Lie Detection and the Law: Torture, Technology and Truth

My latest book, ‘Lie Detection and the Law: Torture, Technology and Truth’ is out now with Routledge (you can buy it on Routledge, on Amazon and you can preview it and buy the ebook on Google Books). It is part of Routledge’s ‘Law, Science and Society‘ series, which is worth taking a look through. 

Chapter 1 outlines an interesting example from the history of the polygraph’s use in criminal investigations, briefly reports on how the device has long suffered from contestation regarding its validity and reliability, before reviewing some key philosophical starting points in understanding lying, and taking some tentative footsteps towards a sociological approach.

Chapter 2 explores the use of torture as a form of lie detection in practices of ‘trial by ordeal’ and in the Elizabethan period before outlining the literature on the emergence of the polygraph machine and the trial by jury in the United States. Together, these threads help describe how conceptualisations of the body and its relation to truth have been invested in lie detection technologies.

Chapter 3 provides an overview of a heuristic often used to explain the legal status of the polygraph machine in US criminal courts, that it is either: inadmissible; admissible with prior-stipulation; or admissible even without prior-stipulation. It then argues that although this is useful, there is a need for greater detail, exploring the tensions and complexity involved in characterising the socio-legal status of the polygraph, which is followed-up in Chapters 4 and 5.

A contemporary polygraph kit

Chapter 4 begins to provide a more detailed picture of how the polygraph machine is challenged and managed within US State Supreme Courts, outlining the ‘exclusionary toolkit’ and how this is used to highlight uncertainties in lie detection research and application.

Chapter 5 extends this analysis by examining how ontological uncertainties in polygraph science and interrogation practices are negotiated in trial settings by reference to broader techno-political currents in the United States. It shows that the ontological connections between body, truth and lying are enacted differently over time in a case study of the Massachusetts State Supreme Court.

Peter Reilly, who was convicted of murdering his mother on the basis of a polygraph-induced confession.

Chapter 6 explains how the polygraph machine is used in police interrogations of criminal suspects and witnesses. It describes in detail the deceptive techniques used by polygraph interrogators to manipulate subjects into confession. The chapter evaluates these techniques in light of the tragic case of Peter Reilly, showing how lie detection practices can bring about false confessions.

Chapter 7 explores the use of the polygraph in the socio-legal periphery of the criminal trial, namely in probation and treatment programmes of sex offenders. It describes the emergence of sex offender polygraph testing in USA and UK, setting this against a background of moral panics in both countries, but also linking it to a longer history of socio-technical practices through which certain groups have been made into subjects of suspicion.

Chapter 8 reviews the ways in which uncertainty in lie detection has figured in its techno-legal configurations within socio-legal situations. It explores the implications of this account for developing a sociological approach to lying, drawing on key insights from Georg Simmel and others, and indicates why these need to be revised to reflect today’s biopolitical schemes of social order, and to address the complex struggles over information and truth in contemporary sociotechnical systems and ‘post-truth’ politics.

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If you’re interested in the book, you might also want to read other posts on lying and lie detection on my blog and some other papers I’ve written on the subject, which you can find on Academia.Edu.

 

Tough on Crime? Lie detector programme for sex offenders doesn’t hold all the answers.

The Coalition has decided to drop the privatisation of polygraph, or ‘lie-detector’ tests for sex offenders. But the continued use of this flawed technology within the probation service is misguided and the whole programme should be scrapped.

Since the Offender Management Act was changed in 2007 to allow for the attachment of a polygraph condition to terms of probation, trials of the device for use with post-conviction sex offenders have been taking place in the Midlands. These concluded in 2012, were reported to be a success by the government and are due to be rolled-out nationally.

However, in scientific and legal communities the polygraph’s validity (whether it can detect lies at all) and its reliability (how regularly is makes an error in categorising truths as lies and vice versa) are highly contested and have been so since its early development at the turn of the 20^th century.

Above all, it is far from clear whether the use of these measures reduce reoffending rates or improve offender rehabilitation outcomes.

The polygraph machine was first adopted in the UK at the peak of a media-provoked cycle of one-upmanship between Labour and the Conservative Party over who could be toughest on crime.

This rhetorical contest has escalated over the last two decades and has always been most vociferous when it focussed on sex offenders – particularly paedophiles.

Tony Blair’s 2005 Labour Party manifesto promised to trial the lie detector for use in the monitoring and treatment of paedophiles post-conviction and thus opened-up the UK to the official use of the device for the first time.

The political justification for their use continues to rely on the idea that parties have to be seen to be being tough, as Justice Minister Jeremy Wright has said, “Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.”

