Brain fingerprint or lie detector: does Canada's polygraph jurisprudence apply to emerging forensic neuroscience technologies?

摘要

We are now seeing the development of neuroscience technologies, such as brain fingerprinting and fMRI lie detection, that have the potential to act as lie detectors. Is the existing Canadian law that prevents the admission of the results of a polygraph test sufficient to keep the results of these new tests from being used in the courtroom? This paper will argue that in the case of at least one technique, brain fingerprinting, it does not. While the current ban on the polygraph would apply to any technique that is explicitly a lie detector, brain fingerprinting, however, does not detect lying but instead the presence of memory. This difference may allow it to bypass the broad prohibition on lie detectors and suggests that there may be a class of techniques that may be similarly distinguished from the polygraph and escape its prohibition.