New Lie Detectors on the Horizon?

A student in my Criminal Law class this Fall, Dominic Lindauer, sent me this interesting email over the break. You quickly may gather that he comes out of a tech background prior to entering law school:

“Over the break, I've been reading up on technologies that combine some clever engineering with breakthroughs in neuropsychology … and there are several interesting technologies being deployed to determine when people are lying. Given the impetus provided by homeland security and corresponding funding, I would guess practical equipment and protocols (easy to use and not too expensive) will be deployed in under five years. The interesting thing is that the initial results now are pretty definitive (as to whether you're lying), and getting better. Apparently there are even techniques which may allow discrimination between a person who really believes what they are saying, and an intentional lie or evasion.

“Which begged this question in my mind: What is the purpose of the jury? We’ve been taught that their job is to find fact, while the judge applies the law. But what about the up and coming technologies that appear to have promise to determine when a person is telling the truth?

“As a defense attorney, how would you use a magic box that can tell if someone is telling a lie? How as a prosecutor would this affect your approach? Sure would put an interesting spin on civil matters where the burden of proof is lower...”

I do not know much about these developing technologies described by my student. My student promised to share some of his literature, but I wondered whether any readers know something about this technology. Does it test truth-telling more accurately than old-school lie-detectors? If so, how? And, is this technology really on the horizon?

If anything like what my student describes, this technology soon may raise a host of tricky questions for our current, very human method of jury fact-finding and decision-making. Would such machines eliminate the need for juries altogether? If not, would juries retain any fact-finding role, or would they assume some sort of “voice of the community” role, where they take machine-driven data about witness credibility and filter it into a verdict? According to my student’s email, this technology even may differentiate between witnesses telling the truth and witnesses “who really believe[] what they are saying” – the George Costanzas of the world, I suppose. But, would this technology further distinguish between lies and firmly-believed mistakes – which many people mischaracterize as “lies?”

Even if this technology some day can fill all these fact-finding roles, do we want it to? Would it spare us from the inherently flawed subjective fact-finding of human juries? Or, would we lose something more important to us if we replace the inherently flawed fact-finding of juries with the fact-finding of high-tech “truth-telling” devices? I would worry about losing a place for human values and conscience in our system of justice. And, I suspect that many people would feel uncomfortable with allowing machines to return verdicts instead of identifying witnesses simply as “truthful” or “not truthful.” But, do juries separate their fact-finding function from their decision-making role, or do they go hand-in-hand?