Hannah Martens

Philosophy 401:
Ethics of Neuro-Engineering
Professor Specker-Sullivan
April 29th, 2016

Mens Rea ex Machina

An Ethical Analysis of the BEOS Guilty Knowledge Test

A neuroengineering technology claiming to be able to detect a guilty mind is currently being used

for criminal conviction in India. The Brain Electrical Oscillatory Signature (BEOS) test is playing a large

role in convictions made for several murder trials in Indias courts, and has recently received several pretrial

hearings in the United States to determine its admissibility to American courts (Laris, Giridharadas). The

existence and application of this technology raises important ethical questions based on concerns for persons

and their autonomy, privacy, and individual right; issues of the technologys scientific validity; and the

societal implications of the technology in application.

The BEOS test is system, developed in India, which uses changes in EEG signals from an electro-

encephalogram to determine if an accused individual possesses guilty knowledge. Specifically, the BEOS

claims to analyze and interpret the extensive changes in the electrical oscillation of the brain from regions

which are known to engage during a reliving or remembrance of the individuals experiences (Natu). The

BEOS test elicits EEG oscillations which are used to a determine a guilty brain by attaching 32 electrodes

to the suspects head and providing stimulus through the use of probes, i.e. short questions intended draw

out any experience of the crime from the accuseds brain. The subject, under a BEOS based interrogation,

does not speak to answer the questions, rather the only information obtained from the accused is the EEG

signals, and there is no manual interpretation of the signals, it is exclusively done by the BEOS program

(Natu).

A technology such as BEOS, whichassuming it functions as advertisedcan reach into the

individuals mind and gather details of an incredibly intimate or revealing nature from uncontrolled,

automatic brain activity. Certain information is of a level so intimate that it is often seen as morally wrong to

violate it by accessing without the informed consent of the individual. This issue as raised by BEOS is
particularly acute because the test is a covert violation in that it mines information, experiential

knowledge as informed by changes in brain activity, which the individual agent cannot consciously know

or control. It seems to degrade the principle of respect for persons by imposing upon an individual a

technology with the capacity to wrench away the protection, retreat, and privacy of their thoughts and

memories, and to turn these against the individual as evidence of guilt. It functions almost as a double

violation: violation of the persons autonomy by taking and using their innermost elements, seen perhaps in

parallel to the idea of a violation of bodily autonomy, and as a violation of property, in accessing the most

private and intimate elements of a persons intellectual property. Memories, thoughts, the mind itself is seen

and known today as holding in it the essence of a person, and to have the unconscious patterns and

mechanisms of it exploited seems to go against the respect for persons, their autonomy and privacy.

BEOS is a technology which has yet to be scientifically validated. This raises the issue that it is

wrong to use a technology which might not actually work, specifically to convict someone. The

consequences of conviction are many and far reaching, especially in the big news murder trials which

currently use the BEOS test, meaning that the validity of the technology is of special moral importance,

given the issue of wrongful conviction or punishment. The BEOS test has yet to meet the standards of the

scientific community for validity on the grounds of a lack of peer review in publication and a lack of

replications by objective parties which produce the same results. It has also been challenged on its failure to

possess truly objective testing methods. Further than that, it seems purely contrary to reality to say that

guilt can be seen on the brain, since guilt is a product of judgment and not observation. Failure to meet

these standards calls into question both if the technology actually does what it claims to and if it has the

level of accuracy which it is asserted to possess. The use of BEOS, in cases such as that of Aditi Sharma (a

business student convicted of murdering her ex-fianc) which lean heavily on the evidence from the test, is

morally suspect. Without the backing of scientifically endorsed justification and validation, the application

of the technology is highly concerning because it violates the important value of justicethe the legal or

philosophical theory by which fairness is administered (Natu). The reality of injustice in the use of the

current BEOS test, while touted for accuracy (reported 95% accuracy), is seen in the tests reliance on
probes or cues generated by the police and the prosecutor. The nature of the probing process means that

the test is subject to implicit biases relating both to the suspects demographics and their preemptively

perceived guilt. So much so in fact that, according to Zara Bergstrom (a psychologist at the University of

Kent), depending on how you select cues, you can find what you want to find, (Cox). It cannot be just to

punish someone when the evidence for their actions fails to meet the standards for legitimacy and

objectivity.

The use of BEOS testing generates ethically relevant impacts on society in addition to the concerns

for individuals and for justice. A high concern is that there is the potential for misuse or over use which

could run contrary to justice. This must be weighed against the potential benefit to the security of society.

The test threatens individual rights and protections given its potential misuse or overuse, yet it also offers

the potential to do great good for society as a whole by both preventing wrongful convictions and ensuring

the security of society. It would accomplish this by making the conviction of guilty persons more efficient as

well as more accurate, and by expanding its application not only to the criminal justice system, but to

identify other violent societal threats such as terrorists. It can be seen as a consequentialist dilemma, and this

means that under varying conditions the moral validity of the technology will vary. In each situation there

must be both an assessment to determine if the cost benefit analysis shows greater benefit is produced by

using it over not using it. In undergoing analysis, it is also important to weigh in the fact that criminals, as a

devalued group in society, are often perceived as being undeserving or less deserving of those

considerations which protect them against violations of their individual autonomy and rights, respecting

them as persons. This means that the potential consequence of misuse is even higher because criminals are

particularly vulnerable in this dilemma.

The impact of the BEOS test on the whole of the judicial system also raises an important point. The

test is presented as hard science, making it incredibly compelling evidence to juries. Neuroscientific

evidence is seen as the new DNA evidence, and like DNA could lead to absolute and unquestioning belief

in a defendants guilt (or innocence) on the basis of a test result, and in this case, a test result which

possesses questionable validity. What is truly concerning about the way in which jurors have been seen to
unquestioningly accept brain scans and EEG analyses is the direction it leads the court system. If the BEOS

test becomes so thoroughly accepted as the be all end all of knowing the guilty from the innocent by jurors,

then what purpose do jurors serve in this equation? In a pragmatic sense it seems that it would be more

objective and more efficient to replace the jury, whose role it is to determine guilt, with the BEOS test. Even

with these potential benefits, it is important and significant to maintain the human elements of criminal

justice system because humanity is so much more complex than a machine, and as such it seems to follow

that humans are much more finely tuned to the task of judging other humans, and thus it seems to be at least

morally concerning to contemplate the ease with which society might adopt a brain lie detector.

The case of the BEOS technology, its current and potential applications and impacts clearly

demonstrate ethical significance in the areas of respect for persons, their autonomy and privacy; in the worry

of utilizing a technology which seems to lack sound scientific and logical validity; and creates worrying

social implications such as the potential for misuse and the worry that we will replace vitally human

functions with machines. This technology promises a double edged sword, and the question must be asked:

will we ever find mens rea ex machina, the guilty mind from the machine, and do we ever want to?

Works Cited:

Cox, David. "Can Your Brain Reveal You Are a Liar?" BBC. BBC Future, 25 Jan. 2016. Web. 29 Apr.
2016.

Giridharadas, Anand. "Indias Novel Use of Brain Scans in Courts Is Debated." The New York Times. The
New York Times, 14 Sept. 2008. Web. 29 Apr. 2016.

Laris, Michael. "Debate on Brain Scans as Lie Detectors Highlighted in Maryland Murder Trial."
Washington Post. The Washington Post, 26 Aug. 2012. Web. 29 Apr. 2016.

Natu, Nitasha. "This Brain Test Maps the Truth - Times of India." The Times of India. The Times of India,
TTN, 21 July 2008. Web. 30 Apr. 2016.