Responsible Innovation in Social Epistemic Systems: The P300 Memory Detection Test and the Legal Trial

Abstract

Memory Detection Tests (MDTs) are a general class of psychophysi--ological tests that can be used to determine whether someone remembers a particular fact or datum. The P300 MDT is a type of MDT that relies on a presumed correlation between a detectable neural signal (the P300 "brainwave") in a test subject, and the recognition of those facts in the subject's mind. The P300 MDT belongs to a class of brain--based forensic technologies which have proved popular and controversial in recent years. With such tests increasingly being proffered for use in the court--room - to either support or call into question testimony - it would be--hoove the legal system to have some systematic framework for ensuring that they are used responsibly. In this paper, I defend one such frame--work for ensuring that this is the case: the legitimacy enhancing test. Ac--cording to this test, it is appropriate to make use of technologies such as the P300 MDT whenever doing so would (probably) enhance the legiti--macy of the trial. I argue that this test addresses tensions between scien--tific and legal norms of evidence, and exhibits a number of additional vir--tues including unification, simplicity and flexibility.