Total Recall

Earlier this month, Total Recall hit theaters. This isn’t exactly a remake of the 1990 Arnold Schwarzenegger movie, but instead more of a parallel adaptation of “We Can Remember it For You Wholesale,” a 1966 Philip K. Dick short story. It’s a bad movie on multiple levels. For one thing, somebody needs to revoke the lens flare privileges of whoever thought sticking the effect in 50% of the shots in the movie was anything remotely like a good idea. Also, if you’re going to cast two actresses who look somewhat alike, in the same movie, and have them get in a fight, at least have the decency to have one of them dye her hair or something so the audience can tell who the devil is winning.

The premise is basically ridiculous. Both movies and the short story have two primary settings. The story and first movie have those settings be Earth and Mars. But this movie? England and Australia, connected by “The Fall,” a patently impossible tunnel through the center of the earth which is used as a daily commute between the “United Federation of Britain” and “The Colony.” It apparently takes seventeen minutes to travel approximately 8,450 km, about 30,000 km/hour. Surprisingly enough, this is only about twice as fast as physics suggests should be the case, but really, having a human colony on Mars seems a lot more plausible. Compared to moving hundreds of megatons of rock and dealing with the immense pressures near the Earth’s core, going to Mars seems downright trivial.

The other major feature of the movie is common to all three works, i.e., “Rekall,” pronounced “recall.” It’s a company that’s perfected the process of both reading and writing memories into the human brain. They bill themselves as a vacation or adventure company. Don’t have the money to do whatever? Want to do something squicky? For a modest fee, you can get those memories in a matter of minutes. The technology also extends to erasing and replacing existing memories. This raises two issues, both of which we’ve talked about before: amnesia and mind reading.

I. Amnesia

We actually looked at this in the abstract last year, when we concluded that in most cases, amnesia is not a bar to prosecution. The argument is that a person who has no memories of the charged offense can’t offer assistance to his lawyer. Unfortunately, the courts have pretty much roundly rejected this idea (with the possible exception of the D.C. Circuit). Amnesia can be considered in competency hearings, but it’s rarely dispositive and does not act as an automatic bar to prosecution.

The justification for the rule is largely practical. If the head trauma is really bad, the defendant will probably be incompetent for other reasons, independent of amnesia. If you’re catatonic, a lack of memories is the least of your problems. Further, most of the time when this comes up in real cases, the defendant is strongly suspected to be faking and/or on drugs. Amnesia isn’t actually all that common absent head trauma or drugs. The former is pretty obvious to spot, and the courts strongly disapprove of letting voluntary use of drugs or alcohol keep someone from justice. And even if a person has no specific memories of the crime in question, odds are really good that they will still be able to assist their lawyer. They’ll know who their family and friends are, so they can probably get a pretty good idea of where they’ve been. They’ll still be able to weigh the objective evidence, e.g., forensic and surveillance evidence. Etc.

But what about if one’s memories aren’t just missing, but have been completely replaced? What if Douglas Quaid, apparently a factory worker, is actually an intercontinental (or interplanetary) intelligence operative? That might be a different situation. Here, the accused probably would have no way of reconstructing their whereabouts. They’d simply have no idea what was going on. And in the presence of technology which makes that kind of thing plausible, a court might take that into account. Still, the court also takes into account the strength of the government’s case. If they’ve got the defendant dead to rights, an amnesiac but otherwise mentally competent defendant would probably be found competent (and guilty).

II. Mind Reading

The technology also apparently permits fairly accurate mind reading, to the point that messages can be planted in someone’s brain to be delivered to someone who reads said brain later on. This is Johnny Mnemonic territory. But what about the use of this technology in the case of a defendant that’s pleading amnesia? Might a court be able to order the use of the technology to determine if the defendant is telling the truth?

This is a closer call. On one hand, the Fifth Amendment does create a right against self-incrimination. We’ve discussed this previously and came to the conclusion that telepathy and mind-reading technology can’t be used to get evidence from a criminal defendant’s mind against their will at trial. But on the other hand, a court can order the psychiatric evaluation of a criminal defendant. Indeed, a defendant found incompetent can be held indefinitely and subjected to involuntary psychiatric treatment, including forcible medication. That’s exactly what happened to Jared Lougnher, the shooter in the 2011 Tucson shooting.

So could a court order the use of mind-reading technology for the limited purpose of determining competency? Probably. But statements given during a psychiatric evaluation to determine competency may not be used for any other purpose unless the defendant consents (i.e. is properly warned first) or the defense brings it up at the trial.  Estelle v. Smith, 451 U.S. 454 (1981).  As the Eighth Circuit explained in Wise v. Bowersox, 136 F.3d 1197, 1205 (1998):

No violation of the privilege against self-incrimination arises from a trial court’s ordering a defendant to undergo a psychological examination if the information gained in that examination is used solely to determine whether the defendant is competent to stand trial and not to show that the defendant is guilty or that he deserves a particular sentence.

Even without mind-reading technology, this is something to keep in mind. If a defendant wishes to assert any kind of psychiatric problem as a defense or delaying tactic, the courts and prosecution have pretty broad-ranging powers to investigate that assertion. And, as also explained in Wise, refusal to cooperate may result in an adverse inference (i.e. an assumption that the defendant must be faking it), so there’s not a lot of point to it.

III. Conclusion

Really, there’s not much to be said in favor of the movie. The movie itself doesn’t really involve any particularly interesting legal concepts. Its take on mind-reading technologies has interesting implications, but none of them are really worked out on screen. Given the complete implausibility of the rest of the movie (A society that can build a tunnel through the Earth’s core can’t figure out how to clean up the landscape after a chemical weapons release? Really?), this one’s best skipped.

