Eyewitness Account of ‘Watershed’ Brain Scan Legal Hearing

The very first federal admissibility hearing for fMRI lie-detection evidence wrapped up May 14 in a Tennessee court room. The decision, expected in a couple weeks, could have a significant influence on the direction that brain scan evidence takes in the courtroom.
A special session was held to determine whether brain scans that were generated by the company Cephos could be entered as evidence in the federal court case of Lorne Semrau, whom the government has accused of defrauding Medicare and Medicaid.
FMRI brain scan evidence has yet to be admitted for lie detection in court, and this case is the most serious consideration yet of the technique in an American court.
“It’s in some ways a potentially watershed moment,” said Owen Jones, a professor of law and biological sciences at Vanderbilt University, one of the few hearing observers in the nearly empty court room. “I had the sense throughout that, whichever this court decides, this was going to be a significant moment.”
In federal court, the admissibility of scientific evidence is governed by the Daubert standard, first established in the early 1990s. To be entered into the record, scientific evidence has to be empirically testable, subjected to peer review, have a calculable error rate, and be generally accepted by a relevant scientific community. Through a pretrial hearing, a judge decides whether the evidence offered meets these criteria.
In the Semrau case, Steven Laken, CEO of Cephos, is the expert witness whom the defense would use to bring in the brain scan evidence. He testified at the Daubert hearing on May 13 and 14. He was followed by plaintiff’s witnesses’ Marcus Raichle, a neuroscientist at Washington University in St. Louis, and Peter Imrey, a biostatistician at the Cleveland Clinic.
A transcript will likely become available, but in the meantime, Wired.com spoke with Jones, who is also the incoming director of the MacArthur Foundation Law and Neuroscience Project.
Wired.com: What was the tack the defense took in making its case?
Owen Jones: Their basic effort was devoted to demonstrating two things. First, that fMRI technology itself is sound, and second, that this specific application of fMRI to lie detection is sound and scientifically credible. There was much discussion of publications. Through Laken, the defense walked the judge through understanding a bit about how the technology worked and how the test was administered and why some people in the lie-detection community consider this technique to be scientifically valid.
Wired.com: What points did the prosecution focus on in cross-examination?
Jones: They focused on the fact that this would be the first case in which fMRI brain scan evidence like this would be admitted. Reference was made to the recent Brooklyn case, where it was not admitted. And there was some discussion about the extent to which Cephos stands to gain financially if this technique becomes widely acceptable. One of the things highlighted was the seeming inconsistency between some scans Cephos did of Semrau, some of which suggested that he was lying and some of which suggested that he was telling the truth. There was much discussion on Laken’s basis for discounting the scan session in which the conclusion was that the defendant was lying. Laken discounted the evidence because of the alleged fatigue of the defendant.
There was discussion on cross on general ecological validity, which means the degree to which real-world situations conform to the experiments done in the laboratory. The prosecution pointed out that there was a long duration between the event in question and the scan itself, roughly six to eight years. There was also much discussion about the difference in age between the defendant and the maximum and also median ages of subjects in published research studies. Semrau is 63 or 64, and in prior studies the oldest subjects were 50.
Certainly there was a lot of discussion about the alleged accuracy rates of the technology. And that’s obviously one of the important factors in the Daubert standard. The scientific expert is claiming that they have 100 percent accuracy at finding liars.
There was also discussion about the nature of the questions administered. Some of the questions were short. Some were long. Some were highly detailed. Others were quite general. So, there were questions about the methodology of the test and whether they were sound.
There was also a heavy emphasis on the extent to which the published studies do not have subjects for whom there are real and significant consequences for failing the truth verification tests. That very specifically raises the question about whether the published studies are at all relevant to this particular case.freedom
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Suicide Bomber Attacks U.S. Convoy in Kabul

A man driving a Toyota minivan laden with explosives steered into an American convoy on Tuesday morning and set off his payload, killing at least 10 people, including five Americans, and wounding 47 more, nearly all of them civilians caught in rush-hour traffic in the Afghan capital.
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Ahmad Masood/Reuters
U.S. soldiers carried a body at the site of a suicide car bomb attack in Kabul on Tuesday.
The blast scattered body parts for 200 feet, as the injured, many of them women and children, some without limbs, lay in the road moaning for help.
In a passenger bus, an Afghan woman lay dead in her seat, cut in half, with her squirming baby still in her arms. Fifty yards away, a man’s head lay on the hood of a truck.
“I just dove on the ground to try to save myself,” said Mafouz Mahmoodi, an Afghan police officer. “And then I got up, and I saw the terrible scene.”
The Taliban took responsibility for the attack in a posting on its Web site, saying the group had dispatched a young man named Nizamuddin, a resident of Kabul. The Taliban said that Nizamuddin carried 1,500 pounds of explosives in his van.
It seemed likely that the bomber had cruised the city for some time looking for a target.
It was the worst such attack in Kabul in many weeks. The insurgency is a largely rural phenomenon in a largely rural country, and on most days the capital is quiet. Tuesday morning, it was not.
The attack came shortly before President Hamid Karzai prepared to speak to the press. Mr. Karzai had just returned from meeting with President Obama in Washington. The Karzai government is preparing, with the Americans and their NATO allies, to launch a major offensive around the southern city of Kandahar, the Taliban’s spiritual home.
A fireball went up after the attack as cars and trucks burned. Body parts and pieces of metal were scattered along the road, and the driver of a minibus was seen slumped dead at the wheel of his vehicle.
Two United States military helicopters arrived quickly at the scene and took away the American casualties. A large unit of American troops also arrived and sealed off the site.
“I got to the scene right afterward, and people were calling, ‘Help me, help me,’” said an ambulance driver, Yusef Tahiri, who evacuated six dead and two wounded. “There were body parts everywhere.”‘
He said an Afghan soldier approached him with a large red trash bag and said, “This is a bag of brains. What do you want me to do with this? Do you want me to bury it or do you want to take it?”
Abdul Hafiz, a guard at a nearby veterinary hospital, saw the explosion and ran into the street. “It was very dangerous,” he said. “It was very horrible.passion
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