Gary James Smith v. State of Maryland

fMRI lie detection evidence, supplied by the company No Lie MRI, has been considered during pre-trial criminal hearings in the USA, this time in the case of Gary James Smith v. State of Maryland [1, 2]. The device has already had a couple of hearings as potential evidence, with tests conducted by rival company Cephos, first in New York [1, 2] in 2010 and then again in Tennessee [1, 2, 3, 4] later that year.

Gary Smith is accused of shooting Mike McQueen in 2006 and is about to go to trial for the second time, after the Court of Special Appeals affirmed the verdict of the trial court, and then the Court of Appeal reversed and ordered a retrial. The first verdict, which had found him guilty of second degree murder (or ‘depraved heart murder’) was overturned on the basis that the trial court had admitted prosecution evidence of the decedent’s ‘normal’ state of mind, but hadn’t allowed evidence to the contrary.

The case is an interesting and complex one, particularly as regards medical and scientific evidence. For a start, both Smith and McQueen worked as Army Rangers and served in the ongoing conflicts in Afghanistan and Iraq. As such, both parties, the defense and the prosecution, claim that post-traumatic stress is, in part, to blame for the tragedy. In the first trial, the prosecution suggested that Smith’s PTSD may have left him unstable, which may have contributed to him murdering McQueen, whilst the defense argued that McQueen’s PTSD led him to commit suicide. The case thus quickly became a focal point for a still ongoing debate over the hidden psychological and medical costs of the war on terror. Furthermore, two experts appointed by the court were divided over the blood spatter evidence, with one claiming it suggested suicide and another that it pointed towards murder.

Moreover, as part of his pre-trial hearing with Judge Eric M. Johnson, of Montgomery County Circuit Court, Smith recently sought admissibility for fMRI evidence of the veracity of his claim that he did not shoot and kill McQueen. The evidence, though the judge found it ‘fascinating’, was excluded. The decision appears to have been founded on the current lack of evidence that the device works as a lie detector, said Judge Johnson: “There’s no quantitative analysis of this procedure available yet.” In contrast, Joel Huizenga, CEO of No Lie MRI, said: “There is always room to do more research in anything, the brain’s a complex place. There have been 25 original peer reviewed scientific journal articles, all of them say that the technology works, none of them say that the technology doesn’t work…that’s 100 percent agreement.”

It shouldn’t be a surprise that community opinion has again been influential in determining admissibility of scientific evidence regarding veracity, it has long been so, particularly since the long-established Frye ‘general acceptance’ rule was decided on the same basis in the case of the exclusion of the polygraph, nearly one hundred years ago. However, proponents of fMRI lie detection, such as Steven Laken, CEO of Cephos, have argued that lie detectors are held to a higher standard than are other forms of scientific evidence: “But the standard is set even higher for these lie detectors because of this idea that the judge or the jury are basically the final determiners of whether someone is lying on the stand…The courts are unfairly putting a higher bar on that than they are on other scientific evidence like DNA.”

Expert testimony, like that of the gun splatter expert, gets enmeshed in legal talk in unpredictable ways. Various technologies are enrolled to understand the significance and reliability of new techniques under consideration. Indeed, the polygraph – for instance – has often been compared to fingerprinting or DNA evidence when deciding on its admissibility. The difficulty that those supporting fMRI lie detection face is in seeking to make it amenable to a complex system in which notions of responsibility, guilt, lying and truth are constantly at play between rules, precedents, expert evidence and legal talk during trials. Take, for instance, the following quote from the closing statement of the prosecution in the first trial of Gary Smith:

“It’s been 18 months since Michael McQueen was buried.  This defendant shot him.  It’s time for justice.  Healing begins when justice occurs. And the only just verdict in this case, the only proper verdict in this case is to hold that person responsible for [what] the physical evidence shows, no matter what experts you want to believe, that he was right there when he was shot.  What your common sense and understanding shows [is] that you don’t stage a scene, you don’t throw away a gun, you don’t lie and lie and lie and lie to the police, unless you’re guilty as sin.”

