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Brain Fingerprinting:

A Reliable New Technology in Criminal Investigation?

by Gary Boynton

© 2015 - All Rights Reserved

brain fingerprint

Imagine if police and intelligence agencies could read the minds of suspected criminals and terrorists. That is exactly what Dr. Larry Farwell and his Brain Fingerprinting Laboratories, in Seattle, Washington, claim to be able to do. And as far out as that claim seems, more and more government agencies around the world are buying it, both literally and figuratively. However, there are skeptics in both the neuroscience and legal communities.

Origins of Brain Fingerprinting

Dr. Larry Farwell, son of late physicist Dr. George Farwell, is a Harvard Graduate, and was a Harvard Research Associate before earning his Ph.D. in biological psychology from the University of Illinois at Urbana-Champaign in 1992. While in graduate school, originally to help a paralyzed boy who fell off of a silo communicate, Farwell invented the first EEG-based brain-computer interface, or BCI. BCIs allow a person to communicate directly from his brain to a computer and speech synthesizer.

Farwell’s interest in how brain waves record memory initially led him into research on Alzheimer’s disease and related conditions. He also explored the potential of BCI technology in market research before conducting Brain Fingerprinting research for the FBI, CIA, and U.S. Navy, and publishing his findings in such peer-reviewed journals as Journal of Forensic Sciences, Psychophysiology, and Cognitive Neurodynamics.

In 2000, Farwell was named one of TIME Magazine’s “TIME 100: The Next Wave,” the top innovators who may be the “Picassos or Einsteins of the 21st Century.” Two years later he co-founded Iowa-based Brainwave Science, LLC. He moved back to his hometown of Seattle, Washington, in 2004. There he established and renamed his firm Brain Fingerprinting Laboratories, Inc.

How Brain Fingerprinting Works

The key to Brain Fingerprinting is a brain wave called the P-300, which is immediately activated in the brain when a person sees a familiar object, scene, or phrase. A test is conducted by putting a headband of electrodes from an EEG on the subject, and then using a laptop computer to show him or her a series of photos and phrases. These are classified into three categories: irrelevant, target and probe. The irrelevant photos or phrases have nothing to do with the subject or the case. The target photos or phrases are ones to which the subject will respond. The probe photos or phrases are directly related to the case and not known to the general public. These probe photos and phrases, which are carefully selected from among all the evidence provided by investigators, can include such obvious things as the weapon used or the location of the body. However, they can also include other objects or actions from the crime scene that are not directly related to the crime itself, but which are only known to investigators or the perpetrator of the crime.

Each photo or phrase is flashed on the screen for just a fraction of a second. If the subject has any memory of what is contained in a photo or phrase, it should elicit a MERMER (Memory and Encoding Related Multifaceted Electroencephalographic Response), a brain wave pattern indicative of familiarity. The P-300 MERMER, with both a peak and a valley, is longer and more complex than the basic P-300 brain wave. During a Brain Fingerprinting test, its information is recorded by the EEG, then run through a mathematical algorithm which objectively determines a finding of “information present” or “information absent.”

In 1999, Brain Fingerprinting helped convict a serial killer. After fifteen years and more than 10,000 man-hours, investigators in Macon County, Missouri were still unable to arrest their primary suspect, J.B. Grinder, for the murder of Julie Helton. Sheriff Robert Dawson turned to Dr. Farwell and his Brain Fingerprinting for assistance. Farwell’s tests indicated that Grinder’s brain did indeed contain guilty knowledge of the murder. A week after being confronted with the results, Grinder not only confessed to Helton’s murder, but to three other unsolved cases as well.

Admissibility of Brain Fingerprinting

The admissibility standard by which Brain Fingerprinting and any other new technologies are judged is based on the U.S. Supreme Court’s 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals. According to Daubert, it is up to the trial judge to determine that any new technology is both reliable and relevant.

In 2000, Brain Fingerprinting was used to overturn the conviction of Terry Harrington, who had served twenty-three years in prison for the murder of a security guard at a car dealership in Iowa. The tests on Harrington showed photos related to the crime did not elicit a MERMER, indicating no memory of the events they depicted. After hearing Dr. Farwell and two other experts testify, Pattawattamie County District Court Judge Tim O’Grady ruled these test results as admissible in Harrington’s petition for a new trial, because they met the standard of being both newly discovered and material to the issues in the case. The Iowa Supreme Court reversed Harrington’s conviction and called for a new trial, leaving Judge O’Grady’s ruling intact.

As if this were not dramatic enough, when Dr. Farwell confronted the key witness with Harrington’s test results, the witness admitted he had lied about Harrington’s involvement in order to avoid being arrested for the murder himself. Given the Brain Fingerprinting evidence and recanted testimony, prosecutors declined to retry Harrington and he was released from prison. He then sued the city, county, and state for framing him. His civil case went all the way to the U.S. Supreme Court before a multi-million dollar settlement was reached.

Things didn’t go as well for Brain Fingerprinting in Oklahoma. As documented on the May 4, 2004 episode of PBS’s Innovations series, attorneys for a death row inmate named Jimmy Ray Slaughter tried to use Dr. Farwell’s tests to prevent Slaughter’s execution for the murder of his lover and their infant daughter. According to Farwell, his Brain Fingerprinting tests indicated that Slaughter lacked knowledge of some key features of the crime, including the location of the victims’ bodies.

