Table Of ContentCoercive Brain-Reading in Criminal Justice
Emerging neurotechnology offers increasingly individualised brain information,
enabling researchers to identify mental states and content. When accurate and valid,
these brain-reading technologies also provide data that could be useful in criminal
legal procedures, such as memory detection with EEG and the prediction of recidivism
with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often
be reluctant to undergo brain-reading procedures. This raises the question of whether
coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading
in Criminal Justice examines this question in view of European human rights: the
prohibition of ill-treatment, the right to privacy, freedom of thought, freedom of
expression, and the privilege against self-incrimination. The book argues that, at present,
the established framework of human rights does not exclude coercive brain-reading.
It does, however, delimit the permissible use of forensic brain-reading without valid
consent. This cautionary, cutting-edge book lays a crucial foundation for understanding
the future of criminal legal proceedings in a world of ever-advancing neurotechnology.
Sjors Ligthart is an assistant professor in the Department of Criminal Law at Tilburg
Law School and a postdoctoral researcher at the Willem Pompe Institute for Criminal
Law and Criminology at Utrecht University. His research interests include human rights
over the mind and the legal implications of brain-reading, neurointerventions, virtual
reality, and persuasive technologies in criminal justice. He is the co-editor of Neurolaw:
Advances in Neuroscience, Justice & Security (2021).
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Published online by Cambridge University Press
LAW AND THE COGNITIVE SCIENCES
Law and the Cognitive Sciences publishes book monographs exploring connections
between law and the cognitive sciences. The books will be of interest to academics,
students, and practitioners, and in particular to the scholars in the fields of legal theory,
philosophy of law, psychology of law, the theory of law and artificial intelligence, general
theory of private and criminal law, and evidence.
General Editors
Bartosz Brożek, Jagiellonian University
Patricia Churchland, University of California San Diego
Jaap Hage, University of Maastricht
Francis X. Shen, University of Minnesota Law School
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Published online by Cambridge University Press
Coercive Brain-Reading in Criminal Justice
an analysis of european human rights law
SJORS LIGTHART
Tilburg University
Utrecht University
Published online by Cambridge University Press
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www.cambridge.org
Information on this title: www.cambridge.org/9781009252430
DOI: 10.1017/9781009252447
© Sjors Ligthart 2022
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2022
A catalogue record for this publication is available from the British Library.
ISBN 978-1-009-25243-0 Hardback
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accurate or appropriate.
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Contents
List of Tables page xi
Acknowledgements xiii
List of Abbreviations xv
1 Setting the Stage: Why ‘Reading’ Brains Raises Fundamental
Legal Questions for European Human Rights Law 1
1.1 Introduction 1
1.2 Coercive Brain-Reading in Criminal Law: Focus on Europe 4
2 Brain-Reading Technologies: Their Legally Relevant Features 9
2.1 Introduction 9
2.2 Brain-Based Lie Detection 10
2.2.1 Type of Information and Legal Relevance 10
2.2.2 Technological Features 11
2.3 Brain-Based Detection of Recognition: The P300-Based CIT 14
2.3.1 Type of Information and Legal Relevance 14
2.3.2 Technological Features 16
2.4 Brain-Based Diagnostics 19
2.4.1 Type of Information and Legal Relevance 19
2.4.2 Technological Features 21
2.5 Neuroprediction 23
2.5.1 Type of Information and Legal Relevance 23
2.5.2 Technological Features 25
2.6 Neural Representation of Real-Time Thoughts 26
2.7 Coercion: Physical and Volitional 27
2.7.1 Introduction 27
2.7.2 Coercion: Threats, Baselines, and (Coercive) Offers 29
2.8 Conclusion 34
vii
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viii Contents
3 Coercive Brain-Reading and the Prohibition of Ill-Treatment 35
3.1 Introduction 35
3.2 The Prohibition of Ill-Treatment (Article 3 ECHR) 36
3.3 Coercive Brain-Reading under the Prohibition of Ill-Treatment 39
3.3.1 Introduction 39
3.3.2 Coercive Forensic Brain-Reading: An Analogy with
Forcible Medical Procedures to Obtain Evidence 40
3.3.3 Forcible Medical Procedures to Obtain Evidence in
Light of Article 3 ECHR 41
3.3.4 Coercive Forensic Brain-Reading under the Prohibition
of Ill-Treatment 51
3.4 Conclusion 67
4 Coercive Brain-Reading and the Right to Respect for Private Life 68
4.1 Introduction 68
4.2 The Right to Respect for Private Life (Article 8 ECHR) 68
4.2.1 Introduction 68
4.2.2 Article 8(1) ECHR: The Right to Respect for Private Life 69
4.2.3 Article 8(2) ECHR: Justifying Infringements 76
4.2.4 Conclusion 78
4.3 Coercive Forensic Brain-Reading under the Right to Respect for
Private Life 79
4.3.1 Introduction 79
4.3.2 Coercive Forensic Brain-Reading: An Analogy with
Forensic DNA Testing 79
4.3.3 Forensic Collection and Storage of DNA in Light of
Article 8 ECHR 82
4.3.4 Coercive Forensic Brain-Reading under the Right to
Respect for Private Life 90
4.4 Conclusion 111
5 Coercive Brain-Reading and the Rights to Freedom
of Thought and to Freedom of Expression 112
5.1 Introduction 112
5.2 The Right to Freedom of Thought (Article 9 ECHR) 114
5.2.1 Introduction 114
5.2.2 Legal History 115
5.2.3 Case-Law and Literature 123
5.2.4 Conclusion 129
5.3 Coercive Brain-Reading under the Right to Freedom of Thought 130
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Contents ix
5.3.1 Introduction 130
5.3.2 Coercive Brain-Reading: An Analogy with Obligatory
Witness Testimonies 130
5.3.3 Would the Freedom of Thought Protect against
Coercive Forensic Brain-Reading? 132
5.3.4 Should the Right to Freedom of Thought Be Reconsidered? 134
5.3.5 Conclusion 138
5.4 Coercive Brain-Reading and the Right to Freedom of Expression 139
5.4.1 Introduction 139
5.4.2 The Right to Freedom of Non-expression (Article 10 ECHR) 140
5.4.3 Coercive Forensic Brain-Reading under the Freedom of
Non-expression 145
5.4.4 Synthesis 151
5.5 Conclusion 151
6 Coercive Brain-Reading and the Privilege against Self-incrimination 153
6.1 Introduction 153
6.2 The Privilege against Self-incrimination (Article 6 ECHR) 154
6.2.1 Introduction 154
6.2.2 Applicability of the Privilege 154
6.2.3 Violating the Privilege against Self-incrimination:
Three Relevant Factors 166
6.2.4 Conclusion 174
6.3 Coercive Forensic Brain-Reading under the Privilege against
Self-incrimination 174
6.3.1 Introduction 174
6.3.2 Applicability of the Privilege to Coercive Forensic
Brain-Reading 175
6.3.3 Violating the Privilege? 189
6.3.4 The Privilege’s Rationales 191
6.4 Conclusion 196
7 Procedural Implications of Brain-Reading in Breach of the
ECHR: Excluding Unlawfully Obtained Evidence? 198
7.1 Introduction 198
7.2 Unlawfully Obtained Evidence and the Right to a
Fair Trial (Article 6 ECHR) 198
7.2.1 Introduction 198
7.2.2 Evidence Obtained in Breach of Article 6 ECHR:
The Privilege against Self-incrimination 199
7.2.3 Evidence Obtained in Breach of Article 8 ECHR 201
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