OK, so this probably wasn’t a real question people bothered Google with – it’s more likely they were looking for the eponymous essay written by law professor Frederick Schauer. In his article ‘Can Bad Science Be Good Evidence: Neuroscience, Lie Detection and Beyond’ Dr Schauer basically tells scientists to back off and leave the matters of law to the jurists.
It’s not that Schauer has anything against neuroscientists. On the contrary – he totally agrees with them when they say that certain forensic methods, such as the use of lie detectors, are not a hundred percent solid. But, Schauer argues, neither is most of the evidence that is presented in Court – witness testimonials, for example.
Currently, the American criminal law system relies on a judge and/or a jury of ordinary people to decide whether a suspect is lying or not. And especially the latter relies on common sense, but also ‘intuition’ to decide whether a person is telling the truth. Is the defendant a bit fidgety? Does he stare at his feet? Then he is probably lying. Studies have even shown, Schauer adds, that the position one’s eyes can influence someone’s way of determining whether this person is lying – the closer to each other the eyes are, the less reliable a person is perceived to be. Having this in mind, using a lie detector might not be the worst method around.
“It is a pervasive feature of law and legal decision making, that it relies on second hand knowledge,” Schauer explains. Scientific conclusion, on the other hand, can only be drawn from primary investigation. “The scientist who seeks to determine whether drinking red wine reduces the likelihood of heart disease does not, for example, summons representatives of the wine industry and the Temperance League to each make their cases and thereafter decide who of the two advocates is more believable. Rather, she engages in the kinds of primary research that we call experimentation.” In other words: science and law ask for two completely different approaches. Or, as Schauer concludes his plea: “It would be a serious mistake for science to base its determinations on legal standards. But it’s just as serious a mistake for law to base its determinations on scientific ones.”
Read full essay (open access) by Frederick Schauer
Schauer F (2010). Can bad science be good evidence? Neuroscience, lie detection, and beyond. Cornell law review, 95 (6), 1191-220 PMID: 20939147
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