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Farwell BrainFingerprinting in the case

of Harrington v. StateLawrence A. Farwell,l PhDThomas H. Makeig,counsel to Dr. Farwell 2

ln Harrington v. State, Case No.PCCV 073247 (lowa District Court forPottawattamie County, March 5,2001), petitioner Terry Harringtonsought to overturn a 1978 murder con-viction on several grounds, includingan allegation that newly discoveredevidence in the form of Farwell BrainFingerprinting@ entitled him to a newtrial.

Standard of review. To obtain re-lief, the petitioner had to show that thenewly discovered evidence was un-available at the original trial, and thatthe new evidence, if introduced at thetrial, would probably change the ver-dict. Additionally, in view of the factthat the proffered evidence consistedof a novel forensic application ofpsy-chophysiological techniques, the courtwas required to determine whether thisscientific evidence was sufficientlyreliable to merit admission into evi-dence and, if admitted, whether theweight of the scientific evidence wassufficiently compelling to change theverdict.

The U.S. Supreme Court has heldthat the standard for admissibility ofnovel scientific evidence is a showingof reliability based on (1) whether atheory or technique can be (and hasbeen) tested; (2) whether it has beensubjected to peer review and publica-tion; (3) whether, in respect to a par-ticular technique, there is a known orpotential rate of error, and whetherthere are standards controlling thetechnique's operation; and (a) whetherthe theory or technique enjoys generalacceptance within a relevant scientificcommunity. Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579,

594 (1993) (construing Federal Ruleof Evidence 702). T\e Iowa SupremeCourt has not formally endorsed thisfederal evidentiary standard, but inLeaf v. Goodyear Tire & RubberCo., 590 N.W.2d 525, 533 (Iowa1999), it announced that the Iowacourts may use the Dauberl factorsin assessing the admissibility of novelscientific evidence.

Description of Brain Fingerprinting.

Farwell Brain Fingerprinting@ is areal-time psychophysiological assess-ment of a subject's response to stimuliin the form of words or pictures pre-sented on a computer monitor. As aforensic method, the test assesses thesubject's knowledge of a crime sceneor of the instrumentalities or fruits ofa crime, and it can also be used to as-sess knowledge of the particulars ofan alibi scene or sequence of events.In the homeland security field, it canbe used to detect knowledge of spe-cific training or inside information, e.g.,knowledge of Al-Qaeda terrorist train-ing or the intemal workings and per-sonnel in a particular terrorist cell.

Brain Fingerpr int ing useselectroencephalography (EEG) tomeasure event-related potentials,known as the P300 (electrical eventsbeginning 300 milliseconds after expo-sure to a stimulus), that are charac-teristic of the information processingthat accompanies recognition of stimuliin comparison to a remembered con-text. Dr. Farwell has extended theanalysis of this event-related potentialfurther in time to take account of ad-ditional information that has not beenanalyzed hitherto, and he refers to thisextension of the P300 as a"MERMER" ("memory and encodinerelated multifacetedelectroencephalographic response").Just as a personal computer emits acharacteristic sound whenever its cen-tral processing unit is transferring in-formation from or to the hard drive,

the human brain emits a characteris-tic P300 (and MERMER) electrical re-sponse whenever the subject respondsto a stimulus by updating his memorycontext to take account of the stimu-lus. The P30O/MERMER response isnot evoked when the stimulus is irrel-evant to the subject's memory context.

Accordingly, if the person is a wit-ness to or perpetrator of the crime, hisresponse to stimuli that betray accu-rate details of the crime ("probes") willevoke a P3O0/MERMER response.Other items known to the person re-gardless of whether he was presentat the crime ("targets") also evoke theresponse and permit the tester to es-tablish a baseline from which to com-pare the person's responses to theprobes. Other stimuli that have norelevance either to the crime or to any-thing in the subject 's memory("irrelevants"), establish a baseline fora flat response (no P3OO/MERMERevoked). The signals obtained fromthe subject's response to multiple pre-sentations of approximately one dozeneach of probes and targets, and twiceas many irrelevants, are averaged us-ing analytical tools that are standardin the field of EEG psychophysiology.In this way, an overall result is ob-tained, demonstrating whether theprobes have evoked a P300/MERMER recognition response or aflat non-recognition response.

A similar test can be administeredto probe the subject's alibi defense;however, in the case of an alibi, all thatcan usually be determined is whetherthe alibi story has validity as thesubject's remembered experience: it isnot usually possible to determinewhether the exact timing of the alibiexperience places the subject awayfrom the crime scene at the time ofthe crime.

