You Have The Right to Remain Silent, Kinda

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.

Consider what recently happened in India. A murder conviction was upheld on the basis of f.M.R.I. evidence. The court reasoned that based on the images of blood flow from the f.M.R.I., the defendant was lying to the authorities.

In Schmerber v. California, a 1966 United States Supreme Court case, the Court addressed what constitutes testimonial evidence and held that the government’s drawing of a defendant’s blood isn’t communicative or testimonial but rather “real or physical” evidence — and thus is not protected by the Fifth Amendment.

Consider too, Talley v. State, a 2010 Arkansas Supreme Court case. The Court held that the taking of a defendant’s DNA sample, although potentially incriminating, is not testimonial, and that the act of swabbing to obtain DNA is a physical test which does not give rise to Fifth Amendment implications.

What about handwriting samples? Voice samples? Do they satisfy the “communicative” or “testimonial” requirement and are they constitutionally protected? Nope, these too, are considered physical samples and have been deemed non-testimonial.

But a mind reading machine, I think we’d all agree, takes things a step or two further. If we can’t force someone to incriminate themselves through words, we surely can’t invade their thoughts.

LASIS believes that the results of an f.M.R.I., or any comparable mind reading machine, would be deemed testimonial and not “real or physical.” This is because in order to obtain such evidence (evidence of the brain’s functioning after being asked “did you kill him?” or “where is the body?”), the police would have to ask the suspect questions that elicit cognitive function — questions reasonably likely to elicit an incriminating response. This is to be distinguished from merely taking DNA or a blood sample, which requires no verbal action or cognitive functioning.

The fact that the police would have to ask questions that are reasonably likely to elicit an incriminating response in order to get valuable evidence from an f.M.R.I., brings this type of evidence into the testimonial arena which subsequently gives rise to a Miranda analysis.

After an individual is arrested, any voluntary unprovoked proffers by the suspect are admissible. But if the police wish to question a suspect and want to use the responses in a U.S. court of law, they must provide the suspect with Miranda warnings before questioning. And if the suspect manifests her right to remain silent or to counsel, the police questioning must stop.

Accordingly, we believe that the admissibility of an f.M.R.I. result could hinge on what the suspect said, or didn’t say, after being read her Miranda rights.

If the suspect acknowledged her understanding of her Miranda rights and did not manifest her right to remain silent or to counsel, police questioning is permitted. Accordingly, the suspect’s cognitive activity in response to the questioning is likely fair game. Conversely, if the suspect manifested her right to remain silent or to counsel, then the questioning must cease and any documented cognitive activity would not be admissible.

A brain teaser: what if the police circumnavigated the “verbal element” and instead of asking questions reasonably likely to elicit an incriminating response, merely showed the suspect a photograph of the victim which elicited cognitive functioning? Would brain activity after the viewing of a photograph be deemed testimonial, or the showing of the photograph be considered reasonably likely to elicit an incriminating response? Or would the documented brain activity be comparable to drawing blood, and the showing of a photograph outside the scope of Miranda protection?

UPDATE: January, 10, 2013. The Supreme Court will debate the legality of warrantless blood samples a in drunk driving case.


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