Posted Sep 07, 2012 06:55 pm CDT
A health-care fraud defendant who sought to bolster his testimony with a functional MRI scan indicating he was truthful has lost his federal appeal in a criminal case of first impression.
The Cincinnati-based 6th U.S. Circuit Court of Appeals upheld the conviction of Dr. Lorne Semrau, who had sought to admit the fMRI to show he was generally truthful when he said he acted in good faith when billing Medicare and Medicaid. The 6th Circuit concluded the trial court did not abuse its discretion in barring the evidence.
Semrau is a psychologist and CEO of two companies that provided psychiatric care to nursing home patients, according to the opinion (PDF). He was accused of health-care fraud for using billing codes to obtain higher reimbursement than justified by the services provided. A jury convicted him on three counts.
Semrau was tested by the Cephos Corp., which uses the fMRI to measure brain activity and assess deception. Its CEO, Dr. Steve Laken, has studied the technology with other researchers using test subjects and mock scenarios. Accuracy has varied among studies, the appeals court said, citing testimony by Laken. One 2009 study was able to identify a person telling the truth just 6 percent of the time, meaning 19 out of 20 truth tellers would wrongly be deemed liars. Another study found that accuracy dipped by almost 25 percentage points when a test subject becomes fatigued.
Tests of Semrau indicated no general deception, but it was possible he was lying on certain questions, Laken had conceded on cross-examination.
The appeals court concluded the district court did not abuse its discretion, partly because functional MRIs have not been examined in “real world” settings. The court cited other reasons the evidence was inadmissible, including the fact that the test results don’t purport to show whether Semrau was truthful about any single statement.
Hat tip to How Appealing.
Prior coverage of MRI evidence:
ABAJournal.com: “Murder Defendant Claims MRI Scan Indicates He Didn’t Kill; Judge Disallows Evidence”
ABAJournal.com: “Lawyer Loses Bid to Use MRI as Lie Detector to Help Prove Bias Claim”
ABA Journal: “True Lies”