Copyright (c) 2006 Temple University of the Commonwealth System of Higher Education
Temple Law Review
COMMENT: AS ITS NEXT WITNESS, THE STATE CALLS ... THE DEFENDANT: BRAIN FINGERPRINTING AS "TESTIMONIAL" UNDER THE FIFTH AMENDMENT
79 Temp. L. Rev. 971
Jody C. Barillare*
Imagine you are sitting in a courtroom, at the defense table, on trial for your life. You have been charged with first-degree murder for brutally shooting an after-hours security guard at a car dealership with a twelve-gauge shotgun during a botched robbery attempt. 1 If convicted, you would face life in prison without parole, or worse, a death sentence and a trip to the gas chamber. But you are completely innocent, you have an alibi; 2 you were in another city with friends when the shooting occurred. 3 Nevertheless, the police say you are lying.
The physical evidence linking you to the crime is minimal, at best. 4 Tests revealed two flakes of shotgun gunpowder on your jacket and a witness testified he saw a piece of a shotgun in your trunk. 5 The murder weapon was never found. 6 Police found footprints at the murder scene, but they never compared them to your shoes. 7
The prosecution's star witness says he was your alleged accomplice on the night of the murder. 8 Prior to your trial, the star witness had been arrested and charged with various theft and burglary charges, and he admitted that ""he was tired of'" being in jail. 9 After he agreed to testify against you, those charges were dropped. 10 At trial, he concocts a story that you were the one who pulled the trigger and killed the police officer. 11 During his testimony, he admits that he has told ...
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