"Narcoanalytics" order in Aurora massacre case unprecedented

News flash: There is no such thing as 'truth serum'

The next time the court appoints you to conduct a sanity evaluation, don't forget to order up a vial of 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"

In a seminal case, Harper v. State (1982), the George Supreme Court ruled that the use of "truth serum" (sodium amytal) was inadmissible to establish that a murder defendant was being truthful in proclaiming his innocence. "We agree with the trial court that, until it is proven with verifiable certainty that truth serum compels a person to tell the truth, neither the results of truth-serum tests nor the opinions of experts based on the results of these tests shall be admissible in evidence," 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.

Sodium amytal, or 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

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.

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.

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.

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 detection

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.

Judge William Sylvester

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? 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.

Special journal issue on psychology-law available for free!

A special issue of Current Directions in Psychological Science showcasing the latest psychological research applied to the legal system has received enormous interest. As a result, the editors and Sage Publications are making the full contents available free to the public through June 15, 2011. The articles cover a wide range of topics of interest to my readers, including competency, violence risk assessment, profiling, false confessions, eyewitness evidence, and jury decision making. You are encouraged to download these articles for later reading, and to freely share these links with colleagues. 

  FULL CONTENTS - CLICK ON BELOW LINKS TO DOWNLOAD  

Comment From the Editor
Randall W. Engle
 
Editor's Introduction: Special Issue on Psychology and Law
Ronald P. Fisher
 
Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology  
David V. Canter
 
Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching?
Debra Ann Poole, Maggie Bruck, and Margaret-Ellen Pipe
 
Interviewing Cooperative Witnesses
Ronald P. Fisher, Rebecca Milne, and Ray Bull
 
Current Issues and Advances in Misinformation Research
Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus
 
Eyewitness Identification
Neil Brewer and Gary L. Wells
 
Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
Aldert Vrij, Pär Anders Granhag, Samantha Mann, and Sharon Leal
 
Suspect Interviews and False Confessions
Gisli H. Gudjonsson and John Pearse
 
Current Directions in Violence Risk Assessment
Jennifer L. Skeem and John Monahan
 
Future Directions in the Restoration of Competency to Stand Trial  
Patricia A. Zapf and Ronald Roesch
 
The Utility of Scientific Jury Selection: Still Murky After 30 Years
Joel D. Lieberman
 
Expert Psychological Testimony  
Brian L. Cutler and Margaret Bull Kovera
 
The Psychology of Trial Judging  
Neil Vidmar
 
Jury Decision Making: Implications For and From Psychology
Brian H. Bornstein and Edie Greene

Special issue, Current Directions in Psychological Science

The February issue offers a cutting-edge roundup of psychology-law topics, with contributions from many luminaries. Click on an author link to request a reprint.

• Expert Psychological Testimony by Brian L. Cutler and Margaret Bull Kovera (I haven't finished reading this one yet, but I see that it discusses the critical issue of adversarial allegiance, identified by Murrie, Boccaccini and their colleagues in regard to the Psychopathy Checklist)

• Future Directions in the Restoration of Competency to Stand Trial by Patricia A. Zapf and Ronald Roesch

• Current Directions in Violence Risk Assessment by Jennifer L. Skeem and John Monahan

• The Psychology of Trial Judging by Neil Vidmar

• Jury Decision Making: Implications For and From Psychology by Brian H. Borstein and Edie Greene

• Suspect Interviews and False Confessions by Gisli H. Gudjonsson and John Pearse

• The Utility of Scientific Jury Selection: Still Murky After 30 Years by Joel D. Lieberman

• Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology by David V. Canter

• Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching? by Debra Ann Poole, Maggie Bruck, Margaret-Ellen Pipe

• Interviewing Cooperative Witnesses by Ronald P. Fisher, Rebecca Milne, and Ray Bull

• Current Issues and Advances in Misinformation Research by Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus

• Eyewitness Identification by Neil Brewer and Gary L. Wells

• Outsmarting the Liars: Toward A Cognitive Lie Detection Approach by Aldert Vrjj, Par Anders Granhag, Samantha Mann, and Sharon Leal

Websites worth checking out

• Psychology and Crime News is B-A-C-K! Emma B. was hosting this excellent source of news and information in the United Kindom back when I began blogging in 2007. She went on hiatus for a while, so I am happy to see she is back on the Web, even if in a somewhat abbreviated form. (She recommends you follow her on Twitter.) She's got especially strong resources in the area of lie deception research. Check her out (HERE). Welcome back, Emma!