This decision seems, on the face of it, to be a further defeat for the corporations seeking to admit fMRI lie detection evidence. However, advocates of exclusion, such as the eminent law professor and scientifically well-informed Hank Greely of Stanford Law School, whose testimony has been influential in these early cases, might be wise not to rest on their laurels. There are likely to be more, and perhaps more significant, spaces in which the battle over fMRI lie detection will be fought. Importantly, however, these are not as easy to pin down as the criminal trial courts. Lessons from the history of the polygraph regarding its entanglement with governance teach us that exclusion from criminal trial courts is far from the end of the story as goes lie detection.

The rhetorical construction of the polygraph as the lie detector contributed to its being adopted in a wide range of spaces in the USA. For example, the polygraph continues to be used in the context of employee screening, espionage, police interrogations and private investigation. Or take one further example: paedophilia. In a week or so I’ll be reporting on the use of the polygraph machine in the context of sex and criminal sexual behaviour, where it is now commonly used in the USA to manage paedophiles during post-conviction probation. Such use of the polygraph was recently trialled in several UK regions and looks set to be taken-up more broadly. As such, even though the device was barred from criminal courts in Frye, the polygraph has since been used in very particular, but also very important, legal spaces close, but just outside of the trial.

fMRI appears to be going the same way. The No Lie MRI website boasts that: “The technology used by No Lie MRI represents the first and only direct measure of truth verification and lie detection in human history!” This rhetoric of direct measurement has been a key one in the articulation of the fMRI machine’s potency for lie detection. Constituting the brain as the location of truth and thus of lying, the fMRI researchers have frequently claimed that we are looking directly into the lie. This has been used to help position the fMRI machine as the natural successor to the polygraph by positing it as a technological improvement on the polygraph’s indirect measurement. No Lie MRI claims: “lie detection has an extremely broad application base. From individuals to corporations to governments, trust is a critical component of our ability to peacefully and meaningfully coexist with other persons, businesses, and governments.”

Irrespective of whether the technique ‘works’, more attention should be paid to the complex way in which lie detection evidence is negotiated in relation to medical diagnoses, like PTSD, and other technologies such as blood spatter, DNA or the polygraph. Moreover, we have to better understand how lie detection techniques have dispersed into the US (and now into other countries, such as here in the UK), how they are used and what their consequences are, in order to better respond to fMRI’s emergence as a lie detector. Otherwise, fMRI may be excluded from criminal trials in much the same way as the polygraph but still find use in a variety of significant social, legal and political spaces that are far more difficult to control. The fMRI machine looks new and shiny but as regards lie detection, it might all be a little bit of history repeating.

Ignorance of Science

A recent meeting in Manchester coordinated by the Technology Strategy Board Synthetic Biology Special Interest Group aimed to bring potential collaborators together in order to apply for funding from the recent TSB call for Synthetic Biology. The call, “Advancing the Industrial Application of Synthetic Biology,” has been importantly influenced by a number of recent meetings of the UK Synthetic Biology Roadmap Coordination Group. Those meetings are, in part, influenced by David Willett’s approach to technology development as ‘practical leadership’, which places an emphasis on government, academic and – above all – industrial collaboration. No surprise then that Dr Lionel Clarke from Shell chaired the meetings and was responsible for pulling together information from the Group to produce the recently published Synthetic Biology Roadmap.

The Roadmap is an interesting document. As well as the usual promises about amelioration and prosperity (as Rabinow and Bennett term it) there was something a little more unusual. The Roadmap includes a more nuanced account of innovation and public acceptance than one would usually find in such a document, primarily because of the involvement of Dr. Claire Marris, Jane Calvert and Prof. Nikolas Rose. Here’s a quote:

“The direction taken by innovation pathways, and their perceived social consequences, themselves shape public responses. The responses and decisions of many and varied social groups – alongside those of academic researchers and firms – help to determine technological pathways and the realisation of benefits. These include institutions involved in health, safety and environmental regulation, intellectual property, research funding, and capital investment, as well as intended users and beneficiaries, and civil society groups. New social groups also emerge alongside innovation (new pressure groups may come into being when, for example, a new drug is developed to extend the life of patients with a specific terminal cancer). All of these groups need to be actively engaged, throughout the process, in the governance of synthetic biology research and innovation.”

