Hearsay and Professor X

[Be sure to read the update to this post in Law and the Multiverse Retcon #2!]

This post was inspired by a question on MetaFilter Projects: “Can you write one on the admissibility of evidence obtained through Professor X’s mind-reading abilities? I’m sure it would implicate Fifth amendment issues as well.”  We can analyze this question under the Federal Rules of Evidence.  Be warned: this is a long one.  The short answer: it’s probably admissible, though hearsay is an issue, and the Fifth Amendment is not a problem.

I. Relevance

First we must ask “is the evidence relevant?”  FRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  This is a very low bar, and FRE 402 provides that relevant evidence is admissible by default.  But the question must still be asked “is a telepath’s claim about the contents of another person’s head relevant?”

I think the answer is yes.  The telepath could be lying, but that’s true of any witness.  The telepath’s credibility must be judged by the fact-finder.

The telepath could be a fraud, but the judge could require that the telepath’s powers be proved prior to offering the substantive evidence.  FRE 901(a) provides “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  By way of example FRE 901(b)(9) gives “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”  The accuracy and reliability of a telepath’s power fits that example.

II. Exclusion under FRE 403

Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”  Of these, unfair prejudice is the greatest risk here.

The notes on FRE 403 state that “‘unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”  A fact-finder may unfairly prejudice a party by giving undue weight to the testimony of a telepath, possibly completely ignoring the testimony of the original witness.  However, “in reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.”  It may suffice for the judge to remind the jury that it should also consider the testimony of the original witness.

III. Personal Knowledge

FRE 602 requires that a witness have personal knowledge of the matter being testified about.  This means that a fine but important distinction should be made.  The telepath would not be testifying as to the actual events the original witness had personal knowledge of.  Instead, a telepath would testify about his or her personal knowledge of what he or she read in the original witness’s mind.  It’s the difference between Professor X saying “John Doe shot JR” and “The witness remembers seeing John Doe shoot JR.”  Everything the telepath testifies about is ultimately coming through the lens of the original witness’s senses, understanding, and memory.

IV. Hearsay

Now we come to one of the biggies.  The general rule under FRE 801 is that “‘Hearsay’ is [an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion], other than one made by [the person who made the statement] while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

A complicated definition, to be sure, but maybe we don’t have to address it.  A person’s thoughts are not an oral or written assertion, nor are they a nonverbal action intended as an assertion.  Of course, it is likely that in a universe with psychics and telepaths the Federal Rules of Evidence would be amended to include thoughts.  Given that, let’s complete the hearsay analysis.

Assuming thoughts fit the first part of the definition, then we know the second part fits as well, since the telepath is not the person who made the statement.  The final part is whether the telepath’s testimony is offered to prove the matter asserted.  For example, when Professor X says “The witness remembers that John Doe shot JR,” is that being offered to prove that John Doe did, in fact, shoot JR?  If it is, then it is hearsay and inadmissible unless it falls under one of the exemptions or exceptions (which are beyond the scope of this post).  I will just say that there are many such exemptions and exceptions and that the hearsay rule would not exclude much of any importance.

V. The Fifth Amendment

Amongst other things, the Fifth Amendment protects a person’s right not to “be compelled in any criminal case to be a witness against himself.”  This right has some important boundaries, however.  The way in which many people think of the Fifth Amendment, “pleading the Fifth,” only extends to testimony by the witness at a legal proceeding.  A telepath’s testimony regarding the thoughts of another is not the same as the person’s own testimony.  It is the difference between “I shot JR” and “The defendant remembers shooting JR.”  So that aspect of the Fifth Amendment would not apply.

However, there is another aspect of the Fifth Amendment, which is the general right to remain silent. That right excludes confessions obtained without first informing a person of his or her right to remain silent during custodial interrogation (i.e. when the person is not free to leave).  However, the rule only applies to statements.  Other kinds of incriminating information may be extracted, such as fingerprints, mugshots, and DNA samples.  A telepath’s reading of a person’s thoughts would arguably fall under the latter, non-statement category.

VI. Conclusion

A telepath or psychic such as Professor X could read a criminal suspect or defendant’s mind, and the information thus learned would likely be admissible evidence and would not implicate a person’s Fifth Amendment rights.  During a regular trial the hearsay rule might exclude some such testimony, but much of it would fall under an exemption or exception.

