News flash: There is no such thing as 'truth serum'
In a court order that breaks new legal ground, the judge presiding over the trial of James Holmes ordered the Aurora Colorado massacre suspect to submit to polygraph testing and a "narcoanalytic interview" if he decides to put his mental state at issue.
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"ruled the court.
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.
amobarbital, belongs to the same class of barbiturates as Nembutal, Seconal, and Pentothal. As psychiatrist August Piper Jr. describes the procedure, a physician intravenously administers small amounts of the drug (sometimes in tandem with other intravenous drugs like Valium or Ativan) until the subject enters a "twilight state" in which he is relaxed and drowsy but still awake. The drug causes a feeling of warmth and "closeness to the interviewer" that breaks down inhibitions, similar to the effects of acute alcohol intoxication.
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
|James Holmes's new look|
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 ideaThe 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.
Indeed, Judge Sylvester's court order harkens back to the early to mid-20th century, a time when -- as legal analyst Odershoo recounts -- "the idea of such a magical substance seemed a very real possibility, one holding profound significance for criminal investigation, foreign intelligence, and national security."
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.
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 repudiatedUse 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.
A scan of the case law suggests that this is by far 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.
Malingering detectionHolmes'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.
|Judge William Sylvester|
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? Vaughan Bell over at Mind Hacks went so far as to wonder whether "the judge has been at the narcotics himself."
NOTE: An updated version of this essay appears at my Psychology Today blog. That essay explains where Judge Sylvester got this wacky idea, and also references the landmark case of Ramona v. Ramona, in which a father successfully sued his daughter's therapists for implanting false memories of child sexual abuse during a sodium amytal interview, as well as the role of sodium amytal in the Michael Jackson case. Thanks to psychologist Evan Harrington of the Chicago School of Professional Psychology for alerting me to the Ramona opinion, which features an interesting discussion of relevant case law.
A full set of court documents in the Holmes case is located HERE.