Posts: 14,118
Threads: 61
Joined: Oct 2014
Brain fingerprinting is a forensic science technique that uses electroencephalography (EEG) to determine whether specific information is stored in a subject's brain. It consists of measuring and recording a person's electrical brainwaves and brain response known as P300-MERMER ("Memory and Encoding Related Multifaceted Electroencephalographic Response") after the subject is exposed to words, phrases, or pictures on a computer screen. (Encyclopedia of Forensic Science 2014, Farwell & Smith 2001, Farwell, Richardson, and Richardson 2013).
Brain Fingerprinting is a new computer-based technology to identify the perpetrator of a crime accurately and
scientifically by measuring brain-wave responses to crime-relevant words or pictures presented on a computer
screen. Brain Fingerprinting has proven 100% accurate in over 120 tests, including tests on FBI agents, tests for
a US intelligence agency and for the US Navy, and tests on real-life situations including felony crimes.
Brain fingerprinting is based on finding that the brain generates a unique brain wave pattern when a person
encounters a familiar stimulus Use of functional magnetic resonance imaging in lie detection derives from
studies suggesting that persons asked to lie show different patterns of brain activity than they do when being
truthful. Issues related to the use of such evidence in courts are discussed. The author concludes that neither
approach is currently supported by enough data regarding its accuracy in detecting deception to warrant use in
court.
In the field of criminology, a new lie detector has been developed in the United States of America. This is
called “brain fingerprinting”. This invention is supposed to be the best lie detector available as on date and is
said to detect even smooth criminals who pass the polygraph test (the conventional lie detector test) with ease.
The new method employs brain waves, which are useful in detecting whether the person subjected to the test,
remembers finer details of the crime. Even if the person willingly suppresses the necessary information, the
brain wave is sure to trap him, according to the experts, who are very excited about the new kid on the block.
Use in criminal investigation
Brain fingerprinting has been ruled admissible in court in the reversal of the murder conviction of Terry Harrington (Harrington v. State 2001, Encyclopedia of Forensic Science 2014, Farwell & Makeig 2005). Following a hearing on post-conviction relief on November 14, 2000, an Iowa District Court stated that the fundamental science involved in Dr. Farwell's brain fingerprinting P300 test was well established in the scientific community. For a range of reasons, the court dismissed the defendant's petition for a new trial.
In order to be ruled admissible under the prevailing Daubert standard established by the US Supreme Court, the District Court required proof that brain fingerprinting has been tested and proven, that it has been peer reviewed and published, that it produces a known (and low) error rate and is systematically applied, and that it is well accepted in the relevant scientific community. In ruling the brain fingerprinting test admissible as scientific evidence, the Court stated the following:
"In the spring of 2000, Harrington was given a test by Dr. Lawrence Farwell. The test is based on a 'P300 effect'."
"The P-300 effect has been recognized for nearly twenty years."
"The P-300 effect has been subject to testing and peer review in the scientific community."
"The consensus in the community of psycho-physiologists is that the P300 effect is valid."
"The evidence resulting from Harrington's ‘brain fingerprinting’ test was discovered after the fact. It is newly discovered."
(Harrington v. State 2001)
As the Iowa District Court clearly stated, the results of the brain fingerprinting test on Harrington constituted "evidence" that the court admitted. Also, Dr. Farwell's testimony as an expert witness and the testimony of the other two expert witnesses in the case were admitted as evidence. The Iowa court admitted the brain fingerprinting evidence and Dr. Farwell's testimony on it under the Daubert standard.
Several authors of law articles have examined the admissibility of brain fingerprinting evidence in the Harrington case in depth and detail and summarized the outcome as follows:
"The Judge in Harrington ruled Brain Fingerprinting admissible under Daubert after conducting a day-long hearing featuring three expert witnesses, each renowned in his field." (Roberts in Yale Journal of Law and Technology 2007, p. 265)
"In Harrington, the court admitted Dr. Farwell's testimony on brain fingerprinting and stated that it satisfied the Daubert test." (Moenssens in University of Missouri-Kansas City Law Review, p. 26)
"[T]he [Harrington] court admitted Brain Fingerprinting evidence based upon the P300 effect…" (Erickson in Drake Law Review, p. 13)
The court noted the distinction, however, between admissibility and weight. In light of the circumstances of a particular case, the admissible evidence does not always have sufficient weight to produce a verdict in favor of the side that proffers the evidence. Although the court ruled brain fingerprinting admissible, the court ruled that the weight of the brain fingerprinting evidence and other evidence proffered by Harrington would probably not have been sufficient to change the verdict in the original trial.
