Brain Fingerprinting Testing and Memory Issues

 

In any situation involving human memory, questions can be raised regarding the fallibility of human memory and factors that might influence memory. Such questions can in principle be raised in the Harrington and Harris cases.  The same issues can be raised in any other forensic situation involving human memory – and this includes all situations involving testimony by witnesses, victims, or perpetrators, alleged or actual.

 In the Harrington and Harris cases, Brain Fingerprinting^® testing proved that the two men who had been convicted of murder did not have salient, significant facts regarding the respective murders stored in their brains.  Does this really prove they are innocent?  What if they committed the murders, and did not notice what they were doing, or forgot the important facts?  What if they had a physical or mental illness that impaired their memory?  What if they were under the influence of alcohol or drugs that tend to impair memory?

            This document seeks to clarify the issues related to memory in the application of Brain Fingerprinting, and to delineate what Brain Fingerprinting testing can prove scientifically, and what must be decided not by science or scientific experts but by a judge or jury. 

            In both the Harrington and Harris cases, Brain Fingerprinting testing proved two things: 1) that salient features of the crime were not stored in the suspect’s brain, and 2) that salient features of the alibi were stored in the suspect’s brain.  The latter finding shows that the suspect did not suffer from a failure of memory.  Brain Fingerprinting testing proved that both suspects’ brains contained a clear record of the events of the evening of the crime.  This record matched the respective accounts of the events of the evening of the crime, as told by the alibi witnesses.  The records stored in the brains of the two suspects did not match the respective crime scenes.  

This illustrates one effective means to scientifically eliminate the possibility that the lack of a record of a crime stored in a suspect’s brain was due to some malfunction of memory, rather than due to innocence of the crime.  When Brain Fingerprinting testing proves not only that the record stored in the brain of the suspect does not match the crime scene, but also that it does match the alibi, this provides strong scientific evidence that the lack of a record of the crime stored in the brain is indeed due to non-participation in the crime rather than to some malfunction of the memory.

            The more general question of the fallibility of human memory is indeed the perennial problem of all legal proceedings that involve human beings.  This is by no means unique to Brain Fingerprinting.  In fact, the questions and issues surrounding human memory apply as much in every case involving testimony by humans regarding remembered events as they do cases involving Brain Fingerprinting testing evidence.  The human brain is an amazing instrument, but it is not perfect.  Every time a person participates in or witnesses an event, the imperfections of the human faculties come into play.  First of all, perception is not perfect.  A witness may see a man with a dark hat, mistake it for dark hair, and report seeing a dark-haired man.  Second, memory is not perfect.  A person, whether he is a witness or a perpetrator, may experience something and then forget.  Third, a person may be under the influence of some debilitating mental or physical illness or drug that compromises the system such that perception and/or memory is less effective than usual.

            What are the implications of the imperfections of human faculties for legal proceedings?  These issues are central to every legal proceeding that involves any kind of testimony or evidence connected with human beings.  Every time there is an alibi witness who testifies that he was with the suspect the whole time, and saw no crime, there are three possibilities: 1) His account is correct; 2) He was in fact with the accused, but the crime took place in his presence and he either did not perceive it or forgot about it (either because of mental or physical illness, drugs, poor perception or memory, or some other reason); 3) He knows the suspect committed the crime, and he is lying.

            The same three possibilities are there every time a suspect testifies on his own behalf.

            It is never possible, in principle, to be absolutely certain that any alibi witness (or any other witness) is actually a reliable witness, even if we are convinced that the witness is not lying.  If a witness says that the suspect did not commit the crime, it is still possible that he witnessed the suspect committing the crime, and just forgot about it.  In principle, we can never be absolutely sure that anyone in the area at the time did not commit a given crime.  You and I are quite sure that we did not commit the crimes that we read about in this morning's paper, but in principle we must admit that there is a possibility that we did commit these crimes and then forgot about it.  We can never absolutely prove otherwise.

            Fortunately, in this country, we do not have to absolutely prove that a suspect is innocent.  A person is innocent until proven guilty beyond a reasonable doubt. The judge and jury take all of the evidence into account, and make a decision as to whether the suspect is guilty beyond a reasonable doubt, or not.  (In some legal proceedings, another legal standard other than reasonable doubt, e.g., preponderance of the evidence, is applied.)  In evaluating scientific evidence, the principal is the same.  The judge or jury take into account the available scientific evidence along with other evidence, and make the legal determination according to the applicable legal standard.

