Can Police Force a Memory Detection Analysis?

Is there a constitutional right to keep unexpressed thoughts private? How do neuroimaging memory scans interact with constitutional rights such as the Fourth Amendment right to be “secure in our papers houses and effects,” and the Fifth Amendment's protections against self-incrimination. We sit down for an interview with Prof. Emily Murphy to discuss new brain analysis technology and memory detection in the criminal justice system. Emily Murphy is a professor at UC Hastings College of Law. ► http://www.talksonlaw.com for more legal explainers and interviews with the titans of law. ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw ____________________ TRANSCRIPT An Interview with Neuroscience Law Expert, Professor Emily Murphy Joel Cohen (“Host”): Does the government have a right to, assuming they can, do they have a right to open the curtains and look deep into your brain? IS THERE A CONSTITUTIONAL RIGHT TO KEEP UNEXPRESSED THOUGHTS PRIVATE? Prof. Emily Murphy: These are questions that start to fall under the rubric of what people are calling “cognitive liberty.” It raises questions of Fourth Amendment search and seizure so does the Fourth Amendment right to be “secure in our papers houses and effects” extend to the right to have our unexpressed thoughts remain private? It butts up against the Fifth amendment right against self-incrimination under which we are not compelled to testify against our own interests. Are unexpressed thoughts or automatic thoughts detected by brain imaging technology with no outward testimonial sign, are they testimonial for purposes of the Fifth Amendment? We don't really know, but I think the Fourth and Fifth amendment rights, whether we have particular rights to cognitive liberty when if in the hypothetical situation brain imaging technology could extract the truth, the truth as it was undisputed and important to what happened, I don't i don't know how that would come out. Host: It seems like the Fifth Amendment right to not incriminate would at least be triggered if you were I suppose the suspect or the target of an investigation? There, I think it jumps out to me, without having done much research, that you might be able to claim that right. COMPELLED BRAIN IMAGING v. COMPELLED BLOOD DRAWS Prof. Murphy: Yes, although when it showed up in the Supreme Court case of Schmerber where your blood alcohol content is not considered testimonial evidence such that your Fifth Amendment right against testifying against yourself is not triggered by a compelled blood draw in order to preserve evidence of your blood alcohol content. So are our thoughts covered by the Fifth Amendment? I mean that it seems to be a much closer right because it's testimonial things we say or write or express. It seems much much closer to our thoughts than our blood alcohol content, but blood alcohol content can be incredibly incriminating, right? That could be the slam dunk case for a DUI. So where does that line of bodily integrity and cognitive liberty lie especially in the face of public safety? COMPELLED MEMORY SCANS IN A TICKING TIME BOMB SCENARIO Prof. Murphy: This has come up as a hypothetical in cases of terrorism or the the ticking bomb where we have a certain amount of time in order to prevent a mass tragedy. Do we then, does the government then have an overwhelming interest in invading the mental privacy of someone who has said I'm not saying anything. Host: Interesting so you're envisioning a situation where perhaps it's not for proving guilt or innocence but, you know, if we could use that this technology to know which train car has the dangerous substance and you could just show the images and detect it in the brain, does the government have the power to force that? [Redacted due to YouTube constraints]