"Narcoanalytics" Order in Aurora Massacre Case Unprecedented
News flash: There is no such thing as 'truth serum'
Posted Mar 19, 2013
Chief District Judge William Sylvester ruled that if Holmes elects to pursue an insanity defense, "medically appropriate" drugs can be administered during a forensic examination at the state hospital, presumably to determine whether the mass murder suspect is feigning insanity.
This may be the first time that a court has mandated use of so-called "truth serum" in a sanity evaluation. Indeed, courts have generally taken the opposite stance, of being gatekeepers who exclude the results of both sodium amytal and polygraph examinations from court due to their lack of reliability.
"Mythical aura of infallibility"
Similarly, a defense-retained psychologist published an account of another case from the 1980s in which an appellate court upheld exclusion of "a sodium amytal test" to bolster an insanity defense. The defendant had walked into a nightclub and shot to death a dancer who had jilted him. Under the influence of the barbiturate, the man claimed he thought he was shooting Satan, because the victim had appeared to morph into the devil, "with pitchforks … and fire and everything." In excluding mention of the test, the trial judge expressed worry that a jury "might be overwhelmed by the use of the term 'sodium amytal' and/or 'truth serum' and attribute to it a mythical aura of infallibility."
Back in the 1930s and 1940s, when sodium amytal was all the rage, laypersons and professionals alike believed that people could not lie when under the drug's influence. It turns out that this faith was misguided. Empirical testing showed that although sodium amytal and related drugs lower inhibitions, people remain perfectly capable of lying, withholding information, and exaggerating psychiatric symptoms.
"While it is clear that these substances lower inhibitions and increase loquacity, they provide no assurance as to the truthfulness of the information obtained,” noted attorney Jason Odershoo in a Stanford Law Review analysis focusing on whether such chemicals may legally be deployed against terrorism suspects in the post-9/11 world.
However, while sodium amytal makes people more loquacious, it also disrupts memory and increases suggestibility, according to the research summarized by Piper. Reality and fantasy may become hopelessly tangled, such that people cannot distinguish between the two.
Cultural fascination with truth serum in the mid-20th century completely ignored this flawed reality. Rather, the mythology helped to shape the public's understanding of memories as robust and accurate, stored verbatim in the mind just awaiting proper retrieval and extraction. As Alison Winter writes in a 2005 essay on the cultural history of truth serum:
"This view contributed to the production of a public understanding of memory that both diverged from previous claims about memory and recall, and ran counter to the direction of current psychological research. It thus helped lay the groundwork for claims about memory permanence and scientific recall techniques later in the twentieth century."
Perils in Holmes's case
The empirical research suggests not only that Holmes could lie while under the influence of the drugs, but also that subjecting him to a "narcoanalytic interview" could introduce false memories and render his subsequent recall of information potentially even less reliable. As with post-hypnosis statements, this could be a big problem if Holmes decides to testify on his own behalf, either at a trial or a sentencing hearing. Similarly, unreliable information recounted to evaluators during a "narcoanalytic interview" could be given too much credence, thereby jeopardizing the validity of forensic opinions in the case.
But maybe such contamination is the point, writes a commentator at the American Everyman blog. Under the alarmist headline, "Holmes to be Drugged Into Confession -- Apparently Waterboarding is Off the Table," Scott Creighton theorizes: "This 'truth serum' CIA trick will be used to convict Holmes in the court of public opinion before his Vichy lawyers plead him out to life in prison rather than taking it to trial to evaluate the evidence against him."
Given the recent dispositions of other similar cases such as that of Arizona mass shooter Jared Loughner, maybe the conspiratorially minded blogger is not so far off the mark.
The CIA and a zombie idea
The notion of a magical drug that can ferret out malingering represents a "zombie idea," to borrow a phrase from New York Times essayist Paul Krugman. That is, it is a proposition that has been thoroughly refuted by analysis and evidence, and should be dead -- but stubbornly refuses to stay dead because it serves a political purpose or appeals to public prejudices.
The term "truth serum" was coined in the early 1920s by an obstetrician named Robert House, who advocated the use of the barbiturate Scopolamine -- now known as a date-rape drug because of its amnestic properties but at the time administered to women during childbirth to induce a 'twilight sleep' -- in criminal interrogations. Time magazine's 1923 piece, "Medicine: The Truth-Compeller," helped popularize the idea and turned House into a one-hit wonder. In the 1930s, police use of barbiturates on witnesses and criminal suspects became more widespread. During World War II sodium pentothal was used both to treat soldiers suffering from "shell shock" and to detect malingerers trying to duck the military draft.
Then, during the Cold War, the CIA launched a feverish quest for the ultimate "truth drug." Clandestine campaigns with code names such as Projects Chatter, Third Chance, Derby Hat and Bluebird culminated in the ill-fated MK-ULTRA, in which a doctor who was administered LSD leapt to his death from a hotel room window. Revelations of this secret experimentation led to public antipathy towards the spy agency, and a demise in the use of sodium amytal and sodium pentothal as truth serums.
