A Modest Defense of Mind Reading

The last decade has witnessed a profusion of commentary on mind-reading devices. Instead of offering traditional legal arguments against such devices, most scholars have simply assumed their use to be unconstitutional. The consensus is clear: by essentially speaking for defendants, mind-reading devices offend the basic spirit of the Self-Incrimination Clause. In this Article, I defend the constitutionality of mind-reading on both doctrinal and normative grounds. First, I reconstruct the Court\u27s self-incrimination jurisprudence to demonstrate that evidence is only testimonial and thus, privileged if it involves a communicative act from the suspect. Whether or not particular types of mind-reading devices would elicit communicative acts is a narrow, technology-specific question. And at least some mind­reading devices almost certainly would not making their use permissible under the Fifth Amendment. Second, I defend this doctrinal result against normative attack. Many different accounts of the privilege\u27s theoretical underpinnings exist. I evaluate these accounts in turn, arguing that some are inapposite to mind reading, while others fail in a deeper sense