Prof. Robin Palmer1
1University of Canterbury, Christchurch, New Zealand
For hundreds of years the method for determining the ‘truth’ in criminal trials has remained the same. This entails an assessment of the relevant probabilities of competing versions in order to ultimately select the most probable version as the ‘true’ version. Injustices resulting from this unscientific approach to truth-finding are well-documented, and any assistance to ameliorate these injustices that may be provided by scientific advancements should be welcomed. A clear example of this is the use of DNA testing and screening in criminal investigations and trials.
An exciting new development is the increasing world-wide trend towards the adoption of brain-based neuro-technologies in criminal investigations, even though such adaptations typically face significant resistance from traditionalists in law enforcement.
One of the most promising of these new detection-deception technologies is the forensic brain-wave analysis (FBA) technology of Dr Lawrence Farwell (called ‘brainfingerprinting’). Farwell’s FBA system has been the subject of a four-year (2016 to 2020) verification project in New Zealand (the ‘UC Project’), of which the presenter is the lead investigator.
The focus of this paper is three-fold: first, an overview of the emerging and established forensic neuro-technologies such as EEG-based forensic brainwave analysis (FBA) technologies, the traditional polygraph-based approaches, and the forensic application of fMRI brain-scanning; second, a summary of the results and conclusions of the 2016 to 2020 UC FBA Project, and third, a consideration of the investigative, legal and ethical implications of the use of these technologies
Robin Palmer is a Professor of Law, and Director of Clinical Legal Studies at the University of Canterbury, New Zealand. Prior to that he was director of the Institute of Practical Legal Training at the University of KwaZulu-Natal, Durban, and has done consultancies for various UN and international organisations, including as the lead consultant in the UNODC expert group meeting on private/public security cooperation in Vienna from 2009 to 2011.
He is also a practicing barrister (advocate), and has acted in over 220 criminal trials, including a number of high-profile trials like the ‘Trust Feed’ trial (Apartheid death squads-1990 to 1991),and the ‘Operation Life’ case ( prosecution of international illegal organ trafficking- 2007 to 2012).
He is currently the project leader of the NZLF-supported project, “The Brain does not lie: An Investigation into the forensic application of Forensic Brian technologies in the Criminal Justice System” ( 2016 to 2021).