A Brave New World of Interrogation Jurisprudence?

I. INTRODUCTION: THE FUTURE IS NOW

We are told that functional magnetic resonance imaging (fMRI) is "not ready for use, despite optimism about its commercial potential."2 This is probably true-it is also, in terms of legal analysis, irrelevant. Although the development of fMRI technology is still in its relative infancy, there is no guarantee that the law governing its use will wait for it to grow up. Thus, the recent backlash against the initial flurry of articles, both academic and general, on the promise and legal issues surrounding fMRI is unwarranted. The conclusion that so many-even many of the contributors to this volumeseem to be drawing, namely, that law, as a field, must abstain from analyzing the legal implications of fMRI until those with more scientific expertise deem it ready to look at, is at best wrong and, at worst, irresponsible.

The emerging conventional wisdom of disengagement is misguided for two reasons. First, it is based on a naive view of the common law process in general and stare decisis in particular. Historically, fundamental decisions regarding the implications of new technologies have occurred very early in the life cycles of those technologies.3 For example, polygraphs have been in legal disrepute since 1923.4 This trend dates to the oft-cited, remarkably brief, almost universally misinterpreted Frye v. United States,5 which has been erroneously read to establish a per se rule against the admissibility of evidence obtained with a conventional lie detector.6 Similarly, the leading Supreme Court authority addressing confessions obtained with truth serum was decided over forty years ago, in the relative infancy of psychopharmaceuticals.7 These technologies have evolved considerably since the courts originally addressed them,8 however, the mere existence of these opinions have tended to foreclose fresh analyses, usually resulting in nothing more than their uncritical invocation rather than a reasoned examination of the law and policy issues.9

The converse is also true. Reliance on fingerprints10 and eyewitness identifications11 are firmly embedded in the legal system, although, empirically, a strong case could be made that neither is all that reliable. As much as we would like not to admit it, once a legal system determines a particular technology to be dubious (such as polygraphs) or helpful (such as fingerprint analysis), such characterization is immensely difficult to unseat.12 There is no reason to suspect this process will be different with fMRI, and, in fact, every reason to believe it will be the same. Thus, there is great value in getting things right from the beginning, the very beginning.

Second, the disengagement view ignores the fact that the legally salient elements of fMRI are not subject to scientific disagreement. Said simply, the scientific dispute is not with respect to how fMRI itself functions, and how such functioning could compromise an individual's privacy, but, rather, as to how effective the technology is at doing it.13 We should not have abstained from considering the potential legal implications of DNA testing until more reliable polymerase chain reaction testing replaced restriction fragment length polymorphism,14 and we should not abstain here. Yet to be resolved details of the scientific analysis will surely inform elements of the legal one; however, in the main, it is, as will be shown below, entirely possible to discuss the potential privacy implications of the device at present.

The ultimate scientific conclusion may well be that fMRI is, as a technology, untenable for the purposes at issue here, in which case all the ink we will have spilled on the topic will have been for naught-admittedly a problem virtually unheard-of in the always-timely, real-world-relevant world of contemporary legal scholarship.15 On the other hand, if the existing scientific literature is indeed a harbinger of an important new technology, it will be to society's benefit that some thought have been put into its implications before its wide scale deployment.

Moreover, to the extent that we as a society have objections to a technology that at least possesses the potential for serious invasiveness, we ought not to couch such objections merely in terms of technological inadequacy. Yes, there may be problems with using an fMRI device in the interrogation context and, obviously, if such a device proves not to be reliable, it should not be used.16 But limiting ourselves to the technological elements implies that should the technology prove feasible, there would be no other objections. Of course, as with lie detectors, it may be the case that even in the face of significant advances in the state of the art, courts will continue to regard the technology with too much suspicion to permit its use. In an age of mass casualty terrorism, however, there is serious reason to question whether such concerns will continue to preclude the use of a device that could have intelligence value.

