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Are the Thought Police Knocking on Our Door?
"You can't go to jail for what you're thinking," wrote Frank Loesser in his 1956 hit song “Standing on the Corner.” His observation no longer applies in India, the world’s largest democracy, where you can now be convicted of a capital crime and sentenced to life imprisonment because of what you’re thinking, or what experts say you’re thinking.
Consider the case of Aditi Sharma, which riveted the attention of neuroscientists and legal scholars around the world. In 2008, this slight, soft-spoken 24-year-old MBA student was accused of killing her former fiancé, Udit Bharati. They were living in Pune when Ms. Sharma met another man, fell in love, and eloped with him to Delhi. According to prosecutors, Ms. Sharma returned to Pune and asked the incensed Mr. Bharati to meet her at a McDonald’s, where she allegedly poisoned him with arsenic-laced prasad, a sweet food made from ghee, honey, and flower.
Following her arrest, Ms. Sharma, in order to prove her innocence, agreed to take a Brain Electrical Oscillations Signature (BEOS). Although suspects can be tested with the BEOS only with their consent, investigators say many agree to the test because they assume it will spare them an aggressive police interrogation. The BEOS was developed by Indian neuroscientist Champadi Raman Mukundan, who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences (NIMHANS) in Bangalore.
Thirty-two electrodes were placed on Ms. Sharma’s head and an EEG was done. Then, while Ms. Sharma sat in silence with closed eyes, investigators read aloud their version of the alleged plot, speaking in the first person, using statements such as “I met Udit at McDonald’s” and “I bought arsenic,” along with neutral statements like “The sky is blue,” so the software could distinguish memories from normal cognition. The EEG data was translated by the software into a set of eleven physiological variables. If all eleven are positive, then the statement being read to the suspect is assumed, by Mukundan’s theories, to be true.i
Mukundan and others claim the BEOS can distinguish between the memories of events people have witnessed or read about from the deeds they actually committed. In any case, Ms. Sharma flunked the test. According to Mr. Sunny Joseph, the state forensic investigator who used to work with Dr. Mukundan as a BEOS researcher, the areas of the brain where memories are thought to be stored “buzzed” when the alleged crime was recounted. The judge was impressed. He endorsed Mr. Joseph’s assertion that the results were proof of “experiential knowledge” of having committed the murder, rather than just having heard or read about it. The judge sentenced Ms. Sharma to life in prison, making her the first person in world history to be convicted of murder based on evidence that included some type of brain scan.
She continued to maintain her innocence. Despite his ruling, the judge had difficulty believing that this calm, petite student from a respectable, middle-class family could have killed someone.
In September 2008 a report by a NIMHANS committee declared that brain scans of criminal suspects were unscientific, and warned that they should not be used as evidence in a court of law. Ms. Sharma’s attorney immediately lodged an appeal with the Mumbai high court, complaining that the BEOS tests were “bad science.” Six months later, in early 2009, she and her husband were released on bail (pending appeal) based on a lack of material evidence linking them to the crime. In India, the judicial process is slow; Aditi Sharma’s lawyer says it may be five or ten years before she is back in court. If Ms. Sharma and her husband are ever to be cleared, one of India’s courts must conclude that Ms. Sharma’s brain test failed to find the truth inside her head.ii,iii But science had spoken and a precedent was established. Within six months, the same lab provided evidence that convicted two more people of murder.iv In the roughly 80 BEOS tests that had been conducted by mid-2009, confessions had been obtained in ten of them.
Drawing a Line
Dr. Mukundan, the 68-year-old inventor of the BEOS technology, is a curious study. Forty-four years ago he switched from physics and mathematics to the study of psychology. During his postgraduate psychology work, he hated meeting patients. His love was the laboratory, where he was more at home with electrical equipment and experimentation. He says the suspects he tests are actually grateful. “They are so, so relieved to be here,” he says. “They’re so happy to be here with us, because we’re not scary. We talk to them nicely. Just imagine… You can imagine in India the way the police must be treating them.”v
Psychologists and neuroscientists in the United States who have been at the forefront of brain-based lie detection have variously called India’s actions “Orwellian,” “ fascinating,” “ridiculous,” “chilling,” and “unconscionable.” Henry T. Greely, a bioethicist at Stanford Law School, referring to the Indian verdict, says, “We keep looking for a magic, technological solution to lie detection. Maybe we’ll have it some day, but we need to demand the highest standards of proof before we ruin people’s lives based on its applications.”vi Neuroscientist Michael S. Gazzaniga, director of the SAGE Center for the Study of the Mind at the University of California, Santa Barbara, agrees, saying, “Well, the experts all agree. This work is shaky at best.”vii
Now that India has become the first country to convict someone of a crime by relying on evidence from a brain-based technique, the door has opened in other countries for more inventive applications, such as using fMRI. A committee of the National Research Council in Washington, DC, predicts that brain scans could eventually aid the acquisition of intelligence from captured unlawful combatants and the screening of terrorism suspects at checkpoints.viii Some enthusiasts say the new lie-detection methods are a humane weapon against terrorism because they may render waterboarding and other “enhanced” interrogation techniques unnecessary. Entrepreneurs are off and running, such as No Lie MRI, a California company that wants to market MRI scans for use in military intelligence settings.
I find these developments worrisome. In my profession of medicine, it is often the case that a new technology, once invented, will, almost always, eventually be used on humans.
What about the right to privacy? Protection against unwarranted searches? The right to resist self-incrimination? The ethical issues involved in probing someone’s cognitive processes? Already proponents of brain scanning are saying, “If you’ve got nothing to hide, you’ve got nothing to fear” from such tests, suggesting that if you disapprove of these methods you must be guilty of something.
These concerns are very real. Everyone who treasures the privacy of consciousness should pay attention to these developments, educate themselves about these issues, and let their voices be known as these developments play out in our culture, as they surely will.
i Saini A. The brain police: judging murder with an MRI. Wired.co.uk.. May 27, 2009. Accessed April 24, 2010.
ii Leslie I. No kidding. Prospectmagazine.co.uk. Accessed April 21, 2010.
iii Giridharadas A. India’s novel use of brain scans in courts is debated. NYTimes.com. September 15, 2008. Accessed April 21, 2010.
iv Saini A. The brain police: judging murder with an MRI. Wired.co.uk. May 27, 2009. Accessed April 24, 2010.
v Mukundan CR. Quoted in: Saini A. The brain police: judging murder with an MRI. Wired.co.uk. May 27, 2009. Accessed April 24, 2010.
vi Greely HT. Quoted in: Giridharadas A. India’s novel use of brain scans in courts is debated. NYTimes.com. September 15, 2008. Accessed April 21, 2010.
vii Gazzaniga M. Quoted in: Giridharadas A. India’s novel use of brain scans in courts is debated. NYTimes.com. September 15, 2008. Accessed April 21, 2010.
viii Giridharadas A. India’s novel use of brain scans in courts is debated. NYTimes.com. September 15, 2008. Accessed April 21, 2010.