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70. The P300 wave test was the precursor to other neuroscientific techniques such as `Brain Fingerprinting' developed by Dr. Lawrence Farwell. The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the `P300 waves test' that has been used by Forensic Science Laboratories in India and the `Brain Fingerprinting' technique. Dr. Lawrence Farwell has argued that the P300 wave component is not an isolated sensory brain effect but it is part of a longer response that continues to take place after the initial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wave component has been named as the MERMER (Memory-and- Encoding-Related-Multifaceted-Electroencephalographic Response) effect. [See generally: Lawrence A. Farwell, `Brain Fingerprinting: A new paradigm in criminal investigations and counter-terrorism', (2001) Text can be downloaded from ]

75. We have come across two precedents relatable to the use of `Brain Fingerprinting' tests in criminal cases. Since this technique is considered to be an advanced version of the P300 Waves test, it will be instructive to examine these precedents. In Harrington v. Iowa, 659 N.W.2d 509 (2003), Terry J. Harrington (appellant) had been convicted for murder in 1978 and the same had allegedly been committed in the course of an attempted robbery. A crucial component of the incriminating materials was the testimony of his accomplice. However, many years later it emerged that the accomplice's testimony was prompted by an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative reports that indicated the possible involvement of another individual in the said crime. Harrington had also undergone a `Brain Fingerprinting' test under the supervision of Dr. Lawrence Farwell. The test results showed that he had no memories of the `probes' relating to the act of murder. Hence, Harrington approached the District Court seeking the vacation of his conviction and an order for a new trial. Post-conviction relief was sought on grounds of newly discovered evidence which included recantation by the prosecution's primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the `Brain Fingerprinting' tests. However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa.

77. The second decision brought to our attention is Slaughter v. Oklahoma, 105 P. 3d 832 (2005). In that case, Jimmy Ray Slaughter had been convicted for two murders and sentenced to death. Subsequently, he filed an application for post- conviction relief before the Court of Criminal Appeals of Oklahoma which attempted to introduce in evidence an affidavit and evidentiary materials relating to a `Brain Fingerprinting' test. This test had been conducted by Dr. Lawrence Farwell whose opinion was that the petitioner did not have knowledge of the `salient features of the crime scene'. Slaughter also sought a review of the evidence gathered through DNA testing and challenged the bullet composition analysis pertaining to the crime scene. However, the appellate court denied the application for post-conviction relief as well as the motion for an evidentiary hearing. With regard to the affidavits based on the `Brain Fingerprinting' test, it was held, Id. at p. 834:

"10. Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit. He claims the technique has been extensively tested, has been presented and analyzed in numerous peer-review articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and is generally accepted within the `relevant scientific community'. These bare claims, however, without any form of corroboration, are unconvincing and, more importantly, legally insufficient to establish Petitioner's post-conviction request for relief. Petitioner cites one published opinion, Harrington v. State, 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the Iowa Supreme Court (`a novel computer-based brain testing'). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court's published decision in any way."