Lawyer makes first use of polygraph-like technology as defenseChris Clayton
The National Law Journal
11-15-2000
The lawyer for a Nebraska man is trying to introduce brain wave technology as evidence to overturn his 22-year-old murder conviction in Iowa.
It's the first time someone has tried to enter into evidence the results of a test created by an Iowa psychiatrist, Dr. Lawrence Farwell.
Farwell, who calls his technology "brain fingerprinting," claims that it can detect memories stored in the human brain even if the subject doesn't want to recall them. A hearing this week at the Pottawattamie County Courthouse in Council Bluffs, Iowa, will be the first legal test for the technology. Prosecutors are fighting the attempt to enter new evidence in a 1978 murder conviction, including the results of a brain fingerprinting test.
"It's never been accepted into court yet, or even tried," said Mary Kennedy, the defense attorney from Waterloo, Iowa, who is seeking to get the test admitted. "The court will decide whether this technology should be used for the post-conviction hearing."
People who undergo Farwell's tests wear headbands equipped with sensors connected to an amplifier that feeds brain-wave data into a computer. The system shows a person's response, or lack of response, to information about an event -- shown in words or pictures -- that appears on a screen. Farwell says the person's brain triggers a MERMER (memory and encoding-related multifaceted electroencephalographic response). The presence of a MERMER, displayed in lines on a computer screen, shows whether the person does or does not have memories of an event.
The defendant, Terry Harrington, 41, was convicted in 1978 of shooting to death a retired police officer in a botched late-night attempt to steal cars from a dealership in Council Bluffs.
Harrington says he was at a concert the night of the shooting and was identified as the shooter through false testimony. In May, Harrington underwent Farwell's test at the Iowa State Penitentiary in Fort Madison. According to Farwell's Web site, Harrington showed no knowledge of the crime scene or of the murder. But information from Harrington's brain did show that he remembered attending a concert with friends on the night of the murder, according to Farwell's Web site.
Farwell claims a statistical confidence of 99.9 percent for the test. On the Web site, http://www.brainwavescience.com/, Farwell says that his technology has undergone significant testing.
Pottawattamie County Attorney Rick Crowl would not comment on the case. In court filings, he is seeking to dismiss brain fingerprinting as "novel scientific evidence" that has not been adequately tested. Crowl argues that there is a known rate of error for the technology and that brain fingerprinting is not accepted in the scientific community. He has lined up expert skeptics to testify.
One skeptic is Dr. Charles Honts, chairman of psychology at Boise State University and an expert on polygraph testing. He said there hasn't been enough study of the technology.
"He currently claims the testing is 100 percent accurate, and I think that's outlandish," Honts said. "Nothing involved with human beings is 100 percent."
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