re:Because they are unreliable.

[Ichijo]

An FMRI "lie detector" only shows you what parts of the brain are active on the assumption that certain parts lighting up mean someone is thinking too much and thus making it up.

Close. First the "reciting from memory" and "making stuff up" parts of the brain are mapped, and then you can tell, based on which part of the brain lights up, whether the person is lying or telling the truth.

Re:Because they are unreliable.

[ObsessiveMathsFreak]

When my freedom's on the line, I'll still take that over a machine test any day of the week.

Re:Because they are unreliable.

[BobMcD]

I'm not a spy or a criminal, and it was still trivially easy to convince a cheap polygraph that I was a female angel with green wings and Dr. Scholls footwear.

It doesn't count when you actually are a female angel with green wings and Dr Scholls footwear. How is the machine supposed to know those don't exist?

Re:Because they are unreliable.

[naasking]

Absolutely no lie detector will ever be able to tell the difference between "this is true" and "at this moment, the suspect believes that this is true"

Lie detection is all about belief, not about the difference between truth and belief. The question is whether we can detect whether the subject is saying something they believe to be true, or they believe to be false.

With some mental training (or, you know, schizophrenia) it's entirely possible to temporarily convince yourself that the sky is purple, and there's basically no way any machine will be able to pick up on it in the foreseeable future.

I think it highly unlikely that there are no physiological indicators that can distinguish between statements contrary to and confirming a subject's belief. Not that fMRI necessarily is that technology, but it's promising. All that's needed is improved precision, perhaps via improved fMRI resolution and larger scale studies to better correlate how the brain responds to stating true and false beliefs.

I also disagree with the comment Supreme Court above which stated that a mechanism needs to be 99.9% accurate before it can be allowed. An fMRI test would simply be another piece of evidence to consider, like a witness. Witnesses are highly unlikely to be more than 90% accurate, yet their testimony is admitted as evidence.

Re:Because they are unreliable.

[naasking]

What if it's a practiced lie?

Re:Because they are unreliable.

[DerekLyons]

Wrong again. Polygraphs can only tell when the subject is showing physical signs of stress through pulse, blood ox, temperature readings, and galvanic skin response.

Maybe I am stressed, I had a bad burrito and I'm terrified that the next fart won't be silent or dry.

This may come as a surprise to you, but this has been known to polygraph operators for roughly forever. That's why they ask seemingly innocuous questions, questions to which they know the answer, and questions with obvious answers - to calibrate the readings against the background. If you're already stressed, and they can determine the background level, then they can interpret the readings that occur during the questions they're actually interested in the answers to.
 

An FMRI "lie detector" only shows you what parts of the brain are active on the assumption that certain parts lighting up mean someone is thinking too much and thus making it up.

No, they use the same procedures as a traditional polygraph - calibration questions to start the procedure and interspersed with the questions they're actually interested in knowing the answers to.

Re:Because they are unreliable.

[Anonymous Coward]

you mean, "These 12 guys who weren't smart enough to figure out how to get out of jury duty."

Re:Because they are unreliable.

[IICV]

Hey man, if you build a machine that reliably tell the difference between "right now, the subject thinks this is true" and "this is true", nobody will ever question you again - because you'll have basically constructed a universal oracle that can answer any question. You just have to find someone who believes all things are true.

Re:Because they are unreliable.

[Anonymous Coward]

at least with juries you know what you're getting. Lie detectors fool people into a false sense of security that the result they are getting is more reliable than it really is

Re:Because they are unreliable.

[Paul Jakma]

Uh, you know there's no evidence that lie detectors can tell anything about what a subject believes? Show me a properly peer-reviewed scientific paper with evidence that backs up your claim. I don't believe any such paper exists, TTBOMK.

Basically, the lie-detector is an *interrogation* tool at best, which makes use of the fact that the subject *believes* the lie-detector has some efficacy. It doesn't really though, which is why such tools of themselves do not produce results that could be considered evidence.

Re:Because they are unreliable.

[Ihlosi]

Instead, we rely on "these 12 guys who have been struggling to stay awake during the proceedings think it's true, therefore he is guilty." Even worse, they're the same 12 guys who were not smart enough to evade jury duty.

Re:Because they are unreliable.

[Paul Jakma]

This may come as a surprise to you, but this has been known to polygraph operators for roughly forever.

Let me guess, you're are such an operator, or you're affiliated to the polygraph industry in some other way. And you're here shilling. Not that it's surprising, for the polygraph requires the public to *believe* it works for it to have any use. As you don't have any actual science to convince people with, you instead have to bluster and dissemble about it being effective in public, to help reinforce the myth.

Re:The statistical value of "resonable dobut" = 0.

[Anonymous Coward]

Nice tech, but it's not there yet.

Nice tech? I'm going to have to grab a tinfoil hat before firing up bit torrent now...or firing up in general. :/

Not Very Accurate

[WrongSizeGlass]

fMRI has been shown to be 76-90% accurate

That's certainly better than a weatherman but not good enough to convict someone.

Re:Not Very Accurate

[El_Muerte_TDS]

Indeed, juries are much more reliable.

Re:Not Very Accurate

[ElectricTurtle]

Not to mention that comparing its accuracy rate with false convictions as an argument to use it to try to get more convictions doesn't really follow. If a jury acts on the evidence from an fMRI that falls within the 10-24% and consequently produces another false conviction, what, exactly, has been improved?

Re:Not Very Accurate

[Jah-Wren Ryel]

That's certainly better than a weatherman but not good enough to convict someone.

Except, the point is to exonerate someone. It doesn't prove he's innocent, but it adds to the weight of the defense's argument.

I think might be quite useful to admit the results and then instruct the jury about how results might be wrong, like if the guy is a pathological liar and is able to believe his own lies then the MRI will probably believe him too. It might cause the jury to think to wonder, if he might be a pathological liar, perhaps he's been able to fool them too.

Re:Not Very Accurate

[john83]

It's certainly not good enough for a conviction. I'm not clear why that means it shouldn't be considered though. If a witness indicates that the perpetrator of a crime was blonde, that's weak evidence against a blonde defendant. It's admissible. Is the problem that juries are likely to give too much weight to these kinds of evidence? That doesn't seem to have been the judge's problem in this instance.

Re:Not Very Accurate

[BJ_Covert_Action]

It doesn't prove he's innocent,

Why the hell is anyone trying to prove he is innocent? Shouldn't he need to be proven guilty while being presumed to be innocent?

Re:Not Very Accurate

[Anonymous Coward]

I'm 74% - 90% certain that I saw that defendant doing something that was 74% - 90% similar to the crime he's accused of.

Re:Not Very Accurate

[Jah-Wren Ryel]

Why the hell is anyone trying to prove he is innocent? Shouldn't he need to be proven guilty while being presumed to be innocent?

Prove as in demonstrate without a doubt - like being seen by a million people on the jumbotron at a football game at the very same moment the victim was murdered over 200 miles away. That kind of proof it is not. Capiche kneejerk?

Re:Not Very Accurate

[BJ_Covert_Action]

I understand what your definition of prove is. That wasn't what I was getting at. What I was getting at is that the burden of evidence is supposed to lie on the prosecution. That said, unless the prosecution has proven beyond reasonable doubt that the accused committed a crime, the defense shouldn't need an fMRI or any sort of lie detector in the first place to prove anything. The man is, according to our society, supposed to be presumed innocent. Now, supposing the prosecution has, indeed, shown a large amount of evidence that seems to indicate a man did whatever he is supposed to have done, then the evidence burden should fall to the defense to show, precisely, how the evidence presented against the accused is either flawed or incomplete. I don't see how an fMRI can be used to perform such a task. Essentially, all an fMRI is saying is that the subject it is being used on considers whatever he or she is saying to be the truth. That has absolutely no resemblance to evidence and, so far as I can tell, cannot, in any meaningful way debunk a supposed proof beyond reasonable doubt of guilt.

So your point was that it doesn't prove he is innocent but adds weight to the defense's argument. My point was that trying to prove innocence is not something that is necessary. What is necessary is for the defense to prove, beyond reasonable doubt, that the prosecutions evidence is flawed. The defense's role should not have to be to prove, beyond any reasonable doubt, innocence. That's how our justice system is supposed to work.

Capiche Snarky?

Re:Not Very Accurate

[Jah-Wren Ryel]

So your point was that it doesn't prove he is innocent but adds weight to the defense's argument.

Good, glad it was clear.