Thus, even though there are impediments to the wide-scale use of fMRI at present, we must begin to examine these complex issues now. As such, in this Article, I attempt an initial analysis of the likely treatment of fMRI under American domestic law and, more broadly, the implications for the way in which we treat it. I focus on the Constitutional issues potentially implicated by the technology, particularly issues related to the Fifth Amendment's Self Incrimination Clause17 and the Due Process Clause.18 I argue existing jurisprudence in this area is conceptually incapable of addressing fMRI, which requires that we engage in a much more searching and fundamental analysis about implications physical invasions have on mental privacy. Moreover, to the extent that incomplete scientific knowledge hinders this analysis, it is not the underdevelopment of fMRI that is the issue but the relationship between the physical brain and what humans regard (perhaps wrongly) as the non-physical manifestations of the self, whether this is called the mind, soul or conscious. Given, however, that neuroscience increasingly indicates that the traditional view of separation between brain and mind is erroneous, we should err on the side of caution and restrict the use of fMRI on the basis of its unique ability to compromise involuntarily an individual's mental privacy, rather than merely on the grounds of lack of reliability given the state of the art.

II. fMRI UNDER THE SELF INCRIMINATION CLAUSE

Superficially, the status of fMRI under the Self Incrimination Clause hinges on whether evidence gathered through it is more like spoken testimony against oneself or like DNA samples, fingerprints and blood tests. If like the former, then such evidence would not be admissible. If like the latter, such evidence would be. It is highly likely that fMRI's legal fate will be determined by how apt judges regard these respective analogies. Nevertheless, although this approach has intuitive appeal, it is wrong. Precedent in this area, and the artificial categories this precedent supports, is of little value, as fMRI challenges many of the fundamental presumptions made by judges in the common law tradition regarding the relationship between the physical brain and the mind. Attempts to force fMRI into these traditional categories, even if such forcing happens to give us our preferred result, whatever that may be, is both intellectually dishonest, potentially risky and ultimately unsatisfying.

Under the Self Incrimination Clause, a person may not be compelled "to be a witness against himself."19 The purpose of this privilege is to prevent the accused from "having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government."20 A person is a "witness" against himself when he is "compelled to testify ... or otherwise provide the State with evidence of a testimonial or communicative nature."21 The privilege does not, however, prevent the suspect from being "the source of 'real or physical evidence'." Thus, although it is settled that non-verbal conduct can fall within the scope of the privilege,22 the privilege does not capture most physical tests, such as blood tests.

To be testimonial, the communication must "explicitly or implicitly . . . relate a factual assertion or disclose information."23 The protections for verbal conduct (and its written equivalents) are quite broad. In general, "[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts" and therefore be subject to the Clause.24 There are exceptions to this rule, but they are fairly narrow.25 Police can, for example, compel a person to speak words in a lineup26 or write words on a paper to create exemplars for identification.27 Similarly, a suspect can be compelled to read a transcript to provide a voice exemplar, so long as the "voice recordings were . . . used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said."28 For example, a suspect's slurred speech is admissible in his drunk driving trial for the purpose of showing that he lacked sufficient muscular coordination to produce clear speech, on the grounds that requiring the suspect to reveal the manner in which he articulated words is basically similar to requiring him to reveal the physical properties of his voice.29 The suspect is not, however, required to reveal any "personal beliefs or knowledge of facts."30

Conversely, non-verbal conduct receives much less protection. The government can compel a suspect to model clothing,31 stand in a lineup,32 perform actions in connection with roadside sobriety tests,33 give blood34 provide fingerprints,35 be photographed, measured, or make particular gestures.

Due to the divergent treatment of verbal (and equivalent non-verbal) conduct and other types of evidence under the Self Incrimination Clause, many issues with respect to fMRI can be resolved by the reference to the type of imaging used. As the technology currently stands, two types of scanning are relevant for investigative purposes.36 The first is scanning during questioning to detect brain activation indicative of lying. The second is scanning to determine whether certain regions associated with types of memory active when the subject is shown certain images. The second type of scanning is less will developed, although it is ultimately the more potentially useful type of scan. For example, researchers at the University of Pennsylvania's Institute for Strategic Analysis and Response claim to have developed techniques that allow them determine if a subject recognizes a picture of another human's face.37 As with lying, certain regions of the brain "light up" on an fMRI scan when a subject sees a familiar human face.38 seeing a familiar face stimulates brain activity in the hippocampus, which regulates memory and parts of the visual cortex.39 Thus, fMRI reveals recognition regardless of whether the individual speaks or attempts to conceal the recognition.40 It is, essentially, involuntary.