What about the scientific justification? According to proponents the polygraph works by measuring the concurrence of certain physiological responses (e.g. pulse rate) with deceptive behaviours. The use of the device with sex offenders would be to ensure they are being truthful about their behaviour during probation. However, deception can occur in the absence of these physical responses, and the physical responses can occur in the absence of deception. Moreover, the most extensive US National Academy of Science report on the device concluded that the polygraph’s reliability was flawed as regards its real-world generalizability and that additional basic research was needed.

Scientists involved in the UK trials with sex offenders have conducted research into its efficacy. However, rather than focussing on validity and reliability the research has concentrated on the value of the polygraph as regards the elicitation of ‘clinically significant disclosures’ (CSDs).

Such CSDs are typically used to evaluate the offender’s riskiness, change their treatment strategies or alter their probation conditions.

In this context, the validity of the polygraph is seen to rest not so much whether it can detect lies but whether it can get offenders to make more disclosures about their behaviours. Even if we accept this premise, the question of reliability is still valid: how often does it make mistakes in categorising those disclosures true or false?

The report on the 2012 trial has a worrying feature in this regard. It turns out that the majority of the disclosures are not made during the actual test but in the pre-test interview. As such, the polygraph’s role appears to be less a lie detector and more a threat or method of inducing confessions from offenders.

Reportedly, the use of the test is of value to offender managers because it gives them confidence that offenders are sticking to their probation conditions, discloses risk and allows managers to challenge risk.

Given the focus on numbers of CSDs it seems distinctly unwise to rely on the polygraph as a method for helping to determine risk and of inducing confessions, particularly when many of these disclosures are being made before actually connecting up the device to the offender. As such, a significant risk in adopting the polygraph in this context may be an over-reliance on the veracity of CSDs.

Offenders are likely to be able to manipulate the examination to their own means just as much as managers and examiners are able to use the examination to elicit CSDs.

There is no research at all on strategies the offenders may use to make CSDs in relation to anticipated examinations or during pre- and post-test interviews.

If an offender knows that they have breached the terms of their probation and fear that their examination is going to result in a ‘deception indicated’ result, then they might well offer less significant CSDs in advance of the examination in order to help shape the interpretation of their results.

Furthermore, we don’t have any information on what might happen when an offender has an erroneous result of ‘deception indicated’. When false positives occur, it could be risky for offenders to maintain that they are not lying. If the polygraph is to be believed, this means they are not acting in a trustworthy manner. In line with this suspicion their treatment and probation conditions might be changed. Might offenders provide CSDs that are themselves lies in order to convince the examiner and manager that they are now telling the truth? We have to know a lot more about this technology and how it is used before we trust it to help determine the riskiness of offender behaviours.

Finally, technologies used to manage sexual offenders often leak into other areas and it is possible that polygraphs could in future find use in other contexts of treatment and rehabilitation, particularly if corporations could profit from their adoption.

However, the government’s idea to privatise the probation service has received a poor assessment from its own internal reviews and has been dropped. Instead, the Ministry of Justice plans to go ahead with the programme, but will keep this part of the probation service in-house.

But this doesn’t go far enough. Focussing on how tough the programme is on offenders and on the value of ‘clinically significant disclosures’ papers over the critical question of whether these measures reduce reoffending rates and improve offender’s rehabilitation outcomes.

Ultimately, the safety of children, communities and the offenders themselves will not be improved by increasingly punitive measures if they do not tackle the causes of sexual offending, improve rehabilitation and reduce the rates of sexual offences.

The adoption of technologies that are seen to be tough on offenders should not be an end in themselves.

Scopolamine, Truth-telling and the Other Dr House

Portrait of Daniel Defoe

The reasoning that recording physical correlates can be used to discern truth and deception can be traced at least as far back as Daniel Defoe’s 1730 essay on the prevention of street crime. He wrote: “Guilt carries fear always about with it; there is a tremor in the blood of the thief.” Defoe advocated holding the wrists and measuring the pulse to detect a person in possession of false tongue.

As Geoffrey Bunn has recently argued, a range of important concepts emerged in the genesis of criminology, not least the notion of ‘criminal man’, whose animalistic, biological nature was the source of his criminal behaviour. So in the late 1800s and early 1900s the body was increasingly tied to the mind and the various inscriptions produced from reading the body became vital to theorising mental and emotional events. Similarly, the theorisation of the unconscious as a quasi-spatial repository of personal truths made the mind a focus for physiological study. Moreover, biologists of the time investigating heredity imagined memory to be material, conceiving of it as a vibration of cells in parents, which were then transmitted to offspring. This helped them account for the transmission of ostensibly non-physical qualities that nonetheless seemed to be transferred from parents to offspring.