There is much to be praised about such a statement and indeed the involvement of social scientists seems to have had an effect on the TSB’s approach to its funding call, which now includes a requirement – for the first time – to use their new ‘Ethical, Social and Regulatory’ assessment mechanism. Social scientists, including myself, were on-hand to offer our assistance in completing the assessment and to help provide some information about current thinking in the field. So it seemed like there was a good chance this might go well and that we might unshackle ourselves from the long-established ‘innovation pipeline’ metaphor and the obsession with preventing another GM.

However, as clear as these social science pages are in the Roadmap and as much time was spent on presenting alternative ways of thinking about innovation (from Joyce Tait, for example) the recurrent theme of discussions was the arcane notion that GM was ruined by, as one person put it on the day, “well organised pressure groups.” Asking a question of Prof. Tait one audience member inquired as to whether we had any information about how the groups reacting to SB were organising. Was there going to be concerted resistance? In the course of the day I overheard more than one conversation about media influence of public opinion and the public being ignorant of the reality of genetic engineering. Tellingly, there was talk of the way in which ‘synthetic biology’ as a neologism promised to distance the research from the history of GM.

I report all of this to to throw my hat in with Marris et al., and say that if we really do want to see innovation pathways become more robust and responsible then we must do away with this seemingly endemic notion that ‘the public’ distrusts science and is as easily swayed by media currents as a paper boat on the Atlantic. We have to be able to engage publics with innovation in meaningful ways. My recent discussion with neuroskeptic about the difficulty of communicating social science writing is pertinent here. In that discussion we talked briefly about the power differential between sociological knowledge claims and scientific knowledge claims. An important element to add to this is the ‘lock-in’ of certain beliefs. We get stuck in particular ways of thinking about the world because changing those beliefs requires changing a whole load of other beliefs, dispositions and technical practices. So when disciplines try to work together and communicate it isn’t only changing our terminology that is at stake, but also our ways of conceiving the world and our ways of producing knowledge in the world. These have to be communicated and understood as well and this exposes them to contention, and that is a far greater challenge.

So, for example, good, accessible, alternative accounts of public beliefs around science and technology do exist. Social scientists like Claire Marris have been doing an excellent job of evidencing how ‘the public’ as imagined by this endemic position on ‘public ignorance’ simply doesn’t exist, and of how views are not simply adopted wholesale from lazy or hyperbolic journalism. As Marris points out, participants in focus groups on GMOs “did not react so much to genetic modification as a specific technology, but rather to the institutional context in which GMOs have been developed, evaluated and promoted.” Moreover, that non-scientists are simply ignorant and could be somehow cured of their ignorance and thus of their irrational resistance is patently false. In Marris’ report she shows how participants readily acknowledged their ignorance of the scientific and technical information and that their opinions were not based on misinformation that they held to be true. Instead, their ideas about GMOs were importantly tied to beliefs about agricultural practices, for example, which they saw to be increasingly focussed on profit and efficiency and not on variety and quality. Their feelings and thoughts about GMOs, then, were importantly contextualised by the very contexts in which GMOs were developing.

The problem is that no matter how many times social scientists present alternative positions on innovation and dispel the myths of the GM disaster, the easier thing for many natural scientists is to continue to see the public as one unruly, ignorant mass baying for their heads. A partial explanation for this is that it means they don’t have to take seriously the possibility that members of the public might hold a large number of complex, informed and contextual opinions that might differ from their own in legitimate ways. It would mean acknowledging that the public does include expert groups, from lawyers through accountants to plumbers, all of whom have various investments in science and technology and have myriad different voices and opinions. It would also mean acknowledging that scientists themselves have political and social dispositions and beliefs and these can’t be easily extricated from their work.