A suspect could defeat the first type of scanning by refusing to answer the questions put to him. More to the point, since the first type of scanning requires an actual statement from the scanee, it seems clear that it would fall within the ambit of the Self Incrimination Clause.41 Traditional legal principles could be applied to determine voluntariness, reliability and the like. These are fairly easy questions and-given the de facto requirement of cooperation by the suspect or detainee-not particularly interesting. A closer, and more important, question is the status of the second type of scanning.

The second type of fMRI scan (assessing memory activation in response to stimuli) at first appears permissible under the traditional approaches discussed above since the device only serves to reveal the physical properties of the subject's brain, rather than anything communicative or testimonial. Nevertheless, if one applies a more searching analysis to the precedent, this argument begins to breakdown. The purpose of the Self Incrimination Clause is to "protect[] a 'private inner sanctum of individual feeling and thought and [to proscribe] state intrusion to extract self-condemnation.'"42 The Clause grows out of historical experience with quasi-judicial bodies such as the Court of the Star Chamber and the Inquisition.43 In particular, the Clause has at its core a concern with avoiding the "cruel trilemma."44 The cruel trilemma is the forced choice between truth, falsity, or silence.45 Thus, without a privilege against self-incrimination, a person could be forced to testify under oath and either (1) admit the truth and suffer punishment, (2) lie under oath and suffer punishment (and, in theory, additional, extrajudicial punishment, given the generally religious nature of oaths), or (3) be held in contempt for refusing to answer questions and be jailed.46

It is tempting to simply look at the purpose of the rule, which obviously should delimit its scope and guide its application, and conclude that it exists primarily to protect an individual's inner thoughts, which in turn suggest that fMRI is impermissible as violative of those thoughts. However, the problem implicit in the origin of the Clause is the concern that the state is forcing the individual into doing something. This concern is not necessarily implicated by an fMRI scan. The subject may be restrained and forced into an fMRI scanner, but he is not in any common sense "forced' to do anything else, as the reactions measured are involuntary. Because the subject cannot control his brain activity when presented with external stimuli, he is simply never put to a choice. Rather, activation occurs involuntarily, eliminating the choices presented in the Star Chamber scenario.

Concern over the state compromising an individual's free will by forcing them to reveal things involuntarily is a key concern in this area, which runs though all interrogation law. For example, a defendant's confession is inadmissible if he has been coerced.47 A defendant is coerced if his "will was overborne"48 or if his confession was not "the product of a rational intellect and a free will."49 Similarly, at the international level, (outside of the prisoner of war context where interrogation rules are very strict, preventing all coercion of any type50), the law actually will countenance some level of physical coercion-just not a level that will result in the individuals will being overborne.51 Thus, it is not pain per se that is the issue but rather the affect pain has on the individual's ability to take a decision about speaking that is the key element in coercion analysis.52 These same concerns are reflected in the distinction between physical and communicative evidence. For example, with respect to compelled handwriting samples, although the government can compel the creation of such an exemplar, the government cannot then use the content of the words written as evidence.53

Furthermore, if we are to maintain the categories the common law suggests, evidence obtained with fMRI scanning is physical evidence. As such, it should be outside the rule regardless of the policy implications. FMRI does not "read the suspect's mind" in any sense that a layman would recognize. It simply detects certain physical changes that that are indicative of mental processes.54 Clearly, any number of physical manifestations of thoughts are admissible, such as testimony that a killer looked angry or appeared calm. Breaking those statements down to their constitute elements, what witnesses are trying to convey is that the subject they were observing exhibited certain physical characteristics that generally correlate with certain moods, emotions and thoughts. The same is essentially true of fMRI, albeit that the physical characteristics the scanner "observes" are imperceptible to the average observer.

