"On 18 June 2008, a federal grand jury returned an indictment against Dr.
Lorne Allan Semrau, a clinical psychologist, and in a Second Superseding
Indictment fi led later that year charged him with sixty counts of healthcare
fraud in violation of 18 U.S.C & 1347, twelve counts of money laundering in
violation of 18 U.S.C && 1956 and 1957, and one count of criminal forfeiture.
After a twelve-day jury trial Dr. Semrau was convicted of three counts of
healthcare fraud, and was acquitted on the remaining counts. Dr. Semrau appealed
his conviction in United States Court of Appeals for the Sixth Circuit,
U.S. v. Semrau, 693 F.3d 510 (6th Cir. 2012)."(...

Matte, James Allan

European Polygraph

English

Repozytorium Instytucjonalne Krakowskiej Akademii

UDO UNDEUTSCH* The actual use of investigative physiopsychological examinations  in Germany  EUROPEAN POLYGRAPH Volume 7 • 2013 • Number 4 (26)James Allan Matte*Matte Polygraph Service, Inc.Williamsville, New YorkUSAfMRI Lie Detection Validity and Admissibility as Evidence in Court and Applicability of the Court’s Ruling to Polygraph TestingKey Words: fMRI, evidence, detection of deception, forensic neurophysiologyBackgroundOn 18 June 2008, a federal grand jury returned an indictment against Dr. Lorne Allan Semrau, a clinical psychologist, and in a Second Superseding Indictment ﬁ led later that year charged him with sixty counts of healthcare fraud in violation of 18 U.S.C & 1347, twelve counts of money laundering in violation of 18 U.S.C && 1956 and 1957, and one count of criminal forfeiture. After a twelve-day jury trial Dr. Semrau was convicted of three counts of healthcare fraud, and was acquitted on the remaining counts. Dr. Semrau ap-pealed his conviction in United States Court of Appeals for the Sixth Circuit, U.S. v. Semrau, 693 F.3d 510 (6th Cir. 2012). * jamesallanmatte@mattepolygraph.comJAMES ALLAN MATTE192In Dr. Lorne Semrau’s appeal of his conviction, he argues, on a matter of ﬁ rst impression in any jurisdiction in the country, that results from a functional magnetic resonance imaging (fMRI) lie detection test should have been ad-mitted to prove the veracity of his denials of wrongdoing. Dr. Semrau’s con-viction was aﬃ  rmed.Explanation of the Court’s Decision:Th e United States Court of Appeals concluded, after carefully reviewing the scientiﬁ c and factual evidence, that the district court did not abuse its dis-cretion in excluding the fMRI evidence under Federal Rule of Evidence 702 because the technology had not been fully examined in “real world” settings and the testing administered to Dr. Semrau was not consistent with tests done in research studies. Th e Court also ruled that the testimony was in-dependently inadmissible under Rule 403 because the prosecution did not know about the test before it was conducted, constitutional concerns caution against admitting lie detection tests to bolster witness credibility, and the test results do not purport to indicate whether Dr. Semrau was truthful about any single statement. Dr. Steven J. Laken, President and CEO of Cephos Corporation who admin-istered the fMRI lie detection test to Dr. Semrau, testiﬁ ed at the Daubert hearing that to his knowledge, fMRI based lie detection testimony had only been presented in court on one prior occasion, a post-conviction relief case in South Carolina. At the heart of Dr. Laken’s lie detection method is fMRI imaging. An fMRI enables researchers to assess brain function “in a rapid, non-invasive manner with a high degree of both spatial and temporal accuracy.” When undergo-ing an fMRI scan, a subject lies down on a bed that slides into the center of a donut-shaped magnet core. As the subject remains still, he is asked to perform a task while magnetic coils in the scanner receive electric current and the device gathers information about the subject’s Blood Oxygen Level Dependent (BOLD) response. By comparing the subject’s BOLD response signals with the control state, small changes in signal intensity are detectable and can provide information about brain activity.Dr. Laken agreed during cross-examination that he had only conducted labo-ratory studies using mock scenarios and was not aware of any research in a “real life setting” in which people are accused of “real crimes.” Dr. Laken FMRI LIE DETECTION VALIDITY AND ADMISSIBILITY AS EVIDENCE IN COURT... 