Is fMRI Lie-Detection Evidence Admissible?

Talk about cutting edge. Is science on the verge of providing lawyers a usable technology to test the truthfulness of witnesses?

A Massachusetts forensics firm is currently hawking a lie detection/truth verification service using functional magnetic resonance imaging (fMRI) of the brain.

Creating the technology is one thing. Getting a skeptical judiciary to accept the fruits of that technology is quite another.

On Tuesday, a federal judge in Tennessee issued what appears to be the first thorough treatment of the admissibility of fMRI lie-detection evidence.

That decision illuminates both the current problems with and future promise of fMRI.

Functional magnetic resonance imaging

Dr. Lorne Semrau is in hot water. He’s been indicted for healthcare fraud.

Semrau owns two Tennessee corporations that provide psychiatric services to Medicaid and Medicare patients. According to federal prosecutors, Semrau through those corporations caused $3 million in fraudulent billings to be submitted to the government.

The criminal case against Semrau comes down to one thing: intent.

While prosecutors say Semrau intended to defraud the government, the good doctor contends that he made honest billing mistakes, induced in part by the Byzantine complexity of federal healthcare regulations.

In order to demonstrate that he’s an honest player, Semrau has enlisted the assistance of Dr. Steven Laken and his forensic services firm, Cephos Company located in Tynsboro, Massachusetts.

Cephos is one of two companies currently marketing fMRI lie detection services. (The other is NoLieMRI of La Jolla, Calif.)

The science is new, backed by less than ten years of development.

Proponents of fMRI claim that they’ve identified the areas of the brain that are most consistently activated by deception. The truthfulness of a particular subject can supposedly be gauged by an analysis of an MRI scan of their brain during the course of targeted questioning.

Laken and his colleagues claim that they are able to identify correctly when subjects are being deceptive with a high level of accuracy, with reported results ranging from 86 to 93 percent accuracy.

To help Semrau’s criminal case, Laken initially scheduled two fMRI-based lie detection tests.

The first scan indicated that Semrau was telling the truth when he said that he had not intended to defraud the government.

Semrau flunked the second test.

Concluding that fatigue inhibited Semrau’s performance in the second test, Laken scheduled a third.

Wouldn’t you know it, but Semrau passed the third scan with flying colors.

According to Laken, not only did the third test show that Semrau was not deceptive, but based on his prior studies, “a finding such as this is 100 percent accurate in determining truthfulness from a truthful person.”

Atta boy, Semrau!

Now, some might question whether there was a little fishing for the right result here, but Semrau wanted the fMRI results admitted at his trial to bolster his contention that he lacked criminal intent.

And let there be no doubt that Laken and his Cephos firm have a lot at stake here.

It would be a huge boon to the fMRI business to have brain scan results admitted in a federal criminal trial.

Not only would the door be open to fMRI evidence being used in countless other trials, but its admittance would add legitimacy to its application in other contexts, like the workplace.

Daubert analysis

United States Magistrate Judge Tu Pham had first crack at the issue, and Tuesday he weighed in with a thoughtful, comprehensive analysis of whether fMRI-based lie detection met the Daubert standard for the admission of expert scientific evidence.

Applying the first two Daubert factors, Judge Pham was satisfied that fMRI lie detection could be tested and had been subjected to peer review over the past five years.

But the big hurdles were yet to come.

Judge Pham was troubled by the conclusion of a prosecution expert that fMRI is currently not ready to be used in real-world lie detection.

“Because the use of fMRI-based lie detection is still in its early stages of development, standards controlling the real-life application have not yet been established,” the judge wrote. “Without such standards, a court cannot adequately evaluate the reliability of a particular lie detection examination.”

On this issue, the judge concluded that the “absence of real-life error rates and the lack of controlling standards in the industry for real-life exams are negative factors in the analysis of whether fMRI-based lie detection is scientifically valid.”

These factors buttressed the judge’s conclusion that fMRI-based lie detection has not been generally accepted by the scientific community.

Risk of unfair prejudice

After concluding that Semrau’s fMRI evidence was inadmissible under Daubert, the judge doused more water on the prospects for such evidence by concluding that it was inadmissible under Fed. R. Evid. 403.

Likening fMRI evidence to polygraph results, the judge concluded that the danger of unfair prejudice posed by admitting Semrau’s scan results substantially outweighed the probative value of that evidence.

Judge Pham first questioned the fairness of the process by which the results were obtained.

“The examination was conducted without the government’s knowledge and without an opportunity for the government to formulate, submit, or approve the questions asked of Dr. Semrau during the examination,” the judge observed. “Dr. Semrau risked nothing in having the testing performed, and Dr. Laken himself testified that had the results not been favorable to Dr. Semrau, they would have never been released.”

The judge finally questioned the helpfulness of Laken’s conclusions in resolving the ultimate issues in the case.