• Sex offender laws are becoming so out of proportion in terms of their financial cost and the number of people they are ensnaring, including teens and even children, that calls for reason are mounting. Among the more interesting sites of this counter-movement is Citizens for Change, which is jam-packed with news stories, links, and other resources. I recommend that anyone working in the sex offender field give it a look-see (HERE).

• Finally, as I've mentioned before, if you want to keep up with psychological science and be entertained at the same time, Mind Hacks is the place to go. Psychologist Vaughan Bell's weekly "spike activity" columns give comprehensive lists of new research, while his in-depth daily reports provide eclectic perspectives on select news (e.g., new research on the "booty call" and the "poker face").
  

Response bias: Faith or science?

Most extensively studied topic in applied psychological measurement

After one hundred years and thousands of research studies, perhaps we are no closer than ever to understanding how response bias -- a test-taker's overly positive or negative self-presentation -- affects psychological testing. Perhaps what we think we know -– especially in the forensic context -– is mostly based on faith and speculation, with little real-life evidence.

That is the sure-to-be controversial conclusion of a landmark analysis by Robert E. McGrath of Fairleigh Dickinson University, an expert on test measurement issues, and colleagues. The dryly titled "Evidence for response bias as a source of error variance in applied assessment," published in Psychological Bulletin, issues a challenge to those who believe the validity of testing bias indicators has been established, especially in the forensic arena.

The authors conducted an exhaustive literature review, sifting through about 4,000 potential studies, in search of research on the real-world validity of measures of test response bias. They sought studies that examined whether response bias indicators actually did what we think they do -- suppress or moderate scores on the substantive tests being administered. They searched high and low across five testing contexts -- personality assessment, workplace testing, emotional disorders, disability evaluations, and forensic settings. Surprisingly, out of the initial mountain of candidate research, they found only 41 such applied studies.

Of relevance here, not a single study could be found that tested the validity of response bias indicators in real-world child custody or criminal court proceedings. Indeed, only one study specifically targeting a forensic population met inclusion criteria. That was a 2006 study by John Edens and Mark Ruiz in Psychological Assessment looking at the relationship between institutional misconduct and defensive responding on test validity scales.

Does the "Response Bias Hypothesis" hold water?

The authors tested what they labeled the response bias hypothesis, namely, the presumption that using a valid measure of response bias enhances the predictive accuracy of a valid substantive indicator (think of the K correction on the MMPI personality test). Across all five contexts, "the evidence was simply insufficient" to support that widely accepted belief.

McGrath and colleagues theorize that biased responding may be a more complex and subtle phenomenon than most measures are capable of gauging. This might explain why the procedure used in typical quick-and-dirty research studies -- round up a bunch of college kids and tell them to either fake or deny impairment in exchange for psych 101 credits -- doesn't translate into the real world, where more subtle factors such as religiosity or type of job application can affect response styles.

It is also possible, they say, that clinical lore has wildly exaggerated base rates of dishonest responding, which may be rarer than commonly believed. They cite evidence calling into question clinicians' widespread beliefs that both chronic pain patients and veterans seeking disability for posttraumatic stress disorder are highly inclined toward symptom exaggeration.

Unless and until measures of response bias are proven to work in applied settings, using them is problematic, the authors assert. In particular, courts may frown upon use of such instruments due to their apparent bias against members of racial and cultural minorities. For example, use of response bias indicators has been found to disproportionately eliminate otherwise qualified minority candidates from job consideration, due to their higher scores on positive impression management. (Such a finding is not surprising, given Claude Steele's work on the pervasive effects of stereotype threat.)

"What is troubling about the failure to find consistent support for bias indicators is the extent to which they are regularly used in high-stakes circumstances, such as employee selection or hearings to evaluate competence to stand trial and sanity," the authors conclude. "The research implications of this review are straightforward: Proponents of the evaluation of bias in applied settings have some obligation to demonstrate that their methods are justified, using optimal statistical techniques for that purpose…. [R]egardless of all the journal space devoted to the discussion of response bias, the case remains open whether bias indicators are of sufficient utility to justify their use in applied settings to detect misrepresentation."

This is a must-read article that challenges dominant beliefs and practices in forensic psychological assessment.

Federal judge rules against fMRI lie detector

The widely awaited ruling on the admissibility in court of fMRI for lie detection purposes has just come down, and it's bad news for proponents of the novel brain-scanning technology. In a potentially landmark opinion, a federal magistrate ruled yesterday that the technology is unreliable and has not been accepted by the scientific community. The 39-page opinion followed a closely watched evidentiary hearing in Tennessee (see my previous post HERE).