Courts have faced a somewhat similar version of this problem before, with lie detectors. In the lie detector context, the Supreme Court has expressed, at least in dicta, skepticism towards procedures "seemingly directed to obtain 'physical evidence,' . . . [that] may actually be directed to eliciting responses which are essentially testimonial."55 As such, the Court noted that compelling an individual to submit to tests that could "determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment."56 This dicta may itself resolve the issue of fMRI's status under the Self Incrimination Clause, as some have very reasonably suggested.57 There are, however, a number of reasons to be much less sanguine regarding whether a cite to Schmerber will, or should, resolve this issue.

First, Justice Brennan's opinion in Schmerber is forty years old. This is not itself an indictment of the legal reasoning, but it is worth noting the historical context. Schmerber-which, it should also be noted states not one page earlier that the "privilege [against self-incrimination] has never been given the full scope which the values it helps to protect suggest"58-came at the arguable zenith of the expansion of the rights of the accused and the right to privacy.59 Notably, Brennan himself thought that the issue of selfincrimination was bound up with these other issues.60 Now, however, we are living during the likely nadir of those judicial philosophies, with the repudiation of the right to privacy an increasingly common legal view, particularly among the lay-right. Moreover, with respect to the rights of those detained for reasons of national security-the very people most likely to be subject to fMRI scanning-we are clearly in an even worse position.

Second, the Schmerber dicta's invocation of the "spirit" and "history" of the privilege casts serious doubt on its continued persuasiveness. Since Schmerber, invocations of the "spirit" of Constitutional protections have fallen wildly out of favor as authority. Moreover, although recourse to history may now be in vogue as a method of constitutional interpretation, the history of the Self Incrimination Clause probably does not support the Court's position in Schmerber. At the time Schmerber was written, most legal thinkers understood the history of the privilege in ways that have been undermined by more recent legal scholarship. For example, two years after Schmerber was decided, Leonard Levy published his "classic work" on the history of the privilege, Origins of the Fifth Amendment, which represented the authoritative statement of Schmerber-era. legal thinkers' views regarding the history of the privilege.61 In it, Levy argued that the modern privilege had an extensive pedigree, dating back to the early modern period of British history.62 Moreover, he argued that the privilege had a stable meaning throughout this period, a meaning consistent with the expansive contemporary understanding of the doctrine.63 More recent scholarship, however, has cast doubt on the content of the privilege throughout its early history and-crucially given current jurisprudential concerns-its content at the time of the Founding.64

Although the extent to which the privilege operated in a form at all recognizable in modern terms in the Colonies is debatable, it is clear that the privilege as presently understood was not incorporated into British law until 1847-65 Thus, perhaps the best that can be said about the Founder's intentions regarding the language in the Constitution is that it was put in place to disallow "incriminating interrogation under oath, torture, and other forms of coercive interrogation such as threats of future punishment and leniency."66 This view also seems to comport with the invocations of the Star Chamber and the Inquisition, which the privilege was supposedly introduced to avoid, as methods used in those situations would tend toward the extreme end of the "enhanced" interrogation technique spectrum. This is not to argue that the privilege should be curtailed so that it resembles its 18th century counterpart but rather to suggest that there is no reason to believe that the history of the privilege actually does support limiting use of fMRI, as Schmerber suggests.

Third, and most fundamentally, although Schmerber does indicate that the traditional distinction between communicative and physical evidence seems to lead to the wrong result (or at least the wrong result in light of what we regard the privilege as now protecting) with respect to lie detectors and, by extension, fMRI scanners, this does not change the fact that the great weight of authority applies the distinction between communicative and physical evidence to resolve this issue. Such an application of these precedents could be considered formalistic, however, the point remains. In light of the jurisprudence, it is hard to avoid the characterization that an fMRI scanner is acquiring physical evidence because that is, in fact, what it is doing. And to the extent that the average American views fMRI as engaged in nothing more than physical information gathering, i.e. to the extent fMRI is nothing more than a technologically advanced lie detector, its use, assuming reliability is established, is likely to be viewed as non-issue.

