Introduction

jpafmat

Journal of Punjab Academy of Forensic Medicine & Toxicology

0972-56870974-083X

Punjab Academy of Forensic Medicine & Toxicology

jpafmat-10-2-013

Research Article

Letters to Editor

Harish

Dasari

Dr¹Bansal

Yogendra

Dr²

¹Professor & Head Dept. of Forensic Medicine & Toxicology, G M C H, Chandigarh²Associate Professor, Dept. of Forensic Medicine & Toxicology, PGIMER, Chandigarh

17-122010

102111112

2010

IndianJournals.com

Dear Sir

Through your prestigious journal, we wish to update the learned readers about a new scientific technique on Brain Fingerprinting, a Modern Scientific Tool in Investigation of Crimes.

Introduction

Brain fingerprinting is a scientifically valid technique to detect a major/fundamental difference between the innocent and the perpetrator of a crime: determining/detection of the record of the crime stored in the brain of the perpetrator. It determines whether specific information is stored in a subject's brain by measuring electrical brainwave responses to words, phrases, or pictures that are presented on a computer screen.[1] However, it is still a controversial technique that is in its budding stages in our country.

Brain fingerprinting does not prove the innocence/guilt of a person. It only determines/detects whether specific information (pertaining to the crime in question) is stored in the brain of a suspect or not. It will not tell us how that information came in to the brain of the person. It also cannot tell us why a person was at the scene of crime. It also cannot distinguish between a people who had planned the crime from a person who had actually committed it; nor can it distinguish a person who was present at the scene throughout the commission of the crime but had not actually committed it.

The technique, invented and patented by Lawrence Farwell is based on the theory that the brain processes known, relevant information differently from the way it processes unknown or irrelevant information.[2]Farwell's brain fingerprinting originally used the well-known P300 brain response to detect the brain's recognition of the known information. Later Farwell discovered the MERMER ("Memory and Encoding Related Multifaceted Electroencephalographic Response"), which includes the P300 and additional features and is reported to provide a higher level of accuracy than the P300 alone.[3] In peer-reviewed publications Farwell and colleagues report over 99% accuracy in laboratory research.[4] In independent research William lacono and others who followed identical or similar scientific protocols to Farwell's have reported a similar high level of accuracy.[5]

The application of Brain Fingerprinting testing in a criminal case involves four phases: investigation, interview, scientific testing, and adjudication. Of these four phases, only the third one is in the domain of science. The first phase is undertaken by a skilled investigator, the second by an interviewer who may be an investigator or a scientist, the third by a scientist, and the fourth by a judge and jury.

The first phase in applying Brain Fingerprinting testing in a criminal case is an investigation of the crime.

Before the test can be applied, an investigation must be undertaken to discover information that can be used in the test. Before we can conduct this test, we need to determine what information to test for. The role of investigation is to find specific information that will be useful in a Brain Fingerprinting test. As with any scientific test, if the outcome of the Brain Fingerprinting test is to be useful evidence for a judge and jury to consider in reaching their verdict, then the information tested must have a bearing on the perpetration of the crime. The job of the investigator is to find features relevant to the crime that has the following attributes.

They are the features that perpetrator almost certainly encountered in the course of committing the crime (e.g., the murder weapon or the escape route).

The suspect has not been exposed to them in some other context, i.e., interrogation or court proceedings.

Once evidence has been accumulated through investigation, and before the Brain Fingerprinting test is conducted to determine if the evidence can be linked to the suspect, it can in some cases be very valuable to obtain the suspect's account of the situation. The interview with the suspect may help to determine which scientific tests to conduct, or how to conduct the tests. Prior to a Brain Fingerprinting test, an interview of the suspect is conducted. The suspect is asked if he would have any legitimate reason for knowing any of the information that is contained in the potential probe stimuli. This information is described without revealing which stimuli are probes and which are irrelevant. [4]

In order for Brain Fingerprinting to be useful in identifying a perpetrator – that is, in order for a correct “information present” Brain Fingerprinting result to be useful evidence regarding a suspect's participation in a crime – investigators must first discover information that would be known to a perpetrator but not to an innocent suspect, and ensure that the subject in question has not obtained that information through some means other than participation in the crime. The interview contributes to this process.

It has been proven in the scientific arena, and also in court, that the science of Brain Fingerprinting has the following attributes: (Daubert standard)

It is testable and has been tested;

It has been peer reviewed and published;

It is accurate, has an error rate extremely close to zero, and has standard procedures for its application;

It is well accepted in the relevant scientific community.

