Rethinking the Privilege Against Self-Incrimination in Terms of Emerging Neuro-Technology: Comparing the European and United States Perspective

Abstract

This paper analyses new fact-finding methods in criminal proceedings, using state-of-the-art innovations in neuroscience and artificial intelligence (AI). It will outline the existing methods and explain their effects. Then it will address the criminal-law aspects of the use of such methods as evidence in criminal proceedings, with an emphasis on the assessment of their admissibility from the perspective of the right to a fair trial and the privilege against self-incrimination. This topic will be observed from the perspective of US and European law, highlighting the existing jurisprudence of the European Court of Human Rights (ECtHR) and the legal standards established by the court in relation to the privilege against self-incrimination. Based on this analysis, the authors will formulate a conclusion suggesting that the use of current AI technologies should be juxtaposed to the relevant benchmark of the privilege against self-incrimination as the requisite standard of the right to a fair trial.

Keywords: lie detector, fair trial, self-incrimination, truth, evidence, testimonial, artificial intelligence, neuroscience.

DOI: https://doi.org/10.3935/cyelp.19.2023.504 

This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License.

Suggested citation: M Mrčela and I Vuletić, ‘Rethinking the Privilege Against Self-Incrimination in Terms of Emerging Neuro-Technology: Comparing the European and United States Perspective’ (2023) 19 CYELP 207.