            When judges and juries hear an alibi witness state that he was with the suspect at the time of the crime, and he is sure the suspect did not commit the crime -- that is, the witness says he has no record of the suspect committing the crime stored in his brain -- judges and juries must always evaluate this statement in the light of the fact that human perception and memory are fallible.  Again, it is always possible that the alibi witness saw the whole crime and just forgot about it.  Judges and juries must take this possibility -- and the likelihood of it actually happening -- into account.

            The effect of the fallibility of human memory and perception on Brain Fingerprinting testing is identical to the effect of these factors on the testimony of a witness.   Take, for example, the case of an alibi witness and a suspect who has been shown through Brain Fingerprinting testing to have no record of the salient features of the crime stored in his brain.  The alibi witness says that he remembers being with the suspect at the time of the crime, and has no memory of the suspect committing the crime.   Brain Fingerprinting testing demonstrates that the suspect also has no memory of the salient facts of the crime, and does have a memory of the alibi.

            One possible conclusion that the judge and jury may reach, upon considering this evidence along with all of the other available evidence, is that the suspect is innocent.   Another possibility that must be considered in every case, whether Brain Fingerprinting testing is used or not, is that the suspect committed the crime, the alibi witness witnessed the crime, and both of them forgot about it -- either due to extremely poor memory, drugs, physical or mental illness, or some other reason.  With or without Brain Fingerprinting, this is a possibility that can in principle never be entirely eliminated.

            What Brain Fingerprinting testing can do is to provide extremely strong scientific evidence that the record of the time of the crime stored in the suspect's brain does or does not contain the salient facts about the crime, and does or does not contain the salient facts about the alibi.  Brain Fingerprinting testing can prove that the suspect's brain does not have the salient details of the crime stored in it, that is, when the suspect does not remember or recognize the salient details of the crime.  It is up to a judge or jury to take this fact into account, along with all the other available facts, in coming to a verdict of guilty or not guilty. 

            Neither Brain Fingerprinting testing nor any other scientific technique proves a suspect innocent or guilty of a crime.  The determination of guilt or innocence is a legal matter, not a scientific one.  All Brain Fingerprinting testing or any other scientific technology can do is to provide a judge or jury with evidence, which they will take into account in their determination of guilt or innocence.  The specific evidence that Brain Fingerprinting testing provides is either 1)  that salient facts about the crime, facts that the subject claims not to know and would have no way of knowing other than committing the crime, are in fact stored in the suspect’s brain; or 2) that these salient features of the crime, features that the suspect would have encountered if he had committed the crime, are not stored in the suspect’s brain.  Does this prove that the suspect is guilty or innocent?  No.  That is up to a judge or jury to decide, taking into account the Brain Fingerprinting testing evidence along with all of the other available evidence.

            There is an extensive literature on what makes events memorable, and we take that into account in structuring the stimuli for the Brain Fingerprinting testing tests in order to maximize the memorability of the items tested for.  Still, we can never be absolutely certain that a suspect who has no memory of the salient facts of the crime is innocent, any more that we can be absolutely certain that a truthful alibi witness didn't actually witness a crime and then forget about it.

            The determination of innocence or guilt, however, is not a scientific determination.  That is a legal determination.  Brain Fingerprinting testing detects the record of the crime stored in the brain, or a lack of that record.  The determination of Brain Fingerprinting testing is "information present" or "information absent."  This is science.  The judge and jury take the evidence provided by Brain Fingerprinting testing into account, along with all of the other available evidence, to reach a verdict of guilty or not guilty.   This is not science, but rather the judicial process.   

            Judges and juries know that human perception and memory are imperfect, and that a witness or suspect may have been under the influence of some debilitating physical or mental condition or drug that could make these faculties even more imperfect than usual.  Whenever witness testimony is heard, and whenever Brain Fingerprinting testing evidence or any other evidence depending on human beings is presented, this imperfection must be taken into account, along with any evidence that this is a circumstance in which perception or memory may be more imperfect than usual. 

            This does not, however, mean that judges and juries should be disallowed to hear the testimony of witnesses, just because the memory of the witnesses may be imperfect or impaired for some reason.  Nor does it mean that judges and juries should be deprived of the evidence provided by Brain Fingerprinting, just because the memory of the suspect may also be imperfect or impaired for some reason.

