KERALA LAWYER


BRAIN FINGER PRINTING – COGNIZANCE TO COGNITIVE EVIDENCE
Sreejith Cherote, Advocate, Calicut.

No matter how intelligent a culprit is, in vanishing the traces of physical evidence of his crime, there is an indestructible black box in him that records his every action i.e., his own brain. No evidence of the crime will be more conclusive than the evidence as to the guilt of the culprit from his own brain. The ability to identify persons, places, objects and incidents are inbuilt in the short memory of human brain. This instinctive ability is relative to personality and it emanates from the natural phenomenon of the brain function. Analysing the ability of the brain to identify particular information given to it, with scientific accuracy, for the purpose of arriving at a concrete conclusion as to the presence of particular information in brain, is what brain finger printing is all about. In short the brain fingerprinting is the method of matching the fingerprint of information in the brain with that of the actual crime scene.

When any information is given to an individual, which corresponds to the stored up information in his brain, it emanates an electronic signal in acknowledgement. Absorbing this electronic brain impulse with the aid of a device called ELECTROENCEPHALOGRAPH (EEG) and marshalling them in an algorithmic index, for arriving at a scientific conclusion as to the presence or absence of particular information in his brain is the technique of brain mapping or brain finger printing. Dr Lawrence Farwell a former faculty of Oxford University is the inventor of the technique of brain finger printing. He has invented a patented head band which can absorb the slightest brain signals emanating from the brain in response to information put before an individual before his conscious personality can exercise any control over it.

This new technique has got a plethora of application in many fields including medical and legal fields. It can help to detect the onset of genetic diseases in a person. It can also act as an important investigative tool in criminal cases in confirming the guilt or innocence of suspects of crime.

This article is an attempt to convince about the utility of the new invention in an investigation, about the innocence or guilt of a suspect of crime. In brain finger printing texts, words, pictures or sounds describing silent features of crime are flashed on a video screen attached to a computer to the suspect, along with other irrelevant information that would be equally plausible for an innocent subject. Items which are known only to the person who has committed a crime creates a brain wave that is absorbed by the patented head band and recorded by E E G. The brain emits a specific brain response if only the record of the crime is stored in his brain .This response appears, when the brain recognises the correct relevant items shown to him , there is absence of response, If it fail to recognise the item .Dr farewell has created a baseline electrical activity for the measurement of the brain wave. A positive response is above the base line which means the suspect identifies the information. A negative change would be opposite or below the baseline that means that the suspect has no information recorded in his brain as to the object shown to him. This brain response has been termed as P-300 MERMER (Memory and encoding related multifaceted electroencencephalographic response). so named because it happens at 300 milliseconds after confrontation with the information familiar to the brain. The culprit would emit a P-300 hundred response if he is confronted with the particular information that is relevant to a crime scene For eg.culprits brain would emit a P-300 signal if he is shown the corpse deliciti or any other information which is particular to the crime and of which only the culprit and the investigator knows.

The application of brain finger printing in the realm criminal investigation is not to pin point the culprit with precision but to authoritatively conform that the suspect has got in his brain the salient features of the crime.

The brain finger printing is more accurate and advantages than other modes of lie-detection in the sense that the true information in the brain is absorbed before any manipulation can be done to it by the conscious mind. Research has revealed that while a person is lying, there is lot of hard work for the brain. For lying the brain -has to first analyse the question, think of the correct answer and then search among a set of potential incorrect answers which will suit the question. All this is a complex procedure which demands high brain activities. EEG absorbs the brain signal at the first instance before individuals cognitive faculties could intervene in its response. While the conventional fingerprinting and DNA finger printing matches the physical evidence from the crime scene with that of the suspect, brain finger printing matches informational evidence stored in the brain of the suspect with that of the crime scene. DNA and finger printing evidence is available only in 1% of crime whereas the record of the crime is always there in the brain.

The net result of brain finger printing is not a confirmation as to the fact that the subject has committed the offence but an accurate finding as to the fact the he has the record of the crime stored up in his brain. Hence brain finger printing can be the ultimate answer as to the GUILTY KNOWLEDGE TEST (G K T) .unlike the polygraph it does not rely on the measurement of autonomic arousal (measurement of heartbeat, palm sweat and other emotions) for determining GKT which means that an intelligent suspect who can give a false positive in a polygraph by maintaining his calm, cannot hide the truth in brain finger printing.