193testiﬁ ed that fMRI lie detection has “a huge false positive problem” in which people who are telling the truth are deemed to be lying around sixty to sev-enty percent of the time. Dr. Laken conceded that his 2009 mock crime study was able to identify a “truthteller as a truth teller” just six percent of the time, meaning that about “nineteen out of twenty people that were telling the truth we would call liars.” Another study expressed concern that “accuracy rates drop by almost twenty-ﬁ ve percentage points when a person starts becom-ing fatigued.” Dr. Laken also explained that a person can become suﬃ  ciently fatigued during testing such that results are impacted after about two “scans” because “their brain starts kind of going to sleep.” Similarly, inadequate sleep the night before a test could cause such fatigue. During his cross-examination, Dr. Laken agreed that the test results do not indicate whether Dr. Semrau responded truthfully as to any speciﬁ c ques-tion but rather shows only whether he was generally truthful as to all of his answers collectively. Accordingly, Dr. Laken conceded that it is certainly pos-sible that Dr. Semrau was lying on some of the particularly signiﬁ cant ques-tions. Dr. Laken was unable to state the percentage of questions on which Dr. Semrau could have lied while still producing the same result. Th e magistrate judge had determined that Dr. Semrau could not satisfy the rate of error and controlling standards factor. “While it is unclear from the testimony what the error rates are or how valid they may be in the laboratory setting, there are no known error rates for fMRI-based lie detection outside the laboratory setting, i.e., in the ‘real-world’ or ‘real-life’ setting.” 2010 U.S./ Dist. LEXIS 143402. (WL) at *11. Also problematic was Dr. Semrau’s partici-pation in a third study (test) after the ﬁ rst two yielded diﬀ erent results, a tac-tic that does not appear to have been followed in any of the studies performed or cited by Dr. Laken. As the magistrate judge observed, Dr. Laken’s “decision to conduct a third test begs the question whether a fourth scan would have revealed Dr. Semrau to be deceptive again.” Semrau, 2010 U.S. Dist. LEXIS 143402, 2010 WL 6845092, at *13. Th e decision to conduct an fMRI “best two out of three re-test” as to the AIMS charges suggests testing on Dr. Semrau was itself part of Dr. Laken’s research to reﬁ ne and better understand how the brain can reveal deception and truthfulness. Particularly troubling was Dr. Laken’s explanation of why the initial “deceptive” result was untrustwor-thy “the chances of calling a truth teller a truth teller was only roughly six percent” because this “huge false positive problem” could potentially justify continual re-testing on anyone until a “not deceptive” result is obtained. JAMES ALLAN MATTE194Decision of Supreme Court of New York on fMRI:It should be noted that on 14 May 2010, the Court in Wilson v. Corestaﬀ  Services, 900 N.Y.S.2d 629 (2010) decided that the defendant’s motion in lim-ine to exclude the testimony of the fMRI expert Dr. Stephen Laken is granted and plaintiﬀ ’s motion for a Frye hearing was denied. Th e court in Wilson v. Corestaﬀ  stated that the opinion to be oﬀ ered by Dr. Laken is of a collateral matter, i.e. the credibility of a fact witness. Since credibility is a matter solely for the jury and is clearly within the ken of the jury, plaintiﬀ  has failed to meet this key prong of the Frye test and no other inquiry is required. However, even a cursory review of the scientiﬁ c literature demonstrates that the plain-tiﬀ  is unable to establish that the use of the fMRI test to determine truthful-ness or deceit is accepted as reliable in the relevant scientiﬁ c community. Th e scientiﬁ c literature raises serious issues about the lack of acceptance of the fMRI test in the scientiﬁ c community to show a person’s past mental state or to gauge credibility. Other Studies and Conclusions on fMRI Lie Detection:Dr. Nancy Kanwisher, a professor at the Massachusetts Institute of Technol-ogy (MIT) discusses papers that present supposedly direct evidence of the eﬃ  cacy of detecting deceit with fMRI in Chapter 2, Th e Use of fMRI in Lie De-tection: What Has Been Shown and What Has Not, but dismisses their conclu-sions. (Bizzi E, Hyuman SE, Raianchle ME, Kanwisher N, Phelps EA, Morse SN, Sinnot-Armstrong W, Rakoﬀ  JS, Greely HTG. (2009). Chapter 2 reﬂ ects “Kanwisher notes that there is an insurmountable problem with the experi-mental design of the studies she analyzes. She points out that by necessity the tested population in the studies consisted of volunteers, usually cooperative students who were asked to lie. For Kanwisher this experimental paradigm bears no relationship to the real-world situation of somebody brought to court and accused of a serious crime. Kanwisher’s conclusions are shared by Elizabeth Phelps, a professor at New York University. Phelps points out that two cortical regions – the parahippocampal cortex and the fusiform gyrus – display diﬀ erent activity in relation to familiarity. Th e parahippocampal cortex shows more activity for less familiar faces, whereas the fusiform gyrus is more active for familiar faces. However these neat distinctions can unravel when imagined memories are generated by subjects involved in emotion-ally charged situations. Phelps points out that the brain regions important to memory do not diﬀ erentiate between imagined memories and those based FMRI LIE DETECTION VALIDITY AND ADMISSIBILITY AS EVIDENCE IN COURT... 