Today, at a pretrial hearing, a judge in an employment retaliation case in New York rejected an attempt to introduce fMRI-based lie detection.
Yesterday, Alexis Madrigal at Wired wrote about the then-impending hearing.
“The [plaintiff's] lawyer, David Zevin, wants to use that evidence to break a he-said/she-said stalemate in an employer-retaliation case. He’s representing Cynette Wilson, a woman who claims that after she complained to temp agency CoreStaff Services about sexual harassment at a job site, she no longer received good assignments. Another worker at CoreStaff claims he heard her supervisor say that she should not be placed on jobs because of her complaint. The supervisor denies that he said anything of the sort.
So, Zevin had the coworker undergo an fMRI brain scan by the company Cephos, which claims to provide ‘independent, scientific validation that someone is telling the truth.’”
This morning, the judge ruled to exclude the fMRI lie detection evidence. The judge agreed with defense attorney Jessica Cortes’s argument that assessing credibility is the role of the jury, not an expert witness. Therefore, the judge did not need to decide whether fMRI lie detection is sufficiently reliable to be admitted. The plaintiff argued for a hearing to determine reliability (called a “Frye” hearing in New York and some other states and a “Daubert” hearing in the federal courts and many other states), but the request was denied.
Whether or not testimony about fMRI lie detection is admissible is an issue that will continue to pop up in courts around the country. As such, each ruling about its admissibility will be informative to future attorneys who confront the issue. Here, the judge excluded the evidence because lie detection is the jury’s job. If and when this technology reaches a Frye or Daubert hearing, there are many other reasons to exclude it on reliability grounds, as well as on other evidentiary grounds.
Several current and former Center for Law and the Biosciences personnel provided information to defense counsel, Jessica Cortes.
Also see Alexis Madrigal’s update on this case and description of another case, for which CLB personnel has also been providing information.
- Kelly Lowenberg