My point was that trying to prove innocence is not something that is necessary.

No it wasn't. You aren't the only one who can get all pedantic.

It's the legal industrial-complex, duh!

[recharged95]

If you are in the business of law (or an attorney), it's about what you can prove with facts, not the truth.

Re:It's the legal industrial-complex, duh!

[pdabbadabba]

But of course the whole point is that facts, taken in total, tend to point the way to the larger truth at issue. How else would you have us do it?

Gaming the system

[Darkness404]

All that lie detectors will do is encourage criminals to 'game' the system. Every system has flaws, lawyers make a living out of exploiting the flaws of the legal system, politicians careers exploiting the loopholes of the constitution, etc. All a lie detector test does, is encourage people who lie well. Some, if not most true criminals will replace the 'real' version of the crime in their mind with their invented version which if it solid enough will pass every lie detector test because the criminal thinks its true. So in the end, we have criminals gaming the system and innocent people who are stressed out or protecting their rights under the 5th amendment being considered lairs.

Re:Gaming the system

[linzeal]

Do you have any studies that conclude or even allude to the possibility of gaming a fMRI ? From a layman's point of view from someone who has read over some of the literature it has more to do with the morphological differences of the patient's brain than the psychological/personal profile of the individual.

Re:Gaming the system

[Darkness404]

For many criminals, they are not withholding information. They say exactly what they believe so it isn't 'lying' according to the scans. Just like if you asked someone 10 years ago if Pluto was a planet, they would all say yes because they weren't lying even though that information wasn't correct. Same thing with criminals, if they believe it strong enough it isn't a lie and if it gets verified as the truth they can manipulate the lie detector tests and if they are the only witness they will get off the hook easier.

Re:Gaming the system

[droopus]

What makes you think "truth" has anything to do with the US justice system?

As any decent (cough) criminal attorney will tell you, it's not whether you did it or not, it's what the prosecutor can prove. And, with Grand Juries (now there's a fair concept...no defense..) indicting anything a prosecutor throws at them, prosecutors know that if they can prove falsehood (not hard) then their conviction rate goes up, they get elected to public office and...

Step 3: Profit!

Re:Gaming the system

[linzeal]

A fMRI is not a lie detector test it is more of a memory test, so unless the criminal is delusional or has those morphological differences I mentioned in my first post he is not going to get off.

Re:Gaming the system

[Anonymous Coward]

Morphological images are captured as part of the fMRI scan, but they aren't the purpose of the scan. fMRI stands for functional MRI. Unlike traditional MRI, the intent is to have some measure of the brain while it functions. So fMRI analyses typically compare activity* during some baseline task and some task of interest. I suppose that for lie detection the baseline might be something like answering the question "Is your name XYZ?", while the task of interest might be something like answering the question, "Did you kill so and so?" You would then look at a region of interest, and see if there's any difference in the neural response between known truthful answers and the ones of interest.

One problem is that the signal to noise ratio is usually very low, so traditional research has relied on averaging over many repeated trials to obtain a solid measure of function-related activity. I'm not sure how that problem is addressed in lie detection. I mean, you can't really expect to ask a person the same question 100 times and elicit the same kind of thought process every time.

Regarding gaming the system: There are definite changes in fMRI activity associated with using different strategies to solve a particular problem. For example, you might be able to do add two numbers by counting on your fingers, by recalling an answer that you've memorized, or by imagining doing the sum as a mental image. No matter how you do it, you'd presumably arrive at the right answer. I'd say that this is an indication that the system can indeed be gamed, because people have control over their own hidden thoughts. Using an fMRI doesn't differ from a traditional lie detector in any deep sense, because you're still trying to detect the physiological changes associated with lying. In fact, you might be better able to control your thoughts, relative to things like how much you're sweating.

*: It just so happens that the blood becomes less oxygenated about six seconds after neural activity in a circumscribed area. Oxygenated blood differs from deoxygenated blood in how it responds to a magnetic field. Since MRI machines can induce and measure fluctuations in a magnetic field, they can indirectly allow analysts to compare neural activity.

Re:Gaming the system

[Anonymous Coward]

"All that lie detectors will do is encourage criminals to 'game' the system."

Sociopaths always know how to "game" the system. There's plenty of other ways in which fake "lie detectors" are problematic that don't involve professional liars.

Re:Gaming the system

[Lehk228]

one can write incorrect memories in place of correct ones, and if a test like this were made common, you can bet your ass there will be companies specializing in training people to correctly edit their memories so they will pass the fmri

Re:Gaming the system

[linzeal]

No study has ever proven this for fMRI only lie detectors. People can control stress through training that is well proven and makes lie detectors useless for judicial duties but fMRIs have far more backing atm. The amount of people who can control the flow of blood in their brain during stimulation that would mimic the 'correct' is unknown but less than 20%.

It is better than a jury of Bobs

[linzeal]

If it is better than what we have for false convictions than why prefer human prejudice/error over machine error. It seems to me one of those is far more likely to improve than the other and I'm not talking about Homo Sapien's ability to use critical thinking skills when confronted with conflicting emotive/subjective versions of events.

Also it is would only be a portion of the evidence which the case depends upon currently for it to reach a verdict. Anyone who compares this to lie detector machines does not understand that lie detectors are little better than a coin toss. This when properly used has been shown to top out at 90%.

Re:It is better than a jury of Bobs

[Shakrai]

If it is better than what we have for false convictions than why prefer human prejudice/error over machine error.

Because one of the reasons we have a jury system is to provide a check and balance on the ability of the government to lock people up. Jury nullification may be a bad word in the modern legal system but it's still there.

Re:It is better than a jury of Bobs

[Darkness404]

why prefer human prejudice/error over machine error.

Because humans are more accurate than machines in a lot of tasks. No human exists in a vacuum, a machine does. Feed a decently educated person false facts and they will reject them. Feed a machine false facts and it will believe them.

Also, brain-scans and lie detector tests should not be used because they also subvert the 5th amendment. The constitution says

"nor shall be compelled in any criminal case to be a witness against himself"

Because of that, one should have the right to withhold information that may harm them. With a human jury that is easy enough to do, but with a machine, it isn't. And many times the end result is the same just without the witness being harmed for victimless crimes. For example, if the person says I was studying for a test, when they were really smoking pot, it is a lie, but the end result is the same, they were at home, but a true lie detector could call the entire true story into question.

Re:It is better than a jury of Bobs

[linzeal]

Well perhaps we need a check on the jury's seemingly endlessly ability to be lured into convicting innocent people out of motley assortment of prejudices and 'gut-feelings'. You can't tell me the fact that across the world minority conviction rates are higher for the same crimes because of anything but bigotry. Don't even start with the idea of ever person having the right to appeal, which can take years if not decades to overturn a wrongful conviction.

If this technology can get to 9X.x% accuracy in the near future I would like it to at least be used to prevent people from having to go to trial or have charges brought against them in the first place. District Attorneys have far too much power right now to prosecute people charge them with 5 crimes that can result in years in prison and 10's pf thousands of dollars for petty crimes like vandalism and than have them plea down to 30 days in jail and a 1000 dollar fine.

My friend in his last year of college was walking home from his art studio down town with all of his art supplies in a backpack near a bank downtown. A rent a cop came out of nowhere and started accusing him of vandalizing the property and started manhandling him and moments later the real cops showed up and arrested him. Why, well he had marker pens in his backpack that were the same type used to write anti-capitalist graffiti on the bank's ATM and someone had superglued the deposit door shut. He was held over night was forced to call his parents for bail, had all of his art supplies confiscated, charged with 3 misdemeanors that could of landed him in jail for 2 years, fought all the charges with a private attorney his parents paid for, lost all the charges got 6 months in jail and a 3500 dollar fine, appealed the conviction, found evidence that another bank in the area after he was arrested had the same graffiti done to it while he was with his parents 100 miles away, went to trial and the judge spent 3 days grilling him on his political activities before overturning the convictions. He got back his art bag, everything was either broken in half or torn and it smelled like feet because it had been locked up with his shoes for over a year at this point. He told me it took over 25,000 dollars to prove he was innocent and if he did not have well off parents he would of been in jail.

Public defenders in this country on average handle over 500 cases a year whereas a DA handles half that, something has to change or more and more of us are going to be going to jail as innocent men. In NYC the average case load of a public defender is 720 cases a year.

Re:It is better than a jury of Bobs

[linzeal]

What if they choose to have the fMRI done? You can still have lie detectors admitted in some jurisdictions so why shouldn't the defense be allowed to use this tool? No one is forcing anyone to do the fMRI in this case.