The drugs remain in use as anesthetics, and have also been used by psychotherapists seeking to recover repressed memories. This use has its own sordid history. In 1992, a former patient of eminent Chicago psychiatrist Jules Masserman published an account claiming that the good doctor had repeatedly raped her after administering sodium amytal, purportedly to retrieve her repressed memories of incest. The patient, Barbara Noel, was not the only woman to win a lawsuit over such nefarious abuse.
Legal use officially repudiated
Use in law enforcement fell rapidly in the wake of a 1963 U.S. Supreme Court ruling that a confession produced under the influence of truth serum was unconstitutionally coerced, and therefore inadmissible. The case of Townsend v. Sain involved a heroin addict who was interrogated after being administered phenobarbital and hyoscine (Scopolamine) to alleviate his withdrawal symptoms. Although India and some other countries still use these drugs in criminal investigations, in the United States their use for that purpose has been "officially repudiated," according to Odershoo.
Sodium amytal also played a supporting role in the legal drama over repressed memories of childhood sexual abuse in the 1980s and 1990s. In a landmark case, a Napa Valley, California man named Gary Ramona successfully suedhis daughter's therapists for implanting false memories of abuse during a sodium amytal session. Holly Ramona had entered therapy for depression and bulimia, but her therapist told her that four out of five women with eating disorders had been sexually abused.
Gary Ramona's expert witness, the late psychiatrist Martin T. Orne, testified that there remains a general consensus in the scientific community that using sodium amytal for truthfinding purposes is not a reliable technique:
"It has long been recognized and accepted in the scientific community that sodium amytal is not useful in ascertaining 'truth.' Things said under the influence of sodium amytal are no more reliable than things said while intoxicated by alcohol. Further, under the influence of sodium amytal, a patient becomes more sensitive and receptive to suggestions due to the context and to the comments of the interviewers. The process makes it more likely that a subject will respond to subtle cues and come to believe statements as true which in fact have no basis in reality. ... Furthermore, critical judgment is largely suspended and the subject may more readily transform or distort recollections, dreams, fantasies, and create pseudomemories, which the subject may come to believe as true. The subject may also confabulate and fill in gaps of memory with largely or totally fictitious material. It is impossible to ascertain whether such 'memories' described during a sodium amytal interview have any reliability without independent corroborating evidence."
Truth serum even played a bit role in the Michael Jackson drama: 13-year-old Jordan Chandler's allegation came out while he was under the influence of the drug during a tooth extraction.
In the criminal realm, Holmes's appears to be the most serious case in which narcoanalysis has ever been proposed. Holmes is awaiting trial on 166 felony charges for an attack on Batman moviegoers last July that killed 12 people and wounded 58. His attorneys have mounted a heretofore unsuccessful challenge to Colorado's insanity statute and the judge's interpretation of it. Under Colorado law, the test for insanity is whether the person "who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act." Judge Sylvester has ordered that, if Holmes pleads insanity, he must divulge all information from past mental health treatment. Holmes was seen by a psychiatrist and at least two other mental health professionals at the counseling center of the University of Colorado, where he was a PhD student in neuroscience before withdrawing from school, and his treatment records may contain potentially incriminating information. Such forfeiture of doctor-patient privilege is standard in criminal law when a defendant puts his mental state at issue.
Holmes's elaborate degree of planning for his attack over at least a four-month period certainly raises a distinct possibility that any claim of mental illness may be feigned. But while no method is foolproof, other techniques have a far better track record at sniffing out deception.
We have a constantly growing arsenal of formal tools for the assessment of various types of malingering. Especially in high-stakes cases such as this, formal tests are typically augmented by 24/7 observation in psychiatric facilities. It's pretty hard to consistently masquerade as insane when one is under around-the-clock observation by everyone from the doctors and nurses to the janitors. Even one of the most slippery malingerers of insanity, a Mafia don named Vincent "The Chin" Gigante, eventually tripped up and got nailed.
Judge Sylvester's order is so far removed from both contemporary scientific knowledge and normal legal procedure that it has left many observers scratching their heads. Where did the judge get the wacky idea that truth serum is the way to go? Did he cook it up himself, or was it fed to him by someone who had read a few too many "true crime" books or spy thrillers?
As it turns out, the procedure is spelled out in black-and-white right in Colorado's cirminal statutes, in the section on insanity proceedings:
"It shall also be permissible to conduct a narcoanalytic interview of the defendant with such drugs as are medically appropriate and to subject the defendant to polygraph examination. In any trial or hearing on the issue of the defendant's sanity."
Nonetheless, Judge Sylvester's order is unprecedented enough that it had Vaughan Bell over at Mind Hacks wondering whether "the judge has been at the narcotics himself."
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Of related interest: Aurora Massacre: To Speak or Not to Speak?