THE RIGHT TO SILENCE AT RISK: NEUROSCIENCE-BASED LIE DETECTION IN THE UNITED KINGDOM, INDIA, AND THE UNITED STATES

• Published in: The George Washington international law review Vol. 42; no. 4; p. 865
• Main Author: Pulice, Erin B
• Format: Journal Article
• Language: English
• Published: Washington George Washington University, National Law Center 01-01-2010
• Subjects: Arsenic; Civil rights; Constitutional law; Convictions; Court hearings & proceedings; Criminal law; Criminal sentences; Evidence; Judges & magistrates; Neurosciences; Polygraphs; Trials; United Kingdom > UK; United States > US; India
• ISSN: 1534-9977

Neuroscience-based lie detection tests (NBLD) such as Brain Electrical Oscillation Signature have quickly established a presence in the society. Its presence is everywhere from criminal law to pop-culture. At the nomination hearing of John Roberts to be Chief Justice of the US Supreme Court in 2005, then-Senator Joe Biden commented that as Chief Justice, Roberts will have to decide whether it is legally permissible for brain scans to be used to determine whether a person is inclined toward criminality or violent behavior. Presently, the answer to that question is unresolved. Unlike peripheral nervous system measuring techniques such as the polygraph, NBLD measures the involuntary responses of the brain. Polygraphs and other peripheral lie detector tests like the deceptograph or the voice stress analyzer, measure the physical manifestations associated with lying. The right to silence does not just protect the guilty. It is a fundamental right that is a pillar of the accusatorial system. John Hart Ely famously remarked that constitutional law appropriately exists for those situations where the representative government cannot be trusted.