195on events in the real world. In addition, the perceptual details of memories are aﬀ ected by emotional states.” Professor Kanwisher stated “But there is a much more fundamental question. What does any of this have to do with real-world lie detection? Let’s consider how lie detection in the lab diﬀ ers from any situation where you might want to use these methods in the real world. Th e ﬁ rst thing I want to point out is that making a false response when you are instructed to do so isn’t a lie, and it’s not deception. It’s simply doing what you are told. We could call it an ‘instructed falsehood.’ Second, the kind of situation where you can imagine wanting to use fMRI for lie detection diﬀ ers in many respects from the lab paradigms that have been used in the published studies. For one thing, the stakes are incomparably higher. We are not talking about $20.00 or $50.00, we are talking about prison, or life, or life in prison. Further, the subject is sus-pected of a very serious crime, and they believe while they are being scanned that the scan may determine the outcome of their trial. All of this should be expected to produce extreme anxiety. Importantly, it should be expected to produce extreme anxiety, whether the subject is guilty or not guilty of the crime. Th e anxiety does not result from guilt per se, but rather simply from being a suspect.” (See Matte 2010 regarding Lab v. Field studies, and Matte 1998 and Matte, Reuss 1999 regarding the Directed-Lie Control Question.) Application of U.S. Court of Appeals Ruling on fMRI Lie Detection to Polygraph Tests:Th e United States Court of Appeals for the Sixth Circuit in its rejection of the fMRI Lie Detection test placed particular emphasis on the fact that Dr. Laken’s fMRI lie detection test was based on laboratory studies using mock scenarios and the existing technology had not been fully examined in “real world” settings. Th is opinion raises serious questions regarding the use of laboratory studies to validate polygraph techniques. A lengthy discussion supported by published research studies regarding the value of laboratory versus ﬁ eld studies is found in “Guiding Principles and Benchmarks for the Conduct of Validity Studies of Psychophysiological Veracity Examinations Using the Polygraph” (Matte 2010). As stated in aforesaid Guiding Principles, “Laboratory studies which are based on non-emotional orienting responses deﬁ nitely fail to replicate the ﬁ eld conditions that elicit emotional defensive responses where both the guilty and innocent examinee’s primary emotion is “fear” of the consequences if found deceptive, which in criminal cases could JAMES ALLAN MATTE196result in the horror of imprisonment.” As stated by Iacono (2001); “Th ese mock crime studies are too unlike real life to oﬀ er any realistic insight to how polygraph tests work in the ﬁ eld.” Th e Court further stated that “Th ere was simply no formal research pre-sented at the Daubert hearing demonstrating how the brain might respond to fMRFI lie detection testing examining potential deception about real world, long-term conduct occurring several years before testing in which the sub-ject faces extremely dire consequences (such as prison sentence) if his an-swers are not believed. See Fed. R. Evid. 702(c) (requiring expert testimony to be the ‘product of reliable principles and methods.’)” Th e above statement by the Court raises the “Fear of Error” also known as the “Othello Error” issue mentioned in the NRC of the National Academies 2003 report on Th e Poly-graph and Lie Detection. (Ekman 1985; Matte 1978, 1996, 2011; NRC 2003). Th e Court also faulted the fMRI Lie Detection method for a lack of known error rates for fMRI-based lie detection outside the laboratory setting, i.e., in the ‘real-world’ or ‘real-life’ setting. Federal courts have long appreciated that certain kinds of analyses may have diﬀ erent rates of error depending on the setting because of the diﬃ  culties of simulating realistic conditions. See Unit-ed States v. Crisp;. 324 F.3d261, 2870 (4th Cir. 2003) (Handwriting analysis); United States v. Cordoba, 194 F.3d 1053, 1059-60 (9th Cir. 1999) (polygraph testing). Hence, a polygraph technique that is not supported by published ﬁ eld studies showing an error rate may suﬀ er the same fate as the fMRI Lie Detection method. A list of validated “evidentiary” polygraph techniques and their supportive research studies with sample size and accuracy rates can be reviewed and downloaded at www.mattepolygraph.com under the heading of “List of Vali-dated Polygraph Techniques with Accuracy Data.” Th e Court found that Dr. Laken’s exclusion of the ﬁ rst scan that indicated Deception in favor of the second and third scan that indicated truthfulness was not scientiﬁ cally and judicially acceptable. Th e court stated that Dr. Lak-en’s “decision to conduct a third test begs the question whether a fourth scan would have revealed Dr. Semrau to be deceptive again.” Dr. Laken’s explana-tion for the exclusion of the ﬁ rst scan was that the fMRI has a “Huge false Positive Problem” and the Court countered that this false positive problem could potentially justify continual re-testing on anyone until a “not decep-tive” result is obtained. Analogous to polygraph testing, the exclusion of a scan or chart should not be permitted unless there is excessive artifact that FMRI LIE DETECTION VALIDITY AND ADMISSIBILITY AS EVIDENCE IN COURT... 