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The idea is the FBI using telepaths to interrogate suspects. The story would follow one such telepathic interrogator. In police training I was always told to think like the defense, so I thought up a couple of problematic wrinkles in terms of legality/ethics - in particular, I am considering whether or not forcing entry into somebody's thoughts could constitute an act of torture. Specifically, the issue is that the definition of torture includes "mental distress", which I think a telepathic interrogation absolutely causes.

The obvious solution is "yes, but we're calling it enhanced interrogation so it's OK". I'd prefer to be have some kind of legal loophole to use though.

EDIT: To clarify, the setting would be present day with roughly present day laws and attitudes to human rights. The administration in-universe has been sliding more authoritarian in a conviction-rate-justifies-the-means, PATRIOT Act kind of way.

I would envision the telepathy as working like a lucid dream that somebody else is directing. The interview subject would, ideally, not be aware it's happening in their head until the interview has concluded. I think it would be a blend of the "mind probe" and "conversation" ideas.

The scene where Anderson mind-reads K from Dredd is probably the closest equivalent I can think of - he is under the impression its a covnersation (ie, a level playing field) whereas she's kind of letting him open up sections of his mind then extracting what she needs by force once his guard is down.

In-universe, reactions to telepathic intrusion vary; as a general rule, the less "aware" of the intrusion the subject is, the easier it is to extract the information you want. If the subject fights, you have to fight back to get to said information (which is where the "causing mental distress" angle comes in).

Telepathy in-universe is something that's just spontaneously appeared in a small percentage of humans and is an always-on, always-reading kind of power. They can choose what they send, but not what they receive; if a telepath is in the room, they know what you're thinking.

Law enforcement/governments are capitalising on it, but laws are having be drafted/redrfted to cope.

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    $\begingroup$ That very much depends on what a telepath is and how telepathy works. For example, my own default understanding is that telepathy works like speech, that is, both parties need to communicate actively or else no communication takes place. Your understanding seems to be different, but the question does not provide any specifics. You need to edit the question to explain it. (And anyway, if the story takes place in a world with magic, then that world very obviously won't have the same laws and morals as ours.) $\endgroup$
    – AlexP
    May 14, 2022 at 22:17
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    $\begingroup$ I agree you need to explain the mechanics of the telepathic mind reading, but I think once you do, it's a fair question. $\endgroup$
    – DWKraus
    May 15, 2022 at 4:17
  • $\begingroup$ Does this need to be explicit ? Maybe there's not ONE telepathic behaviour. Last night, I've put an answer that covers a particular dimension: is this interrogation actually noticed? how is it experienced? If we get all details about the exact behaviour of telepaths beforehand, there is only ONE interrogation method, the question would become legal science / human rights ethics and opinion based. vtr.. $\endgroup$
    – Goodies
    May 15, 2022 at 9:27
  • $\begingroup$ There would be issues regarding invasion of privacy, as to torture, that depends on how the interview is conducted. Invading the mind with continuous harassment akin to high decibel unpleasant "music" that has occurred in the recent past - Guantanamo Bay - would be torture. Can current, non telepathic, interview techniques be considered torture? If not, then a telepathic interview along similar lines would not be torture. Also, would the telepathic technique be more like a conversation or more like mind reading/searching/scanning? $\endgroup$
    – user81881
    May 15, 2022 at 9:48
  • $\begingroup$ A confession can be written down and signed, or recorded on tape. What proof do you have that the telepath wasn't lying? What happens if a bunch of these telepaths start "planting" evidence in some huge corruption. $\endgroup$ May 15, 2022 at 15:11

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It doesn't sound like torture to me, or even like interrogation. It sounds like a search.

The historical justification for the right to silence was that if it didn't exist, the police could use torture (etc.) to make an uncooperative person talk, justifying it on the grounds that they were legally required to talk and the police were just assisting the process. The existence of that right, and of the whole concept of interrogation really, is closely connected to the impossibility of mind reading.

If it were possible to search someone's memories in the same way as you search physical possessions – by just doing it, without the owner's direct involvement – then there would be no reason to treat memories differently from physical possessions in the law. I imagine the police would be allowed to search both (with a warrant).

Unless you're talking about permanent brain damage, I don't buy the argument that mind-reading would be prohibited because it causes mental distress. Being detained and interrogated by the police causes mental distress even if it's done legally and ethically. Having the police turn your home upside down looking for evidence causes mental distress, even if they have a warrant. Having the police damage or destroy your property while searching it, then receiving no monetary compensation from the state even if they find nothing and never charge you with a crime, causes mental distress, but even that is allowed by the law in many places.