COURT ADMISSIBILITY

Brain finger printing was for the first time taken as evidence in the United States by the Lowa Supreme court in the famous Terry Harrington case .Terry Harrington was tried and convicted by the court for murder, the court had discarded his plea of alibi and convicted him for life imprisonment .Dr farewell conducted brain fingerprinting test on the convict in jail and found that the salient features of the crime was not there in his brain. The fingerprint of the crime scene did not matched with the information in his brain and it did match with the plea of alibi put forth by the convict. Based on the brain finger printing report Terries lawyer moved the supreme court for a retrial. The Supreme Court reversed the conviction of terry Harrington on the basis of brain finger printing report. The court held the brain finger printing test satisfied the criteria for accepting scientific evidence.

Brain finger printing as an effective investigative tool is gaining international acceptance .In the United States the brain finger printing research has been funded by the C.I.A which has recognised its utility as an important tool in detecting both the offenders and the potent ional offenders.

INDIAN SCENARIO

. The admissibility of brain finger printing is a legal paradox in view of the prohibitive mandate of article 20 (3) of the Constitution against self incrimination. Even though polygraph, finger printing and other physical evidence technique has qualified the test of constitutionality, the fate of brain finger printing as admissible evidence is yet to pass through the firewalls of constitutionality. In M.P. Sharma Vs Satish Chandra (1954 S.C.R 1077) the Supreme Court has discussed in detail and prescribed guidelines with respect to the criminating evidence obtained from the accused such as finger printing, thumb impression, hand writing etc., we cannot get a clear picture of admitting brain finger printing as evidence in the present legal set up. In M. P. Sharma’s case and in Bombay Vs Kathi Kalu OGHAD (1962 S.C.R. 10) The supreme court has concluded that ‘to be a witness against himself’ does not include taking of thumb impression, hand writing etc., and it only applies to cases wherein the accused is compelled to give evidence against himself based on his personal knowledge. If this criterion is applied it is difficult to take brain finger printing as admissible evidence in Court. But on the logical side of reasoning if we consider the protection against self incrimination guaranteed by the constitution to emanate from the beginning of personality, there is no hamper in its admissibility as the brain finger printing evidence is the virgin information stored in the brain, unpolluted by the individual personality and there is also no foreign pressure on the personality to incriminate against oneself.

Again brain finger printing can be taxed for its violation of privacy and consequent conflict with Article 21 of the constitution. It is settled law that right to privacy is inherent in article 21 of the constitution and law cannot allow the privacy of an individual being violated to the extent that even his brain is not free from the interference of the law enforcing agencies. Indeed it is a question of debate how far there can be intervention by the law enforcing agencies into the privacy of citizens. It is also the concern of the neuro ethicists to limit the human intervention in the functions of brain they have created an ethical dilemma hoisting protest over the limitless probe inside the human brain. The crisis to be answered is whether the contents of the mind should be left sacrosanct and protected from outside intervention or it should be open to analysis for the comparative good of the society. In view of the latest trend in terrorism and technological advances in the commission of crime latter alternative sounds suitable.

In a recent decision of the Supreme Court Dattu Shamrao Vs State of Maharashtra (2005 CRI.L.J. 2555) even though the investigating agencies has conducted brain finger printing evidence, the court declined to comment on its admissibility blaming the prosecution that, it did not relied on brain mapping evidence. But the court opined on the admissibility of scientific evidence quoting the decision in Daubart Vs Merryll pharmaceuticals Inc (133 Sct 2786) on the following lines

(a) Whether the principle or technique has been or can be reliably tested ?
(b) Whether it has been subject to peer review or publication ?
(c) Its known or potential rate of error ?
(d) Whether there are recognised standards that control the procedure of implementation of the technique ?
(e) Whether it is generally accepted by the community ? And
(f) Whether the technique has been introduced or conducted independently of the litigation ?

If we adopt the above criterion as the qualification of admitting scientific evidence, then there is no reason why we should exclude the brain finger printing evidence from its purview even though there is no direct pronouncement to the said effect by the Supreme Court.

The social pattern of the time is set in the background of necessity. Necessity in turn is the measurement of the comparative good of the society. The pressure of necessity dictates the limits to which the society can afford to protect concepts, values, and beliefs as sacrosanct and inviolable .If it is the necessity of the day that the very fountain of human activity i.e. the human brain can be a subject of surveillance disregarding the sanctity attached to it, then ethical objection against it, devoid of any practical utility will limit itself as academic ideas and class room concepts. The utility of brain finger printing as an investigative tool in harping both offenders and potential offenders has not been into focus in our country, it is high time that our investigative agencies leave the love for heritage method and adopt advance and accurate methods like brain mapping.

REFERENCE

www.brainwavescience.com
www.forensic-evidence.com
H.M. Seervai, constitutional law of India
Journal of Cognitive Liberties

The author can be contacted directly at the following email address:
sreejithcherote@gmail.com