A DISCUSSION OF LAW AND JOURNALISM

Tag: Schmerber v. California

You Have The Right to Remain Silent, Kinda

Professor X

By Joseph James Gianetti

“You have the right to remain silent. Anything you say or do may be used against you in a court of law. In the meantime, we may hook you up to a machine, read your mind and use your subconscious thoughts against you…”

The Fifth Amendment of the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This is known as the privilege against compelled self-incrimination. Essentially, the government may not force a defendant to provide self-incriminating information. However, only testimonial evidence is protected; non-testimonial evidence is outside the scope of the Fifth Amendment and, to date, is not.

In assessing whether evidence is testimonial, we look to see if the suspect is asked a question that would require her to communicate an express or implied assertion of fact or belief. In other words, as was set out in the 1990 United States Supreme Court case of Pennsylvania v. Muniz, a response by a suspect is testimonial if the question asked is “reasonably likely to elicit an incriminating response.” Asking a suspect her name and address, is not considered testimonial – though of course, such information could be incriminating, if someone, say didn’t want to admit that yes, she was indeed the criminal who is featured on Wanted posters.

While the line between what is considered self-incriminating, and the line between what is deemed testimonial is already blurry, new technologies further cloud these lines.

The New York Times recently interviewed Dr. S. Matthew Liao, a neuroethicist who directs the bioethics program at New York University, and published an article titled “Studying Ethical Questions as the Brian’s Black Box is Unlocked.” The piece, in part, discusses the recent attention that f.M.R.I.s (functional magnetic imagining) are receiving. With an f.M.R.I. “you can get pictures of what the brain is doing during cognition” Dr. Liao reported.

This got LASIS thinking.

If the police conducted an f.M.R.I. on a suspect, could the results be used against her in a court of law? Would this constitute testifying against oneself and thus violate the Fifth Amendment privilege against compelled self-incrimination? Would an f.M.R.I. result be considered testimonial?

The article didn’t say. We explore the possibilities.

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