4. Applications of existing and upcoming concern 4.5 Crime and criminal justice applications The application of neurotechnology in the criminal justice system has attracted considerable academic interest as it raises a range of ethical and legal concerns. The application of the technology may range from enhanced interrogation, non‑consensual admissions of guilt and new forms of ‘lie detection’ technologies, among others.180 This may result in adverse human right outcomes for individuals accused of crimes ranging from minor infractions, political dissidence and even murder.181 Lie detection Lie detector mechanisms, specifically polygraph testing, have been in use in the detection of falsehood since the 1940s.182 Considering recent technological advances, and scepticism towards traditional polygraph tests, there is consideration as to whether the involvement of neurotechnology as a means of lie detection is an effective alternative. The ‘guilty knowledge test’ is a technique which relies on the measurement of brain activity to determine if a subject is lying. Also known as ‘brain fingerprinting’, operators can currently detect the presence of concealed information through the monitoring of brain waves via EEG signals.183 With the development of neurotechnology, transcranial magnetic stimulation (TMS) or transcranial direct stimulation (TDS) can cause changes in brain activity, altering a person’s physiological responses. Through such stimulation, operators can disrupt two of the four categories of cognitive processes required for deception: information management and risk management.184 Administration of TDS and TMS has demonstrated differences in the subject’s ability to detect and protect themselves from making riskier decisions, which in this case would be divulging the truth when they may have a guilty conscience.185 Another measure to detect falsehood upon stimulation by TDS and TMS was the slowing of reaction time whenever a response was untruthful.186 The aim with this technique is for informed authorities to be able to detect this delay in response and question the subject further based on the presumption that they are concealing knowledge about the matter. One of the most pressing issues in using such technology during a criminal investigation is its impact on the privilege to remain silent and not to self‑incriminate.187 This principle does not apply to material that ‘exists independently of the will’ of the subject including blood samples, fingerprints and documents acquired pursuant to a warrant.188 However, seeing that neurotechnology has the ability to directly alter the way a witness or suspect provides evidence, which would usually require their cooperation and will to do so, this has serious implications for their right to silence. Memory recovery The retrieval of accurate eyewitness testimonies during criminal justice proceedings is an ongoing matter of concern. Considering the difficulty in obtaining reliable testimony from witnesses who are in acute shock, in addition to the malleability of memories, turning to neurotechnology to enhance memory retrieval may sound appealing. Vedder and Laming observe that non‑invasive neurotechnology can also have applications in memory recovery where TMS is administered in areas of the brain responsible for memory retrieval, such as the temporal lobes and hippocampus.189 It primarily acts by reducing the occurrence of false memories and conceptual labelling, allowing for a more literal recall of events.190 The fact that TMS is non‑invasive and has relatively short‑term effects contributes to the idea that this may be a promising mechanism to be used in a criminal justice context. Neurotechnology can also have a role in the retrieval of long‑term memories where the event in question occurred decades ago. Current methods of memory retrieval, such as cognitive interviews and hypnosis, impede the accuracy of the information recalled or require a highly trained interviewer to have any useable effect. In Canada, a patient had undergone neurosurgery for the treatment of morbid obesity by suppressing their appetite using DBS electrical impulses.191 Neurosurgeons discovered that a positive side effect of the surgery was that the patient could recall autobiographic memories of events occurring more than 30 years ago.192 These memory retrieval effects were said to be persistent as this was an invasive procedure involving an implant.193 In allowing such neurotechnology to Australian Human Rights Commission 25