            Brain Fingerprinting testing objectively detects the presence or absence of a record of the crime in the brain of the suspect, whatever the suspect says.  Brain Fingerprinting testing is non-assertive and non-testimonial.  The suspect neither lies nor tells the truth during the process.  No questions are asked or answered.  The question of the truth or veracity of the subject is irrelevant, just as it is with a fingerprinting or DNA testing.  The results detect a match or no match between something on the person of the suspect and something from the crime scene -- be it fingerprints, biological samples, or, in the case of Brain Fingerprinting, information stored in the brain.  This has nothing to do with what a person says about it, or whether he speaks the truth or lies.

            Neither Brain Fingerprinting testing nor any other scientific procedure, however, can absolutely eliminate the possibility that a suspect committed a specific crime.  When Brain Fingerprinting testing proves that a suspect lacks knowledge of the salient aspects of a crime, then, there are two possibilities: 1) he is innocent; 2) he committed the crime and either never knew it or forgot about it later.  (The latter could be due to defective memory, physical or mental illness, drugs, or some other factor.)

            These same possibilities are present whenever there is an alibi witness.  Neither Brain Fingerprinting testing nor any other scientific technique can totally eliminate the possibility that a witness or a suspect was present at a crime and failed to perceive or forgot the salient facts about the crime.

            Does this mean that we disallow the judge and jury to hear any testimony from witnesses?  No. The judge and jury have a duty to take into account the available facts, and to evaluate these facts in the light of the reality that human perception and memory are imperfect.    Does it mean that we should disallow the judge and jury to know the facts proven by Brain Fingerprinting testing regarding the presence or absence of the record of the crime stored in the brain?  Again the answer is no.  The judge and jury are entitled to have the evidence provided by Brain Fingerprinting, along with all of the other available evidence. The judge and jury have a duty to take into account all of the available evidence, and to make a determination based on their best judgment in light of all the evidence.

            Perception and memory are imperfect, and can never be totally relied upon to provide an accurate representation of the facts. This limitation on the judicial system applied to all testimony of witnesses long before Brain Fingerprinting testing was discovered, and will always apply to all aspects of the judicial system that involve human beings.

            Granted, human memory and perception are not infallible, and can be compromised by mental and physical illness and drugs.  This limitation applies to information that is or is not known as evidenced by  Brain Fingerprinting testing and it also applies equally to all information that is a part of any testimony by a witness.  With Brain Fingerprinting testing as with witness testimony, however, this limitation affects the weight given to the evidence, and not the admissibility of the evidence.  The question of weight is one that can only be decided by the judge and jury, and not by a scientific procedure or a scientific opinion.  Brain Fingerprinting testing can determine scientifically what information is stored in a brain, i.e., what a person does and does not know.  How these scientific facts are interpreted in relation to participation or non-participation in a crime, and what weight is given to this scientific evidence, is a matter to be decided by a judge or jury.

            We must acknowledge, in principal, that any one of us might have committed the murder we read about in today's paper, and then forgot about it.  We must acknowledge that any alleged alibi witness may have in fact witnessed the crime rather than the alibi, and then forgot about it.  Theoretically, a suspect who is proven through Brain Fingerprinting testing to lack knowledge of the salient details of a crime could conceivably have committed the crime, and then forgotten about it.  This kind of thing is not what we find in reality, however.  When one reads the transcripts of court testimony for major crimes, the people who were present -- witnesses, perpetrators, and surviving victims alike -- do in fact remember the salient features of the events that took place, as proven by the descriptions they offer in testimony.  This includes people who are of very high or very low intelligence.  It includes people who are under the influence of all kinds of different drugs, legal or illegal.  It includes psychopaths and other people with highly abnormal or pathological emotional responses and psychological conditions.  It includes people who have committed many crimes and people who have never committed a crime.  It includes people who are under severe stress, people who are calm and unemotional, people who are violently angry, people who are terrified, and people who commit serious crimes with no remorse.

            The entire judicial system is built on the concept of reasonableness.  Is it possible that you or I committed the murder we read about in today's paper, and then forgot about it, and we are going about our business falsely believing ourselves to be innocent?  Yes.  Is it a reasonable scenario, with a reasonable likelihood of being accurate?  No.  Is it possible that an alibi witness saw a violent murder, and never noticed it, or forgot about it?  Yes.  Is it a reasonable, likely explanation?  No, not often.  It is possible that a suspect who demonstrably does not know the salient facts about a major crime actually committed the crime, and never noticed what he was doing, or forgot about it?  Yes.  Is it a reasonable, likely explanation of the facts?  No, not unless there is some highly unusual, reasonable explanation for why such an extremely bizarre and unusual phenomenon would occur.   Anything is possible, and it is indeed possible that a person could commit a crime and not know the salient details of it, but is a judge or jury likely to conclude that such a thing happened, beyond a reasonable doubt, and takes away a person's freedom or his life on that basis?  Not in a reasonable world, and not in a reasonable criminal justice system. 