Brain Fingerprinting, using stan-dard P300 analysis, typically yields an"information present" or "informationabsent" result with a statistical confi-

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dence in excess of 957o (and usuallyhigher than 99Vo), and Dr. Farwell isable to increase the confidence factorwhen utilizing the additional signal in-formation contained in the MERMER.In research trials and real-life appli-cations, Brain Fingerprinting has atrack record of more than 150 correctdeterminations of "informationpresent" or "information absent," andno incorrect results. In about 37o ofcases the test's analytical methods re-turned an indeterminate result, with nocommitment to "information present"ot "information absent". About halfof these tests were laboratory trialswherein the information detected wasrelated to a laboratory experiment(e.9., a mock crime), and half of thetests were real-life tests of informa-tion acquired by the subject/suspect inthe course of daily life urnelated to anylaboratory experiment. Dr. Farwellconducted three scientific studiesfunded by the CIA, one with the USNavy, and two in collaboration withFBI scientists in which the subjectswere FBI agents. In the FBI, CIA,and Navy studies, there were no falsepositives, no false negatives, and noindeterminate results; all results werecorrect. Results were published inleading scientific journals in psycho-physiology and forensic science.

The availability of fresh, salient,and detailed probes is essential to theefficacy of the test. Indeed, it is an-ticipated that, once the reliability of thescience underlying Brain Fingerprint-ing is established, the principal line ofattack for parties opposing the use ofa Brain Fingerprinting test result in atrial will be to challenge the eviden-tiary value of the specific probes thathave been employed. Note that this isa challenge not of the scientific pro-cess of Brain Fingerprinting testing, butof the investigation into the crime, aprocess that precedes the scientificBrain Fingerprinting testing and thatdiscovers and specifies the crime-rel-evant information embodied in the

probes. Dr. Farwell acknowledgesthat Brain Fingerprinting cannot besuccessfully applied in cases where thesubject has been exposed to all theknown details of the crime scene, fruitsand instrumentalities in circumstancesunrelated to committing the crime. Insuch a case, no viable probes wouldbe available, since probes by defini-tion involve information that the sus-pect denies knowing by virtue of non-participation in the crime. Without suchprobes, a Brain Fingerprinting testwould not be conducted.

The Brain Fingerprinting assessmentof Harrington. 3

In the Harr ington case, Dr.Farwell developed a series of probesfor the crime scene, and a separateseries of probes for the petitioner'salibi, from previously undisclosed po-lice files. Dr. Farwell administered thetest to Harrington in May 2000 and, inOctober 2000, he rendered a report tothe Iowa District Court analyzingtheMERMER responses. Dr. Farwellsupplemented the report with a sepa-rate analysis based solely on P300 sig-nals on November 10, 2000. Bothanalyses produced a result of "infor-mation absent" regarding the crimescene probes and " informationpresent" regarding the alibi probes,with a high degree of statistical confi-dence (over 99Vo).

Proceedings in the Iowa Disfict Court.

The District Court held a one-dayhearing on the BrainFingerprinting evi-dence on November 14,2000. Thecourt took preliminary testimony onDr. Farwell's credentials, the efficacyof the test and the reliability of the un-derlying science. The court also ex-amined the test results, subject to alater determination whether this sci-entific evidence was sufficiently reli-able to be admissible.

At the November 14 session, Dr.Farwell testified and was cross-exam-ined on the basis of his test reports.

Additionally, two other psychophysiolo-gists with EEG expertise, Prof. Will-iam Iacono of the University of Min-nesota and Prof. Emanuel Donchin ofthe University of Illinois atChampaign/Urbana, testified on Dr. Farwell's cre-dentials, his test reports and the sci-ence underlying the Brain Fingerprint-ing test. Prof. Iacono testified atHarr ington's request, and Prof.Donchin was called by the state.

Both experts validated the scienceunderlying Brain Fingerprinting andacknowledged Dr. Farwell's creden-tials: however. while Prof. Iacono vali-dated the forensic application of P300science based on his own research, Dr.Donchin asserted that the tester's se-lection and presentation ofthe specificprobes is the point at which scienceends and art begins.

The investigative phase of prepar-ing the Brain Fingerprinting test, whichdiscovers the salient features of thecrime that are used as probe stimuli,depends on the skill and judgment ofthe investigator, and is not a scientificprocess. The scientific phase of BrainFingerprinting testing begins after theinvestigation has identified appropriateprobes. The science of Brain Finger-printing testing determines whether thesubject responded to the probes, pro-viding an objective resuh "informationpresent" or "information absent." Thisresult does not depend on the subjec-tive judgment of the scientist conduct-ing the test. The test result is thenpresented to the trier of fact to assistin the determination of suilt and inno-cence.

Regarding Dr. Donchin's conten-tion that the selection of probes in BrainFingerprinting is the end of science andthe beginning of art, Dr. Farwell agreesthat the selection of probes - which isa feature of the skilled investigationand not of the scientific Brain Finger-printing testing - is a subjective ele-ment of the process. He asserts, how-ever, that this subjective element is the

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kind of evidence that judges and juriesare competent to evaluate: Anon-sci-entist is well equipped with commonsense and life experience to evaluateall the facts and circumstances of thecase and determine whether a findingthat the specific probes in questionreturned a scientific result of "infor-mation present" or "information ab-sent" helps to establish the subject'sguilt.

The District Court's ruling.