34 responses to “Hearsay and Professor X

  1. I would disagree with your 5A analysis. In Schmerber v. California (1966), the Court allowed blood evidence after a person had been arrested for drunk driving. The Court distinguished testimonial evidence from physical evidence. The words extracted during mind-reading would be much closer to testimonial evidence because the jury would be hearing words that were the D’s thoughts. This cuts directly at the heart of the purpose of the Fifth Amendment, which requires that D’s must not be compelled to testify against themselves. It’s just like if a D gives an involuntary confession and then the prosecutor read that statement in Court; the D is not testifying but his words are being used against him. That is clearly unconstitutional and so is this. Thoughts are much closer to spoken words than physical evidence such as blood test results or fingerprints.

    And of course, if the state was asking Professor X to read suspect’s minds, that would most likely be an unreasonable search under 4A.

    • Your Fifth Amendment counter-argument is well-taken. I think the best bit from Schmerber is probably the part about lie detectors:

      Some tests seemingly directed to obtain “physical evidence,” for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to 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.

      384 US at 764. However, for a lie detector test to work, the subject must answer questions, including questions regarding guilt or innocence, so the test is predicated on actual statements made by the defendant. I think a court, presented with a pain-free and apparently effective method of reading a person’s mind, would be sorely tempted to find a constitutional justification for its use.

      Your Fourth Amendment objection is definitely applicable. After all, surely people have a reasonable expectation of privacy in their own thoughts. Still, it’s nothing a duly issued warrant couldn’t fix.

  2. What about false or altered memories?
    The telepath wouldn’t tell the difference.

    And the fact that it won’t be fair for the defendant: the secrets he told to his lawyer will be completely exposed to the actor.

    • Regarding false or altered memories: “Everything the telepath testifies about is ultimately coming through the lens of the original witness’s senses, understanding, and memory.” The telepath’s testimony and the judge’s instructions to the jury would have to reflect that, including the risk of false or altered memories.

      The attorney-client privilege and Fifth Amendment protections could still be maintained (if indeed the Fifth Amendment applies; I’m still not convinced it does). For example, the telepath could be forbidden from reading the subject’s memories involving his or her attorney or at least from testifying about those memories.

  3. What about the fourth amendment issues? I think it is clear that reading thoughts constitutes a search, in this case of one’s mind. If Professor X is acting, implicitly or explicitly, on behalf of law enforcement then he would require a warrant, and given the extraordinarily intrusive nature of the search I’d imagine that the exhaustion requirements would have to be much higher than for a mere wiretap.

    • I agree about the Fourth Amendment issues (“surely people have a reasonable expectation of privacy in their own thoughts”).

      • I agree. I believe that an expectation of the privacy of one’s own thoughts (at least in a world where telepaths are at most extremely rare) would place an individual’s thoughts in a privileged category analogous to (or even stronger than) doctor-patient, lawyer-client, confessional or spousal privilege.

      • Absolutely. There’s no way that “The right of the people to be secure in their persons” should be read in a way where one’s minds and thoughts are not considered part of one’s person. The problem then becomes, under what circumstances can a warrant be issued for a mind probe? Is the fact of a grand jury indictment sufficient to justify such a warrant to quickly determine guilt or innocence?

        There’s also the distinction between probes the telepath made of the defendant in the past, which might hit the hearsay problem, and probes made during the proceedings, where one typically doesn’t expect to see warrants for searches executed.

  4. Correct me if I’m wrong, but I believe a thought or a memory is protected. For example, if the state seizes a password-protected computer, they cannot compel the revelation of the password. Wouldn’t a person’s own thoughts (even if he really does remember shooting JR) fall in this same bucket, or am I mistaken?

    • The distinction is that in the case of a password, the defendant is being compelled to make a statement himself or herself, but in the case of mind-reading there is no compulsion (assuming the sort of mind-reading that does not require the subject to actively recall the memory in question) and no statement by the accused, only by the psychic.