Re:It is better than a jury of Bobs

[Anonymous Coward]

If it is better than what we have for false convictions than why prefer human prejudice/error over machine error.

Humans would prefer that certain mistakes are made by humans.

It's said that sociologists can indicate with a very high degree of certainty whether someone will become a criminal based on a large set of data about his background and how he grew up. If that accuracy is 90%, should we periodically lock up, or even arrest and thoroughly interrogate, all who fit the profile?

Re:It is better than a jury of Bobs

[osgeek]

The fifth amendment wouldn't seem to be a license to lie. In order to take the fifth, people say, "I take the fifth". They don't just commit perjury.

I would think that you'd invoke the fifth amendment before even taking the scan or when agreeing to the questions that the prosecution is allowed to ask.

Re:It is better than a jury of Bobs

[Anonymous Coward]

Feed a decently educated person false facts and they will reject them. Feed a machine false facts and it will believe them...

Yeah, sure, that's why FOX news went the way of the Dodo so quickly.

Re:It is better than a jury of Bobs

[Lehk228]

Public defenders in this country on average handle over 500 cases a year whereas a DA handles half that, something has to change or more and more of us are going to be going to jail as innocent men. In NYC the average case load of a public defender is 720 cases a year. seems to me, a constitutional amendment requiring every jurisdiction to provide the same level of funding, staffing, and facilities access to the public defenders office as they do to the prosecution.

Re:It is better than a jury of Bobs

[Lehk228]

by creating the expectation that witnesses and defendants use it, doubt is cast in the juries mind about anyone who declines to do so.

Re:It is better than a jury of Bobs

[ClosedSource]

Lie detectors can't be admitted as evidence anywhere in the US. Those jurisdictions outside the US that would be tempted to use it probably are already using a kangaroo court so they don't really need evidence to convict anyway.

Re:It is better than a jury of Bobs

[MechaStreisand]

Or better yet, they should be made to appoint attorneys like some jurisdictions do already. That makes any difference between real attorneys and public defenders moot.

Re:It is better than a jury of Bobs

[nomadic]

Or better yet, they should be made to appoint attorneys like some jurisdictions do already. That makes any difference between real attorneys and public defenders moot.

In many jurisdictions I'd take a public defender over just about any lawyer in general practice. In fact, I think those jurisdictions which appoint from a general pool of lawyers disadvantage criminal defendants a lot more than places with an actual PD organization.

Re:It is better than a jury of Bobs

[Shakrai]

You can't tell me the fact that across the world minority conviction rates are higher for the same crimes because of anything but bigotry

Sure I can. Minorities tend to have less money. Money equates to access to good lawyers. Good lawyers tend to win more acquittals, even when their clients are obviously guilty as hell (e.g. OJ Simpson)

Re:It is better than a jury of Bobs

[Belial6]

Very good, now explain why women have lower conviction rates than men for the same crimes....

Re:It is better than a jury of Bobs

[PinkyGigglebrain]

What would also help would be if people who had actual intelligence didn't try so hard to get out of jury duty.

The reason we end up with juries composed of idiots, bigots and other people of questionable mental ability is they are the only ones who are "to dumb" to get out of jury duty.

If you want a fair system then be prepared to serve on a jury and not complain about it. The Constitution isn't a passive document, we all have to participate for it to work.

Re:It is better than a jury of Bobs

[Thanshin]

Feed a decently educated person false facts and they will reject them.

Just as I'll promptly do now:

That's total bullshit.

Decently educated persons are fed false facts constantly and only disbelieve those they take interest into.

Re:It is better than a jury of Bobs

[Ihlosi]

What would also help would be if people who had actual intelligence didn't try so hard to get out of jury duty.

If you have a job or a business then _not_ trying hard to get out of jury duty (which would make you lose that job or ruin your business if the case drags out a bit) shows lack of intelligence.

Re:It is better than a jury of Bobs

[Anonymous Coward]

Moral of the story: Never obey a rent-a-cop.

Re:It is better than a jury of Bobs

[Anonymous Coward]

The 5th amendment issue is handled trivially by letting the defendant refuse the test. In fact that is handled best with a 90% accurate machien as opposed to a 99%+ machien as it's not hard to convince the jury that "I don't want to be in that 10% and get convicted because a machien gave a false positive".

So if you're innocent and have confidence in the technology you will volinteer to take the test to clear yourself, if you're innocent but don't have confidence in the machien, or guilty you'll refuse. Thus if the defendand refuses the test they jury still has to decide if he/she is guilty or not based on the other evedence.

Also the ability to validate testimony of witnesses other than the defendant is worthwhile.

Re:It is better than a jury of Bobs

[PinkyGigglebrain]

If that is what you think then so be it.
But you lose your right to bitch about the jury system when one of your relatives or friends gets shafted by a jury of idiots.

I agree that your job or business can get screwed up if the case your hearing drags on. But what is more important, your job or business, or an innocent persons Freedom?

Re:It is better than a jury of Bobs

[shaitand]

I wouldn't. Real attorney's don't give cases real attorney attention without real attorney pay.

Neither do actual public defenders. Both just want to cut a deal.

Re:It is better than a jury of Bobs

[shaitand]

Because the portion of the brain responsible for detecting threats and territorial behavior is triple the size in men than it is in the brains of women.

Thus men engage in more violent behavior and are quicker to both perceive and respond to threats. In our society this sort of behavior tends to be illegal.

Women have lower conviction rates because they are guilty less often.

People with different color skin are not different in fundamental ways aside from skin color. Men and women are not equal, are not the same, do not have the same capabilities or behaviors. Racial equality is largely a fact, gender equality nothing short of a blatantly false politically correct myth.

Re:It is better than a jury of Bobs

[shaitand]

" But what is more important, your job or business, or an innocent persons Freedom?"

To whom? The innocent person or to me?

Re:It is better than a jury of Bobs

[PinkyGigglebrain]

Both.

Just think of the number of cannabis users who might be acquitted if the Jury knew of, and exercised, their right of Nullification?

Re:It is better than a jury of Bobs

[Belial6]

Because the portion of the brain responsible for detecting threats and territorial behavior is triple the size in men than it is in the brains of women.

So in other words because of bigotry that you share, and rationalize with a modern phrenology explanation.

Re:It is better than a jury of Bobs

[shaitand]

Exactly, factual anatomy data is based entirely upon my personal bigotry.

Re:It is better than a jury of Bobs

[Thinboy00]

Did you just say that bigotry causes men to commit more crimes than women? Because that's what it read like, unless of course you read that one sentence and immediately hit the reply button without reading GP's post?

Re:It is better than a jury of Bobs

[shaitand]

I am all for empowering juries by notifying them of their right of nullification and I am certainly in favor of using said right to nullify unjust action against cannabis users.

I am not in favor of bankrupting myself and starving my own family for the sake of a single opportunity to make it happen.

Re:It is better than a jury of Bobs

[Thinboy00]

If the judge finds out that the jury is considering nullification, he may throw the whole jury out before they reach a verdict.

Re:It is better than a jury of Bobs

[Belial6]

No, I said that making up bogus anatomical claims to explain away discriminatory behavior is the result of bigotry.

Re:It is better than a jury of Bobs

[Belial6]

No, your making up bogus anatomical claims to explain away your discriminatory behavior is based entirely on bigotry.

Re:It is better than a jury of Bobs

[PinkyGigglebrain]

Yeah.

but then it would get you, and everyone else, off jury duty very quickly. Which seems to be what everyone wants.

Re:It is better than a jury of Bobs

[PinkyGigglebrain]

So, you want the benefits and Freedoms but not the responsibilities.

Why am I not surprised?

Will you feel the same when its one of your family or close friends who gets railroaded because of an idiot jury?

Re:It is better than a jury of Bobs

[MechaStreisand]

I was under the impression that real attorneys, when appointed to defend someone, were paid their normal rates. That'd be the only way to get a fair defense.

Re:It is better than a jury of Bobs

[shaitand]

Not anywhere that I know of. That would be impossible to budget. As far as I know, in most locals they either pay a fixed rate to anyone appointed or they require all attorney's in the county/city/ or other jurisdiction to participate for free when their turn comes up in exchange for having a practice there.

The latter is what they do in my home town. Different attorneys react differently to this. Some see it as a chance to do something worthwhile the first time or two it comes up. After serving as a PD for a couple terms they all do pretty much the same thing, they measure success by how good of a deal they negotiate in a single sitting for their client not how many clients went free.

