Fifth Amendment Brain Scan — a short story

Posted on 2018 April 22

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Could prosecutors armed with a search warrant compel an unwilling suspect to submit to brain scans aimed at exploring his or her innermost thoughts? — John Villasenor

“The State wishes to introduce into evidence a set of scans made from the defendant’s brain, scans which will prove he was lying to investigators—”

“Objection!” Defense counsel was on her feet.  “Scans of my client’s cerebrum constitute an unwarranted search that nullifies his Fifth Amendment right against self-incrimination.”

The prosecutor snorted. “That’s ridiculous. The scans are simply external technical means of obtaining—”

“There’s nothing ridiculous about invading a person’s mind to extract testimony!”

The judge intervened. “Counselors! Side bar.” The lawyers walked over to the bench and looked up at him expectantly.

He turned to defense counsel. “Okay,” he said in a low voice, “state your beef.”

“Your Honor,” she began quietly, “when my client was in the hospital after the incident, they wheeled him into an f-M-R-I machine to check for internal injuries, and at one point the police were questioning him while the machine just happened to be scanning his head, and now they claim the scans show blood-flow patterns that indicate my client may have been stating things that maybe, possibly, weren’t entirely true—”

“And which might prove your client guilty.”

“Either way, the point is that he was thereby forced to testify against himself. The evidence is inadmissible.”

“I see. Well, Mister Prosecutor? What’s your take?”

“Judge, the police obtained a warrant and retrieved the scans in the same way they might get a court order to search a suspect’s file cabinets. Defendant didn’t produce this evidence — the scanning machine produced it.”

Her eyes flashed. “But it’s still his innermost thoughts! If the State can obtain those by means other than direct testimony, then the Fifth Amendment is moot! No one will be safe from self-incrimination.”

The prosecutor shook his head. “Look, the whole point of the Fifth is to prevent torturing people for their testimony. Nobody tortured your client.”

“So why should you or the police bother with proper interviews if you can get a brain scan instead? And then go on fishing expeditions — ‘Hey, that sounds hinky, let’s ask him more questions that might reveal evidence of a related crime.’ Pretty soon there’s no privacy at all for anyone.”

“Oh, c’mon, our people only asked things that related directly to the homicide—”

“Sure, for now. But tomorrow you guys’ll figure out all sorts of ways to dig into people’s private lives by artfully spying inside their brains—”

“F-M-R-I scans are no more intrusive than lie detectors—”

“But they’re vastly more invasive! They tear the Fifth to shreds. Ordinary citizens will be stripped of one of the last remaining protections against invasion of privacy in a world with spy cams and drones and relentless data collection.”

The judge raised his hand. “I’ve heard enough. Step back.”

The attorneys returned to their tables and sat down. The defendant stared at his lawyer, eyes filled with worry. She smiled and patted his hand.

The judge announced, “As to the evidence in question, I’ll allow it. Objection overruled.”

Again the defense attorney jumped up. “But, Your Honor!”

“It’s decided, counselor. You can take it up on appeal.”

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Posted in: Fiction, Politics