Law and the Multiverse Retcon #2

This is the second post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re revisiting one of our earliest posts, Hearsay and Professor X, from way back in December of last year.  Although that post focuses on hearsay issues, this retcon is actually about the Fifth Amendment aspect.  After further research, we think that the original post was incorrect, and that the Fifth Amendment rights to silence and non-self-incrimination would protect against having one’s thoughts read by a psychic.

The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.”  Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added).  So what is a testimonial communication?  The Court explained in a later case that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”  Doe v. United States, 487 U.S. 201, 210 (1988).  There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples. Doe, 487 U.S. at 210.  Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial.  Id.

(This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords.  One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive.  In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (Feb. 19, 2009).  Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.)

We need not wonder whether reading someone’s thoughts counts as testimonial communication, however.  As the Court explained “[t]he expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.”  Doe, 487 U.S. at 210 n. 9.

One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e. the difference between the witness saying “I saw Magneto kill Jean Grey” and the psychic saying “The witness remembers seeing Magneto kill Jean Grey”).  However, the Supreme Court actually addressed this issue in Estelle v. Smith, 451 U.S. 454 (1981).  In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant.  The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions).  Thus, using an intermediary expert witness to interpret a witness’s statements will not evade the Fifth Amendment.

So, contrary to our earlier conclusion, we think that psychic powers could likely not be used to produce admissible evidence from a witness who invoked the Fifth Amendment.  And believe it or not, this issue actually has modern resonance.  Although a far cry from the kind of mind-reading that Professor X is capable of, technologies like fMRI may someday see regular use in criminal investigation.  However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e. is it more like a blood sample or speech?).  See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 Dev. Mental Health L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 Temp. J. Sci. Tech. & Envtl. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 Akron L. Rev. 763 (2009).

7 responses to “Law and the Multiverse Retcon #2

  1. Without having read the article on fMRI, I would have to say that fMRIs would probably be inadmissible just as lie detector tests are inadmissible (even though most people accept lie detector test results as accurate). The problem is that the fMRI would only give people a rough idea what people are thinking. Even if the judge were to accept an fMRI test result as evidence, the defense could simply bring in their own expert witness to say that the test doesn’t tell us much… and the prosecution’s expert witness would then have to agree with him. Just because I’m thinking about sex doesn’t amke me a rapist. Just because there’s blood rusjing to the part of my brain that causes aggression does not make me a killer. Indeed, fMRI results have been used to argue that video game violence makes people more violent but just simply thinking about violent acts doesn’t necessarily make someone a killer.

    The analogy is a good one though. You could imagine that in the future a test could be devised that would be able to determine exactly what you are thinking. But if you are thinking “I killed Jean Grey” how is that any different from being asked “Did you kill Jean Grey”, saying “No” and having a lie detector say that you are lying? In both cases, the defense could argue that the suspect was coerced: if the police say to you over and over “You killed Jean Grey” then you might start to believe it yourself. Similarly, in a world where telepaths exist, how could you be sure that a telepath wasn’t planting thoughts into a suspect’s mind to make him believe he was guilty? In the end then telepaths wouldn’t be much use except maybe as a way to lead police to physical evidence: courts couldn’t even be sure if their witnesses were telling the truth; the witnesses may believe what they are saying but might have had thoughts placed in their heads by telepaths!

    • fMRI (or other brain scan) evidence wouldn’t be offered as 100% accurate. The expert presenting the evidence would be cross-examined, and the opposing side would call their own expert witness to testify as to the weaknesses of the technique. I’m not necessarily holding up fMRI as a great example (it has a lot of limitations), but one can imagine that much better technologies may be developed in the relatively near future.

      “Similarly, in a world where telepaths exist, how could you be sure that a telepath wasn’t planting thoughts into a suspect’s mind to make him believe he was guilty?”

      There are three answers there: first, there may be “receiving-only” telepaths who can’t implant thoughts. Second, in the DC Universe at least, psychic manipulation leaves a signature that can be detected using brain scans of some kind. Third, the jury has to trust the psychic not to make stuff up just like they have to trust any other witness; this trust is helped by cross-examination and competing experts.

      • Martin Phipps

        True. As a lawyer, you are aware that witnesses can be manipulated into saying just about anything even without telepaths so then you would cross examine to determine if what they are testifying to is actually what they saw and not what they were told to say. Fair enough.

  2. I seem to remember an article about a case that may be relevant here: a man was accused of some crime (Fraud of some sort if I remember right) and the DA acquired his personal journal as part of a valid court ordered search. But that journal was written in some obscure dialect of Hungarian that the DA could not find a translator for. So the DA asked te judge to order the man to translate the journal. It was eventually decided (I don’t remember if it went all the way to the Supreme Court or not) that forcing him to do that was a violation of his 5th amendment rights. It stated in the article that this was likely precedent on the issue of forcing someone to divulge memorized encryption keys. The conclusion was if you write is down then it can be subpenaed, but if you keep in in your head probably not.

    • I don’t see how that could have possibly stood up in court. Demanding that a man not only translate his own journal while on trial but also assuming that he would actually incriminate himself is dubious and in addition incredibly stupid.

  3. Pingback: Hearsay and Professor X | Law and the Multiverse

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