On September 7, 2012, in Cincinnati, Ohio, Dr. Lorne Semrau lost his federal appeal. He argued to the 6th US Circuit Court that the trial court had abused its discretion by not allowing him to present what he believed was a key piece of evidence – and this was the entire reason he lost in court. That evidence was an fMRI scan of his brain.
The doctor was originally on trial at the district court level for health care fraud. He was convicted of filing fraudulent claims against his nursing home patients for Medicaid and Medicare reimbursements. He did this by using a higher billing code number than was accurately reflected from his diagnoses. Medicaid and Medicare, therefore, reimbursed the doctor at much higher amounts than was warranted, and Semrau milked out millions through his methods.
The defense wanted to offer proof to the jury of Dr. Semrau’s character and fitness for truthfulness by showing and explaining an fMRI scan of his brain that allegedly showed the good doctor had no “tendency toward deception.” The expert, a researcher named Dr. Steve Lakin, was poised to take the stand to explain how he had years of experience with this type of brain research. Lakin studied this brain technology using test subjects and various realistic-but-invented scenarios for the last four years to determine patterns of truthfulness in his subjects. Dr. Semrau claimed he billed Medicare and Medicaid “in good faith.” He needed the brain scan results to back that up. Dr. Lakin was happy to help.
The Appeals Court would have none of this. Using an fMRI as a pseudo lie detector? No way! As a case of first impression for the Court, the judges decided that the method of studying an fMRI to detect truthfulness was not yet reliable enough to be admitted as evidence. The district court, therefore, did not abuse its discretion by not allowing it in.
On closer examination, during the appeals process it was discovered that Dr. Lakin’s studies yielded various results thus far. Lakin was even forced to admit in court that the accuracy of his results was “problematic.” For example, in one study, he was only able to identify truthfulness 6 % of the time. This meant that 19 out of 20 persons were incorrectly deemed liars. In a second study, Lakin’s accuracy dipped even lower when his test subjects became “tired.” When cross examined, Lakin testified that Dr. Semrau’s fMRI scan did not actually indicate any “general deception.” He was also forced to admit that it was entirely possible that Dr. Semrau was lying when he answered SOME questions during the scat-test. Finally, Lakin himself admitted he could not pinpoint, by reading the MRI results, exactly WHICH questions received untruthful responses.
For more information, you can view the court opinion directly at http://www.ca6.uscourts.gov/opinions.pdf/12a0312p-06.pdf