A further difficulty of engaging with the public in this more substantive way is that it makes the ‘problem’ of getting scientific research into applied, innovative contexts seem much more intractable. If the members of publics are not simply misinformed by biased pressure groups and poor reporting and are instead interpreting technological developments within their contexts of political and social production then that means more substantive, more frequent and more open discussion is necessary to engage with questions about implications, risks and benefits. This is a problem because it costs time and resources and it opens up the practices and contexts of science to question. When members of publics connect up scientific development to capitalist projects, for example, scientific and technical facts become more difficult to claim as entirely unmotivated and as totally objective. Communicating with the public around SB would require, for instance, thoughtful and nuanced engagement with the implications of the connection between the technical development of biofuels and the aims of huge petroleum companies. Another example would be having to discuss the development of SB in the context of weapons development and war, since DARPA and other agencies have taken more than a passing interest in the prospects of designed organisms. Opening up scientific practice exposes the many ways in which research and innovation is political and forces scientists to confront their own investments.

Engaging with the contexts of their research and the substantive beliefs and knowledge of lay members is therefore time consuming and emotionally and politically demanding. A recent survey I conducted for a major research university showed that those researchers who were most engaged in public dialogue found it had positively and productively changed their opinions of ‘the public’ but that it had also begun to take up far more time and emotional labour than they’d anticipated. Some were willing to put in the extra hours and to think carefully about how they justified their work and made sense of their research, and some were simply unwilling or unable. Some thought we needed to change institutional structures and others thought we needed expert roles specifically for such activities. Whatever the response to these challenges it was a far more complex situation than simply educating and ignorant public. That being said, this more complex problem of institutional reorganisation of the scientific life is a far more realistic way of achieving publicly-engaged innovation.

Ultimately, however, the pressures of academic work and the history of rhetoric around objectivity means that natural scientists themselves remain ignorant of public beliefs, thoughts and feelings and this leaves us stuck in unproductive accounts of public ignorance and unidirectional pipelines to innovation.

Technical Terminology is Necessary

Neuroskeptic argues that social science papers are badly written, largely due to their use of technical terms, which he argues might not be needed at all. I have argued that seeing the use of technical language as bad writing would apply to all academic work, including natural science. I suggested that although it can be done without too much damage in some cases, there is a limit to substituting everyday terms for technical terms in social science. I argued that the demand for such substitution was connected to a privileged position of the natural sciences in knowledge production. Since the debate is a worthy one and since neuroskeptic has been nothing less than reasonable and open to discussion I wish to respond to his most recent article. In the spirit of the subject matter, I want to take this as an opportunity to communicate and the following shouldn’t be read as an antagonistic response in the slightest.  Rather, it will be an attempt to communicate about technical terminology largely without the use of it, perhaps proving neuroskeptic right even as I seek to disagree. Though I’ve focussed on a few points and have avoided talking about a great many things I wanted to, it is still a long response, so apologies in advance (I’m still getting used to blog style). Here goes…

First, it is important that we narrow down the field of concern. The term ‘social science’ is a generic one, much like ‘natural science’. There are a great many disciplines that could be housed under the term social science, such as law, economics, philosophy, politics, anthropology and sociology. Each of these would, because of their quite significant differences in their ways of making knowledge, require a different response to the challenge posed regarding technical terminology and everyday English. Law, for instance, clearly deals with terms available to us in everyday English, like ‘guilt’ or ‘expert’. However, the law is a rule and precedent based system, and these terms have very specific meanings within those rules and precedents that do not equate to their everyday English use. This is because the law is not just the everyday life of everyday people but an expert discipline based on its own phenomena. This points me towards an important first point. There are plenty of English words that are already used in the day-to-day research of social scientists but they take on different meanings when they are used in technical argument. This in itself poses a challenge for communication of social science information.