The Harrington Case [<xref ref-type="bibr" rid="b6">6</xref>]

The case that has put Brain Fingerprinting in the news is- Terry Harrington v. State of Iowa. A retired police officer Captain John Schweer was killed on July 22, 1977 while working as a security guard at a car dealership in Council Bluffs, Iowa. Harrington, who was seventeen at that time, was charged with Schweer's murder. At his trial, Harrington had testified that he had not been present at the crime scene. Harrington also presented alibi evidence and several witnesses placing him at a concert many miles away from the crime scene. He was convicted of first degree murder on August 4, 1978 primarily on the testimony of a juvenile accomplice Kevin Huges, and awarded life sentence without possibility of parole.

In a post-conviction proceeding (PCP), Harrington's lawyer had sought a new trial on the ground of newly discovered evidence, which included information that witnesses had recanted their testimony, that police had failed to disclose to the defense the evidence that there had been another suspect, and the testimony by Dr. Lawrence Farwell to the effect that Harrington, when tested by the brain fingerprinting technology, had no memories of the car theft or the slaying of the police captain, and that his brain would have contained relevant information if he had been guilty. The case and its brain fingerprinting aspect which allegedly exonerated Harrington, had received a wide national publicity. The key witness Huges who at the trial had claimed to have been riding with Harrington when they went to steal a car, recanted that testimony stating that he had incriminated Harrington to avoid being charged with the crime and obtain reward offered for information.

Constitutional Issues [<xref ref-type="bibr" rid="b7">7</xref>]

No person accused of any offence shall be compelled to be a witness against himself as per the protection granted by Article 20(3) of the Indian Constitution. Therefore, a suspect of the crime cannot be compelled to disclose facts, which he can recall from his memory, likely to implicate him in a crime in which he was involved. A person accused of an offence, therefore, cannot be compelled to subject himself to EEG test for finding out whether the information relating to the offence is stored in his brain. When on seeing the object familiar to the offender, his brain emits a microvolt response of recognition, he may refrain from disclosing that fact under the constitutional guarantee. Before subjecting a person accused of an offence to brain fingerprinting test, he should, therefore, be told in no uncertain terms that the information connected with the offence if it is stored in the memory of his brain will get detected and this would be done without his becoming aware of such information being extracted from his memory. Anything short of obtaining informed consent of the accused might raise a constitutional issue of violation of the fundamental rights guaranteed by Article 20(3) of the Constitution.

Conclusion

Brain Fingerprinting testing can determine quickly and accurately whether or not specific knowledge is present or absent in an individual. In a Brain Fingerprinting test, words, pictures or sounds relevant to a crime, terrorist act or terrorist training are presented by a computer, along with other irrelevant images and sounds. Electrical brain responses are measured non-invasively through a patented headband equipped with sensors. A computer then analyzes the brain responses and determines whether or not the specific information is stored in the brain of the suspect.[4]

The results are not affected by the willingness of the person being tested to tell the truth. By testing for specific information, Brain Fingerprinting technology can accurately distinguish between a trained terrorist and an innocent person who may have knowledge of certain locations, people and events for legitimate reasons. The test does not test whether a person is guilty of a crime. This is adjudicated by the judge and jury. The question of guilt or innocence is a legal determination to be made by a judge and jury, not a scientific one to be made by a scientist or a computer. What Brain Fingerprinting does is to provide evidence that can be weighed by the judge and jury in making their determination of guilt or innocence.

References1.

Farwell

, Smith

Using Brain MERMER Testing to Detect Concealed Knowledge Despite Efforts to Conceal. Journal of Forensic Sciences2001;46,1: 135-143.

Farwell

, Donchin

The Truth Will Out: Interrogative Polygraphy “Lie Detection” With Event-Related Brain Potential. Psychophysiology1991;28:531-547.

Farwell

Method and Apparatus for Multifaceted Electroencephalographic Response Analysis (MERA)U.S. Patent #5,363,858, Nov. 15, 1994.

Farwell

, Richardson

Brain Fingerprinting in Laboratory conditions. Psychophysiology.2001; 43: S38.

Allen

JJB

, lacono

A comparison of methods for the analysis of event-related potentials in deception detection. Psychophysiology1997; 34:234-240.

Harrington

. State, Case No. PCCV 073247. Iowa District Court for Pottawattamie County, 35, 2001.

Abichandani

Evidentiary Significance of Brain Fingerprinting Workshop on “Brain Fingerprinting - An Important Tool In The Investigation of Crimes” Organised by: Director, Gujarat State Directorate of Forensic Science & Chief Forensic Scientist M.H.A. Govt. of India, New Delhi. 2004.