Nevertheless, although the communicative/physical distinction continues to have intuitive appeal, there remains a sense, as the Schmerber dicta indicates, that the separation of the physical and the communicative is not so clean as the law may suggest. In this vein, a great deal of effort has been expended in an attempt to reconcile the Court's inconsistent holdings on the communicative/physical distinction and proffer a unified theory to explain this area of law.67 Some of these efforts are more convincing than others, but it is debatable whether the game is worth the candle.

Rather than artificially reconciling a series of somewhat obviously anomalous cases, it might, at this point, be better to focus on the fundamental problem. The issue is not so much that the Court went off the rails when it originated the communicative/physical dichotomy but, rather, that the implicit assumption of mind-body dualism, which underlies this thinking, is dated and, most likely, no longer tenable. FMRI brings this problem in much higher relief than any other technology before it and, as such, should prompt a reassessment of the common law's jurisprudential approach in this (and other) areas, rather than an effort to shoehorn the technology into clearly outmoded categories.

III. SUBSTANTIVE DUE PROCESS

The more interesting, and more immediately important, Constitutional limitation on the use of fMRI is the Substantive Due Process Clause of the Fifth Amendment. Practically, the Due Process Clause will likely be the relevant inquiry with respect to fMRI, at least in the near-term, as it is likely that fMRI, to the extent it is used at all, will be used in the national security context, given its cost and difficulty with deployment.68 It does not appear, however, that the government plans on bringing detainees held for national security reasons to trial or, at least, a trial where traditional common law rules of evidence and procedure would apply.69 This has the practical effect of rendering the Self Incrimination Clause issue moot because, in Chavez v. Martinez,10 the Supreme Court held that it was a "trial right." This means that unless the government seeks to introduce the accused's statement at trial, there can be no violation of the Self Incrimination Clause. The question of whether other rights might also be trial rights was left open by the Court in Chavez, however, there is strong reason to believe that the protections of the Due Process are, in fact, applicable outside of the trial context. Moreover, because of the way in which the United States has ratified various international treaties since World War II, the Due Process Clause is key to an analysis of the rights of those detained by the U.S., to the extent those detainees are entitled to such treaty protections. Since this is the class of person most likely to be subject to an fMRI scan, this brings the Due Process issue to the fore.

The Due Process analysis of this issue is complicated and uncertain, largely because the relevant standard of analysis in this area, "the ne plus ultra, the Napoleon Brandy, the Mahatma Ghandi, the Celophane of subjectivity, th' ol' 'shocks-the-conscience' test,"71 is highly problematic. The "shocks the conscience" test appears to have originated in contract law.72 Under the test, government action is a violation of substantive due process if it "shocks the conscience." Anything beyond this most basic statement becomes highly controversial.73 This is because the test serves as a backstop against the most egregious government conduct,74 which almost necessitates it provide a fuzzy-line rule. Not only because such behavior is rare but also because it is extreme, it would be difficult to categorize it into a neatly drawn multi-factor test that could be dispassionately applied by a disinterested judge. On the other hand, the test's weaknesses are quite real, in particular its subjectivity. Moreover, given the events of the last six years, it is debatable what many Americans still regard as shocking behavior.75

Furthermore, the test has been rarely used and, as a result, there is a relative lack authority (of any type) interpreting it. What does exist is not of particularly great clarity. For example, although it is settled that it is the "contemporary" conscience that must be shocked,76 it is unclear precisely whose conscience is at issue, whether it be the judge, the "whole community sense of 'decency and fairness' that has been woven by common experience into the fabric of acceptable conduct"77 or justice in general.

