Dov Fox (Yale Law School) has posted The Right to Silence as Protecting Mental Control: Forensic Neuroscience and ‘the Spirit and History of the Fifth Amendment’
(Akron Law Review, Vol. 42, No. 2, 2009) on SSRN. Here is the abstract:
This article examines the idea that individuals have a moral and constitutional right of control over the use of their thoughts vis-a-vis the state. As a point of departure, I consider the prospect of a forensic neuroimaging device that could elicit recall and recognition from a criminal suspect without his having even to answer an interrogator’s question. Reflection on government access to this sort of interrogation technique leads me to argue that the state should be prohibited either from extracting a person’s thoughts without her meaningful consent or from making use of her compelled thoughts to lay criminal blame upon her. Though neither judges nor scholars have defended this account of the right to silence in explicit terms, the notion of "mental control" I shall develop here underlies much that is assumed about the relation between the Fifth Amendment and the values of freedom and privacy. By promising acquisition of incriminating information from a person’s brain in a way that avoids traditional concerns about physical or psychological harm, advances in cognitive science and neurotechnology bring the moral and legal significance of mental control into sharp relief.