A good example of this would be the word ‘truth’ which is used in philosophy, law and practically every other discipline one cares to name. However, even in the context of philosophy the meaning of ‘truth’ varies according to different philosophical systems in ways that do not necessarily reflect our everyday understanding of the term. For the correspondence theory of truth, for example, the meaning of ‘truth’ shares much in common with our everyday notion, since in this theory the ‘truth’ of a proposition is that it has some relation to reality and to some factual state of affairs. By comparison, a coherence theory of truth posits that the truth of a proposition lies in its coherence with other propositions as part of a set of propositions.  This points us towards a more important point. Natural scientists are, in general, committed to a correspondence theory of truth. This is true of a number of social scientists who would posit that their propositions relate directly to real objects in the world. However, there are great many social scientists who take a different position because of their philosophical and methodological disposition. I will return to this later, but it should be noted at the outset that this might be an underlying misunderstanding of which this debate over technical terminology is only a symptom.

In light of this demand that we be more specific I will focus on sociology and anthropology, since this is my primary area of expertise but also because I believe they are the disciplines to which Neuroskeptic was mostly referring. His contention is that these fields deal with explanations for everyday life and since everyday life is understood and enacted using a subset of the available English words then we should be able to use that same subset to describe and explain everyday life as professional sociologists and anthropologists.

Now, applying my first point I think it is clear that we already do use a number of English words for technical meanings. Take the term ‘culture’, which has a variety of uses in English language and has a wide variety of specific definitions in anthropology and sociology. The everyday use of this term might be to do with the beliefs and values of the community, but it might also be used to refer to the various activities associated with a certain notion of ‘high’ culture, such as the theatre, opera or classical music. I note in passing that biologists have adopted the term culture to refer to the media in which microrganisms are grown and as a noun to mean the process of growing such microorganisms using such media. Anthropologists have also adopted the term culture but have provided different definitions of it, depending on what they saw as the best methodology to be adopted for anthropological work. This, then, is my second point: the use of terms in everyday life is not set in stone, changes over time and across different spaces. This is also true of sociology and anthropology because they are not homogenous and so cannot always use the terms of everyday life to mean the same things as they do in everyday life since different groups of anthropologists might disagree over the methods to be used and the nature of the phenomena that such methods could address.

This is linked to my third point in that sociologists and anthropologists are seeking to develop sociology and anthropology and not simply to get on with the daily business of everyday living. Take E. B. Tylor’s general definition of culture as the “complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.” Now contrast this with Geertz’s concept of culture which has to do with the “historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and their attitudes toward life.” Geertz’ definition was intended to contrast with Tylor’s since he was arguing for a shift in the epistemology (the ways of making knowledge) of anthropology. Geertz wanted us to move away from a tradition that emphasised the ideal of being able to objectively observe culture from the outside, as it were, known as positivism, and towards a practice that emphasised the impossibility of objectively studying culture and thus focussed on its more subjective interpretation, known as interpretivism.

This latter movement of interpretivism has sought to explain human life through attention to the symbolic and conceptual schemes that are used to organise and explain everyday life by the people themselves. In this respect, some sociologists and anthropologists do pay a great deal of attention to everyday use of English or German or Balinese, whatever the case may be. They do make use of these words and explanations that are used in everyday life in their analyses. However, they also perform operations on these observations of cultural symbols. Such operations have to do with methodology and the development of theories. This is because words and explanations are used in specific contexts for specific purposes and their meaning, according to this more interpretivist strand of work, is thus defined in local spaces. Part of the work of professional sociological interpretation, then, is to connect with these localities and try to understand the ways in which English words are being used in those particular contexts.  A sociologist, for instance, might study a tattooist’s studio, a forensic morgue and a men’s health magazine and find that the use of the word ‘body’ was significantly different in these spaces, precisely because of the activities enacted in those spaces upon the body and in relation to it. In the first the body might be understood as a work of art, and thus as the ‘aesthetic body’, in the second as a source of evidence and thus as the ‘evidentiary body’, and in the third as an object of embarrassment (the ‘stigmatised body’) or idealisation (the ‘ideal body’). Because the researcher wants to understand the implications of these specific contextual uses they might invent these specific terms to refer to those specific uses in order to help discuss these different uses without having to always refer back to the context. Imagine how frustrating it would be to always have to write “the body as understood in the tattooist’s studio in which an emphasis is placed on the body as a work of art,” in order to make your point when “the aesthetic body,” would do just as nicely since you’ve previously defined it and the term ‘aesthetic’ is already established in various social science traditions.

