Brain Fingerprinting Laboratories, Inc.

The Scope of the Science of Brain Fingerprinting Testing: Scientific Data and its Relationship to Findings of Fact and Law

 Every science involves skill, judgment, or "art" on the part of its practitioners, and the science of Brain Fingerprinting^® testing is no exception.  Every forensic science provides scientific data and scientific conclusions for the use of non-scientist judges and juries, who evaluate these on a common-sense and legal basis (i.e., a basis outside the realm of science) in reaching their conclusions regarding the facts and the law of the case.  Here again, Brain Fingerprinting is no exception.

The purpose of this document is to delineate the boundaries of the science of Brain Fingerprinting, and specify what falls inside and outside those boundaries.

 Brain Fingerprinting testing is a technique to determine scientifically what information is or is not stored in a particular brain.  A scientist applying Brain Fingerprinting testing will seek, insofar as possible within the idiosyncratic constraints of a particular case, to provide information that will be useful to a judge or jury in making determinations regarding the guilt or innocence of suspects.  Brain Fingerprinting testing does not measure guilt or innocence, and nor does it measure participation or non-participation in a crime.   It simply detects the presence or absence of information stored in the brain.

The question of what weight specific information is given by the trier of fact in determination participation or non-participation in crime-related events is not a scientific question, but rather a legal question to be decided by non-scientist judges and jurors.

This is similar to the situation of conventional fingerprinting.  Take, for example, a case in which a suspect claims to have no direct or indirect knowledge of or participation a murder.  Specifically, he claims never to have seen the victim, the building where the crime took place, or the murder weapon.  Let us say that this suspect's fingerprints are found on the murder weapon, on the victim's body and clothes, on the doorknob of the building, and on the table in the room where the victims was found.  The forensic scientist testifies to these scientific facts.  The judge and jury weigh these facts, and presumably would find that this evidence had a significant weight in their determination as to whether or not the suspect committed the crime.  There is no scientific procedure that determines where a skillful (or "artful") investigator will look for fingerprints.  Whether and to what degree the fingerprints that are found and scientifically identified by the expert have a significant bearing on the outcome of the case is a non-scientific matter to be decided on the basis of common sense by non-scientist judges and jurors. 

Take another case in which the suspect's fingerprints were found only on a glass in the room with the victim's body.  The suspect says he has never been in the victim's house.  The suspect lives in the house next door to the victim, however, and sometimes has a drink on his back patio and leaves the glass out overnight.  The scientifically proven fact that the suspect's fingerprints are on the glass in the room with the victim may be considered by the judge and jury in determining whether or not the suspect is guilty of the murder.  These scientific data might tip the scales in the direction of a guilty verdict.  A perpetrator or someone else other than the suspect, however, might have picked up a glass with the suspect's fingerprints on it and taken it into the victim's house, either to implicate the suspect or for some other reason.  In such a case, there is no scientific protocol that determines that fingerprints found on a glass in the room with a murder victim's body are or are not definitive evidence of guilt in a murder case.  The scientific fact is that the suspect's fingerprints match those on the glass in the room.  This fact must be weighed by non-scientist judges and jurors, using common sense, in their decisions regarding the facts and law of the case.

Now let us consider investigating similar cases with Brain Fingerprinting.  In the first case, a man is found murdered with a steak knife in the dining room of his home.  The suspect claims to have no knowledge of the crime, the victim, the murder weapon, or the crime scene, and has not been exposed to this information after the crime. 

In our hypothetical case, Brain Fingerprinting testing determines scientifically that the suspect's brain contains detailed information regarding what murder weapon was used, what specific wounds were inflicted on the victim, what the victim looks like, what the victim was wearing, where in the house the crime took place, and where the perpetrator went after the crime in making his escape.   The judge and jury go outside the realm of science in making their determination as to whether and to what degree these scientific facts have a bearing on the guilt or innocence of the suspect.  In this case, most judges and juries would probably give considerable weight to the scientific facts uncovered by Brain Fingerprinting.

As is the case with conventional fingerprinting and other forensic sciences, the question of where to look for crime-relevant information will be different in each individual case.  As with fingerprints, so with Brain Fingerprinting, there is no specific scientific protocol for this.  The scientist uses his skill and judgment to develop specific crime-relevant information to use as probes in the case.  An objective, scientific determination is made as to whether the information contained in the probes is stored in the brain.  The relevance and weight of the scientific fact that this specific information is or is not stored in the suspect's brain, and the bearing that these scientific data have on the question of whether or not the suspect committed the crime, is determined not by a scientist using a scientific protocol, but rather by a judge and jury on the basis of common sense.

No science, including Brain Fingerprinting testing, determines whether or not a suspect is guilty of a crime.  This is not a scientific but rather a legal determination.  Science provides data that a judge or jury evaluate on the basis of common sense in making such a determination.   Just as there is no scientific protocol that will determine exactly where a fingerprint expert will look for fingerprints, and what implications the presence or absence of fingerprints in a specific location have for the question of guilt or innocence, there is no standard scientific protocol in Brain Fingerprinting testing that will determine what information stored in the brain the scientist will test for.  These are idiosyncratic details that will be very different from one case to another.  As with every forensic science, such considerations are not determined by scientific protocol.  Science can determine what information is or is not stored in a person's brain.  Judges and juries determine on the basis of common sense and applicable law what implications these scientific facts have for their determination of whether or not the suspect committed the crime.  This distinction is not a weakness or shortcoming of Brain Fingerprinting testing or of science in general, but simply the demarcation line between what can be determined by science and what must be decided by human beings using their judgment in a legal arena.

Copyright © 2001, 2003 Lawrence A. Farwell

May 2, 2001; Revised January 10, 2003

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