      One must bear in mind the motivation behind the right to remain silent and the right not to incriminate oneself. These rights were created to protect people from being tortured into speaking or confessing. Things like DNA samples and mugshots are different because they can be essentially painlessly extracted and because they aren’t testimonial: the subject is not making a statement. I think that’s a distinction that a comic-book-universe court would rely on in order to avoid the Fifth Amendment.

      • The question then becomes, “Is telepathy painless?” Certainly, Professor X would tell you so… But if I were a defendant whose freedom and/or life depended on avoiding telepathically-extracted evidence, I might claim otherwise. It might even be the truth! If nothing else, the act of having one’s private thoughts, emotions and memories pawed through by a stranger could be very traumatic. Because Professor X is a ‘hero’ in the Marvel literary canon, his telepathy is genarally described in positive terms even when he uses it aggressively, but it’s not uncommon in SF and fantasy literature to equate involuntary mind-probes with rape. I would think that any defense attorney worth his license would raise a storm of objections the first time a telepath was brought in to read a defendant’s mind.

  5. If I may add a twist, there is frequent example made of non-psychics who nonetheless develop techniques to thwart telepathic intrusion. For instance, singing a song in one’s own head to drown out any other surface thoughts and ward off mental invasion.

    Would it be legal to compel such an individual to STOP thwarting a telepath who seeks to read his mind on behalf of a court, or would requiring such qualify as requiring that man to “make a statement” that ” may incriminate himself?”

    Ultimately, as well, you would run into “shadow of a reasonable doubt” problems. How do you demonstrate that the telepath is not, even unintentionally, implanting the thoughts he is reading? “Do not think about pink elephants” can make it nigh impossible to not do so. Likewise, I believe polygraph tests cannot be used against a person if he simply refuses to answer. Just as “I plead the Fifth” is supposed to NOT be regarded as an admission of guilt by the Jury, I would assume that “He refused to answer when asked on the polygraph if he committed the crime, and the polygraph showed that his stress rose, which is often an indicator of guilt!” would be deemed spurious enough to not warrant admissibility. It would seem, to me, to be biasing rather than truly indicative, because ANYBODY can get nervous when being questioned about crimes that could send them to jail.

    So… I am not so sure that you can use the testimony about the defendent’s own thoughts against him. You might be able to use “he’s lying” or “he’s telling the truth,” but I do not think you can use, “his thoughts condemn him; he is refusing to answer out loud, but believes the answer to be ‘yes’ to your question,” when said question is, “Did you commit the crime?”

  6. I can see how this is legally admissable.
    It’s not hearsay because he wasn’t actually actively told such things by the subject (unless it might me in a circumstance where Prof. X is conversing with Jean Grey via telepathy). It’s perfectly legal for a private citizen to present evidence to law enforcement and for law enforcement to act on it (verify and then use in court) with probable cause.
    I agree that the right to reasonable privacy is an issue, but should a telepath read something from someone’s mind, purposely or inadvertently, and it is something that should be told to law enforcement such as “I killed her, now where to put the remains?”, wouldn’t they have an obligation to notify the authorities?

    I’m so happy to have found this site!

    • Generally speaking, mere knowledge that a crime has been committed does not create an obligation to contact the authorities (NB: there are important mandatory reporting exceptions for, e.g., health care workers who see evidence of child abuse). At common law this was a crime called misprision of a felony, but it has been discarded essentially everywhere. The vestigial version in US federal law requires “(1) that…the principal, had committed and completed the felony alleged…; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took…affirmative steps to conceal the crime of the principal.” Lancey v. United States, 356 F.2d 407, 409 (9th Cir. 1966). In your scenario Professor X wouldn’t have full knowledge that the crime had been committed nor would he have taken affirmative steps to conceal the crime. “Mere silence, without some affirmative act, is insufficient evidence.” 356 F.2d at 410.

