A recent article in the New York Times ("India’s Novel Use of Brain Scans in Courts Is Debated") details the first case of a court convicting and sentencing someone of a crime based solely on evidence from a controversial brain scanner. The Brain Electrical Oscillations Signature (BEOS) test uses an electroencephalogram (EEG) to detect whether regions of the brain show changes in activity in response to hearing and smelling details of the crime. Proponents of BEOS claim that the test “can distinguish between people’s memories of events they witnessed and between deeds they committed.” In the murder case from Pune, Maharashtra, India, the BEOS test was employed to determine whether Aditi Sharma had actually committed the murder of her husband, Udit Bharati. The judge asserted that the results of the scan proved that Ms. Sharma had “experiential knowledge” of committing the murder, rather than simply hearing about it, and sentenced her to life imprisonment.
The use of brain scans like BEOS has raised several ethical and legal considerations in neurolaw. Firstly, experts disagree about whether this technology, and others similar to it, still needs development and whether or not it is ready to be used in courts of law in its current state. My opinion on this issue is that the technology seems very promising, but is still unproven. We should continue to work on developing these brain-scanning techniques, but should not use them until they are peer-reviewed and independently replicated, and experts can agree that the technology’s results are trustworthy and reliable. A less subtle issue that I found in this article was with regard to informed consent. The article suggested that individuals consent to the brain scan because they are under the impression that cooperation excuses them from extensive police interrogation. This is clearly not the case, which brings up the issue of whether or not “informed” consent is truly obtained from subjects such as Ms. Sharma, and whether or not this is ethically, morally, and legally permissible. Along these same lines, the issue arises as to whether or not adopting these brain scans pervasively infringes on our basic rights against unreasonable search and self-incrimination, protected by the Fourth and Fifth Amendments, respectively. It is unfortunate that in the case of Ms. Sharma, her punishment was determined mainly by unproven technology; however, the prospect of discovering a neuroscientific method by which deception can be completely eliminated in criminal hearings is exciting. We must remember, though, to keep in mind the legal and ethical implications of the technology’s use in policy- and decision-making.