Oklahoma County Assistant District Attorney Richard Wintory dismissed the results of the Brain Fingerprinting test as deeply flawed. He convinced the state Court of Criminal Appeals to reject the results of Dr. Farwell’s tests, despite the doubts they raised, and to allow Slaughter’s execution. Slaughter continued to proclaim his innocence right up until his death by lethal injection. Farwell’s college mentor, Dr. Emmanuel Donchin, also appeared on that PBS show, saying that Brain Fingerprinting tests should still be kept in the laboratory, pending further research.

Other Uses of Brain Fingerprinting

Another proposed use for Brain Fingerprinting is in counter-terrorism. A test conducted on FBI agents was deemed over 99 percent accurate in determining which of them had knowledge of certain information not released to the general public. Farwell says his tests can determine if someone has insider knowledge of a terrorist group, or technical knowledge of bomb-making or weapons specific to those involved in terrorist activities.

Brain Fingerprinting technology has been looked at by the Department of Homeland Security, and the U.S. Secret Service. It has been purchased by the Florida State Police, and has drawn interest from many other law enforcement agencies across the country. Foreign countries have shown similar enthusiasm for the technology, including India, where it has passed their lower standard for use in court; Singapore, where it has been purchased by their national police; Australia; and several Middle Eastern allies of the U.S.

Dr. Farwell has tested Brain Fingerprinting on over two hundred cases, about half in the laboratory and half in real-life situations. His work has helped clear suspects and forced others to plea-bargain. He foresees a future in which his technology will be used much more widely, helping law enforcement and anti-terrorism officials avoid wrongful accusations while saving time and money in the process. Training more individuals in its use is a top priority for Dr. Farwell.

Other Critics

Dr. Farwell’s former mentor and the Oklahoma prosecutor are not the only critics of Brain Fingerprinting. Some, in the neuroscience community, such as Dr. J. Peter Rosenfeld of Northwestern University, have challenged it as unproved or at least not ready for prime time. Others, in the legal and civil liberties communities, find it fundamentally intrusive, defending what they see as a basic right to the privacy of one’s own thoughts.

Dr. Farwell defends against charges that the science behind Brain Fingerprinting is not sufficient for real-world use by by citing the eight hours of testimony and hundreds of pages of documentation that convinced the trial judge in the Harrington case. He also acknowledges that some of his fellow researchers are just more comfortable in a laboratory setting. While he understands that mindset, Farwell says there is a mounting cost in delaying implementation of his research. Serial killers like J.B. Grinder will get away with murder, innocent people will die, or there will be more wrongfully convicted men like Terry Harrington.

“Discontinuing or delaying…Brain Fingerprinting’s use in bringing criminals and terrorists to justice and exonerating the innocent would be a serious setback to justice and security,” Farwell says.

As to fears that Brain Fingerprinting might be used in some Orwellian way, Farwell points out that all Brain Fingerprinting tests are voluntary, physically unobtrusive, and objective. He says a lot of his critics, as well as some of his supporters, wrongfully think Brain Fingerprinting will eventually be used to determine guilt or innocence all by itself. His techniques, however, simply show whether a memory is present or not, and should be used as one more piece of evidence, weighed by the finders of fact in each particular case.

Dr. Farwell compares Brain Fingerprinting to standard fingerprinting and to DNA. They all involve looking for something connecting an individual to a crime scene. But unlike DNA or fingerprints which are found in less than 1% of crime scenes, Brain Fingerprinting’s uses can be more universal. Farwell says Brain Fingerprinting can be used both in the initial phases of an investigation, to include or exclude certain individuals as suspects, or for post-conviction relief, as in the Harrington case.

The Future of Brain Fingerprinting

Despite his critics, Dr. Farwell and his supporters in both the scientific and law enforcement communities have continued to promote Brain Fingerprinting far and wide. He met with President George W. Bush to discuss Brain Fingerprinting for national security purposes; and Senator Charles Grassley of Iowa, Chairman of the Judiciary Committee, also expressed an interest in the technology. In addition to PBS’s Innovations, Dr. Farwell has appeared on ABC’s Good Morning America, CBS’s 60 Minutes, the Discovery Channel, Fox News and CNN, and he and his work have been written about in The New York Times, U.S. News and World Report, and various other newspapers, magazines, and law enforcement publications.

In recent years, many investigative tools, including the polygraph, voice-stress analysis, blood-spatter analysis, and some core tenets of arson investigation, have been disputed or dispelled by scathing reports from the National Academy of Sciences, Congressional investigations, and the media. Add a variety of scandals at the FBI Crime Lab, and some state and local forensic labs, and things don’t look as certain, objective, and scientific in the world of forensics as TV shows, like CSI, would have us believe.

Given this climate, any new forensic technology will most likely face even greater scrutiny before being routinely accepted by the courts. Even so, Brain Fingerprinting appears to be here to stay. PnC

Sponsored Links:

Investigative Techniques: Federal Agency Views on the Potential Application of 'Brain Fingerprinting': GAO-02-22

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