The illegality of evidence obtained through neurotechnology in criminal procedure and violation of the personality rights of the accused

Abstract

This article analyzes how neurotechnology, a type of neuroscience that is capable of connecting brain and machine through technology, can be used in criminal proceedings as a means of obtaining evidence by accessing neural data and, therefore, directly affecting the so-called neurorights, which are rights related to the human mind, such as, for example, mental integrity and privacy. In this way, as neurotechnology removes data from the human mind, the most intimate and private sphere of the personality, it directly affects personality rights, the right to silence and the right to consent, which are constitutionally protected, which may lead to the illegality of the evidence. The research technique is bibliographic, using national and international articles, texts, books, dissertations, among others on the topic. Furthermore, the approach method is hypothetical-deductive, based on the premise that evidence that violates the private life, intimacy, consent and freedom of the human person can be considered illicit, therefore, evidence obtained through neurotechnology, which accesses mental information without limitations, regulation or consent of the accused, could be considered illicit, as they would conflict with the 1988 Federal Constitution and basic rights, and this is also the main hypothesis formulated. Therefore, the issue concerns the (il)legality and illicitness of evidence and the very personal rights of the person being investigated at the time of producing criminal evidence with the use of neurotechnology to access neural data.