Everything New is Old Again: Brain Fingerprinting and Evidentiary Analogy

Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. J. Cardozo (1) Whatever produces the judge's hunches makes the law. Jerome Frank (2) ABSTRACT Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how fact-finders perceive and evaluate unfamiliar types of proof When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an aid to understanding and functions instead as an obstacle to knowledge. This Note explores the ways in which evidentiary analogy may insidiously shape how courts treat novel forms of scientific evidence. TABLE OF CONTENTS INTRODUCTION I. JUDICIAL GATEKEEPING FROM FRYE TO DAUBERT II. THE ANALOGICAL FAMILY: METAPHOR, PROTOTYPE, ANALOGY A. METAPHOR: "IMAGINARY GARDENS WITH REAL TOADS IN THEM" B. PROTOTYPE: SOME TOADS MORE "TOAD" THAN OTHER TOADS C. ANALOGY: TOAD, THE NEW CHIHUAHUA, OR TOAD, THE NEXT CAVIAR? III. BRAIN FINGERPRINTING A. PLANNING, EXECUTING, & RECORDING B. GRINDER & ME C. BRAIN FINGERPRINTING GOES TO COURT IV. PERCEPTION AND PRESENTATION V. "PERSUASIVENESS & MANIPULATION": IMPLICATIONS FOR NOVEL EVIDENCE INTRODUCTION Approaching novel forms of evidence through analogy to older and ostensibly better-understood forms can appear natural and even inevitable. Reasoning by analogy, metaphor, and prototype forms the heart of American legal procedure, dominates lawmaking, and typifies the manner in which rational thinkers understand new information and incorporate new ideas into their cognitive schema. Such processes comprise "the meat and potatoes of legal reasoning"; (3) "the common, imaginative core of human rationality." (4) Analogical reasoning can render the alien, familiar; the obscure, comprehensible; the frightening, innocuous; the complex, simple. Yet we often ignore the damage done in the process: When the assimilation of new information takes place too swiftly and too smoothly, that ease may mark a failure to appreciate and assess precisely the novelty and difference that prompted the initial analogy. When it enacts violence upon ideas by disguising, deforming, or destroying them, metaphor ceases to serve as an aid to understanding and functions instead as an obstacle to knowledge. Many have written extensively on the role of heuristics (5) and cognitive illusions in legal decision-making and their effects on the quality of adjudication. (6) This article differs in its focus on a more explicit and thus more easily identifiable form of reasoning, where tropes for novel technology or expert evidence are deliberately selected and applied at various stages of trial. Analogical reasoning, while enabling those without technical expertise to better comprehend novel scientific evidence, undermines the objectivity of judges and jurors attempting to assess the admissibility or weight of such evidence. Although analogy may explain and demystify novel evidence and render scientific innovation ostensibly more accessible, such a rhetorical approach lends itself too well to manipulation and serves to mask new forms of evidence in the guise of older forms, piggy-backing on the authority and status of the more familiar models. The common law shift from Frye (7) to Daubert, (8) reflected in changes to the Federal Rules of Evidence (9) and codified by many states' own standards, shifted the burden of assessing the admissibility of new scientific and technological innovation from experts to judges. …