The ones who see it as a burden from the start measure success by how quickly the case is resolved, regardless of how poor a deal they cut.

Re:It is better than a jury of Bobs

[shaitand]

Let me state this as simply as possible.

Self|Family|Friend > Other

I don't know of anything you could say that changes this simple fact and nothing short of that would change my answer.

The risk/reward ratio of making the sacrifice you ask simply isn't there. It is far more productive to work toward educating the idiots on what jury nullification and reasonable doubt mean than to toss my life away on the next poor sap.

If you want to do something useful, don't throw your career and family prosperity away. Start working toward bringing advisement of jurors rights and the final check of the people against government back into jury instruction. Or at least work on getting judges to stop lying to juries and explicitly telling them they can't do this.

Re:It is better than a jury of Bobs

[PinkyGigglebrain]

I understand what your saying, and I am trying to carry out the actions you suggest.

I'm just glad that a group of North American colonists back in the 1770's felt that sometimes a person had to risk self/family/friend for a greater whole.

Your response is what I expected. You gave an extreme example (bankruptcy/starvation) as justification of your position.

You are part of the problem and, as you say, there is no argument I can put forth to change your outlook.

Good luck.

How do you fail a lie detector?

[Mekkah]

If you take it and pass, you are telling the truth, if you take it and fail, why would you take it if you were gonna fail, clearly you are in the 10% of bad results. Win-Win.

Re:How do you fail a lie detector?

[OrwellianLurker]

If you take it and pass, you are telling the truth, if you take it and fail, why would you take it if you were gonna fail, clearly you are in the 10% of bad results. Win-Win.

It should never be allowed unless the defense permits it.

Re:The statistical value of "resonable dobut" = 0.

[Anonymous Coward]

What happens to the right to remain silent when it is there? The British have already gutted this right. Not that hard to envision the same happening here.....

It's a lie detector not a mind reader. If you look into this and other lie detectors it becomes quickly obvious that no application can ever approach 99.9% accuracy. Humans and the reasons they lie are too varied to ever be categorized. Lie detectors are part interrogation and part snake oil and there is a 0% chance they can be made reliable.

Food for thought: Scientologists currently use more sensitive lie detectors than the FBI.

Re:The statistical value of "resonable dobut" = 0.

[Anonymous Coward]

The Supreme Court has given science the legal definition that a "beyond a reasonable doubt" equates to 99.9% certainty... a system that is wrong 10% of the time or more needs at to at least be much times more accurate before it's going to be trusted. You're only allowed one blooper in 1000 by this standard. Nice tech, but it's not there yet.

Yes, if it's the only piece of evidence you have. What if I have 3 tests, totally uncorrelated, each of which is 90% accurate and all agree your client is guilty? The chances if innocence in that case meet the 0.1% threshold.

Reasonable doubt should apply to the case as a whole, not a single test. Or otherwise, they can strike any and all eyewitness testimony now, because human observers are notorious for errors.

To many people get

[geekoid]

there science from magazine covers.

Newsflash, It's not really that good. In the best controlled enviroments, you might appraoch 90%. Maybe.

IN an actually court case? in a situation where you are under serious stress? no.

We have learned a lot about the brain in there last 15 year. a tremendous amount, but not enough to understand all the finer chemical interactions going on.

Even if it could be perfect,and it can't be, it would still violate the right to testify against yourself.

They court room is a horrible place for science.
Look at the stupid hysteria regarding toxic mold.

76%-90%

[mevets]

Without a headlong dive into probability here, isn't 50% the baseline [ie. cointoss]? If so, isn't 75% only 50% better than guessing and 90% only 80% better than guessing? A description of "fMRI lie detection is 50%-80% better than tossing a coin" doesn't seem so impressive.....

Re:76%-90%

[blueg3]

That's fairly disingenuous math -- you'd be saying that 100% accuracy is only twice as good as flipping a coin. For simple systems (two equally-probable states, like flipping a coin), 50% is a good baseline. It really depends on what their "accuracy" is measuring.

But yes, 75% accuracy is pretty terrible, and 90% accuracy might be good enough to help out an investigator, but not nearly good enough to present as factual.

Re:76%-90%

[Anonymous Coward]

If your machine is right 75% of the time, then its only wrong 25% of the time, that's three good readings (hopefully) in every four questions. So far sounds like its 50% better when compared to two in four good readings.

But another way of saying it makes more sense in this case.

That's three good readings to every one error, instead of one good reading every error. So its three times "better" by my math than guessing, using the stated worst case accuracy.
If its accuracy is 90%, then that changes to nine good readings for every error instead of one, or about 9 times better.

Re:76%-90%

[Firethorn]

But yes, 75% accuracy is pretty terrible,

For this application. To reach the 99.9% court standard, we generally apply a number of different tests, all of which are less than 99.9% likely to be correct.

I wonder if you stick a guy in the MRI again the next day would you get a true 75% chance to be right this time, or if somebody who can fool it the first time is likely to fool it again?

Heck, what about combining this with the more traditional lie detector tests? Mythbusters actually rated the traditional test better for their limited not very scientific tests. (No fools vs 1 fool).

Re:76%-90%

[blueg3]

For that matter, the stated accuracy of a lie detector is higher than fMRI lie detection, and most papers will simply label fMRI as "promising".

Re:76%-90%

[afaik_ianal]

Probabilities are a bit like temperatures. Would you say that the weather on a 60F day is twice as warm as a 30F day?

By your logic, a perfect system would only be "twice as good as guessing". What does that even mean? "50% better" starts to sound pretty good when you look at it like that!

Re:76%-90%

[michaelwv]

I can never tell when I'm falling for a math troll, but to be rather simplistic about "better":
50% vs. 50% is 1 : 1
75% vs. 25% is 3 : 1, i.e. 3 times better
90% vs. 10% is 9 : 1, i.e. 9 times better

Re:The statistical value of "resonable dobut" = 0.

[geekoid]

Ironically, personal testimony is worse then 90%. A lot worse.

Re:The statistical value of "resonable dobut" = 0.

[WrongSizeGlass]

It's a lie detector not a mind reader.

Yeah! Do you know how expensive it is getting Kreskin to testify? Plus, I bet he's booked for months in advance.

Lie Detection

[Adrian Lopez]

Calling these devices "lie detectors" is misleading at best. Until they invent a machine that can travel back in time and compare the suspect's claims against the facts, there can be no lie detectors. All a lie detector can do is make visible certain physiological responses that are more or less associated with lying. While sometimes these responses are explained by the fact that the person is lying, humans are complex enough that it should never be considered a trustworthy mechanism as far as the law is concerned. Juries are easily influenced by apparently scientific evidence, but lie detection is a questionable science at best and could prejudice juries against the defendant.

There's an episode of Penn & Teller's Bullshit that does a good job of putting the lie to the lie detector.

Re:Lie Detection

[AtomicDevice]

Very true.

Even the best "lie detector" could only prove what someone believed or remembered to have happened. Many studies have shown memories to be very open to manipulation, children have been convinced by their doctors that they were raped by their own parents (when they were not). People have been manipulated to believe that certain individuals (who look nothing like the real perpetrators) committed acts of violence against them.

Even without overt manipulation, eyewitness testimony is notoriously unreliable, and there is no reason to believe that even suspects who have not been coerced might come to believe falshoods about their own actions through some combination of internal and external pressure.

Furthermore, as one with personal experience with fMRI data analysis, the though of using fMRI to sentence someone to years in prison or worse is frightening. While over large sample groups certain types of analysis can be reliable, fMRI data is frought with noise, is very low resolution (both spatially and temporally), and due to the huge amount of pre-processing required to get any useful data, would be very vulnerable to manipulation by unscrupulous types (or merely accidental bad analysis by poor technicians or bad software).

Re:Lie Detection

[Nematode]

Another problem with "lie detectors," and a good reason that juries rarely ever hear about them, is that juries tend to give them undue deference. You can get a competent defense counsel to present evidence to a jury that they're not reliable, have a lot of false positives, etc etc....and at the end of the day, many jurors will look at it and still think "that's a lot of high-tech sciencey doohickamajigs right there, and this defendant is just trying to talk himself out of scientific proof! I mean, look at those knobs and needles."

It's kind of a good thing that juries are disposed to trust "sciencey" stuff, but not so good when they can't grasp what it really is they're being told about, or what the shortcomings are.