  7. There actually is Supreme Court dicta on this very point, from Mr. Justice Brandeis:

    “The progress of science in furnishing the government with means of
    espionage is not likely to stop with wiretapping. Ways may some day be
    developed by which the government, without removing papers from secret
    drawers, can reproduce them in court, and by which it will be enabled to
    expose to a jury the most intimate occurrences of the home. Advances in
    the psychic and related sciences may bring means of exploring even
    unexpressed beliefs, thoughts and emotions…Can it be that the
    Constitution affords no protection against such invasions of individual
    security?” Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72
    L.Ed. 944 (1928) (dissenting)

  8. Have you given any thought the issues of compelled speech other than in the context of the 5th Amendment? If we are to supposed the FRE would be amended to include jurisprudence regarding telepathic testimony, wouldn’t 1st Amendment law undergo the same transition? Consider the pledge of allegiance cases and forced or compelled speech issues in the context of the 1st Amendment.

    • I think the answer there is that the court’s subpoena power can compel testimony. Perhaps a witness could still be given the option of refusing to submit to telepathic examination in favor of being held in contempt, however.

  9. There is no 4th am. problem, unless the telepath is a state actor.
    There is no hearsay problem, because a party-opponents’ own statements are explicitly NOT hearsay under FRE 801(d)(2).

    • True, but if the telepath is reporting on a previous mind probe, i.e., “When I scanned the mind of the defendant on June the 4th, he was lamenting the fact that he had killed the victim and considering how to conceal the crime”, then it *might* hit the hearsay exclusion, and if the telepath is asked to probe the defendant’s mind while testifying as a witness in the court, it might be argued that the telepath is by that token acting as an agent of the state.

  10. If I might be permitted to go all girly, the “True Blood” world presents an interesting study of the problems with mind-reading. Some individuals are much more difficult to read than others, it may be difficult to identify the “voice” of the speech, and Sookie must wait for the person to hit on a specific subject and can misinterpret the context of the thought. On the whole, much less reliable than, say, DNA evidence, and just the sort of problems that the hearsay rules are intended to, if not prevent, then alleviate.

  11. I’m surprised Wonder Woman’s magic lariat hasn’t come up in this context. I believe it actually has been brought in the comics that evidence obtained this way could not be used in court (it certainly did in the TV show). There’s a certain irony in that considering that Wonder Woman’s creator, William Moulton Marston, was also one of the pioneers of polygraph use. If testimony is not obtained with the consent of the accused, how is this not an invasion of privacy?

    • That’s a good observation, but I think the key distinction is that Wonder Woman’s lariat compels truthful statements (i.e., not only does it force a person to be truthful, it can also compel them to obey any command, such as making a statement). That’s very different from the essentially passive mind-reading most comic book psychics seem to engage in, and much closer to the compulsion under torture that the Fifth Amendment was designed to prevent.

    • No irony, Romeo; Marston included a lasso that compels truth as part of Wonder Woman’s power set BECAUSE of his work on polygraphs. Well, also because of his desire to promote bondage, but that’s not directly relevant here…

  12. What about the notions of reliability, accountability, prejudice outweighing probativeness, or the Confrontation Clause? If Prof X is offered as an expert or a witness, how can his abilities be effectively cross-examined? How would the propounding party (presumably the State) lay a foundation for his knowledge? I suppose one could conceive of a test whereby Prof X reads a tester’s thoughts, and then the tester says whether Prof X’s report is correct or not, but doesn’t that then depend on the reliability of the tester? How is a jury (presumably made up of non-telepaths) to know whether the test is accurate? And what if we’re not talking about Prof X, but a lesser telepath, like Danielle Moonstar: how does one gauge the telepath’s relative competence or likelihood of error? What if a sinister telepath like the White Queen (in her ’80s-’90s phase, of course) “gets there first” and implants incriminating thoughts for the testifying telepath to read?

    Like everything else on this blog, this is a fascinating line of inquiry, but I’m not convinced that telepaths could be allowed to testify in a way that would satisfy existing standards of due process and procedural rights. Of course, in a world with telepaths, those Constitutional standards could presumably be changed to accommodate telepaths in the courtroom, but we’d probably end up with a pretty different set of safeguards than the real-world system we’re discussing.

    • One could make many of the same objections regarding any expert. If a party claims that Dr. Smith is an expert in quantum physics because she has a degree from MIT and has published the results of many experiments, how is the jury (presumably made up of non-quantum physicists) supposed to know that a degree from MIT is worth the paper it’s printed on or that Dr. Smith’s experiments weren’t all made up?