These and a great many more small changes in the discourse of crime and the body helped to consolidate the idea that some technique or technology could be used to access the internal state of a criminal suspect resistant to interrogation. Practitioners of applied psychology, developing their work most fervently from the 1870s onwards, produced a central set of technologies that examined psychic states by monitoring physiological changes. The years from 1870 to 1940 thus saw the development of numerous lie detection devices such as truth serum, sphygmomanometers, pneumographs and the galvanic skin response monitors, some of which were consolidated into the ‘polygraph’ machine, patented several times from the 1930s onwards, and now used throughout the USA to police a range of suspect categories.From good historical work we now know quite a lot about the history of the polygraph machine, particularly regarding its early years of development and deployment in the USA. However, we know a lot less about the emergence and use of truth serum.

House administers the serum in Texas

In the 1920s a nightshade-derived drug, scopolamine hydrobromide, was trialled by one Robert House, a Texas obstetrician, for use in the interrogation of two prisoners at the Dallas county jail. Dr House had observed the effects of scopolamine on women during childbirth, alongside morphine and chloroform. This drug-induced state became known as ‘twilight sleep’, and was caused by blocking the action of the neurotransmitter acetylcholine. House felt that the drug’s effects on women might be similarly produced in people suspected of concealment. The two prisoners interviewed by Dr House retained their original story indicating to the Dallas physician that they were innocent. The evidence was submitted and the prisoners were found not guilty at their trial. The use of scopolamine as a ‘truth serum’, a term coined by the media and eventually adopted by House, was short lived, mostly due to its dangerous side effects, and though it found brief use in the legal field it was generally unsuccessful.

Dr Gregory House and his slogan, ‘Everybody lies’.

Its popularity resided mostly within the media and was propelled not solely, but incessantly, by House. Much like the proponents of the polygraph, House believed that the truth serum would not only act on individuals to produce justice but on institutions also. He feared that the corruption of powerful members of society, both public and private, had reached severe levels, most dangerously so within the criminal justice system. At the time, aggressive interrogation methods had become endemic in US police investigations, a practice that became known as ‘the third degree’. The doctor saw his serum as the antidote to this social ill. As the more popularly known Dr Greg House from the US TV show says, ‘Everybody lies’. Indeed, the TV character of House seems to be a modern inheritor of the historical House’s cause for lie detection techniques. in the TV show, House regularly calls his patients on their deception and prevarications, and in a few episodes uses the hospital’s fMRI machine to scan their brains and determine whether they’re telling the truth or not.

However, the Dr Robert House’s hopes for a truth serum, that might act like a societal vaccine were never made real: he died in 1930 and the use of scopolamine as a truth drug mostly died with him. It was around this time that the ‘inventors’ of the polygraph were pushing their devices as cures for the corruption of police investigation practices. So although the idea for using chemical compounds in the interrogation of suspects survived, becoming known as ‘narco-analysis’ it never really competed with the rise of the polygraph machine. One important context in which it did endure, however was as part of the programme of human behavioural modification explored by the CIA in Project MKUltra, about which I’ll talk more in a future post. For now, here are some references that might be of interest:

Robert House, The Use of Scopolamine in Criminology

Geoffrey Bunn, The Truth Machine

Alison Winter, The Making of “Truth Serum” 1920-1940

Melissa Littlefield, The Lying Brain

Risky Bodies and Dangerous Desire [II]

This is part two of some comments on sex offenders and lie detection (part one here). It is also a bit of a promo for my recently published paper on the topic, which you can download here.

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We are in a period in which child sex offences cause moral panics and thus help further the measures we are willing to take in punishing and policing them. Laws are passed under the names of the victims to remind us of the cruel and brutal acts committed against children. The media drives up fear and anger because it sells print, and because they know we need an enemy. The paedophile is now the sexual terrorist – his actions undermine the structural organisation of Western society by explicitly challenging the notion of ‘childhood’. This notion is not simply natural consequence of our biology but an entangling of ‘social’ and ‘material’ phenomena. Amongst a number of other causes of the entrenchment of the notion of the innocent child, was the fact that once we had machines and automation in factories, on farms, etc., we no longer needed children to do hard labour.  The contemporaneous emergence of psychiatry also welcomed a whole host of ways in which adult sexuality was connected to childhood experience, and thus the fracture of innocence became connected to criminal and deviant behaviour in adulthood. This is not to say that our bodies do not change as we grow older or that our emotional ability to manage relationships both sexual and familial does not similarly develop. Instead, it is to point towards the cultural production of a relation between innocence, sex and criminality that underscores the construction of sex offenders as contemporary monsters and underpins media and moral panics.