Detailed coverage of testimony at the Daubert evidentiary hearing can be found HERE. As reported by Science Insider, Judge Tu Pham held that the novel scientific technique has been subjected to testing and peer review, but is not general accepted by scientists nor are its error rates established. The judge's ruling also highlighted the distinction between laboratory research and performance in real-world settings.

Lorne Semrau, a psychiatrist facing trial on multiple counts of Medicare and Medicaid fraud, had sought to introduce his fMRI results as evidence of lack of fraudulent intent.

The full ruling is online HERE.

Brain research: Hippocampus hot, fMRI not

Court bans fMRI lie detection evidence

fMRI lie detection has been hailed as a technological breakthrough that could revolutionize legal cases by providing hard evidence about who is lying and who is telling the truth. But judges, not convinced of the brain scan's real-world validity, are just saying no.

Whereas general research about the fMRI has been admitted in the sentencing phase of some criminal trials, fMRI data has yet to be allowed in either the civil or criminal arenas as evidence of an individual's veracity.

Alexis Madrigal over at Wired magazine has been providing excellent, blow-by-blow coverage of the legal battles. In the latest skirmish, a judge in Brooklyn, New York did not even let the proposed fMRI evidence get as far as a Frye hearing, at which the plaintiff would have had to prove it was generally accepted as reliable in the relevant scientific community.

The civil case involves a woman who is suing her employer for alleged retaliation. Her attorney had sought to introduce fMRI data as evidence that a witness was telling the truth. But the defense successfully argued that, even if the fMRI data were accurate, it would infringe on the province of jurors, who in our legal system are supposed to decide the credibility of witnesses.

Critics say the scientific reliability and validity of the fMRI is far from established. If introduced in court, they say, its colorful graphics might mislead jurors and judges and derail justice. But, as Madrigal points out, this latest ruling suggests that, even if scientific reliability and validity issues are eventually settled, legal questions will remain.

Daubert hearing today in psychiatrist's fraud case

Today, the fMRI is being subjected to a Daubert evidentiary hearing in a federal case in Tennessee. Psychiatrist Lorne Semrau, charged with Medicare fraud, is seeking to introduce fMRI data as evidence of lack of intent.

The prosecution, seeking to prevent the fMRI evidence, will be calling two experts to testify about its scientific limitations, according to ScienceInsider. The two are Marcus Raichle of Washington University in St. Louis, a neurologist and veteran neuroimaging researcher, and Peter Imrey, a biostatistician at the Cleveland Clinic Foundation. Both served on a 2003 National Academy of Sciences panel that issued a critical report on the scientific validity of polygraph lie detection. Whichever way the judge rules, it could establish precedent for future cases, Stanford University law professor Henry Greely told ScienceInsider.

As I reported last year, a similar case in California in which a man sought to use fMRI evience to prove his innocence of child abuse charges was unsuccessful.

"These cases demonstrate that the collision between fMRI technology and the legal system is likely to be long and messy," concludes Madrigal, who in addition to writing for Wired is a visiting scholar at UC Berkeley's Office for the History of Science and Technology.

This season's hot brain regions

With the fMRI decidedly out of fashion in the legal arena, if you want cocktail party trivia about what topics in brain research are hot, you can get it from Neuroskeptic, a cool neuroscience blog out of the UK. The hippocampus (memory) is popular, but even more popping this season are the orbitofrontal cortex and cingulate cortex. Neuroskeptic theorizes their popularity owes to the fMRI, which makes them easier to study.

Forensic brain-scanning resources

For those of you who are interested in this area, several prominent media have recently featured analyses of forensic use of brain-scanning technology. Nature magazine did a nice overview, asking the frequently raised question of whether it is ready for prime time.

This followed a piece at the online news site Miller-McCune entitled, "A Mind of crime: How brain-scanning technology is redefining criminal culpability."

In its week in review section, the New York Times tagged off of that latter story, asking the provocative question: If all our mental states can ultimately be reduced to neurophysiological conditions, and there is really no such thing as free will, how can people be held accountable for crimes?

That philosophical question is addressed in another interesting article forwarded to me by blog subscriber Marsha from PhysOrg.com, explaining that "Free will is an illusion, biologist says."

And yet more online resources:

"For the law, neuroscience changes nothing and everything," by Joshua Greene and Jonathan Cohen.

Mind Hacks has excellent critical analysis of the science of brain scanning. For example, there's a post on the claim that brain scanning can diagnose Post-Traumatic Stress Disorder: "Brain scan diagnoses misunderstanding of diagnosis."

"Beware 'voodoo' brain science," blog post, March 10, 2009

Wired article: Brain Scans as Mind Readers? Don't Believe the Hype by Daniel Carlat