After briefs were submitted andother, unrelated grounds for post-con-viction relief were tried, District JudgeTimothy O'Grady issued his ruling onMarch 5,2001. The court determinedthat Brain Fingerprinting was new evi-dence not available at the original trial,and that it was sufficiently reliable tomerit admission of the evidence;a how-ever, the court did not regmd its weightas sufficiently compelling in light of therecord as a whole as meeting its ex-acting standard, and thus it denied anew trial on this and the other groundsasserted by Hanington.

The court stated the following:

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

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

"The P-300 effect has been subject totesting and peer review in the scien-tificcommunity."

"The consensus in the communityof psycho-physiologists is that theP300 effect is valid."

"The evidence result ing fromHarrington's'Brain Fingerprinting' testwas discovered after the verdict. It isnewly discovered."

Appeal.

The Iowa Supreme Court reversedthe trial court and granted Harringtona new tial. Harrington v. State, 659N.W.2d 509 (Iowa 2003). The su-preme court did not reach the BrainFingerprinting issue, 659 N.W.2d 509,516 n.6, and decided the case on othergrounds. Due to a Brady violation,Harrington was accorded a new trial,and the state subsequently dismissedthe murder prosecution without preju-dice for lack of evidence due to wit-ness recantations and the passage oftime. The only alleged witness to thecrime recanted when confronted withthe "information absent" results of theBrain Fingerprinting test on Harrington.

Conclusion.

We are pleased that the first trialcourt to perform the gatekeeping func-tion in regard to Brain Fingerprintinghas determined the test to be suffi-ciently reliable to merit admission intoevidence. This is an achievement thathas consistently eluded every form ofpolygraphy for decades, and it is basedon a common perception in the rel-evant scientific community that P300science, and the statistical tools usedto analyze its results, are well ac-cepted.

Although the district court did notfind that the probes developed for theHarrington test constituted a compel-ling impeachment of the verdict, webelieve that Brain Fingerprinting testresults will have a substantial impacton juries, both in cases where the testhelps to exonerate the subject and incases where it reveals his suilt.

I Lawrence A. Farwell, PhD, Is theinventor of Brain Fingerprinting andthe Chairman and Chief Scientist ofBrain Fingerprinting Laboratories, Inc.,461625thAve. NE #402. Seattle. WA98105. Telephone: (206) 361-983I:email:LFarwell @ BrainFingemrinting.com.2 Thomas H. Makeig, P.C., Law Of-

fice,500 North Third Street. Suite 213.P.O. Box 931, Fairfield, Iowa 52556.Telephone: (64I) 472-2235; ematl:Tmakei g @ makeiglaw. com.

3 Brain Fingerprinting testing hadpreviously been instrumental in anothermurder case, that of James B. Grinderin Missouri. ABrain Fingerprinting testconducted by Dr. Farwell in 1999showed that Grinder had the recordof the 1984 murder of Julie Heltonstored in his brain. Grinder, who hadbeen the prime suspect for 15 years,had previously given several contra-dictory accounts, some involving hisparticipation and some not. The BrainFingerprinting test showed that theaccount that matched the record in hisbrain was the one in which he perpe-trated the crime. One week later,faced with a certain conviction andalmost certain death sentence, Grinderpled guilty in exchange for a sentenceof life without parole. (Unrelated toBrain Fingerprinting, Grinder also con-fessed to three other murders.)

ln 2004, Brain Fingerprinting testingwas offered in support of the Okla-homa petition for post-conviction re-lief filed by death-row inmate JimmyRay Slaughter. In Slaughter v. State,No. PCD-2004-277 (Okla. Ct. ofCrim. App., April 16, 2004),the Okla-

homa court of final resort in post-con-viction matters declined to order anevidentiary hearing on numerous is-sues raised by the petitioner. Theseincluded not only an "information-ab-sent" result for crime-scene items re-turned by a Brain Fingerprinting test,but also exculpatory DNA evidenceand other exculpatory evidence.Slaughter was subsequently executed.The Oklahoma court declined to re-turn the case to the trial court where itcouldreach the merits of theBrainFin-gerprinting challenge, based on proce-dural grounds and onthe appeal court'sview that the petitioner's affidavit hadproduced insufficient evidence of theeffrcacy ofthe test and salience oftheprobes. "[B]ased on the evidence pre-sented, we find the Brain Fingerprint-ing evidence is procedurally barred,"Id., y18. "What we have are someinteresting, indeed startling, claims thatare not backed up with enough infor-mation for us to act on them." Id.,{13. The authors submit that in fur-ther cases where evidentiary hearingson admissibility fully examining the is-sues explored inthe Harrington cotJrtare allowed, the more likely result onadmissibility of Brain Fingerprintingwill be the result reached by the dis-trict coufr in Harrington.

4 The court admitted only Dr.Farwell's P300 Brain Fingerprintinganalysis, and notthe MERMER-basedanalysis, on grounds that theMERMER analysis had not been sub-jected to sufficient peer review andpublication. A paper by Farwell andSmith on the MERMER has subse-quently been published in a leadingforensic science journal.

Reference:Farwell, LA and Makeig, T (2005).Farwell Brain Fingerprinting in thecase of Harrington v. State. OppnCourt X,3:7-I0, Indiana State BarAssoc.