      The fact is that we trust juries to make credibility determinations all the time. If it’s helpful, one could easily imagine a rigorous credentialing system for telepaths. Such a system could even include ‘degrees’ of telepathy that allow laypeople to easily discern between strong and weak telepaths. It would be very unusual in the common law system, but you could also have the telepath read the thoughts of each juror as personalized proof of his or her ability.

      The problem of incriminating thought implantation is one for the fact-finder to weigh with the rest of the evidence. Physical evidence can be planted, too, including fingerprints and DNA. Photographs, video, and audio can all be manipulated. Juries consider these possibilities already, and evidence tampering can happen, but absent evidence that it has occurred it is probably more likely that things are as they seem. It may even be possible for a ‘forensic telepath’ to detect thought manipulation.

      The Confrontation Clause is a non-issue, I think. Like any other expert witness, the telepath would be present for cross-examination, which would likely consist of attacking his or her credentials, abilities, and character, just like any other expert witness.

      • James:
        Thanks for the reply. These are fair comparisons, but the alleged or perceived certitude of telepathy raises the stakes considerably. Our adversarial justice system is built on the foundational notion that no one can really know the facts of an event or the motivations and guilt of a defendant. If you introduce telepaths who can simply read a defendant’s thoughts, “see” everything that happened, “feel” whether the person was guilty, and discern whether any mitigating factors (duress, necessity, lack of requisite mens rea) were in effect, then this calls the entire nature of our justice system into question. It’s a far more perfect solution to simply enroll an inquisitorial system of telepaths at that point. Perhaps juries could be retained for sentencing, where notions of fairness and community standards might have more of a role. But if guilt and innocence can be fully and conclusively determined by a single super-powered person (with at most as much, and probably less, margin for competence than among sitting judges in the real-world), then what good is an adversarial system?

        And if we go there, why not bring the telepaths into the police force to catch criminals before they commit the crime, or at least at the crucial moment? If it sounds a lot like the world that Rachel Summers grew up in (albeit with less genetic/racial profiling and more benign objectives), then maybe the comic-book-world haters like Senator Kelly have a point about the danger that telepaths pose to ordered society.

      • one other thought occurred to me on your MIT physicist example. experts in the real world are acceptable because their expertise is rationally apprehensible: it’s all within the ambit of what an ordinary human can learn, understand, and test. maybe you need a competing expert or skillful cross-examination, but a human can be expected to make credibility determinations.

        but I would think it’s different when you bring in a telepath, with powers that are, by definition, above and beyond those testable by an ordinary person. this returns us to my point about laying a foundation. i don’t think that courtroom theatrics are the answer: reading jurors’ minds is more likely to raise privacy issues than anything (not what most jurors sign up for!), and even if not, i would think such a display would be highly prejudicial, to the point of outweighing any probativeness and running afoul of FRE 403.

        competing expert witnesses, at a remove from the case facts, are different than competing telepaths. if two telepaths produce different answers about what’s in a witness’s mind, then one of them must be wrong: there can presumably only be one set of facts remembered by the witness. (we’ll leave aside the possibilities raised by trauma, fragmented memories, etc.) if that’s where you end up, then either both telepaths should get excluded or disregarded because no one can tell who’s lying or incompetent, or else the jury will be irrevocably swayed by a lone telepath professing to tell the “real story” from the defendant’s mind, in which case you should do away with jury trials altogether (see my previous comment).

      • James Daily on the Dec 14 post raised the example of a quantum physics expert. Jacob responded Dec 16 with “experts in the real world are acceptable because their expertise is rationally apprehensible.”

        Jacob may be correct for concrete sciences, but I suggest a better metaphor would be psychiatric or psychological testimony. To most laytypes, their testimony is as believable as a clairvoyant and equally subject to dispute by equally disrespected authorities/experts.