One element of the test has become particularly salient since Chavez. In Lewis, the Court noted the conduct "most likely to rise to the conscience shocking level" is the "conduct intended to injure in some way unjustifiable by any government interest."78 Justice Thomas' opinion in Chavez takes a very expansive reading of this factor. In Chavez, Justice Thomas argued that the government interest at stake (the need to investigate police misconduct), justified the police's extreme behavior. Somewhat ironically, however, the police misconduct at issue was the police shooting of the plaintiff himself. Moreover, Justice Thomas' opinion seems to suggest that as long as there as any governmental interest at stake, the behavior is not conscience shocking. There is something to be said for consideration of the interest at stakes when assessing whether behavior is shocking, as that context is often important. Indeed, it is more shocking to have random government violence against individuals than purposefully directed violence, in the same way that a random murder is more shocking than a crime with a clear motive.

But Justice Thomas sets the bar very low. Happily, there does not seem to be much random violence by government agents toward individuals in the United States, if only because, ultimately, why would there be? Random sadism, however, might not be the optimal place to draw the line as to what we regard as conduct that is beyond the pale in American society. In fact, the better argument is for reducing considerations of government interest in this analysis. We should expect a relatively small number of people who would actually resort, without some reason they regarded as important, to intense levels of violence, and, even if there were, it is unlikely that the government is employing a disproportionate number of them. Thus, if a government agent has reached the point of deploying extreme tactics against an individualtactics that one would begin to regard as conscience shocking-it is quite likely that there will always be a somewhat weighty government interest involved, simply because little else would cause the agent to turn to such tactics.79 As such, Justice Thomas' formulation has the affect of eviscerating the doctrine, which cannot be the proper judicial result. Rather the Court's statement that "conduct intended to injure in some way unjustifiable by any government interest" simply provides an example of an easily decided case, rather than the basis of the entire shocks the conscience jurisprudence.

Assuming, however, that the test remains viable even after the Court's questionably reasoned opinion in Chavez, and government interest plays some-rather than a determinative-role in assessing the legality of fMRI, the analysis of the use of fMRI will hinge on two issues. A close examination of the decisions in this area reveals that the Court is primarily concerned with two factors in its analysis of whether governmental action shocks the conscience, although these concerns tend to be implicit.80 The first factor is the type of invasion implicated by the government's conduct, specifically how inherently invasive the conduct (whether it be stomach-pumping, bloodtesting or the like) is itself, a priori.81 The second factor relates to the actual coercion used by the government to effect the invasion in the particular case.82

For example, the government agent could engage in conduct that itself is not particularly invasive, such as a blood test, but the government agents could effect the invasion using particularly violent means, such as beating the subject into submission to allow medical personnel to draw the blood,83 which would shock the conscience. Thus, in the Court's examination of the police's involuntary stomach pumping in Rochin v. California,8* although the Court appeared willing to countenance the stomach-pumping itself, it was concerned about the level of force the police used to effect the pumping.85 It is likely that the result would have been different in Rochin if the stomachpumping proceeded in a calmer, more clinical environment.86

Thus, analyzing fMRI in light of the shocks the conscience test is even more difficult than it might seem because, a priori, it is difficult to determine how government agents would effect the subject's presence and immobility in the scanner. Particularly because of its origins as a medical procedure, a strongly clinical feel pervades fMRI. Moreover, unlike, say, stomachpumping, its use would generally be much less time-sensitive as, unlike the contents of a stomach, the evidence fMRI gathers is not subject to the same type of rapid degradation. Therefore, there is strong reason to believe that the behavior of the government's agents to effect an fMRI scan will be much less conscience shocking than the behavior that attends most other personal invasions.

As such, the key element of this analysis is the first, the inherent invasiveness of the invasion itself. On this count, the law provides no clear answer with respect to the fMRI scanner, as it is not clear whether such scanning infringes upon a "fundamental liberty interest."87 A fundamental liberty interest must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."88 Although there is a strong argument to be made that unwanted extractions from the mind would implicate a fundamental liberty interest, the Court has never so held. Thus, much as with the Self Incrimination Clause, the ultimate issue turns on a fundamental assessment of the invasiveness of fMRI, rather than a formalistic application a existing precedent.