Against this background, a number of Western strategies of governance in education, sexual health and criminal behaviour can be seen to be geared around securing healthy, happy, playful and above all innocent lives for our children. The corollary of this is the ‘adult’ – the sexually, intellectually, economically mature individual now capable of work, reproduction and decision-making. Challenging the norms of childhood and adulthood, paedophiles are thus not only coded as monstrous because of the acts in which they engage but because their symbolic function is to uphold the binary they seek to destroy. This helps explain our punitive obsession with them and with their bodies. The paedophile is at the far edge in terms of the lengths to which we go to monitor, manage and predict criminal behaviour, and unique in regards to the kinds of treatments and punishments we mete out.

Indeed, current responses to sex offenders are not entirely oriented towards their criminal and violent acts. They also evidence a fear about the offender’s desire itself. In treatment, we don’t just want them to change their behaviours; we want them to change their desires. Practices of role-play, lie detection and plethysmography are sometimes used (particularly in the USA at the moment) to help steer desires towards ‘normal’ objects, both in terms of being age appropriate (not simply above the age of consent, but rather of a ‘normal’ age for the male being treated), sexually conservative (the desires should be quite vanilla) and heteronormative (male-male desire is coded as increased risk).

Is the response to terrible acts of violence that we just accept that because of the crime any punishment, any treatment is justified? Is it a woolly (or worse, ‘suspect’) argument to claim that sex offenders have rights too and that punishing their acts is sensible but changing their desires is not? Trying to put philosophy and politics aside, a pragmatic approach alone tells us that this isn’t a sensible system. If we accept – as we should – that a great many sexual offenders have committed violent and abusive acts against children, and that these should be criminal acts, then we should think pragmatically about how to respond. Whatever notion of punishment or law we wish to adopt, we can probably all agree that we would like to see fewer instances of such abuse. The social isolation of offenders in post-probation settings (named and shamed in the community, on the register, by the media) results in a lifestyle that facilitates further offending. Training the offender’s desires to fit the norms of a sexually conservative society surely only serves to further stigmatise their non-criminal sexual behaviours and desires.

By avoiding offenders and ostracising them we don’t protect children from further suffering, we place them at continued risk, precisely because offenders have no social resources to draw upon in changing behaviours and avoiding risky situations. If the only people who will talk to them are other offenders, it isn’t hard to see how recidivism becomes connected to social factors. The conceptualisation of the offender as monstrous and incurable at the level of desire conflicts with the demands that they change these desires. Orienting treatment using these binaries and norms is an impediment to the development of non-criminal sexual behaviour.

The days of chemical castration aren’t behind us and nor is the use of the polygraph. The recent reports of the ‘success’ of the polygraph trials for use with sex offenders here in the UK are evidence that further measures are consolidating around the criminal act of paedophilia in such a way that it constitutes fundamentally deviant human monsters. Our obsession with the bodies of these offenders comes at the cost of understanding their social practices and, ultimately, at the cost of actually reducing the risk of future criminal acts. We have to stop seeing sex offenders as monstrous and stop panicking about their crimes in order to be more able to respond effectively to them.

Risky Bodies and Dangerous Desire [1]

Part one of two posts (second post here) related to my recently published paper on sex offenders and lie detection.

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We recently had the 100th anniversary of the birth of Alan Turing, mathematician, cryptanalyst, and pioneer of computer science, who was responsible for significant developments in academic spheres but is perhaps best known for his secret work at Bletchley Park. As a gay man living during a period in which homosexuality was a criminal behaviour he lived two secret lives, until he was outed and criminally prosecuted in 1952 for being gay. Forced with a choice between imprisonment and probation, Turing chose probation, the caveat being that he had to undergo chemical castration. The procedure involved injections of the female hormone, oestrogen, leading him to develop breasts and causing Turing’s depression, which ultimately led to his committing suicide using cyanide in 1954, at the age of 42. Much has been written about Turing’s prolific and creative mind, but far less about his criminal body. Recent calls at the University of Manchester and a widely-signed petition have failed to secure an official pardon. The Justice Minister, Lord McNally, commented that Turing, “Was convicted of a crime that now seems barbaric and cruel,” (BBC News 06.02.12) but that it was, nonetheless, a crime at the time. That Turing’s death might have been prevented if we had been more enlightened regarding sexual difference is lamentable, tragic and must certainly serve to remind us of the debt that we must ceaselessly try to repay in establishing universal equality of sexual freedom.

