Evidence of memory from brain data.

"73: For a recent review, see Stephanie A. Gagnon & Anthony D. Wagner, Acute stress and episodic memory retrieval: neurobiological mechanisms and behavioral consequences, 1369 Ann. N.Y. Acad. Sci. 55–75 (2016). In general, acute stress can enhance encoding and consolidation of episodic memory, particularly for emotional events. Id. at 59. But the research findings are complex and nuanced, and not necessarily linear in terms of the relationship between stress and encoding, consolidation, recognition, and recall, and there are conflicting findings as to whether stress differentially affects emotional or neutral stimuli. 87: The classifiers were also highly accurate in determining ‘whether participants’ recognition experiences were associated with subjective reports of recollection, a strong sense of familiarity, or only weak familiarity, with the discrimination between recollection and strong familiarity being superior to that between strong v. weak familiarity’. Id. And in a second experiment that probed implicit memory for oldness or newness, participants were required to study faces before scanning and then, in the scanner, make male/female judgments rather than old/new judgments. In this situation, the classification methods were ‘not capable of robustly decoding the OLD/NEW status of faces encountered during the Implicit Recognition Task’, leading the researchers to conclude that ‘a neural signature of past experience could not be reliably decoded during implicit recognition’. Id. at 9852–53. This suggests that encoding environment matters significantly for the detectability of details of life experiences that may only be incidentally encoded, rather than the focus of attention. Such a finding has implications for stimulus selection in any forensic context—perhaps only a murderer would know that the victim was found on a paisley-pattered couch, but if the murderer paid no attention to the couch pattern, such a unique detail may be only incidentally encoded and thus cannot be reliably detected. But see Brice A. Kuhl et al., Dissociable Neural Mechanisms for Goal-Directed Versus Incidental Memory Reactivation, 33 J. Neurosci. 16099, 16099–109 (2013) (finding that mnemonic information could be decoded even when participants are not instructed to attend to that information)."

"245: An interdisciplinary research team based in New Zealand has completed a pilot phase of testing ‘forensic brainwave analysis technology’, attempting to replicate and extend the work of Lawrence Farwell and Peter Rosenfeld. See Robin Palmer, Time to Take Brain-Fingerprinting Seriously? A Consideration of International Developments in Forensic Brain Wave Analysis (FBA), In the Context of the Need for Independent Verification of FBA’s Scientific Validity, and the Potential Legal Implications of its Use in New Zealand, Te Wharenga—N.Z. Crim. L. Rev., 330 (2018). The pilot project was funded by the New Zealand Law Foundation, which announced a terminal funding round of June 2020 for all projects. See The Law Foundation, New Zealand Law Foundation,  https://www.lawfoundation.org.nz (last visited Apr. 17, 2020, 10:08 AM). In addition to the pilot study, researchers are focusing on the ‘legal, ethical and cultural impacts of FBA testing is a crucial corollary to the attempted scientific validation of the science underpinning forensic brainwave analysis. This is because legal challenges to the admissibility in court of FBA evidence will not be confined to attacks on FBA’s scientific reliability and accuracy: admissibility challenges based on alleged rights violations flowing from the use of FBA technology at both investigation and trial stages are just as likely’. Palmer, supra note 245, at 355."