Reading the Sleeping Mind: Empirical and Legal Considerations

Legal evaluations of brain imaging-based memory detection typically take into account the voluntary nature of the test. In this chapter, we will discuss to what extent the legal arguments change if memory detection could be administered in other states of consciousness, specifically in sleeping participants. It is argued that the biological trace—i.e. The recording of brain activity—exists independently of the will of the suspect and therefore receives less protection under the european convention of human rights. The cognitive trace—that discloses the content of memories—however, is considered dependent of the will of the suspect, and memory detection during sleep constitutes unlawfully circumventing the right to remain silent.