Earlier in the year, news of the results of a round of chemical castrations has been quite different in tone to our mournful celebration of Turing’s centenarian anniversary, different because it wasn’t gay men this time, but paedophiles that were being treated. A pilot experiment conducted at HMP Whatton by Don Grubin, Professor of Forensic Psychiatry at Newcastle University, used anti-androgens as a drug to suppress testosterone production in hopes of reducing sexual desire. Importantly, not all the inmates were treated with these drugs; others took selective serotonin reuptake inhibitors (SSRIs), which are used to treat depression. Also important to note is that the programme was voluntary, and that inmates could – ostensibly – stop taking the drugs at any time they wished.

What motivated the study was the contemporary logic as regards sex offender management: that they are dangerously risky because their desires are fundamentally deviant. The drug treatments therefore, were principally used as a mechanism for reducing desire. As Grubin is quoted in the Huffington Post UK: “The former [anti-androgens] can remove all sexual desire, but in some cases men can still maintain sexual relationships; the latter [SSRIs] reduce the intensity of fantasies and urges, but do not remove sexual drive. In both cases psychological treatment should be provided alongside the medication.”

Thus sex offenders have become caught somewhere between the law and medicine, somewhere between criminal and sick. They are the modern monster. In an interview with BBC News, Grubin is quoted as saying, “You are not giving these drugs to make them safe – you are giving them to lower the risk.” Indeed, because sex offenders are understood to be fundamentally deviant, and abnormal, to be inescapably monstrous, the medical profession have given up hope of a ‘cure’ for paedophilia, and instead understands these offenders in the context of risk management.

Chemical castration and medication are not the only ways that we have found to code, manage and measure the risk of sexual offender’s bodies and desires. Since around the 1980s, the infamous lie detection device, the polygraph machine, has been used in the USA to monitor offenders’ behaviour in post-conviction probation programmes. Checking up on them periodically to ask questions about whether they’ve breached the terms of their probation (Have you have any contact with…?) forms a temporal mode of surveillance, in which the polygraph exam is understood to increase the fear of future discovery. In this respect, we imagine that sex offenders make rational decisions weighing up the costs and benefits of criminal activity in the moment of deviant decision-making.

More confusingly still, the device is being used as part of their therapy, such that the polygraph machine isn’t only for surveillance but for treatment. It becomes part of the ‘containment approach’ to sex offending, in which we have to manage the offender’s risk by knowing as much as possible about his various desires and sexual proclivities. In a sexual history examination the polygraph is used to assess the offender’s habits and fantasies, so that we get information about what he likes to masturbate to, how often, what he thinks about, whether he’s into transvestism, using tools and implements in sex, and a range of other details. All of this is collected to determine his risk in an actuarial manner, coding him with a specific figure and categorising him within various risk levels.

These uses of the polygraph are sometimes supplemented with the penile plethysmograph, a device that measures the tumescence of the penis by use of a rubber ring or a volumetric chamber during exposure to various pornographic (both consensual and non-consensual, adult and under-age) materials. The changes in his penis during this exposure are used as a proxy for his desire and thus feed into determining his riskiness. These examinations, like those of the polygraph, ultimately serve to reinforce the notion that the sex offender is fundamentally different, by showing how his body responds differently and by exploring the fine detail of his sexual imagination.

This isn’t the first time such devices of lie detection and bodily arousal have been used to police sexuality. It should be no surprise that during McCarthyism homosexuals were victimised as being particularly vulnerable to blackmail and as such had to be outed and fired from government. This became known as the ‘Lavender Scare’, the homosexual hue of the communist ‘Red Scare’. Outing homosexuals involved uncovering deception, determined by the body’s responses during interviews with CIA operatives and the ominously titled Miscellaneous ‘M’ Group. In this period it was gay men and women that were the sexual danger, the monster of the times against which sexual normality was defined.

Alan Turing was only one victim of practices targeted at gay people; his suicide just one of the more visible of what must have been a great number of tragedies. As laws changed and homosexuality was de-criminalised, the medical definition of gay people as being sick was similarly removed from the diagnostic manuals and the emphasis of the abnormal category of sexuality shifted towards paedophilia. The various panics around homosexuality and the array of techniques we had developed to police it went along with the shift in target.

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In the next part coming next week I’ll discuss the relationship between these developments and the constitution of childhood. I’ll also briefly explain an alternative approach that has been trialled with sex offenders.

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.