You may see the contents of your head as deserving of special protection, but you grew up in a world where mind reading isn't possible. Inhabitants of a world where it is possible would likely see it differently.

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Q: Specifically, the issue is that the definition of torture includes "mental distress", which I think a telepathic interrogation absolutely causes.

Legally, you can't have torture

.. (at least in most countries)

Why any awareness of brain intrusion will be perceived as torture

Any brain intrusion that can be felt, without ways for the victim to prevent it, or get rid of it, will be perceived as torture. When the victim notices the telepath poking around.. and is NOT able to shut off his/her brain for that, the awareness is perceived as torture.

When it is perceived as torture it is a crime

It would not be legally or morally justified to use these techniques, when this telepathic intrusion is perceived as torture, by the victim. Torture of people during interrogation is generally considered unlawful. When it comes out, it will weaken the case considerably and it will have consequences for people involved in it.

So better use it discretely

When the telepath could penetrate the brain and steal thoughts without notice, the legal offense is spying and infringement of privacy. Both may not be appropriate for interrogations, in democratic countries. Prosecutors follow the law, just like any citizen should. But in daily practice.. and less democratic systems could get away with unnoticed interrogations very easily. Applications like secret spying on a population.. could be "legally justified", when you are in the position to make the right laws yourself..

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Narrow The Usage:

Unlike a normal search warrant, a mind probe could reveal every single thing you've ever done or even considered. So unless you want a brutal police state that convicts people for thought crimes and and arrests you so they can probe your mind for every parking violation you've ever done, you'll need to create some new rules to prevent over-reach. We will need to define the legal context of your system, which for this answer I will use the US model.

JUSTIFICATIONS:

If I was arguing to justify telepathic exams, this is what I would argue (at least relating to torture)

  • It prevents torture: If we assume telepathy doesn't have a physical manifestation, and isn't felt by the person, then mind probing could be less invasive and less harmful than questioning (which often involves intense questioning and psychological/emotional pressure on the person questioned). It eliminates the justification for torture by eliminating the necessity of obtaining information by force.
  • It is evidence in plain sight: Since your telepath can see the person's thoughts, the thoughts aren't really secret or hidden. If an officer on the street saw a crime through a window, they could respond. This is no different.
  • It prevents false convictions: If the criminal can't conceal the truth, then they by default reveal truth. The whole legal system is designed to prevent false convictions and assure the guilty are found guilty. What is more like torture than sending an innocent man to prison? The stress of a trial is surely worse than the stress of knowing someone observed your thoughts and memories.

Rules:

I would suggest the following rules for your interrogations:

  • Corroboration: No evidence obtained from a mind probe can be presented as evidence without corroboration. People don't even have good control of their perception of reality, can hallucinate, mis-remember things, or even be brainwashed into believing things that aren't real. Without this, your telepath could exonerate the guilty and convict the innocent.
  • Narrow focus: Because probing a person's mind can reveal everything that they have ever done or witnessed, There should be a rule that the telepath can't reveal ANYTHING outside the narrow focus of the search warrant. Otherwise, the state could arrest anyone and everyone for every misdemeanor they ever did.
  • The person must be the one accused of the crime: or voluntarily submit to mind probing. Otherwise, your police force could just detain all known associates of a person and probe them despite their innocence. This also means you can't drive your telepath around a neighborhood reading people's minds because the people's thoughts are "in plain sight" to the telepath.
  • The direct thoughts can't be presented as evidence: While a person might think something, that is purely in their head. So it can be subject to change. But more critically, a person who's thoughts are presented as evidence is effectively being forced to testify against themselves. So your investigator might use it to obtain leads or find additional witnesses, but not use the actual thoughts.

Why I think it still legally won't work:

All that being said, I don't think torture will be your chief problem. On the contrary, the existence of telepathic evidence would take away most of the legal justification for torture, since you wouldn't need to torture anyone to obtain evidence, prove guilt, or stop crimes from happening. This itself is likely to be used as a legal justification for telepathic mind probing. After all, it de-legitimizes torture.

  • Right to privacy: There is no privacy if you can't even be alone with your own thoughts. There is little doubt in my mind that a democracy (and possibly even many oppressive governments) would find that people's minds should remain sacrosanct. Yes, brutal governments will certainly USE it, but they don't really need to follow rules anyway. Too many people have too much to hide for true open honesty to ever be tolerated by most societies.

