EVERYTHING NEW IS OLD AGAIN: BRAIN FINGERPRINTING AND EVIDENTIARY ANALOGY

Abstract

Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how fact-finders perceive and evaluate unfamiliar types of proof When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an aid to understanding and functions instead as an obstacle to knowledge. This Note explores the ways in which evidentiary analogy may insidiously shape how courts treat novel forms of scientific evidence.