Now in Legal Rebels:
Posted May 06, 2010 10:30 am CDT
A New York lawyer has lost his bid to introduce brain scan evidence in an employee retaliation trial to support a claim that a plaintiff’s co-worker was telling the truth and a supervisor was not.
Lawyer David Zevin wanted to introduce the results of an fMRI—or functional magnetic resonance imaging—that shows oxygenated blood flow in the brain of a co-worker who supports the plaintiff’s version of events, Wired.com reports. At issue is whether a supervisor at a temporary agency said the plaintiff should not be placed on jobs because she had once complained about sexual harassment. The supervisor says he never said such a thing; the co-worker disagrees.
In a hearing on Wednesday, Judge Robert Miller of Kings County, N.Y., refused to allow the evidence, and refused a Frye hearing on the issue, Zevin tells the ABA Journal. Cephos Corp., of Tyngsboro, Mass., performed the fMRI. It is one of two companies marketing the test, the ABA Journal reported last October.
Supporters of the test say that more blood is sent to an area of the brain’s prefrontal cortex when someone is lying, and the fMRI can detect the change. An fMRI has never been used as proof of guilt or liability in a civil or criminal trial, although it has been used at sentencing, the Wired story says.
Suburban Chicago defendant Brian Dugan used the test last fall to argue he has a brain disorder and should be spared the death penalty, the Science Insider blog reported at the time. The argument failed, and Dugan was sentenced to death.
According to the ABA Journal story, few experts dispute the fMRI’s potential value as a lie detector. “But the vast majority of them seem to agree that it has a long way to go before it is proven reliable enough to be used in court.”