  • I Plead the Fifth!: If you can remove a person's memories and thoughts, you render the right of self-incrimination effectively moot. So if people have the right to not testify against themselves, it would logically mean that they can't be forced to reveal their thoughts even to a court order.

  • Thought control: mind probing and biofeedback could be potentially combined to alter someone's memories. Program a patsy to believe they did something, and they can be forced to divulge their "guilt," and that guilt could be presented as exonerating evidence by a criminal - after all, how can two people have two factually different memories of the crime? You may also be able to block or remove the memory of committing the crime from a criminal's mind so they DON'T remember doing it.

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  • $\begingroup$ The fifth exists because otherwise you have the problem of punishing the person for not telling the "truth" the police want to hear. In a world where the police can actually tell if you're telling the truth or not there's no reason for the fifth. The police get their warrant and read your mind to figure out of you're guilty or not. Courts would only get involved in cases where it was necessary to resolve whether someone's actions were reasonable--knowing what happened isn't always enough. $\endgroup$ May 18, 2022 at 2:37
  • $\begingroup$ @LorenPechtel The level of personal violation represented by mind reading would guarantee people would take it to apply more broadly. Heck, there would probably be new constitutional amendments about it. Similar rules about confession and spousal privilege all can be interpreted to be about the sanctity of not giving up one's own thoughts. But I'll admit that using DNA evidence obtained from relatives to track down criminals is moving into some potentially ugly grey areas, so who knows? $\endgroup$
    – DWKraus
    May 18, 2022 at 3:00
  • $\begingroup$ Actually, I think with mind reading the level of police intrusion would go down. They think you did the murder? "Did you directly or indirectly kill Mr. Smith or aid another to kill him?". The telepath verifies you "No" it truthful, that's it, you're off the list of suspects. Mind search warrants would be very limited in scope unless you gave an answer that opened further inquiry. $\endgroup$ May 18, 2022 at 4:40
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What kind of setting do you want to have?

Many officially recognized interrogation techniques cause mental distress. Under a rule of law, there are rules when that distress becomes excessive. So waterboarding is out, interrogation for days at a time is out, but interrogation for hours at a time is OK.

Telepathy does not exist in the real world. Most legal systems use precedent, analogy, and catch-all clauses to deal with novel situations. Think of the internet -- are social media like the phone company, like a newspaper, or a new category? Until there is a new category, some treat them like one or the other while a few brazen people claim "it ain't illegal on the web ..."

  • Very skilled interrogators
    Imagine a police investigation with a couple of persons of interest. One of them might have been the perpetrator. So cops talk to all of them and then form their professional judgement where the investigation looks deeper. A good interrogator reads subtle clues of body language, etc., while the possible suspect is questioned.
    This impression is not evidence by itself. In a good legal system, nobody gets convicted on "he always broke eye contact when we mentioned the shed." But the police might focus on the shed when something like that happens, and find physical evidence there.
    Telepathy is not different from watching nervous tics and other tells?
  • Expert mental evaluation
    The telepath could become an expert witness who is able to testify about the (subjective?) mental state of the defendant at the time of the evaluation. The prosecution gets their telepath, and so does the defense, and then the jury has to put that expert testimony into context.
    From a storytelling viewpoint, it turns your setting into a courtroom drama, so you might not want that.

  • Breathe into this tube ...
    Different jurisdictions have different models on how a motorist is required to cooperate with alcohol tests, with or without court warrant. The most sweeping allow breath tests or even blood tests at the decision of the police officer, based on highly subjective suspicions of intoxication.
    Note that some legal systems make a difference between taking a blood sample and capturing exhaled breath. One is seen as more intrusive than the other. Your telepath requires less overt intrusion than a polygraph, I guess?

  • Sounds like mumbo-jumbo to me
    People would doubt the competency of any officer who uses a "professional" medium to talk to the deceased. Past and present testimony from that officer might be called into question. The polygraph used to have a slightly better reputation. So what is the public view on telepathy when it is first discovered?

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Without reading all the answers, anything the telepath perceives, would be considered hearsay (second hand information) in a modern court of law. So you should probably change those laws in your world :)

Think of it like this, if a cop talks to you, only the two of you in the room. No recorder nothing else, and later in court the cop says he heard you say you murdered someone...

The only one who knows what happend in your brain, is you and the telepath... and the telepath is not an independent witness.

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