“Exclusion under Rule 403 is particularly appropriate in this case because, as Dr. Laken testified, although he believes that Dr. Semrau’s responses to the [questions submitted during the test] were truthful ‘overall,’ he cannot offer any opinion as to whether Dr. Semrau was deceptive or truthful as to any specific . …

“Based on his inability to identify which [questions] Dr. Semrau answered truthfully or deceptively, the court fails to see how his testimony can assist the jury in deciding whether Dr. Semrau’s testimony is credible.” (U.S. v. Semrau)

So as far as Pham is concerned, fMRI-based lie detection evidence is inadmissible under the current state of the science.

It remains to be seen whether the U.S. district judge in the case will accept Pham’s recommendation.

In any event, there is enough here for both proponents and detractors of fMRI evidence.

For those opposing its admission, it seems that the scientific community is still some time away from establishing the kind of solid track record that is necessary to satisfy most judges.

For fMRI proponents, Judge Pham’s opinion suggests that current deficiencies in the evidence can be remedied as the science progresses.

Perhaps the biggest question that remains to be answered is whether judges will be able to examine fMRI evidence on its own merits, seeing it as a technology distinct from the long-disparaged polygraph.

• Pat Murphy

patrick.murphy@lawyersusaonline.com

I, Psychopath

Psychopaths… we usually only know them from Hollywood movies. We never expect them to enter our real life. But, the psychopath is closer than you think. Experts believe their number to be as high as one in a hundred. Most of them function incognito in high-powered professions…all the way to the very top.

But… it takes one to truly know one. In this intriguing documentary, Sam Vaknin, a self-proclaimed psychopath, goes in search of a diagnosis. In a scientific first, he allows himself to undergo testing to find out if he was born without a conscience. He knows he’s narcissistic and cannot empathize with others. By his own admission, he’s pompous, grandiose, repulsive and contradictory, ruthless and devoid of scruples, capricious and unfathomable… but he believes, he’s not a bad person. What he is is indifferent… he couldn’t care less. Unless, of course, the topic is himself.

Vaknin and his long-suffering but ever-loyal wife, Lidija, embark on a diagnostic road trip. But, it’s uncharted territory… deep into the mind and life of a psychopath. The 47-year-old convicted corporate criminal has agreed to take part in the pursuit of his own diagnosis… meeting the world’s experts in psychopathy in the hope that science will provide some answers for why he is like he is. These experts put Vaknin (and his wife) through a battery of rigorous psychological tests and neuro-scientific experiments.

Vaknin is shocked at the results. Sam, his wife, the scientists, the film-makers – will they ever be quite the same again?

Narcissistic Therapists and Gurus Have a MONEY MOTIVE

There are many highly qualified therapists who have fine clinical training and are excellent working with clients and helping them to heal.

This post is about a segment of psychotherapists who are narcissistic. This includes psychiatrists, psychoanalysts, psychologists and various other licensed counselors who work with clients. Narcissistic psychotherapists are out strictly for themselves. They often have a money motive as the primary purpose of their practice. Certainly, professionals are entitled to be paid fairly for the services that they offer. I am speaking about outrageous fees that climb higher and higher and are based on endless sessions of non-therapy. In some cases I know of narcissistic therapists who spend entire sessions talking about their private lives and their personal dilemmas, including their failed marriages, money issues, etc.

Narcissistic psychotherapists often project their unconscious self loathing on to their clients. When you are alone with a narcissist you are vulnerable to their toxic projections. I hear many stories about clients who were told that they were incapable of getting better, who were too dysfunctional and had to be in therapy indefinitely, who were very difficult clients and were not worth treating, who put you down and criticized you or belittled you.

Clients in crisis are in a difficult situation. They need help–Now! Narcissistic psychotherapists mercilessly prey on these people. They get money out of those who are desperate. Narcissistic psychotherapists can lead clients to feel confused and worthless and cause psychological harm.

When you decide to go to a therapist, do a lot of excellent research. Check the therapist’s credentials carefully. If you can get a referral this can be helpful. However, choosing a therapist is personal. You are looking for the therapist who is best suited to your personality. Make sure that the therapist is very clear about the fee. Check the fair rates for payment depending on the education, clinical training, degrees, etc of the therapist. Interview several therapists before you make a decision. You don’t have to stay with a therapist with whom you cannot work. If you don’t feel heard and understood after the first session, it is your right to not return to this professional. After all, you are hiring them. You are in charge. Always remember this. Pay attention to how you feel when you are with the therapist. Do you feel secure, accepted, understood. Is the therapist highly empathic–capable of putting themselves psychologically and emotionally in your place. Is the therapist’s ego dropped or is he or she name dropping or polishing his or her image during the session. Does the therapist have a calming temperament and give you a genuine feeling of hope.
How well do you think the therapist knows himself/herself–This is essential. Therapists can be highly trained and recommended but if they are not self aware, they cannot successfully work with clients. Is the therapist a steadying influence in your life? As yourself these and many other questions and always remember to pay special attention to your intuition about the prospective therapist. What are you intuiting about this person?
The answers you receive are invaluable. I wish you the very best in finding the psychotherapist who will help you to heal, become calmer, more assertive, creative, more capable of loving yourself and others and having full use of your many creative gifts and capacities.

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