Ruled Admissible

Innocent Man Freed After 24 Years in Prison

Ruled Admissible as Scientific Evidence in Court


Terry Harrington


In a hearing in the Terry Harrington murder case, Pottawattamie County, Iowa District Court Judge Tim O’Grady ruled that Brain Fingerprinting testing is admissible in court. Dr. Farwell conducted a Brain Fingerprinting test on Terry Harrington, who was serving a life sentence in Iowa for a 1977 murder. The test showed that the record stored in Harrington’s brain did not match the crime scene and did match the alibi. Harrington filed a petition for a new trial based on newly discovered evidence, including the Brain Fingerprinting test. The Iowa Supreme Court reversed his murder conviction and ordered a new trial. The Iowa Supreme Court left undisturbed the law of the case establishing the admissibility of the Brain Fingerprinting evidence.

The Harrington case is described in this Harrington Case Summary.

In a Brain Fingerprinting test, words, pictures or sounds describing salient features of a crime are presented by a computer, along with other, irrelevant information, that would be equally plausible for an innocent subject. Items are chosen that would be known only to the perpetrator and to investigators, but not to the public or to an innocent suspect. The subject is told which features he will see (e.g., the murder weapon), but is not told which item is correct (e. g, gun, knife, or baseball bat). When a subject recognizes something as significant in the current context, the brain emits a specific brain response. If the record of the crime is stored in the subject’s brain, this response appears when the subject recognizes the correct, relevant items. If not, then the response is absent. A computerized mathematical analysis of the data determines whether or not the subject has knowledge of the salient details of the crime.

Just as a personal computer emits a characteristic sound whenever its central processing unit is transferring information to or from or the hard drive, the human brain emits a characteristic electrical brain wave response, known as a P300 and a P300-P300-MERMER (memory and encoding related multifaceted electroencephalographic response), whenever the subject responds to a known stimulus. The P300 electrical brain wave response, one aspect of the larger P300-MERMER response discovered and patented by Dr. Farwell, is widely known and accepted in the scientific community. There have been hundreds of studies conducted and articles published on it over the past thirty-plus years. The P300-MERMER, a longer and more complex response than the P300, comprises a P300 response, which is electrical events occurring 300 to 800 milliseconds after the stimulus, and additional data occurring more than 800 milliseconds after the stimulus. While a P300 shows only a peak electrical response, a P300-MERMER has both a peak and a valley.

In order to be admissible under the prevailing Daubert standard, the science utilized in a technology is evaluated based on the following four criteria: (The Iowa courts are not bound by the Daubert criteria used in the federal courts, but they do use them when determining the admissibility of novel scientific evidence.)

1. Has the science been tested?

2. Has the science been peer reviewed and published?

3. Is the science accurate and are there standards for its application?

4. Is the science well accepted in the scientific community?

The judge ruled that Brain Fingerprinting testing met all four of the legal requirements for being admitted as valid scientific evidence. The ruling stated: “The test is based on a ‘P300 effect.’… “The P300 effect has been studied by psycho-physiologists…The P300 effect has been recognized for nearly twenty years. The P300 effect has been subject to testing and peer review in the scientific community. The consensus in the community of psycho-physiologists is that the P300 effect is valid….”

The judge also ruled that “The evidence resulting from Harrington’s ‘brain fingerprinting’ test… is newly discovered” and “material to the issues in the case,” and thus meets the standard for being considered in a petition for a new trial.

The Brain Fingerprinting test on Harrington showed that the record stored in his brain did not match the crime, and did match his alibi. This is similar a finding that Harrington’s fingerprints or DNA did not match the fingerprints or DNA at the crime scene, and did match those at the scene of the alibi.

Dr. Farwell conducted two different analyses of the data on Harrington. Both yielded the same conclusion. He performed the test and the analyses in strict accordance with the P300 science that has been extensively researched and is well accepted in the scientific community. In another analysis, Dr. Farwell used more state-of-the-art techniques, including the P300-MERMER, which, though arguably more accurate, do not yet have the same level of acceptance as the P300.

After obtaining the results of the Brain Fingerprinting test, Dr. Farwell located the only alleged witness to the crime, Kevin Hughes. When Dr. Farwell confronted him with the Brain Fingerprinting test results exonerating Harrington, Hughes admitted that he had lied at Harrington’s trial. He stated under oath that he had made up the story about Harrington committing the crime to avoid being prosecuted himself. Harrington’s attorney used Hughes’ recantation along with Brain Fingerprinting test findings as evidence in his post-conviction petition for a new trial.

The Harrington case was about as difficult a case as could be envisioned for the Brain Fingerprinting system. The day after the crime, the perpetrator knows all about the crime and an innocent suspect knows nothing. Scientists could have readily constructed a Brain Fingerprinting test to distinguish between the two, if the technique had been invented at the time. Later, in his trial, Harrington was exposed to extensive information about the crime. This made it difficult after the trial to produce salient features of the crime that he would know only if he had committed the crime. Twenty-three years after the crime was committed, through examination of court documents, police reports, witness interviews, crime-scene photos and an investigation of crime scene itself, Dr. Farwell was able to structure a Brain Fingerprinting test that tested Harrington’s brain for evidence of salient features of the crime, features that he claimed not to know because he was not there. The test showed that Harrington’s brain in fact did not contain a record of these salient features of the crime. A second test conducted by Dr. Farwell showed that Harrington’s brain did contain the details of his alibi.

As with other scientific evidence, Brain Fingerprinting testing does not prove guilt or innocence per se. It provides information about what is stored in the suspect’s brain. A judge or jury can utilize this information in making the legal determination of guilt or innocence. The weight of the Brain Fingerprinting test evidence will be evaluated along with other evidence by a higher court in their consideration of Harrington’s appeal. If a higher court finds that this and other evidence probably would have changed the result of the original trial if it had been known at the time, then Harrington will be granted a new trial.

“I believe the court’s admission of Brain Fingerprinting test results into evidence is a landmark in forensic science,” said Dr. Farwell. “Innocent persons have a new technology to aid in their exoneration, and law enforcement has a new weapon with which to convict perpetrators. In the future we can use this technology to find out the truth early in a case. This will save innocent suspects from a traumatic investigation and trial, and potentially from false conviction and punishment. By allowing law enforcement to focus on the actual perpetrators, it will also save time and money in law enforcement.”

“I believe that in time we will be able to virtually eliminate false convictions through Brain Fingerprinting tests and other scientific technologies such as DNA and fingerprints. This new scientific technology will also allow us to significantly increase the number of actual criminals brought to justice.”

Hundreds of scientific studies on this technology from dozens of laboratories have been published in the peer-reviewed scientific literature. Dr. Farwell has applied the technique not only in rigorous laboratory studies but also in over 100 real-life cases. Dr. Farwell and then FBI scientist Dr. Drew Richardson used the Brain Fingerprinting system to detect with 100% accuracy which people in a group were FBI agents and which were not by measuring brain responses to items only an FBI agent would recognize. Brain Fingerprinting testing was also 100% accurate in three studies Dr. Farwell conducted for a US intelligence agency and for the US Navy.

The Brain Fingerprinting system tests for knowledge of salient features of a crime stored in the brain. Scientists know that we don’t remember everything, but we do remember significant features of major events — like committing a serious crime. By scientifically determining what is stored in a suspect’s brain, Brain Fingerprinting testing provides evidence that can be used by judges and juries in making a determination as to whether the suspect committed the crime or not.