Re:Lie Detection

[afaik_ianal]

> Until they invent a machine that can travel back in time and compare the suspect's claims against the facts, there can be no lie detectors

You're talking about a "truth detector". A perfect lie detector would just need to be able to direct read access to a person's memory. While Atomicdevice has some really good points about manipulation of memory, that shouldn't discount a perfect lie detector (if one ever existed) being used in all cases. The manipulating memory thing is a problem with witnesses, not with a hypothetical perfect lie detector.

If such a detector existed, and I were accused of something I hadn't done, I'd expect to be able to use it to show that I had no recollection of commiting the act, and that I remember being somewhere else. At least I only have to worry about a jury questioning the quality of my memory rather than questioning if I'm just protecting myself. Of course, if such a thing existed, juries might start questioning why some people weren't using them...

Re:Lie Detection

[sjames]

Even the time machine isn't a LIE detector. It could only indicate that the person is incorrect. In most cases, the time machine would be a lot more useful (who cares what the witness believes if we can actually see what they saw).

Re:The statistical value of "resonable dobut" = 0.

[jgagnon]

I think you're at least 10% wrong. :p

fMRI defintiely works

[Nidi62]

I mean come on, fMRI has even been used to definitively prove that dead fish can think! (http://neuroskeptic.blogspot.com/2009/09/fmri-gets-slap-in-face-with-dead-fish.html) How much more scientific proof for its accuracy do you need?

And he did very well in excluding it

[arisvega]

I wouldn't be sure to trust this brain energy pattern recognition for a verdict- as far as I am concerned, it is much better to cut loose someone that _might_ be guilty, than to convict someone that is not.

By how much could this swing a case?

[akkornel]

For those who are actually trial lawyers, in the United States, and not just in their heads, I am wondering: How possible is it to change a ruling (from guilty to innocent, or vice versa) on what one person says while on the stand?

Just a side comment...

[masterwit]

How is this labeled: "Your Rights Online" Can they scan my brain while I'm viewing Slashdot? - they would find that one amusing if such a system existed :)

(Category of 'Science' perhaps better?)

Mythbusters MRI Lie Detector

[Rick Richardson]

http://dsc.discovery.com/fansites/mythbusters/db/human-body/beat-lie-detection-test.html

Humans +1

[tpstigers]

This is a huge victory for humanity. What it really means is that the machines cannot tell when we're lying.

Re:The statistical value of "resonable dobut" = 0.

[timeOday]

You're only allowed one blooper in 1000 by this standard. Nice tech, but it's not there yet.

What you say would be correct if people were being convicted only on the basis of this fMRI lie detector test. In practice, how you get to a 1/1000 error rate is by combining several less reliable sources. For example, convicting somebody on the basis of one witness is crazy, but convicting them on the basis of 10 witnesses is reasonable. (Given certain assertions of statistical independence etc).

Re:The statistical value of "resonable dobut" = 0.

[idontgno]

Ironically, personal testimony is worse then 90%. A lot worse.

Are you personally testifying to this? If we are to believe you, you're saying there's a 90% chance you're wrong. So we can't believe you.

Damn you for introducing a Liar's Paradox to a perfectly good Slashdot discussion.

Is this dead salmon lying?

[wembley fraggle]

http://www.wired.com/wiredscience/2009/09/fmrisalmon/

fMRI is a fairly arcane art- it's nowhere near the "thought detector" most laypeople think it is. The actual practice is rife with the chance to show confirmation bias, given the kind of data filtering that goes on during the process. Check out the link above- scientists were able to show the reaction that a fish had to watching pictures of pleasant situations (babies, puppies, flowers, etc). The fish was dead at the time of the test, however. So, if fMRI can be used to show that a dead salmon has feelings, I'm not likely to trust it for a "lie detector".

Relevant Conduct..ever hear of it?

[droopus]

While we're on the subject of the "law..."

Anyone ever hear of relevant conduct as the feds consider it? Basically it means that your custody can be affected by behavior for which the charges have been dismissed, or even charges for which you were acquitted.

I kid you not. Here's a true scenario:

A man gets caught with five grams of crack. (FIve year mandatory minimum in the feds, until the crack/powder disparity is corrected.) That's five years for about a sugar packet of rock. But when he is arrested,the cop says" hey you look like the guy that hosed down that McDonald's with an AK47, killing 35 schoolkids!"

Of course, you aren't, you go to trial, and after 30 seconds of deliberation, the jury acquits you of the mass murder charge. But you still go away for the crack.

Here's the kicker: when you go to prison, the Bureau of Prisons (BOP) considers the murders "relevant conduct" and sends you to a very nasty pen, puts extreme violence on your record, and puts a Public Safety Factor on you, because of the "relevant conduct"...of which you were acquitted. Due process? Hah!!

Don't believe me?

Want the official Government position?

The US justice system is a fucking travesty, and unfortunately, you don't realize that till you're neck deep in it.

Be careful out there.

Re:Relevant Conduct..ever hear of it?

[nomadic]

Actually the story you link to says the sentencing judge can take into account charges the defendant was acquitted on, but implies that the ultimate jail sentence can't be extended past the maximum sentence for the charge they were convicted on.

Re:Relevant Conduct..ever hear of it?

[osgeek]

One of the many reasons that I always vote to decrease the power of government. Lower taxes + no deficit spending == less government power.

Re:Relevant Conduct..ever hear of it?

[droopus]

Indeed so, exceeding it would be an Apprendi issue.

But, relevant conduct can be the difference between spending time in a camp or a penitentiary. also, the BOP can slap a "greatest severity offense" Public Safety Factor on you, and that affects your whole life.

Sound fair, for something of which you were found not guilty?

Re:Relevant Conduct..ever hear of it?

[rastoboy29]

mod parent up

Re:Relevant Conduct..ever hear of it?

[nomadic]

Obviously it's not fair, but Federal Courts tend not to be, for criminal defendants. The question is whether it's Constitutional, which it probably is under modern interpretations of the Constitution (though the Supreme Court and I disagree on what constitutes cruel and unusual punishment).

Re:Relevant Conduct..ever hear of it?

[droopus]

I agree.. According to Scalia, punishment must be both cruel AND unusual to qualify. So, if we waterboard two guys, it's no longer unusual...therefore ok.

A definition from Law.com:

"cruel and unusual punishment
n. governmental penalties against convicted criminal defendants which are barbaric, involve torture and/or shock the public morality. They are specifically prohibited under the Eighth Amendment to the U.S. Constitution. However, nowhere are they specifically defined. Tortures like the rack (stretching the body inch by inch) or the thumbscrew, dismemberment, breaking bones, maiming, actions involving deep or long-lasting pain are all banned. But solitary confinement, enforced silence, necessary force to prevent injury to fellow prisoners or guards, psychological humiliation and bad food are generally allowed. In short, there is a large gray area, in which "cruel and unusual" is definitely subjective based on individual sensitivities and moral outlook. The U.S. Supreme Court has waffled on the death penalty, declaring that some forms of the penalty were cruel and prohibited under the Furman case (1972), which halted executions for several years, but later relaxed the prohibition. The question remains if the gas chamber, hanging or electrocution are cruel and unusual. For instance, hanging is certainly cruel but was not unusual at the time the Bill of Rights was adopted."

Re:Relevant Conduct..ever hear of it?

[nomadic]

The thing is, even going by 18th century standards, I think locking someone up for 40 years for possessing recreational pharmaceuticals would shock the conscience of the people back then as well.

Re:Relevant Conduct..ever hear of it?

[droopus]

Hoo boy some of the cases I've seen are so egregious they would spin your head. One example:

Limo driver picks up client at JFK. Puts suitcases in the trunk. DEA and FBI surround and stop the limo on the Van Wyck Expressway 3 miles out of the airport. Client hustles out of limo, runs away, never seen again. Suitcases contain 20 kilos methamphetamine, 10 kilos tar heroin.

Limo driver, totally innocent refused 10 year plea bargain, as anyone would. Jury finds him guilty of conspiracy...he gets 35 years in the feds, then will be deported, even though he's had his green card for 15 years.

This is the US justice system. CSI, Law and Order are worse than fiction....they are propaganda.

Re:Relevant Conduct..ever hear of it?

[sjames]

That's bad enough. For some charges it could make the difference between time served and years more in prison.

The Interesting Question is...

