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Brief Summary: According to the United States Court of Appeals for the Sixth Circuit MRI testing of the brain to show an individual’s truthfulness is not admissible in court. The scientific evidence has not effectively established that this information is reliable enough to be admitted as evidence under the Federal Rules of Evidence.
Analysis: The United States Court of Appeals for the Sixth Circuit decided a very interesting case concerning whether results from a functional magnetic resonance imaging (MRI) test can be admitted to prove the truthfulness of testimony. The decision of United States of America v. Lorne Allan Semrau, 693 F.3d 510 (6th Cir. 2012) considered the appeal of Dr. Lorne Semrau who was convicted of three criminal counts of healthcare fraud. At trial, Dr. Semrau’s counsel attempted to introduce evidence showing that results from MRI testing performed on Dr. Semrau indicated he was telling the truth about pertinent issues in the case. The trial court excluded this evidence. On appeal he asserted this testing should have been admitted into evidence by the trial court. Semrau at 516. The Sixth Circuit noted this was a matter of first impression in any jurisdiction. Semrau at 516.
Dr. Steven J. Laken, Ph.D., is the President and CEO of Cephos Corporation and he performed the MRI testing of Dr. Semrau. Semrau at 516 - 518. Dr. Laken testified that studies show accuracy rates of "between eighty-six percent and ninety-seven percent” for this type of testing. Semrau at 517. However, during cross-examination Dr. Laken “conceded that his 2009 ‘Mock Sabotage Crime’ study produced an ‘unexpected’ accuracy decrease to a rate of seventy-one percent.” Semrau at 517. Dr. Laken also testified that this MRI lie detection method has “a huge false positive problem in which people who are telling the truth are deemed to be lying around sixty to seventy percent of the time.” Semrau at 517, 518.
In 2009, Dr. Semrau's attorney contacted Dr. Laken to perform testing on Dr. Semrau about his alleged healthcare fraud. Semrau at 518. The prosecution was not notified that Dr. Semrau was going to be tested in this fashion and therefore they did not have the opportunity to observe the testing or submit their own questions. Semrau at 518. Dr. Laken placed Dr. Semrau in an MRI scanning machine and then questions were flashed in front of him and he then responded to the questions. Semrau at 519. A sixteen minute MRI brain scan was conducted after each question. Semrau at 519. Dr. Laken ultimately found that the MRI results showed Dr. Semrau was truthful, however he admitted “the test results do not indicate whether Dr. Semrau responded truthfully as to any specific question but rather show only whether he was generally truthful as to all of his answers collectively.” Semrau at 519. Accordingly, Dr. Laken conceded that it is ‘certainly possible’ that Dr. Semrau was lying on some of the particularly significant questions.” Semrau at 519.
Based on the evidence and testimony submitted on this issue, the Sixth Circuit agreed with the trial court’s exclusion of the MRI testing under Federal Rule of Evidence 702 because the technology "had not been fully examined in real world settings and the testing administered to Dr. Semrau was not consistent with tests done in research studies." Semrau at 516. The Sixth Circuit also determined the MRI testing was also not admissible under Rule 403 because of “(1) questions surrounding the reliability of fMRI lie detection tests in general and as performed on Dr. Semrau, (2) the failure to give the prosecution an opportunity to participate in the testing, and (3) the test result's inability to corroborate Dr. Semrau's answers as to the particular offenses for which he was charged." Semrau at 524.
As a result, the Sixth Circuit found that the MRI testing in this case was correctly excluded under Federal Rules of Evidence 403 and 702. Based on all the evidence before the court there simply was not enough scientific support and certainty from the relevant scientific community to allow this MRI testing into evidence. Overall the court appeared to leave open the possibility for future admission of such MRI evidence; however, at this point the real world testing and scientific community consensus is simply not at a point where this should be admissible in court. Perhaps in the future, this type of testing will reach a consensus of reliability in the scientific community.
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