Forensic Neuroscience and the Fifth Amendment

Dov Fox, U.S. Court of Appeals for the Ninth Circuit

Abstract

This Article argues that suspects have a right to control the use of their thoughts vis-à-vis government. Neural imaging promises acquisition of information from a person’s brain in a way that avoids conventional concerns about reliability, psychological injury, and the integrity of statements made by innocent defendants. Reflection on the prospect of reliable brain scans shows the Fifth Amendment distinction between physical and testimonial evidence presupposes a flawed dualism between body and mind. I trace the origins of this doctrinal defect from Justice Brennan’s dicta in Schmerber to the Court’s interrogation and subpoena cases, which reasoned that the Self-Incrimination Clause protects not informational content but instead the active transmission of information to the government. I conclude that the right to silence bars police from extracting a person’s thoughts without her consent or making use of compelled thoughts to lay criminal blame upon her.