Such an assessment is especially challenging in this context because of the test's subjective nature. Subjectivity is, of course, itself a problem, however, it is particularly an issue when the conventional wisdom that informs an analysis is wrong, or at least questionable. Here, the level of shock is dependent upon an individual's understanding of the complex nature of the relationship between the physical brain and the mind. To the extent an individual views these two things as distinct, then fMRI appears to be a completely benign process, similar to a blood test. On the other hand, there is reason to believe that the true implication of fMRI is much harder to assess.

IV. REASSESSING INTERROGATION JURISPRUDENCE

The Self Incrimination Clause and Due Process Clause issues are more closely connected then they might at first appear. As we have seen, the Due Process issues ultimately resolves to an assessment of how fundamental a liberty interest an unwanted collecting of information about brain processes is and, in turn, how conscience shocking the invasion of such interest would be. If such a right were deeply rooted in the Nation's history and tradition, those roots would quite likely be found in the Fifth Amendment context. Nevertheless, as we have seen, those roots are less clear than one might except, given the high value this country, and the common law generally, places on personal freedom in general and freedom of thought in particular. Similarly, with respect to the Self Incrimination Clause, although the current approach, with its strong dichotomy between physical and communicative evidence, seems to suggest that fMRI, as a tool that collects physical evidence, is benign, this same tradition ultimately acknowledges that the physical and the mental cannot be so cleanly seperated.

Yet, it is difficult to find much affirmative support for "cognitive liberty."89 More likely, however, the roots for which we are looking are largely absent from the common law because the problem simply has not arisen. Courts have never had to be concerned with the issue of unwanted extraction from the mind because such extraction was not possible. Indeed, considering the heavy component of mind-body dualism in the common law, it is unsurprising that this issue does not, in fact, have strong explicit roots because such extractions were unthinkable. Thus, the lack of such explicit concern with this problem is not indicative of a lack of concern with these issues. Precisely the opposite is true. Concern with these issues is so basic in the system that they are, in fact, unspoken. This makes these assumptions more rather than less important.

The communicative/physical distinction, and the assumption of mindbody dualism that underlies it, continues to be persuasive because it appeals to fundamental and deeply held Western psychosocial, religious and philosophical notions. We, as Americans, are essentially indifferent to the notion of people's blood and the like being used against them partly because of the reasons the Court has traditionally cited-in particular the fact that having blood drawn is a universal American experience-but more so because we simply have less concern over physical violations of individual rights.90 We as a society are more deeply concerned about protecting an individual's "self or "consciousness" from state interference.

Moreover, the implications of the more advanced abilities of fMRI scanner are not readily apparent because they do not approximate the "mindreading" device of popular imagination, which would somehow directly access what we regard as the "mind" not just the physical brain. The average person, to the extent they have any view at all, views their consciousness as, essentially, a computer that accesses memories stored in some central memory depot and plays sensory inputs on an internal screen for the mind's viewing.91 Thus, if you were to ask the average American what a truly disturbing mind reading device would entail, the response would likely be a device that could somehow directly access this memory storage depot or could take this movie of sensory inputs playing on the screen in one's head and project them externally, rather like Dumbledore's pensieve.92 FMRI appears benign in comparison.

Thus, that the Orwellian overtones of fMRI are not more readily and widely perceived is a function of this persistence of mind-body dualism amongst the judiciary and the general public. It is premised on the notion that physical, man-made tools cannot provide us with access to the individual's consciousness because it exists on some other, non-physical, inaccessible and ineffable realm. But it probably doesn't. If recent advances in neuroscience have had any effect on the law, it has been in challenging the conventional Western account of mind body dualism in favor of a more unified approach that holds that the brain and the mind are one in the same.93 When viewed in this light, fMRI becomes much more disturbing. No longer is it properly viewed as accessing a physical correlate of mind activity but rather as accessing the very thing producing that activity-in essence accessing the mind because it is accessing the brain.

Nevertheless, although developments in neuroscience may have cast serious doubt on the continued viability of mind body dualism, neither science nor philosophy have yet to develop a coherent account of the relationship between the body and the mind or, more basically, an account of consciousness.94 It is, moreover, unclear whether an answer to a question so fundamental is even in the offing.95 There is a serious lack of scientific knowledge that should give us pause about fMRI. It is not that fMRI itself is poorly understood, but rather that we do not have a firm understanding of mind, body and the relationship of those things to human consciousness. This is to say we do not even have a basic understanding of the very things we propose to use fMRI to gather information on.