My third point is thus that sociologists and anthropologists do not deal only with the commonly used words in everyday life because they also wish to create novel concepts in order to build theories. Over time other researchers may find that the meaning of the body is similar in the gym as it is in men’s health magazines; that its meaning in the forensic morgue is similar to that of an operating theatre, or a courtroom, etc. Many different analyses of the body might emerge from across a broad range of spaces and sociologists interested in the body would keep up with these research outputs as a new field of inquiry, the ‘sociology of the body’, gradually emerged. The body could be connected up with large social meaning systems like capitalism or gender and thus the sociology of the body would begin to need new ways of articulating these connections and thus may develop new terms that emerged from the observation of patterns across ostensibly different spaces. What might become clear is that corporations have become more focussed on selling identities using marketing than on selling the products themselves. Products designed to help change the body then have to make sense in the contexts in which the body is understood and given meaning, and so this product-oriented identity might be connected up with the meanings of the body in some of those spaces, such as the gym, the magazine, etc. Such a shift in economics coupled with changes in gender politics (feminist revolutions, LGBT movements, etc.) might mean that the notion of ‘male’ and ‘masculine’ was changing too.

These changes might connect up with the capitalist emphasis on products designed to sell masculine identities to men and all of a sudden we find that the notion of the male body is importantly tied to local, national and global shifts in the meanings of the body that can be partly articulated using everyday language and are partly understood by those men who are studied in these contexts. However, the understanding of the connections emerged from the search for patterns across different contexts, facilitated by the invention of novel terms to track changes and convergences. Such levels of observation and research work are not available to the everyday male working in a salon or trying to lose weight. He might be able to talk about the way in which he buys products because they are manly or the way in which he feels he has to live up to images in magazines in order to feel confident about his body, but he is unlikely to be able to connect this up to decades-long social transformations in capitalism and gender politics in any substantive way. This doesn’t make him a dupe and it doesn’t mean, as neurocritic argues we would have to believe, that everyday people do not understand their behaviours. In fact, it is from the everyday talk of everyday people talking about and explaining their behaviours that interpretivist sociologists built a picture of the body in what is called late-modern or postmodern capitalist society.

In this respect, sociology creates terms in order to name phenomena that do not cohere with the meaning in any individual everyday space as used by an everyday person. Such general phenomena would be discoveries, if they were material objects found in the brain that could then be named and categorised. However, because the pattern is not an object, as such, it remains in contention and new observations, new methods and new theories might replace our previous understanding of the patterns and require new terms.

Such technical terminology, then, is used to describe phenomena that are importantly tied to methodological practices and theoretical dispositions. This is the work of professional sociology. The work of public sociology is to try to bring these phenomena to life in such a way that they are interpretable for people without the requisite expertise to have conducted such a theoretically-informed piece of work. Such translation might require substituting some terms with less precise but good enough for the purpose, everyday terms. It might involve explaining the technical terms or differentiating between the everyday use of a word and its technical use. Indeed, over time, technical terms from sociology move into everyday understandings, like the term ‘social class’, for example. Policy sociology is there to ensure that professional sociological work can be translated into political spaces and used as evidence for policy-making.

Sociologists and the work of sociologists comes with commitments to particular theoretical dispositions and technical terminologies, just like physicists differ in their dispositions and terminologies according to their commitment to string theory, the holographic theory or whatever mind-boggling theory they find most convincing. Technical terms are necessary because sociologists engage in explanations for phenomena not immediately available to everyday experience.


Clifford Geertz, The Interpretation of Culture

Edward Burnett Tylor, Primitive Culture