April 19, 2025

The coming battle over brain scans in the courtroom

Michael Cook

The possibility of reading minds with brain scans is creating fierce controversy among legal scholars

The possibility of reading minds with brain scans is creating fierce controversy among legal scholars, according to a feature in the Chronicle of Higher Education. Duke University professor Nita A. Farahany, warns ominously, “We have this idea of privacy that includes the space around our thoughts, which we only share with people we want to. Neuroscience shows that what we thought of as this zone of privacy can be breached.”

Farahany asks whether the Fourth and Fifth Amendment to the American Constitution, which protect citizens against “unreasonable searches and seizures” and self-incrimination will protect people against intrusion by technology. Although reading thoughts and memories is still science fiction, fMRI scans are beginning to be tendered as evidence in courts.

Further into the future, it might be possible for police to conduct brain scans with hand-held devices, much as they use breathalyzers today. When the police give Miranda warnings, they may tell suspects that even what you say silently to yourself can be used against you.

Does the state have a right to use this kind of technology? Farahany believes that it should be possible for it to conduct very limited “searches”.

Bioethicist Paul Root Wolpe, of Emory University, says No. “The skull,” he says, “should be an absolute zone of privacy.” He maintains that position even for the scenario of the suspected terrorist and the ticking time bomb, which is invariably raised against his position. As Sartre said, the ultimate power or right of a person is to say, ‘No.’ What happens if that right is taken away—if I say ‘No’ and they strap me down and get the information anyway? I want to say the state never has a right to use those technologies.”

The issue is attracting more and more attention. The PBS video below, with Alan Alda as narrator, is an investigation of how the brain affects courtroom justice. It’s well worth watching.

Michael Cook
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