Responsible innovation in social epistemic systems: The P300 memory detection test and the legal trial

Abstract

Memory Detection Tests (MDTs) are a general class of psychophysiological tests that can be used to determine whether someone remembers a particular fact or datum. The P300 MDT is a type of MDT that relies on a presumed correlation between a detectable neural signal (the P300 “brainwave”) in a test subject, and the recognition of those facts in the subject’s mind. The P300 MDT belongs to a class of brain-based forensic technologies which have proved popular and controversial in recent years. With such tests increasingly being proffered for use in the courtroom-to either support or call into question testimony-it would behoove the legal system to have some systematic framework for ensuring that they are used responsibly, and for this framework, in turn, to play a part in future research and development of this technology. In this paper, I defend one such framework for ensuring that this is the case: The legitimacy enhancing test. According to this test, it is appropriate to make use of technologies such as the P300 MDT whenever doing so would (probably) enhance the legitimacy of the trial. I argue that this test addresses tensions between scientific and legal norms of evidence, and exhibits a number of additional virtues including unification, simplicity and flexibility.