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For decades, the science of lie detection has been rooted in the measurement of physical responses to questioning. In the past few years, neuroscience has begun to make inroads into the workings of the human brain. This approach promises to unmask pretense and prevarication by mapping the machinations of the mind. Lie detection tools, new and old, can perform a critical function for the defense, helping to convince prosecutors and judges of a client’s innocence. Brain imaging is one of the latest methods for truth detection under investigation. Recently, a doctor at the Temple University School of Medicine reported on a study that combined polygraph examinations with functional magnetic resonance imaging (fMRI), a type of brain scan. 1The fMRI highlights blood flow to areas of the brain that are activated presumably when someone is lying or telling the truth. In this study, 11 volunteers were split into two groups, one fired a toy gun, the other did not. All the participants were asked to give conflicting answers about whether they fired the gun. Combined fMRI and polygraph testing, administered simultaneously, produced accurate results about their truthfulness. According to scientists, this line of research has potential, but the technology is costly and more investigation is needed. MRI studies of adolescents are already being used to support arguments against executing juveniles. U.S. Supreme Court Justice John Paul Stevens, dissenting from a decision not to grant habeas corpus review, took note of MRI studies that showed adolescent brains were not fully developed and more impulsive, erratic, and unrestrained than those of adults. 2Some of the briefs filed in Roper v. Simmons, 3a recent Supreme Court case declaring the juvenile death penalty unconstitutional, also cited MRI studies. It is worth noting that on Jan. 1, 2005, changes in the New York rule for authenticating evidence of “pictorial representations of medical or diagnostic tests” became effective. CPLR 4532-a impacts the presentation of MRIs and similar evidence by streamlining admission through notice procedures and supporting affidavits. The key development was elimination of language limiting the rule to personal injury cases. Of course, it does not eliminate the need to lay a foundation for expert interpretation of the contents. Brain Fingerprinting Brain fingerprinting4 is another area of neuroscience that claims to discern the presence of memories or information that might be used to exonerate the innocent. It measures a person’s response to words or pictures related to a past event, and determines whether or not there are memories of that event in the person’s mind based on involuntary brain wave activity. It was introduced in court for the first time in a post-conviction proceeding to challenge a decades-old Iowa murder conviction. In that case, at his post-conviction hearing, Terry Harrington produced newly discovered evidence that included a recantation of the main prosecution witness, police reports identifying another suspect, and brain fingerprinting results. The tests showed that Harrington’s brain did not have information about the murder, but contained facts supporting his alibi.5 Although the test results were admitted at the hearing, the judge did not grant relief. On appeal, the Iowa Supreme Court ordered a new trial based on a Brady violation, the failure to disclose the exculpatory police reports. The court noted but did not consider the scientific evidence in reaching its decision. Brain fingerprinting was also used in the case of Jimmie Ray Slaughter.6 After being convicted of first-degree murder and sentenced to death in Oklahoma, Slaughter filed a second post-conviction motion based on newly discovered evidence of innocence, the results of a brain fingerprinting test. However, it was not successful. In addition to being barred procedurally, the Court of Criminal Appeals found insufficient evidence to support the factual innocence claim “or that Brain Fingerprinting … would survive a Daubert analysis.” Polygraphs Brain scans and other cutting edge technologies are being tested with an eye to complementing or possibly replacing polygraphs. These new technologies have hurdles to overcome before they are accepted by the justice system. And their approval will hinge on the outcome of Daubert and Frye hearings, the implementation of standards, and the test of time.7 Meanwhile, the traditional polygraph figures prominently in the field of lie detection, and its reception by the courts might forecast how newer tools will be viewed. For New York practitioners, polygraph evidence has proven helpful in persuading prosecutors and judges of a client’s innocence in the right circumstances. �Clayton’ Motions A couple of years ago, the Court of