[cheesethegreat]

Here is the interesting hypothetical:

Assume this lie-detector is right 80% of the time, and that its success/failures are randomly distributed (e.g. not associated with socio-economic background).
Assume also that false conviction rates are at 21% (so only 79% of convictions are correct), and that there is substantial evidence that this is not evenly distributed (e.g. that false convictions are associated with low socio-economic status).

Would you be willing to entirely replace the system of jury trials with trial by lie detector?

Re:The Interesting Question is...

[izomiac]

This is why I'm curious as to the appeal of lie detectors in courtrooms. If there was an actual physiological change associated with lying, then the whole concept of lawyers and courtrooms becomes obsolete. Asking "Have you committed a crime?" with confirmation from the lie detector would be all that's required. Heck, police could start doing it to all suspects with portable versions, and drop off the people who failed at the local prison. The only point of a judge would be to determine sentence length, which, with a way to know what actually happened and what the motivations were, would basically lead to that just being a checklist. The suspect knew it was illegal? Add 6 months to the sentence.

Now, returning from our trek in fantasy land, lie detectors cannot work. Some people are terrible liars, but you can tell that in a jury trial. Others legitimately believe what they say to be the truth. "Did you commit a crime?" being a prime example. Serious criminals simply do not think like ordinary folk, a fact that should be obvious since ordinary folk (>98-99%) do not commit serious crimes. OTOH, for the situational crimes, the criminal's perception of reality is what would be detected by the lie detector, which probably has little resemblance to actual reality. Situational criminals don't knowingly do something evil, so they aren't "lying", whereas people who have the capacity to knowingly be evil aren't going to be flustered enough to be detected on a lie detector test.

Re:The Interesting Question is...

[BobMcD]

Would you be willing to entirely replace the system of jury trials with trial by lie detector?

To do so would ignore the brilliance of the system, and would emaciate the only good feature of it: popular justice.

See, the notion of a 'jury of your peers' isn't about proving innocence or guilt, per se, but is more about the people getting to participate in seeing their democratic laws justly applied.

E.g. 'jury nullification'.

Removing this element wouldn't be serving the people to the same degree the current system does.

Re:The Interesting Question is...

[Lehk228]

the machine's output is interpreted by human operators and their biases will still influence the output. enough so they a dead fish can "think" according to fmri.

Re:The Interesting Question is...

[pipedwho]

Absolutely.

If this was not the purpose of having a randomly selected jury of your peers, then the constitution could have mandated more accurate ways to establish guilt/innocence.

eg. Having professional juries full of experts in psychology/technology/etc (depending on the case evidence) would definitely improve the accuracy rate of conviction. But, this would come at the cost of losing the opportunity of being judged by your peers against laws that 'the people' view as unjust.

Re:The Interesting Question is...

[nomadic]

eg. Having professional juries full of experts in psychology/technology/etc

Because when they wrote the Constitution, there were plenty of psychologists around?

Re:The Interesting Question is...

[pipedwho]

I use 'psychology/technology' as a modern analogue to whatever skilled professionals they could have recruited at the time to act as jurists.

The jury base would still need to be continually rotated to stop any systematic corruption.

The original British system of 'jury of your peers' was not necessarily devised to maximise justice, but also to minimise blame. It was advantageous for the British Lords when it was created, because it removed the 'blame' for conviction (due to perceived bias) from the single presiding Lord and distributed it to the commoners (who could be assumed unbiased).

Re:The Interesting Question is...

[L4t3r4lu5]

I'd be willing to include it as another form of evidence in a case, but it would be included regardless of outcome. Inconclusive? That gets included for consideration.

Cases based upon polygraph / fMRI tests would be thrown out with prejudice.

Re:The Interesting Question is...

[BobMcD]

eg. Having professional juries full of experts in psychology/technology/etc

Because when they wrote the Constitution, there were plenty of psychologists around?

In fact there were people in that role, and they were frequently called 'pastor', 'reverend', etc.

Classic statistics problem

[cortesoft]

This sort of thinking (that if the accuracy rate is improved enough it will become a valid way of determining someones guilt) shows a fundamental misunderstanding of statistics. It is the same reason blanket drug testing doesn't work and medical screening can sometimes be a bad thing.

Let's imagine for a moment that this lie detector technology has been perfected to a 99.99% accuracy rate. Since the test is so accurate, we decide that whenever a crime is committed, we will just have everyone in the area take the lie-detector test, asking them the question "Did you commit the crime?". Clearly, when someone fails the test, they are 99.99% likely to be the criminal. Right?

Except no. In cases like this (where the average person is much much much more likely to NOT be the criminal, the error rate will overwhelm the actual guilty-rate. If we are testing everybody in an area, then we can suppose that each person we check has an average chance of being the criminal of about 1 in however many we are checking. If this number we are checking is very large, then we are CERTAINLY going to have quite a few people who are found to be guilty on the test but are actually innocent. It will pick out more innocent people than guilty people.

While this sort of statistical phenomena will not take place if we don't giving blanket tests to everyone and limit the test to people who we already believe are very likely to have committed the crime, we as a society have a very bad tendency to not understand the statistics and think we should just give everyone the test and let the results tell us who is guilty. If you doubt this, just look at how many people think we should have a DNA database that everyone needs to join (so we can just run any DNA found at a crime scene against it). This combines the birthday paradox with the statistics I described above to create a situation where we have a very real fear of false convictions, exacerbated by the fact that people who are relying on this evidence (juries) do not realize that even a test with 99.999% accuracy can have a very high false positive rate in these sorts of circumstances.

Check out http://en.wikipedia.org/wiki/Bayes'_theorem#Example_1:_Drug_testing for more info on the math behind this.

Re:Classic statistics problem

[blueg3]

Of course, nobody actually suggested just administering a lie detector test to everyone in the area. They only suggested allowing the results of the lie detector to be admitted into evidence.

Re:Classic statistics problem

[__aasqbs9791]

While I agree with your post I can see the slippery slope the OP is talking about. Where does allowing something like this lead? If it is so good, shouldn't it be mandatory, etc?

Re:Classic statistics problem

[naasking]

You can also defeat the statistical problem by repeating the test a statistically significant number of times.

Re:Classic statistics problem

[drfireman]

The fact that some people do statistics poorly isn't a good argument against using statistics. However, now that I typed that first sentence, I have to admit that people who do statistics poorly are much more likely to be put in charge of deciding how the statistics will be used than people who do statstics well. Due to overwhelming base rates.

Re:Classic statistics problem

[MostAwesomeDude]

At that point, you're just fishing. What good does it do to test the entire town until you've found the most likely culprit, with an error rate of less than %00.001, if the actual culprit is two states over?

Re:Classic statistics problem

[MechaStreisand]

That would work if and ONLY if the errors in the test were independent of the individual being tested and the questions being asked. If they were not, that wouldn't work, and would strengthen the belief that ignorant people would have in the guilt of those who failed the test even though they were innocent.

Re:Classic statistics problem

[naasking]

Indeed, but if there is suspicion of an unaccounted variable, that's definitely worth studying to refine the test further. The defense lawyers could also prove this by asking the defendant other control questions to demonstrate the faultiness of the test in this case.

Re:The statistical value of "resonable dobut" = 0.

[westlake]

The Supreme Court has given science the legal definition that a "beyond a reasonable doubt" equates to 99.9% certainty

Citation needed.

"Proof beyond a reasonable doubt" is not a formula or a slogan, to be sold, like Ivory soap, as "99 and 44/100% pure."

It only means, that in the light of all the evidence presented, the jury can in good conscience say that the defendant's guilt has been proven to their satisfaction and that any questions which remain will not alter their decision.

Re:The statistical value of "resonable dobut" = 0.

[Conspiracy_Of_Doves]

Just how is a jury supposed to to determine exactly how likely it is that a defendant is guilty, down to a tenth of a percent?

Was the witness a dead salmon?

[chill]

Without proper correction, fMRI has been shown to detect brain activity in a dead fish. Next up, trial lawyers.

Re:Was the witness a dead salmon?

[Anonymous Coward]

Without proper correction, fMRI has been shown to detect brain activity in a dead fish. Next up, trial lawyers.

Umm... I think those would be dead sharks.

Re:To [sic] many people get

[Anonymous Coward]

there science from magazine covers.

Newsflash, It's not really that good. In the best controlled enviroments, you might appraoch 90%. Maybe.

IN an actually court case? in a situation where you are under serious stress? no.

At least the magazine covers can spell and capitalize.

By the way, I love your sig. ~

Why is everyone saying they're relying on it?

