Brain Fingerprinting - Use in Criminal Investigation

Use in Criminal Investigation

Farwell's brain fingerprinting has been ruled admissible in court in the reversal of the murder conviction of Terry Harrington (Harrington v. State 2001, Farwell & Makeig 2005). Following a hearing on post-conviction relief on November 14, 2000, an Iowa District Court stated that the fundamental science involved in Dr. Farwell's brain fingerprinting P300 test was well established in the scientific community. For a range of reasons, however, the court dismissed the defendant's petition for a new trial.

In order to be ruled admissible under the prevailing Daubert standard established by the US Supreme Court, the District Court required proof that brain fingerprinting is 1) tested and proven, 2) peer reviewed and published, 3) accurate and systematically applied, and 4) well accepted in the relevant scientific community. In ruling the brain fingerprinting test as scientific evidence admissible, the Court stated the following:

"In the spring of 2000, Harrington was given a test by Dr. Lawrence Farwell. The test is based on a 'P300 effect'."

"The P-300 effect has been recognized for nearly twenty years."

"The P-300 effect has been subject to testing and peer review in the scientific community."

"The consensus in the community of psycho-physiologists is that the P300 effect is valid."

"The evidence resulting from Harrington's ‘brain fingerprinting’ test was discovered after the fact. It is newly discovered."

(Harrington v. State 2001)

As the Iowa District Court clearly stated, the results of the brain fingerprinting test on Harrington constituted "evidence" that the court admitted. Dr. Farwell's testimony as an expert witness and the testimony of the other two expert witnesses in the case also were admitted as evidence. The Iowa court admitted the brain fingerprinting evidence and Dr. Farwell's testimony on it under the Daubert standard.

Several authors of law articles have examined the admissibility of brain fingerprinting evidence in the Harrington case in depth and detail, and summarized the outcome as follows.

"The Judge in Harrington ruled Brain Fingerprinting admissible under Daubert after conducting a day-long hearing featuring three expert witnesses, each renowned in his field." (Roberts in ‘’Yale Journal of Law and Technology ‘’2007, p. 265)

"In ‘’Harrington ’’, the court admitted Dr. Farwell's testimony on brain fingerprinting and stated that it satisfied the ‘’Daubert ’’ test." (Moenssens in ‘’University of Missouri-Kansas City Law Review’’, p. 26)

"he court admitted Brain Fingerprinting evidence based upon the P300 effect…" (Erickson in ‘’Drake Law Review’’, p. 13)

The court noted the distinction, however, between admissibility and weight. In light of the circumstances of a particular case, admissible evidence does not always have sufficient weight to produce a verdict in favor of the side which proffers the evidence. Although the court ruled brain fingerprinting admissible, the court ruled that the weight of the brain fingerprinting evidence and other evidence proffered by Harrington would probably not have been sufficient to change the verdict in the original trial.

"The court determined that Brain Fingerprinting was new evidence not available at the original trial, and that it was sufficiently reliable to merit admission of the evidence; however, the court did not regard its weight as sufficiently compelling in light of the record as a whole as meeting its exacting standard, and thus it denied a new trial on this and the other grounds asserted by Harrington."(Farwell and Makeig in Open Court, p. 9)

The court ruled in Harrington's favor on two major issues, but nevertheless denied him a new trial. The court ruled brain fingerprinting and the testimony of the expert witnesses on it were admissible, and also admitted the recantation testimony of the only alleged witness to the crime, yet nevertheless denied Harrington's petition for a new trial. Regarding this rather complicated ruling, one commentator opined that "he Harrington court avoided a clear ruling on admissibility" (Denno 2002) of the test.

Harrington appealed to the Iowa Supreme Court. The Iowa Supreme Court reversed the trial court and granted Harrington a new trial. (Harrington v. State 2003, p. 516) The supreme court did not reach the brain fingerprinting issue, and decided the case on other grounds. "Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration." (Harrington v. State 2003, p. 516)

Although the Iowa Supreme Court did not rule on brain fingerprinting, they allowed the law of the case established by the district court to stand, implicitly including the district court's finding regarding the "newly discovered" "evidence" "resulting from Harrington's Brain Fingerprinting test." (Harrington v. State 2003)

Due to a constitutional rights violation, specifically a Brady violation, by the State of Iowa in the original trial, the Iowa Supreme Court awarded Harrington a new trial. The only alleged witness to the crime, Kevin Hughes, recanted when Dr. Farwell confronted him with the "information absent" results of the brain fingerprinting test on Harrington. Without its star witness, the state subsequently dismissed the murder prosecution without prejudice for lack of evidence due to witness recantations and the passage of time.

The State of Iowa had argued unsuccessfully in trial court that the brain fingerprinting results should not be considered admissible "evidence," whether "newly discovered" or not (Harrington v. State 2001). After the Supreme Court reversed Harrington's conviction and granted him a new trial, the Iowa Attorney General's Office issued a press release restating this position, and also restating the fact that the Iowa Supreme Court did not rule on brain fingerprinting.

"With one Justice dissenting, the Supreme Court reversed Harrington's conviction on the ground that the failure to disclose police reports denied defendant a fair trial. The Court ruled that withholding the reports compromised Harrington's defense at trial that he was not the person who shot Mr. Schweer."

"The Court also declined to rule on the admissibility or credibility of the "brain fingerprinting" evidence offered by Harrington. In its brief and argument to the Court, the State argued that brain fingerprinting is "junk science" that has no track record establishing its reliability. The State argued that the technique has been tested in the lab with fewer than 200 persons and has been used in the field in only a handful of cases. The State argued the technique should be treated similarly to lie-detector tests, which are inadmissible in Iowa and most other states. The Iowa Supreme Court did not determine the reliability of brain fingerprinting and did not rule on the admissibility of brain fingerprinting in Iowa courts." (Press release by Iowa Attorney General's Office)

In his recantation, Hughes stated under oath under questioning by Farwell that the detectives and prosecutors had told him he would go to prison for life if he didn’t implicate Harrington. He stated that when he agreed to falsely accuse Harrington of the murder, they coached him in fabricating the story to which he later testified in the trial. He stated that when he said something that contradicted known facts – such as identifying the wrong murder weapon – they corrected him, and he changed his story accordingly. (Harrington v. State 2001)

Harrington sued the prosecutors and the State of Iowa for framing him. The prosecutors and the State of Iowa did not deny the accusations brought by Hughes and Harrington. Their defense was that they enjoyed absolute immunity due to their professional positions. The US Supreme Court agreed to hear the case on the issue, as ‘’TIME magazine’’ put it, of "When Is It Legal to Frame a Man for Murder?" (TIME Magazine article on Harrington) (TIME 2009). Before the Supreme Court heard the case, however, the State of Iowa settled with Harrington and another man falsely convicted of the same crime. The state paid them a $12 million settlement (L A Times 2010).

Brain Fingerprinting testing was also "instrumental in obtaining a confession and guilty plea" from serial killer James B. Grinder, according to Sheriff Robert Dawson of Macon County, Missouri. In August 1999 Dr. Farwell conducted a brain fingerprinting test on Grinder, showing that information stored in his brain matched the details of the murder of Julie Helton (Dalbey 1999). Faced with a certain conviction and almost certain death sentence, Grinder then pled guilty to the rape and murder of Julie Helton in exchange for a life sentence without parole. He is currently serving that sentence and has also confessed to the murders of three other women.