11 responses to “Total Recall

  1. (just subscribing to the comments)

  2. Doesn’t the rekall technology undermine the entire judicial system? I mean, sure, witnesses can be unreliable NOW, but when each and every witness could potentially be carrying intentionally-implanted false memories, whose testimony can you trust?

    • I think it depends. For one thing, could an expert determine if a witnesses has been tampered with?

      If so, then it may complicate witness testimony, but wouldn’t fundamentally change it. For comparison, pictures can be faked or changed, especially digital pictures. But there are experts that can generally tell whether those pictures are legitimate or if they have been edited. The fact that pictures can now be readily manipulated has complicated using photos from the time when it was very hard to manipulate, but hasn’t made pictures useless as evidence.

  3. There was a Star Trek episode that dealt more specifically with the issues you raise. In the Season One episode Dagger of the Mind, Dr. Adams, the director of the Tantalus Penal Colony, developed a neural neutralizer that served several purposes 1) to make inmates forget about their past crimes so they don’t have to live with the guilt and 2) to implant suggestions into the inmates mind so that they would be more passive and easier to control. It was basically a form of hypnosis. Kirk and Spock had to stop Dr. Adams when they realized that the machine was so effective that it was essentially mind control: Dr. Adams could make a person forget who they were and tell them that they had to do whatever he said.

    For that matter, there was a CSI Miami episode that dealt with this issue too: a woman jumped out of her window and the police ruled it as suicide but her family demanded an investigation and the police discovered she was seeing a therapist who specialized in hypnosis. I forget the motive but the therapist apparently told the woman that when she woke up the next morning she should walk right outside her window because there would be a sandy beach, sunshine and an ocean she could swim in. The therapist was arrested although, in real life, I don’t honestly think that if I tell someone to jump out of a window and they do that I am actually guilty of murder.

    Oh and as for Jessica Biel and Kate Beckinsale looking remarkably alike, well, I suppose that can explained by arguing that Quaid had a “type” and they chose his “wife” to be somebody he would find attractive. In the 1990 version Melina was supposed to be the woman of Quaid’s dreams and it would not have made one whit of sense of the woman of his dreams looked so much like his wife: he would have just assumed he had been dreaming about his wife. In reality, it is probably director Len Wiseman who likes a certain type. (He is, after all, married to Kate Beckinsale.) To be honest, I am kind of looking forward to seeing the Jessica Biel / Kate Beckinsale fight when it is put up on youtube.

  4. It seems that Rekall has the ability to determine whether memories are real or implanted (a major plot point at least twice in the short story) so, by logical extension, ways to test for implanted vs. real memories must exist.

    • Right. The question is whether it would be permissible for a court to order that testing. I think they probably could, but only for a competence hearing. You can’t be forced to testify about your guilt or innocence, but I think you can probably be forced to cooperate in a proceeding designed to determine your competence.

      • If the defendant does choose to testify, would the prosecution then be able to order such an examination (or enter it into evidence if it’s already been performed) as cross-examination/rebuttal? And what about the defense’s other witnesses? Or for that matter the prosecution’s witnesses?

        Actually, if the technology were that ubiquitous and testing were sufficiently cheap and portable, might a test for false memories become standard course before someone was allowed on the witness stand?

  5. Would this technology be of use to the defense? Court orders wouldn’t be a problem if the defendant voluntarily asked for a reading. If the Rekall device could read his mind and find that he had no memory of the crime (and not just amnesia, but presumably a full memory of whatever time the crime occurred) that would seem to be a pretty convincing alibi. Or would it just be seen as a really advanced lie detector?

    Another thing – I remember an Outer Limits episode where David Hyde Pierce invented a machine that could give a criminal the memories of spending years in prison without the costs of actually housing the person in prison for years. How likely would it be for a court to sentence someone to 10 years of prison implanted by Rekall instead of serving a sentence in the real world?

    • Maybe. It really, really depends on how the technology works. Courts don’t permit lie detectors/polygraphs because they’re objectively and scientifically unreliable. Or, at least, not reliable enough for courts to be willing to accept them as valid evidence. If the mind-reading technology really did work, things might be different.

      And yes, if the technology were admissible at all, there’s no reason the defense couldn’t use it to establish an alibi. Just because you can’t be forced to testify doesn’t mean that you can’t. Of course, once you start down that road, you also have to permit the prosecution to trawl through your memories. Once you get up on the stand, which is what this would amount to, you’ve pretty much waived all your Fifth Amendment rights, and the prosecutor can go to town on you on cross. Like, for example, trying to establish that your memories are fake. This could be a decidedly unpleasant process.

      As to the other, that’s an interesting question we may take up later!

    • The problem becomes a conspiracy-theorists’ wet dream: Are you sure that the guy reading the machine doesn’t have false memories implanted on how to read the machine? How do you rule out jury tampering? Judge-tampering?

  6. This recalls the legal issues in the future of John C. Wright’s Golden Age volumes, where the Seventh Mental Structure’s capacity of storing, restoring and editing “noetic information”, among other things, gives a whole new meaning to “intellectual property”. When a mind can be copied, the question of identity becomes VERY complex. A probate case hinges on whether a new.. instantiation of Helion, lacking the memory of the dead original’s last hour, can claim to be the same individual, or his personality changed so fundamentally in that hour to bar the claim. And what if someone commits a crime, then redacts the memory of having done it?

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