This paper will explore how the use of neuroscientific technology to identify deception may impact on the human rights of the accused. The particular focus of the paper centres on accused persons in England and Wales. However, in order to understand the ramifications of using the technology, the paper explores the use of neuroscience in criminal proceedings from a number of international jurisdictions. To begin, the paper outlines the potential issues with the admissibility of such evidence at the trial stage. The paper transitions to a wide exploration of the use of brain based lie detection in an international context. The paper argues that if the stringent rules of admissibility could be satisfied, the use of such technology would fundamentally weaken core human rights; in particular, the right to legal advice under Article 6, interwoven with this is the presumption of innocence and privilege against self-incrimination. Furthermore, using the evidence may have the propensity to usurp the jury from its traditional domain of fact judging and tester to credibility. Research evidence suggests that juries place an inordinate amount of weight on the fMRI lie detection and may actually deprive the juror of their primary role of judging facts. The paper concludes by acknowledging the growing quest for an efficient criminal trial in England and Wales. As such the desire to detect deception efficiently is very attractive and could assist the courts in satisfying the overriding objective of the Criminal Procedure Rules to ‘deal with cases justly’. However, allow such techniques to detect deception pose grave concerns for adversarial criminal justice.
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