[TSRX]

Why can't the machine's readout just be another piece of evidence that the jury accounts for?

Not If I Can Help It

[Anonymous Coward]

at my upcoming Crimes Against Humanity trial . I NEVER lied about Weapons of Mass Demolition.

Yours In Peace,
W

Thoughts vs blood flow

[Theril]

The whole field of brain imaging, be it fMRI, MEG or EEG has way too much methodological problems to be used as anything resembling "mind reading".

One big issue is whether the location of brain activation in fact says anything about the function that it supposedly causes. Even for the "known" localities (Broca's area etc.), the position varies a lot between subjects. Especially for seemingly homogeneous area such as the neocortex this is a big issue. And even for the better known localities, there aren't very clear theoretical accounts about the computation.

Also it's to be proven that the blood oxygen level in certain place of the brain really correlates that well with the computation that's done in that part. And that intensive computation in some part even tells very much about what's really being represented in the brain.

The fMRI (etc) studies are mostly correlational and any significant results usually require many test subjects. The accuracy of the results are vastly overrepresented in the public, and unfortunately often also in recent cognitive science/neurology/psychology.

http://en.wikipedia.org/wiki/Functional_neuroimaging#Critique_and_careful_interpretation

Busted Already on Mythbusters

[2obvious4u]

Grant beat it by doing complex math in his head while they asked him questions. Couldn't find a video, but found summary.

Re:Busted Already on Mythbusters

[irving47]

Hmm. I was sure Grant said he put himself into a constant state of heightened fear.

The right to remain silent

[mangu]

The right to remain silent is meant to make sure no one can be forced to speak under torture. It does not mean you have a right to keep authorities from getting evidence against you. This means, for instance, that police can force you to take a breath or blood alcohol test.

If it weren't for the right to remain silent, the police could tell you "say you are drunk or I will break all your teeth" but it would be meaningless for them to say "breath here with a BAC of 0.20 or I will break your teeth".

Re:The right to remain silent

[sexconker]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; [b]nor shall be compelled in any criminal case to be a witness against himself[/b], nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

You're wrong.

Re:The right to remain silent

[Monkeyman334]

Gosh. Legal issues are frustrating to discuss on Slashdot. People don't have the right to remain silent. You have the right to not incriminate yourself in court. That means if you are the target of an inevstigation you can be given immunity and forced to talk. If you are a witness and not the target you can be forced to talk. You can be forced to take a breathalizer test because it's not testimonial. None of this has anything to do with this case.

Re:The right to remain silent

[mog007]

Mandatory breathalyzer tests are, in the US, unconstitutional. The fifth amendment protects against self incrimination, which means testimony OR evidence. The state cannot compel you to provide evidence against yourself. With breathalyzers, if you refuse to blow, you probably lose your license, but you can't be jailed for it.

Re:The right to remain silent

[ooshna]

Yeah but if you look at what you sign before you get your license (at least in Ohio) That by signing the paper you get to use the states roads and in return if asked you do a sobriety test and/or breathalyzer test. If you refuse you can be taken to jail. Your tax dollars might pay for the roads but its the state that owns and maintains them. Which means following there rules.

Re:The right to remain silent

[drew30319]

The 5th amendment provides protection for one against their own mental processes being used against them. So for purposes of self-incrimination it is not a violation under the 5th amendment to require tests that, although they reveal something about the person (e.g. DNA or fingerprint match), do not reveal anything about their thoughts.

There shouldn't be an issue with requiring a breathalyzer (at least with respect to the prohibition against self-incrimination).

Re:The right to remain silent

[Shakrai]

You can't be taken to jail for refusing the breath test. A breath test refusal is a civil offense, with civil penalties (fines and/or license suspension)

Re:The right to remain silent

[L4t3r4lu5]

In the UK you cannot be forced to provide a specimen of breath for blood alcohol analysis. Failing to do so is a crime, with identical penalties to providing a positive reading of greater than 80mg/100ml blood alcohol (35g/100ml breath), being a mandatory 12 month driving ban and a fine of (typically) £300-£400. However, failing to provide a sample will often include discretionary increases in the duration of a ban, or a much heavier fine.

Forcing a suspect to provide a sample would be assault. It's that simple. However, this is totally off-topic and nothing to do with fMRI Mens Rea tests.

Re:The right to remain silent

[L4t3r4lu5]

That's 35(micro)grams/100ml breath. It appears that /. doesn't like µ for Greek Mu.

Re:The right to remain silent

[ooshna]

If the cop believes you are not fit to drive they will not let you drive., They will haul your ass down to the station. A little info on some of the myths (As far as Ohio goes)

Re:The right to remain silent

[gstoddart]

Gosh. Legal issues are frustrating to discuss on Slashdot. People don't have the right to remain silent.

In the US you do ... that's literally the first thing in the Miranda rights that get read to you when you get arrested.

Anybody who has ever watched TV knows that. :-P

Re:The right to remain silent

[mog007]

Read the Constitution.

...nor shall be compelled in any criminal case to be a witness against himself

Re:The right to remain silent

[cduffy]

Being read to the person being arrested, not to the witnesses. Read the parent's assertion more closely.

Re:The right to remain silent

[drew30319]

Here's the thing about the Constitution: it's not entirely clear what it means.

1) It was written a long time ago. Should it be interpreted based on what certain words meant at the time it was written?

2) The phrasing isn't always precise. How should words that have more than one meaning be interpreted?

Assuming that you agree that the Constitution is open to interpretation you then have to determine *who* gets to interpret its meaning. Fortunately that decision was made a long time ago. In 1803 the Supreme Court of the U.S. (SCOTUS) held in Marbury v. Madison that SCOTUS is the appropriate body for determining "proper" interpretation of the Constitution.

SCOTUS has determined that the clause in the 5th Amendment stating "... nor shall be compelled in any criminal case to be a witness against himself... " only refers to testimony.

Many cases have helped to clarify the distinction between "testimonial" and "non-testimonial." For example, the Court in United States v. Delaplane (1985) held that:

Courts have recognized that requiring a Defendant to give a demonstration of his voice for identification purposes by speaking the exact words spoken at the commission of a crime is not violative of his privilege against self incrimination. United States v. Wade... [t]he privilege attaches only to testimonial compulsion and does not attach to demonstrative, physical or real evidence. United States v. Williams, 704 F.2d 315, 317 (6th Cir.1983)

Some evidence that has been held to be "non-testimonial" are fingerprints, voice samples, blood samples, handwriting samples, DNA, and dental impressions.

UPenn Goat

[tanderson92]

This case illustrates very clearly the "Goat Problem", where an open and defined process is perhaps considered more important than the right answer. The "Goat Problem" is actually an ancient Chinese legend and the University of Pennsylvania's law school has this as their mascot[1]. Is it the right call? Perhaps, for accepting this kind of technology is a slippery slope down to the all-knowing goat. [1]: http://www.jstor.org/pss/3311295

Re:UPenn Goat

[pipedwho]

Is there a better link to that article that doesn't require a login/account?

Re:UPenn Goat

[tanderson92]

https://common.law.upenn.edu/Pages/default.aspx also works(go to the "Fun" tab at the bottom) and choose the "Goat Story". My previous link worked for me though, maybe it's only accessible from the US or something.

How to cheat the test.

[nsaspook]

https://antipolygraph.org/documents/nsa-polygraph-leaflet.pdf

The first thing they teach is how to cheat the test. Full bladder.

Oh please

[Anonymous Coward]

"fMRI has been shown to be 76-90% accurate"

Bullshit.

From the article-

"The estimates
from the two available laboratory datasets, ranging between 76 and over 90%
(Davatzikos et al., 2005; Kozel et al., 2005; Langleben et al., 2005), should be considered
a strong indication for more extensive testing rather than a focus of debate on whether
the upper limits of this range is sufficient for court evidence. In practice, the accuracy
of fMRI-based lie detection is likely to vary with questionnaire-type, countermeasures,
and other, hitherto unexplored variables. Though individual variability may diminish the
value of a standard fMRI template in clinical lie detection, individual response patterns
to a standard task could be used as a within-participant control prior to every liedetection
test (Hakun, Ruparel et al., in press)."

That does not say "accurate" and that we should put it in place immediately.

But that isn't relevant here.

[ElizabethGreene]

Scientific evidence is not evaluated on reasonable doubt, but by the Daubert standard. Part of this includes "general acceptance by the scientific community". IMHO and IANAL, this is too new to be generally accepted.

