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If a technology that reads minds existed, would it be legal for authorities in the United States to use that technology to extract incriminating information from a defendant's mind against their will?

Although mind reading technology is currently limited, it is improving rapidly. See, for example, the following article in MIT technology review:

https://www.technologyreview.com/2023/03/17/1069897/tech-read-your-mind-probe-your-memories/

and the following wikipedia article:

https://en.wikipedia.org/wiki/Brain-reading

I was inspired to ask this question after reading the related question: Why is knowledge inside one's head considered privileged information but knowledge written on a piece of paper is not?

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Edit June 2024: Per the following news report, it appears that Colorado just passed a law against this. https://www.youtube.com/watch?v=jlyRvT92_zA

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    We'll get there when we get there. The law doesn't have answers to hypothetical questions like this one and the details matter a lot when the questions present themselves.
    – ohwilleke
    Commented Apr 14, 2023 at 3:25
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    Another recent example of "brain reading" is this work that used Stable Diffusion to recreate images being viewed from the brain activity.
    – User65535
    Commented Apr 14, 2023 at 5:25
  • I suggest this is a political issue not a legal one, unless you consider the USSC non-political. That group seems to do all it can to help police no matter you might think the Constitution says about it.
    – Tiger Guy
    Commented Apr 14, 2023 at 14:45
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    @ohwilleke Polygraphs have existed for a rather long time. Their use as lie detectors is pseudoscientific and I hope polygraph results wouldn’t survive a Daubert motion in a 2023 criminal case, but they have been used for a long time. I found a few 5th Amendment cases in a quick search (example) but the gist seems to be "if you chose to testify (polygraph or not) you waived your 5th Amendment right".
    – KFK
    Commented Apr 14, 2023 at 15:02
  • Here is a scientific american article on some recent advances. They can reconstruct (still with some error) a story someone is hearing from fMRI brain scan data: scientificamerican.com/article/…
    – Nick Alger
    Commented May 1, 2023 at 23:26

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In the US at least, there is no mention of "mind reading" in the Constitution. But should such a technology be developed and actually used to read someone's mind and then that information was used against them in court, I can certainly see an appeal on at least 5th Amendment grounds.

It's also possible that should such a technology become viable, that state legislatures and even the US Congress passing prohibitions on using it under certain circumstances.

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I assume that the mind-search is accompanied with a warrant, making it analogous to a search of your home for evidence. Such a search requires probable cause – let's assume we have probable cause. A search of your home for incriminating evidence does not require your cooperation, which then raises the question about the technology for mind-reading. If the technology "just reads" without require cooperation from the victim, then an appeal to the 5th Amendment is less likely to be successful. If the technology requires the victim to somewhat-voluntarily do something, then a 5th amendment objection is more likely to succeed. In Bram v. United States, SCOTUS provided a 5th Amendment basis for the doctrine that you cannot beat a confession out of a person,

commanding that no person "shall be compelled in any criminal case to be a witness against himself."

A beating is a clear case of compulsion – force is used to compel you to testify against oneself. Seizing papers which are used as evidence against a person is not the same as forcing the person to testify against themselves. Non-forcefully copying the contents of a mind could be seen as analogous to seizing documents: or not. I don't see that the matter is cut and dried, although if this ever becomes a real issue in the courts, you can be sure that both sides will see this as already having a clear-cut answer.

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  • Rather than seizing documents, a brain scan seems most analogous to a drug test: residue from your body (hair, urine, or blood samples in the one case, emitted waves in the other) is subject to expert analysis in order to answer a question of relevance to the case. At trial, you wouldn't be the one on the stand, the expert witness would be.
    – Cadence
    Commented Jun 29 at 23:43

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