Appeals struggled with a single eyewitness identification case, People v. Calabria. One dissenting judge expressed concern that Michael Calabria might have been innocent, and pointed out that he passed two polygraph tests.8 Although inadmissible at trial, a polygraph test can support a pretrial motion to dismiss in the interests of justice. In People v. Miller,9 a veteran police officer was charged with grand larceny and falsifying business records for allegedly taking money seized during drug raids. He asserted his innocence throughout the investigation. There was no confession, no eyewitnesses, and no evidence that he possessed or spent the money he was accused of misappropriating. The case against him was circumstantial. His defense lawyer filed a Clayton motion, which prompted the court to suggest a polygraph. Among the 10 statutory factors underlying a Clayton application, there is one that allows the court to consider “evidence of guilt, whether admissible or inadmissible at trial.”10 Miller passed the polygraph. Considering the circumstantial nature of the case and other factors in defendant’s favor, the court dismissed the charges. The Miller court cited another circumstantial case where a judge had to consider a defendant’s request to introduce polygraph evidence at a Clayton hearing.11 In that case, defendant Lawrence Vernon faced a felony weapons possession charge. At the time of the offense he was allegedly in an “alcoholic stupor” sitting in a restaurant booth. One police officer claimed to have observed him pull a gun from his pocket and wave it in the air, but his partner did not see it. The weapon was found near Vernon, and his intoxication prevented him from disproving a negative, that is, he did not possess it. Ultimately, the judge admitted proof at the Clayton hearing that the defendant passed two separate polygraph tests. The conflicting evidence and defendant’s disadvantageous position were critical factors in the court’s decision to consider lie detection evidence. The lawyers in Miller and Vernon filed motions, but stipulations can serve in their place when a prosecutor is willing to dismiss charges conditioned on a defendant passing a lie detector test. Courts give substantial weight to stipulations and if one is entered in good faith and complied with by the defense, it will likely be enforced should the prosecutor later renege.12 Part of such an agreement might require the test to be administered by the prosecutor’s polygraph examiner. Otherwise, an indigent defendant will have to convince a court to order payment for the examination.13 If the prosecutor is unwilling to consider polygraph evidence, seeking court ordered funds may be an uphill battle.14 The discretion of judges and prosecutors to dismiss charges in the interests of justice offers the defense a chance to make use of exculpatory truth detection tools. As existing techniques are refined and new ones emerge, defense lawyers should be conscious of their benefits in appropriate cases.
1. fMRI Uncovers Deception, Radiological Society of North America Daily Bulletin, Nov. 29, 2004, http://www.rsna.org/daily/monday/fmri.html . 2. In re Stanford, 537 U.S. 968, 971 (2002). 3. 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). 4. Brain Fingerprinting Laboratories, http://www.brainwavescience.com . 5. Harrington v. State, 659 N.W.2d 509, 516 n.6 (Iowa 2003). 6. Slaughter v. Oklahoma, 2005 Okla. Crim. App. LEXIS 1 (Ct. Crim. App. Jan. 11, 2005). See Episode 8: “Brain Fingerprinting” in INNOVATION (PBS May 4, 2004) (describing Slaughter’s case), http://www.pbs.org/wnet/innova-tion/episode8.html . 7. See generally Andre A Moenssens, “Brain Fingerprinting: Can It Be Used to Detect the Innocence of Persons Charged With a Crime?,” 70 UMKC L. Rev. 891, 907-917 (2002). 8. 3 N.Y.3d 80, 84 n.1, 783 N.Y.S.2d 321 (2003). 9. People v. Miller, 2 Misc.3d 1006, 784 N.Y.S.2d 923 (Chemung County Ct 2004) [full opinion see 2004 WL 615136]. 10. N.Y. Crim. Proc. Law �210.40(1)(c). 11. People v. Vernon, 89 Misc. 2d 472, 391 N.Y.S.2d 959 (Sup. Ct. N.Y. County 1977). But see People v. Grampus, NYLJ, March 21, 1983, at 15, col. 1 (Sup. Ct. Bronx County) (polygraph results of defendant and alibi witness admitted at Clayton hearing, but motion denied due to direct identification evidence). 12. See People v. Davis, 94 A.D.2d 610, 462 N.Y.S.2d 7 (1st Dep’t 1983); People v. Prado, 81 Misc.2d 710, 365 N.Y.S.2d 943 (Sup. Ct. Bronx County 1975). 13. N.Y. Crim. Proc. Law �722-c. See generally Wanda Ellen Wakefield, “Right of Indigent Criminal Defendant to Polygraph Test at Public Expense,” 11 ALR4th 733. 14. People v. Lopez, No. 1694/2002, 2003 WL 21262136 (Sup. Ct. N.Y. County May 16, 2003); People v. Black, 86 Misc. 2d 909, 382 N.Y.S.2d 944 (Sup. Ct. Kings County 1976).

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