‘We have ways of making you talk…’

Earlier this week, Judge William Sylvester, the Colorado state judge presiding over the James Holmes trial, ruled that prosecutors are allowed to apply “truth serum” to Holmes if/when he decides to plead not guilty by way of insanity.

Holmes, you may remember, is the jackhole who allegedly (to the extent he has not yet entered his own plea) murdered 12 people and injured 58 others in an Aurora, Colorado movie theater during the premiere of The Dark Knight Rises. He’s expected to cop an insanity plea, citing a bunch of troubling facts, including the fact that he was obsessed with the Joker, leading him to dye his hair orange, which, when you think about it, undermines his obsession claim since the Joker clearly has green hair.

But the decision to forcibly inject Holmes with so-called “truth serum” to test his insanity claims, not only sounds like a plot device from a really terrible Bond movie (let’s just assume Die Another Day), but it also seems like a genuinely terrible legal ruling….

First of all, there’s not much evidence to support the idea that “truth serum” actually works. The drug prosecutors are most likely to use is sodium amytal, which was news to me because years of watching spy movies had taught me that truth serum was sodium pentathol. The prosecutors are hoping that the serum could force Holmes to admit if he’s lying about his sanity. Does sodium amytal actually work?

Not reliably. The most likely drug that prosecutors would use on Holmes is sodium amobarbital, also known as sodium amytal. It has dozens of psychiatric applications, but it doesn’t seem to do any of them particularly well. In Holmes’ case, prosecutors would use it to prove that he’s malingering, or feigning illness, psychiatric illness in this case. Doctors first attempted to use the chemical for this purpose in the 1940s, when a psychiatrist claimed to get several drugged soldiers to admit their malingering. These days, psychiatrists are less sanguine about the drug’s effectiveness for this purpose. Sodium amobarbital lowers a subject’s defenses, and thus makes it easier to catch him in a lie, but a person can continue to lie under the influence of so-called “truth serum.” In addition, the drug may increase a patient’s susceptibility to suggestion, raising the possibility that a truly disturbed patient could falsely admit to malingering.

So it doesn’t reliably work. Super.

But even if the serum worked reliably, jamming drugs into a defendant and eliciting testimony fails to pass at least a couple constitutional smell tests.

William Shepherd, chair of the criminal justice section of the American Bar Association, whose members include both prosecutors and defence lawyers, said that the proposed use of a “truth drug” to ascertain the veracity of a defendant’s plea of insanity was highly unusual in the US. He predicted it would provoke intense legal argument relating to Holmes’s right to remain silent under the fifth amendment of the US constitution.

“If a defendant loses his right to remain silent because the court has authorised the use of drugs that make him talk, that would raise all sorts of fifth amendment issues that both sides would have to address.”

The few prior cases that allowed truth serum-induced testimony involved defense counsel seeking the truth serum to help establish an insanity defense, as opposed to the government trying to compel a defendant to undermine his defense.

This gimmicky ruling seems designed to aid the prosecutors — and attorneys rate Judge Sylvester as leaning from neutral to “very biased in favor of the prosecution” — but it risks derailing the whole case by introducing such an easily contestable constitutional issue.

Maybe Holmes won’t invoke an insanity defense (which is, like, totally hipster since it’s the craziest thing he could do) and there will be no need for truth serum. But if the drug is called upon, Judge Sylvester just has to hope that Pai Mei never taught Holmes the five point palm-exploding heart technique.

Too High to Lie [Slate]
Judge Approves Use of ‘Truth Serum’ on Accused Aurora Shooter James Holmes [The Guardian]


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