Researchers' doubts notwithstanding, Cephos is working hard to introduce fMRI lie detection to the American legal system. The company's most recent effort involves a Tennessee psychologist who was accused of submitting false insurance claims. His attorneys tried to offer as evidence tests that Cephos performed in an attempt to show that he genuinely had no intent to commit fraud. Awkwardly for the defense, it came out during the trial that one scan Cephos had made of the psychologist indicated that he was lying. The company later repeated that same test, and the new results showed him to be telling the truth. Prosecutors, reasonably enough, objected to the do-over, and this past June the Tennessee court declared the fMRI results to be inadmissible, mostly because the method hasn't received any scientific real-world testing.
"We're making progress, but there's a catch-22. Prosecutors aren't supposed to prosecute when they don't think a person is guilty, so if we come to the table and really convince them, then they don't prosecute"
Joel Huizenga, CEO, No Lie MRI
No Lie MRI has been no more successful in getting its results accepted as evidence in a court of law. "We're making progress, but there's a catch-22," Huizenga complains. "Prosecutors aren't supposed to prosecute when they don't think a person is guilty, so if we come to the table and really convince them, then they don't prosecute."
In November 2009, MRI brain scans were used in court for the first time, in an application that had nothing to do with lie detection. During a sentencing hearing in Illinois for the convicted multiple murderer Brian Dugan, defense attorneys used MRI scans that showed Dugan had abnormal brain functioning. Laken thinks that marks the beginning of a trend. "We're on track," he says. "In one of our cases, the judge made a number of favorable comments and said that she would seriously consider the technology. She admitted the technology as evidence but didn't use it to make a ruling. These are cracks in the glass."
Hank Greely, director of the Center for Law and Bioscience at Stanford Law School, is doing his best to stop those cracks from spreading. "Judges, jurors, all of us, we've got this longing for a magic tool that will tell us whether someone is lying or telling the truth," he says. "But we have to be very cautious about thinking it's here because we want it to be here. I haven't seen anything today that leads me to believe fMRI is better than polygraphs. If we start using a bad technology, people's lives are going to be hurt—not just innocent people who are falsely convicted but guilty people who are falsely exonerated and go on to ruin the lives of other people."
Greely, who is a lawyer by training, believes that much more research is necessary. He is involved in some of the research himself and recently coauthored a report on the use of fMRI to determine whether a subject has recognized a particular face. Although the study indicated that fMRI could reliably show whether the subject thought he or she recognized a face, it couldn't tell you whether the subject had truly seen that face before. This suggests that fMRI wouldn't help in distinguishing false memories from true ones.
"Experiments are hard to design, but until we get more realistic studies, there's no proof that what happens in the lab is relevant to what happens in the real world," Greely says. Unfortunately, the studies needed to evaluate the reliability of fMRI lie detection in real-world situations would be extremely expensive. A five-year study covering a range of ages, languages, and cultures would run about $125 million, Greely estimates.
The one group that could afford to fund research on such a scale is not renowned for sharing its findings with scientists, lawyers, or businesses. "I know that DARPA [the Defense Advanced Research Projects Agency] has funded quite a lot of research in this area—and maybe other Department of Defense agencies for obvious interests that they might have," says Glover. "This research is pretty much under cover of night. I happen to know about a few studies, but I would have to shoot you if I told you."
Occasionally, evidence of the military's interest in fMRI does see the light of day. For example, in 2006, DARPA solicited proposals for research to "understand and optimize brain functions during learning" using fMRI technology, followed a year later by requests for a transportable battlefield MRI scanner.
"For the intelligence community, what we're interested in are going to be devices that you can use remotely," says Sujeeta Bhatt, a research scientist with the Defense Intelligence Agency. "We can create a fantastic map of deception in fMRI, but what we use for national security has to be something that we can train anyone to use fairly easily, that's fairly portable, and not outrageously expensive."
Such a device won't use fMRI, Bhatt believes. "Functional MRI has serious limitations. Countermeasures haven't been seriously studied, but of the ones that have, simply moving your tongue can compromise the data," she says. "And in the intelligence community, the people that you're screening have really studied their cover stories. Will that look like truth or a lie? We're not there yet, and in terms of using [fMRI] as a practical, everyday tool to detect human deception, I don't think we're ever going to be there."
Huizenga contends that others in the military are right now seeking the know-how his company offers. "We are dealing with the military. The guys in the field are asking for this technology. They want to know whether people are telling them the truth or telling them lies." He refuses to provide any specifics, other than saying that No Lie MRI hopes shortly to secure government funding for a multimillion- dollar, 1200-person study. If such a large study is actually carried out, it could well determine the future of fMRI lie detection.
God knows what the intelligence community, the CIA, and MI6 are spending on this work," says Greely. "All the studies are secret, and science doesn't work well in secrecy." It appears not to work all that well in San Diego, either, judging by the results of my own interrogation in the scanner.
According to No Lie MRI, when I denied that I misstated business expenses, the region of my prefrontal cortex associated with deception lit up like a Christmas tree. For the record, I never pad expense reports (note to editor: honest!).
On the other hand, when I claimed that I had not feigned illness to weasel out of an obligation, there was nothing going on out of the ordinary in my frontal cortex, and only two spots elsewhere in my brain became active, providing no evidence of deception. In fact, I have many times claimed, falsely, that I didn't feel well enough to take on a household chore or attend what I expected to be a dreary party.
Huizenga cautions me not to imagine this means I would make a great con man. "In a real test, we make all the questions virtually identical, allowing us to compare your answers against known truths," he says. Perhaps so. But if fMRI lie detection is ever to break out of its academic ghetto and storm the courtroom, boardroom, or battlefield, it will have to succeed in precisely those situations where the absolute truth is not known. And you don't need to be a mind reader to see that that day is still a long way off.
This article originally appeared in print as "Liar!"