"The court determined that Brain Fingerprinting was new evidence not available at the original trial and that it was sufficiently reliable to merit admission of the evidence; however, the court did not regard its weight as sufficiently compelling in light of the record as a whole as meeting its exacting standard, and thus it denied a new trial on this and the other grounds asserted by Harrington." (Farwell and Makeig in Open Court, p. 9)
The court ruled in Harrington's favor on two major issues but nevertheless denied him a new trial. The court ruled brain fingerprinting and the testimony of the expert witnesses on it was admissible, and also admitted the recantation testimony of the only alleged witness to the crime, yet nevertheless denied Harrington's petition for a new trial. Regarding this rather complicated ruling, one commentator opined that "[t]he Harrington court avoided a clear ruling on admissibility" (Denno 2002) of the test.
Harrington appealed to the Iowa Supreme Court. The Iowa Supreme Court reversed the trial court and granted Harrington a new trial. (Harrington v. State 2003, p. 516) The supreme court did not reach the brain fingerprinting issue and decided the case on other grounds. "Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration." (Harrington v. State 2003, p. 516)
Although the Iowa Supreme Court did not rule on brain fingerprinting, they allowed the law of the case established by the district court to stand, implicitly including the district court's finding regarding the admissibility of the newly discovered evidence resulting from Harrington's Brain Fingerprinting test. (Harrington v. State 2003)
Due to a constitutional rights violation, specifically a Brady disclosure violation by the State of Iowa in the original trial, the Iowa Supreme Court awarded Harrington a new trial. The only alleged witness to the crime, Kevin Hughes, recanted when Dr. Farwell confronted him with the "information absent" results of the brain fingerprinting test on Harrington. Without its star witness, the state subsequently dismissed the murder prosecution without prejudice for lack of evidence due to witness recantations and the passage of time.
The State of Iowa argued unsuccessfully in trial court that the brain fingerprinting results should not be considered admissible "evidence," whether "newly discovered" or not (Harrington v. State 2001).
In his recantation, Hughes stated under oath under questioning by Farwell that the detectives and prosecutors had told him he would go to prison for life if he did not implicate Harrington. He stated that when he agreed to falsely accuse Harrington of the murder, they coached him in fabricating the story to which he later testified in the trial. He stated that when he said something that contradicted known facts – such as identifying the wrong murder weapon – they corrected him, and he changed his story accordingly. (Harrington v. State 2001).
Harrington sued the prosecutors and the State of Iowa for framing him. The prosecutors and the State of Iowa did not deny the accusations brought by Hughes and Harrington. Their defense was that they enjoyed absolute immunity due to their professional positions. The U.S. Supreme Court agreed to hear the case on the issue, as reported in the TIME Magazine article, "When Is It Legal to Frame a Man for Murder?" (TIME Magazine article on Harrington[1]) (TIME 2009). However, before the Supreme Court heard the case, the State of Iowa settled with Harrington and another man falsely convicted of the same crime. The state paid them a $12 million settlement (L A Times 2010).
Brain fingerprinting testing was also instrumental in bringing serial killer James B. Grinder to justice. In August 1999, Dr. Farwell conducted a brain fingerprinting test on Grinder at the request of Sheriff Robert Dawson of Macon County, Missouri. The test proved that information stored in his brain matched the details of the murder of Julie Helton (Encyclopedia of Forensic Science 2014, Farwell et al. 2013, Farwell 2012). Faced with a certain conviction and almost certain death sentence, Grinder then pleaded guilty to the rape and murder of Julie Helton in exchange for a sentence of life in prison without parole. He is currently serving that sentence and has also confessed to the murders of three other young women.