This uncertainty clearly presents a problem in the technical determination of just how invasive fMRI is. If, more broadly, the Substantive Due Process analysis of fMRI is dependent upon on society's general sense of fMRI's invasiveness, indecency or whatever else contributes to the shocking of a conscience, the fact that such lack of shock is be predicated upon widespread ignorance of correct relationship between the physical brain and the "mind" suggests that we should more closely examine whether people ought to be shocked by this technology, rather than whether they in fact are. In other words, if, as is likely the case, people tend to not be concerned about the potential invasiveness of fMRI simply because they possess an outmoded understanding of the relationship between the brain and the mind, then we should discount their lack of shock. To the extent advances in science confirm that brain and mind are more intertwined than generally believed, it is that trend which should inform our analysis.

The American legal experience with the lie detector can serve as a helpful analog. As lie detector jurisprudence developed, courts opted for the easy solution, relying on a dated assessment of the questionable technological viability of the lie detector to dismiss its potential usefulness, rather than addressing the harder, deeper questions about such test's ability to compromise an individual's free will. Although these issues with respect to the polygraph have been generally ignored by courts, the polygraph admissibility debates may prove instructive. In State v. Lyon,96 the Oregon Supreme Court, which had previously held unstipulated polygraph tests to be inadmissible because of reliability, applied the same reasoning, finding that unreliability would continue to be a determinative concern even with stipulated polygraph exams.97 The remarkable element of the decision, however, was Justice Linde's concurring opinion, which argued that even if the polygraph were scientifically reliable, he would refuse to admit the test results into evidence.98 Citing some of the most interesting but least read articles on polygraph admissibility issues,99 Linde argued that polygraph testing compromised the "fundamental tenets about human personhood."100 As such, admitting polygraph evidence would "diminish[] common community" by compromising the "theory underlying our legal and social institutions."101 Part of Linde's concern was that the use of polygraphs would compromise the sanctity-or perhaps the show-of the trial itself, and that the trial was a fundamental element of the common law system to which it was worth holding on.102 In addition, however, the more serious of Linde's arguments is that the use of the polygraph had the potential to dehumanize parties and witnesses, treating them or as "electrochemical systems to be certified as truthful or mendacious by a machine."103

Linde may, as some have suggested,104 overstated his case with respect to the polygraph, especially given the inherently voluntary nature of a polygraph exam. His concerns, however, speak directly to fMRI. Rather than an overly formalistic debate over whether fMRI can be shoehorned into the classical categories of Fifth Amendment analysis, the result of which would heavily inform an analysis of whether fMRI would shock the conscience, the issue should be the extent to which we, as a society, believe that this type of procedure compromises individual privacy and liberty in a manner and to an extent with which we are comfortable, especially in light of the increasing evidence that the physical brain and the mind are one in the same.

I would suggest that fMRI, as it is employed to involuntary extract readings from unwilling subjects, is a procedure that, at this point at least, appears contrary to the common law tradition and the fundamental concerns of Western polities. Although fMRI could be cast an innocuous device that passively collects information about certain physical characteristics, the reality, in light of contemporary neuroscience's understandings of the brain and of consciousness, is that it comes closer to 'reading minds' than any other conceivable device. To the extent consciousness has some physical manifestations, the most feasible mind reader will be a device that measures those physical manifestations. That alone would be problematic. However, to the (more likely) extent that consciousness not only has correlative physical manifestations but, rather, is-to some extent-those physical reactions, fMRI appears to be a much more invasive technology that no court should countenance. As we wait for the science to better understand the relationship between brain and mind, it would be good to avoid an early mistake, such as Frye. Indeed, the stakes are higher here. Whereas Frye precluded the use of the polygraph, the much more likely result here, given the age in which we live, is fMRI entering widespread use before its implications can be fully, and widely, understood.