            Is it theoretically possible for a suspect to commit a crime, and for the scientific tests to reveal that his fingerprints or DNA do not match the fingerprints or DNA at the crime scene?  Yes.  Is it possible for Brain Fingerprinting testing to find that certain specific crime-relevant information is not stored in his brain?  Yes.  All of these, however, are extremely unlikely outcomes if the suspect is indeed guilty.  If fingerprints, DNA, and/or Brain Fingerprinting testing produce a negative result, then in the unlikely event that the prosecution elects to proceed against the suspect in question anyway, the burden of proof is on the prosecution to prove beyond a reasonable doubt the existence of specific circumstances and events that produced that specific negative result even though the suspect committed the crime.

            Under normal circumstances, one's memory for significant events (such as committing a major crime) is intact, even long after the event.  If the prosecution wants to prove in court that a person committed a significant crime, and yet does not have memory of the significant, salient details of that crime, then the burden of proof is on the prosecution to prove beyond a reasonable doubt that specific events and neurophysiological malfunctions took place that could produce such an extremely unlikely phenomenon.

            Also, under normal circumstances, Brain Fingerprinting testing can be used not only to prove the absence in the brain of salient information regarding the crime, but also the presence in the brain of a record of the events that took place at the same time as the crime, i.e., the events of the alibi.  Showing that the suspect does indeed have a memory of the events that took place at the time of the crime – the alibi events – serves to eliminate the alternative hypothesis that the suspect lacks a record of the crime stored in the brain only due to some kind of memory malfunction.

            In any case, it is up to a judge or jury, and not up to science, to make the determination as to whether a suspect is guilty of a crime or not.  Science never provides absolute certainty regarding legal determinations.  Science can only provide evidence that the judge and jury must evaluate in a reasonable fashion in making that determination.  A negative result of a DNA, fingerprint, or Brain Fingerprinting testing test is not an absolute proof of innocence.  It is, however, relevant evidence that a judge and jury are entitled to have in making their determination regarding guilt or innocence.

            The evidence provided by Brain Fingerprinting, like all scientific evidence, is weighed along with the other evidence.  Like all evidence, it serves to tip the scale in one direction or another.  No scientific technology, Brain Fingerprinting testing included, eliminates or replaces the scale of justice, or makes other evidence irrelevant or insignificant.  It is important to understand that all Brain Fingerprinting testing can determine, and all any expert witness can testify to when a Brain Fingerprinting testing test has been conducted, is the presence or absence of certain information stored in the brain matching the crime scene or the alibi.  This is like testifying that the fingerprints or DNA at the crime scene match (or do not match) those on the person of the suspect.  It is up to the judge or jury to decide what this evidence means with respect to the guilt or innocence of the suspect, and to weigh this evidence along with all of the other available evidence in arriving at their verdict.

            In summary, then, Brain Fingerprinting testing only proves whether or not certain information is stored in a person's brain.  Brain Fingerprinting testing does not prove absolutely whether a suspect is innocent or guilty of a crime.  The latter is not a scientific question, but rather a legal question that is decided by a judge or jury.  Brain Fingerprinting testing determines objectively what information is stored in a suspect's brain, that is, whether or not a suspect has knowledge of salient facts about a crime that only the perpetrator and investigators would know.  That is as far as science can go.  A judge and jury have the duty to evaluate this evidence, along with all of the other evidence, in arriving at their verdict. If the record of the crime is not stored in the brain, the judge and jury must take into account the imperfections in human memory and perception -- and the possibility of myriad factors affecting memory -- just as they must do in every case in evaluating the testimony of every witness who testifies to events he remembers or does not remember.   When Brain Fingerprinting testing provides an "information absent" result, then it is up to a judge or jury to decide whether or not they think that the absence of salient details of the crime stored in the brain of the perpetrator, along with the other available evidence, introduce a reasonable doubt about his guilt.  If so, then they must find him not guilty.

Copyright © 2001-2002 Lawrence A. Farwell

 

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