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Lawyer Attempts to Use Brain Scan as Evidence in Sexual Harassment and Retaliation Case

May 7, 2010

In recent news, that our Riverside, California Employment Attorneys have been interested in, a current sexual harassment trial hoped to change history this week, as a Brooklyn lawyer attempted to use a brain scan to prove honesty in court, as the next generation of a lie detector test.

According to Wired.com, David Zevin, an attorney in Brooklyn, hoped to blaze a trial in court this week by attempting to offer a brain scan as key evidence that a witness in the trial is speaking the truth.

The brain scan in question is the fMRI scan, used instead of the polygraph test for truth telling. If admitted in court, the brain scan would be groundbreaking in regard to neuroscience's role as evidence in future courtrooms.

Zevin is representing female employee Cynette Wilson in a sexual harassment and retaliation lawsuit. Wilson was reportedly harassed in a sexual manner on the job, and complained to the temp agency that placed her, named CoreStaff Support Services. Wilson claims that after complaining about the harassment, she stopped receiving the best temporary assignments out of retaliation. Another CoreStaff worker reportedly overheard the supervisor state that Wilson should stop receiving temporary job assignments because of her sexual harassment complaint.

After the supervisor denied the statement about Wilson, the coworker agreed to take an fMRI brain scan, performed by Cephos--the company claiming to provide proof that the employee was speaking truthfully about the sex discrimination case through a brain scan.

The fMRI studies suggest that when a person is lying, the brain reportedly sends blood to the anterior part of the frontal lobe, an area known for processing fear and risk, and the brain researchers were able to pinpoint lying small group of subjects--with a reported 76 to 90 percent accuracy.

Although some fMRI data has been presented in a trial for sentencing, the scan of a person's brain has never been used as star evidence to help a jury decide in a criminal or civil trial whether a person was lying or speaking the truth.

The topic is being debated by experts in the field, like Elizabeth Phelps, a neuroscientist from New York University, who seriously questions the reliability of these scans to be used in the court of law. Brooklyn Law School Professor Ed Cheng argues that even if the validation studies have some problems, any evidence that can help the jury to make a decision better will be hard to keep out of court.

The trial began on Wednesday of this week, and according to Wired.com, a Brooklyn judge rejected Zevin's attempt to introduce the fMRI scan of an individual's brain as evidence in the employer-retaliation case to help the jury make a final decision. Zevin claimed that this was a loss, and that in this case the issue is dead, until considering a possible appeal.

Brain Scan Evidence Rejected by Brooklyn Court, Wired.com, May 5, 2010

Judge Turns Down Bid to Use Brain Scan as Lie Detector, The New York Post, May 5, 2010

Lie-Detection Brain Scan Could Be Used in Court for First Time, Wired.com, May 4, 2010

Brooklyn Lawyer Seeks to Use Brain Scan as Lie Detector in Court, NBC New York.com, May 5, 2010

I'm Telling the Truth, Your Honor. Just Look at This Brain Scan!, Discover.com, May 5, 2010

Related Web Resources:

U.S. Equal Employment Opportunity Commission, EEOC: Sexual Harassment