197impedes the production of suﬃ  cient physiological data for analysis within the framework of the technique’s protocol. Furthermore, the Court’s con-cern regarding the continual re-testing until the desired result is obtained is reminiscent of polygraph techniques that use a ﬁ xed score threshold that permits the successive collection of additional charts to reach the ﬁ xed score threshold. Especially vulnerable to attack by opposing counsel and rejection by the Courts are those techniques with a low ﬁ xed score threshold below +/-6. (Matte 1996, 2000, 2011). Conversely, those polygraph techniques that employ an increasing score threshold with each chart collected are not vul-nerable to such attack and rejection. (Matte 2013). Th e failure of Dr. Laken’s fMRI Lie Detection method to identify Dr. Sem-rau’s truthfulness or deception to speciﬁ c test questions further diminished the diagnostic value of the fMRI Lie Detection method. Dr. Laken could only generalize truthfulness to all of Dr. Semrau’s answers collectively. Th is is analogous to multiple-issue polygraph screening tests which have a bias against truthful examinees and thus require the use of a successive hurdle approach with a validated single-issue test to address unresolved autonomic responses. It becomes evident that fMRI Lie Detection suﬀ ers from a serious problem of false positives where the truthful examinee is erroneously found to be decep-tive. Th is author believes that ﬁ eld research studies using real-life incidents with signiﬁ cant consequences must be done before fMRI Lie Detection can be accurately evaluated and perfected to the extent that it would be competi-tive with polygraph testing. Th e criticisms levied against the fMRI Lie Detec-tion method by the Court of Appeals and cited scientists should serve notice to the polygraph profession as to what is expected and accepted as evidence in court. ReferencesBizzi E, Hyman S E, Raichle M E, Kanwisher N, Phelps E A, Morse S J, Sin-not-Armstrong W, Rakoﬀ  J S, Greely H T. (2009). Using Imaging To Identify Deceit: Scientiﬁ c and Ethical Questions. Cambridge, MA: American Academy of Arts & Sciences. Ekman P. (1985). Telling Lies – a How-To-Guide for All Th ose Who Want to Detect Lies. New York, NY: Berkley Books. Iacono W G. (2001). Forensic Lie Detection procedures without scientiﬁ c basis. Journal of Forensic Psychology Practice, 1(1); 75-86.JAMES ALLAN MATTE198Matte J A. (2013). Th e connection between score threshold, rate of incon-clusives and minimum number of charts required for decision of truth or deception. European Polygraph, 7, 1(23); 5-10. Matte J A. (2010). Guiding principles and benchmarks for the conduct of validity studies of psychophysiological veracity examinations using the poly-graph. European Polygraph, 4, 4(14); 173-198.Matte J A. (2011). Psychological aspects of the Quadri-Track Zone Com-parison Technique and attendant beneﬁ ts of its Inside Track. European Poly-graph, 5, 2(16); 41-60.Matte J A. (2000). Examination and Cross-Examination of Experts in Forensic Psychophysiology Using Th e Polygraph. Williamsville, NY: J. A. M. Publica-tions.Matte J A, Reuss R M. (1999). Validation of potential response elements in the directed-lie control question. Polygraph, 28(2): 124-142.Matte J A. (1998). An analysis of the psychodynamics of the directed-lie con-trol question in the control question technique. Polygraph, 27(1): 56-67.Matte J A. (1996). Forensic Psychophysiology Using Th e Polygraph: Scientiﬁ c Truth Veriﬁ cation – Lie Detection. Williamsville, NY: J.A.M. Publications.Matte J A. (1978). Quadri-Zone Comparison Technique. Polygraph, 7 (4); 266-280.National Research Council of the National Academies of Science (2003). Th e Polygraph and Lie Detection. Washington, D.C.: Th e National Academies Press. 

fMRI Lie Detection Validity and Admissibility as Evidence in Court and Applicability of the Court’s Ruling to Polygraph Testing

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fMRI Lie Detection Validity and Admissibility as Evidence in Court and Applicability of the Court’s Ruling to Polygraph Testing

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fMRI Lie Detection Validity and Admissibility as Evidence in Court and Applicability of the Court’s Ruling to Polygraph Testing

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Repozytorium Instytucjonalne Krakowskiej Akademii

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