  13. I think there are actually three, perhaps fourt, distinct questions of law being compiled into a single discussion here. First there is what one might call the genuine hearsay occurrence. Professor X is rolling down the street, unable to tune out thoughts, and “overhears” Suspect Y remembering committing a crime. That’s probably a genuine statement against interest and admissible. Second, there’s Professor X as vigilantee – he and the X-Men stopping Suspect Y and read his mind to see whether he’s guilty. That may or may not be admissible, I would think, but if he’s a private actor probably is. Third, there is Professor X as Official Court Telepath – the police call him in and ask “Read Suspect Y and tell us whether he did it.” This would probably only be admissible if the police obtain a warrant first, I would think. The fourth use would be “Is Suspect Y telling the truth right now?” which I think would be treated like a polygraph – the suspect might voluntarily allow it, in which case the results could be admissible to bolster his testimony (“When questioned by the police, I read his mind and he answered truthfully”) but due to the risk of falsehood (either Professor X misreading or lying, or someone implanting thoughts) I doubt it would ever be some sort of mandatory in-court requirement.

  14. I think there are substantial policy questions regarding hearsay and the Confrontation Clause. While Prof. X’s testimony may not meet our universe’s definition, the problems that arise would be similar to those in hearsay testimony.

    Imagine Wendy comes into court and says “I saw Dan [the defendant] shoot J.R.” When cross-examining the witness, one strategy would be to discredit the witness by drawing into question her integrity and if she had an interest in testifying the way she did (maybe she struck a plea deal with the prosecutor). Another way to impeach her testimony would be to try to raise questions as to the accuracy of her memory. How certain is she that she saw what she saw? How certain was she at the time? Is she aware that memories, especially memories of traumatic or shocking events tend to get more solid in one’s mind but less accurate as time goes on? Could that be what is happening here? Are you sure? What time did it happen? Was it dark? Did you have a clear view of what happened? Did you look at your watch? Etc.

    Now imagine that Prof. Y comes into court, and testifies that she overheard her student, Wendy, say that she saw Dan shoot J.R. Prof. Y is a professor of ethics and her honesty is unimpeachable. On cross, the defense attorney cannot question how accurate Wendy’s memory way. This is the main reason for the hearsay rule.

    Now we have Prof. X’s testifying he “heard” Wendy remember “I saw Dan shoot J.R.” How is this any different than Prof. Y’s hearsay testimony.

    Of course, things are very different if Wendy herself can come in to testify. But that raises a question as to the relevance of Prof. X’s testimony. Unless the defense tries to impeach her honesty, it seems what Prof. X knows she thought is irrelevant when the attorneys can simply ask her what she saw.

  15. The GURPS Supers 2nd edition supplement setting had a section on using telepaths in court. There was a Bonded Telepath Organisation and a 3 telepath system with 1 telepath each for the prosecution and defence and 1 for the judge to consult. Witnesses must agree to mind reading especially since mental search warrants were outlawed.

  16. Granted, I’m no lawyer at all, but the Fifth Amendment is not, I suspect, wholly to prevent tortured confessions. It’s also to prevent single (or conspiratorial) authorities from taking control of the process.

    If you have testimony from a telepath nobody trusts (without some kind of verification system, I mean), then there’s no benefit to adding him to the proceedings. If he’s considered trustworthy by the court, then the jury’s opinion has no real benefit other than ceremonial.

    But once we’re in the second category, the “trusted” telepaths are an Achilles Heel for the legal system. Professor Xyz says he’s not guilty, so the Joker goes free. Or Superman gets the death penalty after being framed by Xyz’s boss. The Fifth Amendment, by my reading, is about exactly this problem. Can’t be executed without a Grand Jury. Can’t be retried. Can’t be compelled. Can’t be “deprived of life, liberty, or property, without due process of law.” No seizure without compensation. That goes beyond torture into government employees not being trusted to pass judgment alone. Handing the jury a trusted telepath’s verdict would imply that there’s never a reason to distrust the government or anybody on their payroll.

    As to “don’t read any thoughts involving the lawyer”…well, that depends entirely on the nature of storing thoughts in the brain and their recall. No model of thought suggests a database where you can ask for all conversations where partner does not equal lawyer. And you can’t hand someone a cookbook and ask him to read the recipes, but not any that have beef in the ingredients. The highly-associative models of thought believed today are far more complex and intertwined.

    In turn, that would seem to bring up Xavier’s neuroscience credentials, wouldn’t it? Yes, you can “read,” but whose perceptions are being used to make sense of it? Where’s the time index or the identification of the people represented in the memories (as suggested by Ash)?

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