Quick, everyone go read the Truth Machine. :D

Re:But that isn't relevant here.

[nomadic]

Ehhh...under Daubert that's just one variable; it's possible to get something that hasn't been generally accepted by the scientific community, if the judge believes there are other indicia of reliability.

Re:The statistical value of "resonable dobut" = 0.

[BobMcD]

With a cluster of twelve of the most powerful super computers known to date.

wrong principle

[shentino]

If it's scientifically viable, it should be considered probative.

My grounds for rejecting it would be more along 4th amendment grounds, and I'd consider a brain scan as a search.

Re:The statistical value of "resonable dobut" = 0.

[LostCluster]

The point of this is that if there's DNA evidence that's 98% sure and nothing else, that's not good enough for a conviction. If there's other facts that confirm the DNA's finger-pointing, then there's enough to convict.

Legal History... and it's demise.

[CherniyVolk]

A large part of the legal system is to simply solve disputes. An almost certainty in any dispute is deceit, lying or other forms of ill will for which it's the duty of the courts to make a decision and hopefully the lies and ill wills will surface and justice will be served. Of course, in this fantasy world, unicorns run wild too but it's nice to think about but even harder to ignore that this is exactly what the legal system hopes to do.

If a device can systematically and scientifically determine if a person is lying... what use is a jury for? Why have a judge for that matter? Perhaps to represent authority and lay down consequences or compensation? Such a device wouldn't do away with the entire legal system, but it could certainly drastically change the face and foundation of that practice. For instance, a murder suspect is plugged into this device and it says that he's guilty? Suppose we have common understanding of how it works, making it very difficult to question it's reliability making it indisputably trustworthy (unlike current lie detecting machines that measure subtle electrical impulses, and demonstrated methods of circumvention).

It's my understanding that certain things like truth serums are illegal as evidence in some courts... perhaps this is because they are too effective? Lawyers want to keep the current legal landscape instead of foreseeing a future where they can no longer justify their outrageous retainer fees? The way by which truth serums work, you can even get a feel for the subjects intents and purposes without playing 20-Questions, which would really throw a switch and render cross examination worthless effort. There would be no Criminal Law... as any suspect would spill all beans effortlessly... and I imagine that's a huge revenue source for lawyers and legislatures. These serums are still used, for the most sensitive subjects. But as for the public eye, it's better to dredge through debates and word play, with the serum the truth might get in the way of an agenda. As long as there can be doubt, the people are at the mercy of word play and random decisions; the effect makes it possible for corrupt powerful men to insist on a fabricated truth or present a scapegoat, but it can also permit a clever criminal in getting off the hook.

I think fMRI in combination with truth serums should replace all criminal prosecution. Have a verdict as fast as you can prepare the injection and fMRI device; and be 100% sure of it.

Re:The statistical value of "resonable dobut" = 0.

[DamnStupidElf]

That's gotta suck for the (at least) 7,300 people falsely convicted who are sitting in jail right now.

Where's the beef?

[ClosedSource]

The link that is provided to suggest the accuracy of this new approach doesn't really describe the studies used to determine the accuracy. At a minimum we have to know how the study or studies were conducted before we can be sure the researchers aren't just blowing smoke.

5th Amendment Issue

[Psyborgue]

Forcing a person to take this test forces them to testify against themselves. I can see this being admissible as defense evidence but for the prosecution to force a person to undergo this procedure is in my mind Unconstitutional.

Memory doesn't exist

[DrYak]

For the last time, there's not really such a thing as "Memory" in a human's brain.
We are not machines with a RAM storage or a tape recorder in the head.

We only function in terms of what is plausible and coherent given a set of rules and what is not. This is why it is entirely possible to convince someone of false memories (The book "Elephants on Acid: And Other Bizarre Experiments" has a couple of them cited).
For another example, you don't remember meeting Mickey Mouse in Disneyland because you have a Video clip of it in your head-VCR, but because Mickey Mouse and Disney get often along together and associated mentally (and whole bunch of other such associations which all together make up the whole memory). And its entirely possible, by suggestion, to make people remember they met Bugs Bunny in Disneyland (Well, not here on /., but some people were there only as very young and - as not big fan of cartoons - only have the association that Disney is usually cartoonish and that the rabbit is a toon).

The only thing that you can see is if the person is giving an information in which the person is believing (i.e.: an information which the brain considers coherent given the set of rule), or if it is something that has the person thinking (building the information on the go).

But the machine could be wrong and make a false negative if the person is really believing the false information (see the false memories experiments, as the "lost in the market" example from the book, these persons could very easily show up as "is not telling a lie").
And the machine could give false positives if the person has to think and deduce *true* information (for example giving a PIN or a password when the person has bad memory and doesn't remember the code directly but uses mnemonic).

The machine can only distinguish when highly associative area or planning area are slightly more used - that doesn't tell you a damn thing about whether something is true or not. Only which mental process were used to come up with the information. The fact that some a slightly more often used when coming up with a lie doesn't tell you much about the true/false status of said information.

Re:Memory doesn't exist

[sjames]

The whole area is packed with faulty terminology that makes matters a lot more difficult.

Firstly, the fMRI attempts to detect confabulation, not lying. That may seem to be splitting hairs, but there is a significant difference. The fMRI cannot say if you are knowingly lying or if you are unconsciously confabulating. Lying may indicate a guilty conscience but we all unknowingly confabulate sometimes and some people unknowingly confabulate most of the time. Meanwhile, if you rehearse a lie long enough and in enough detail (but not too much), by the time you are questioned the machine will not indicate confabulation because you're just recalling the lie, not making it up as you go.

I might trust an fMRI to introduce reasonable doubt for an acquittal but not to provide proof for a conviction.

Countermeasure

[ClosedSource]

Yes, and any effective countermeasure should be scored as a failure unless it's something like rolling around during the MRI.

Sensitivity vs. Specificity

[Metasquares]

Accuracy isn't all that telling a figure. I'd have expected sensitivity and specificity: i.e. what proportion of lies are actually detected vs. (1-)the proportion of true statements which are falsely identified as lies. Actually, I was kind of hoping for an ROC curve in the paper. It is kind of the standard classification metric in this field.

False positives in a system like this can be pretty dangerous. "Innocent until proven guilty" means they should be trying to reduce the false positive rate even if it compromises the ability to identify actual lies. But to do that they need to separate out the different types of mistakes the system can make.

Ultra White Smile

[steeipper]

there is some evidence of narrowing of the arteries to part of the brain. this may be responsible for your recent symptoms. any one know what this means in the short or long term. UltraWhite Smile

Indian SC has banned all these tests recently..

[ami.one]

Interestingly, just a few days back the Supreme Court of India banned any forced polygraph/Narco/Brain Mapping Tests as they violate the constitution as well as the privacy of a citizen, are essentially asking a person to testify against himself, are as bad as torture, and are no better than getting a person drunk .

Re:The statistical value of "resonable dobut" = 0.

[Conspiracy_Of_Doves]

Oh, sure. The hardware is phenomenal, but most people are running crap software on it, and barely know how to use that.

Re:The statistical value of "resonable dobut" = 0.

[Anonymous Coward]

It only means, that in the light of all the evidence presented, the jury can in good conscience say that the defendant's guilt has been proven to their satisfaction and that any questions which remain will not alter their decision.

Which is nonsense, of course. It's always possible for new evidence to change your mind, unless you have a religious faith in your current position - and I could never, in good conscience, have such a faith in the guilt of another person.

read what you linked

[Goldsmith]

Read that paper you linked about the 76-90% accuracy.

The authors put that figure out and then immediately state that the quoted accuracy should not be "a focus of debate on whether the upper limits of this range is sufficient for court evidence."

They have good reasons for this! As they explain, the *technical* accuracy of fMRI is really good, but this is not the same as practical accuracy. The variations between individuals are huge and not understood. Thus, in a laboratory setting, where you can use cooperative, "good" test subjects with calibrated responses, a higher practical accuracy is expected.

In other parts of that paper, they detail the specific fMRI measurements common in the literature and then also detail the confirmed mistakes and overlooked opportunities in the research. There are now-discredited papers from only a few years ago, that's a big sign that the technology has not been figured out yet. It's a good review and makes a good case that further research is warranted, not that it's ready for court.

Suspicious

[needor]

Suspicious and is not really practical. oil purifier, oil regeneration machine, oil recycling machine, oil purification

And

[mahadiga]

In India http://to./c74