March 14, 2013
The criminal case against Colorado shooter James Holmes made a few headlines this week upon the court’s issuance of a pre-plea advisory notice, available on Westlaw at 2013 WL 905223. The UK’s The Guardian announced “Judge approves use of ‘truth serum’ on accused Aurora shooter James Holmes.” Is this a new and shocking affront to the criminal defendant’s right against self-incrimination?
Actually, the judge’s advisory notice refers the defendant’s attention to the existing Colorado statutory scheme regarding mental examinations. C.R.S.A. § 16-8-106 sets forth the requirements for examination of a defendant entering an insanity plea or mental impairment defense. Specifically, § 16-8-106(3)(b) authorizes the “narcoanalytic interview,” more popularly referred to as use of “truth drugs” or “truth serum.” This isn’t a new provision — it’s been on the books in Colorado for nearly 30 years (see the 1983 text amenemdnts).
Pharmacologically-enhanced mental examinations aren’t a new idea. One early case on the subject arose in California, People v. Jones, 266 P.2d 38 (1954), where the court observed that “[while] it is questionable whether the results of examinations made while a person is subject to the ‘truth drugs’ are admissible in evidence…, that conclusion is correct only if the statements are offered for the purpose of proving the truth of the matter asserted.” Interestingly, in Jones the objected-to testimony was being offered by the defendant, not the prosecution—the defendant was introducing expert analysis that he was not a “sexual deviate” under then-applicable law.
In fact, quite a few of the cases addressing the admissibility of drug-induced statements have arisen where the defendant, not the prosecution, sought admission. For example, Jones was subsequently relied upon in People v. Cartier, 335 P.2d 114 (1595), holding that it was error for the trial court to exclude the defense expert’s opinion that the defendant was insane at the time the offense was committed, where that report was based in part on the defendant’s answers under the influence of sodium pentathol, because the defendant’s statements were not being offered for the truth of the matter asserted.
Unsurprisingly, where it comes to proving the truth of the matter, courts seem to have uniformly refused to admit testimony obtained with truth serum. Such testimony tends to be grouped alongside lie detector tests and testimony under hypnosis. See as examples State v. Conley, 627 P.2d 1174 (Kansas), and Dean v. State, 636 S.W.2d 8 (Texas).
I ran the following search on WestlawNext to find a wealth of materials on this issue:
guilty plea “truth serum”
One helpful result from Secondary Sources is an ALR on “Physiological or psychological truth and deception tests,” 23 A.L.R.2d 1306, which brings together cases concerning use of lie detector tests and truth serums from across the country. There are also a number of state-specific results in Secondary Sources which can help point you to authority in your jurisdiction.
There are also a number of interesting medical journal abstracts on Westlaw Classic. Try,
ti(“truth serum” “truth drug”)
For example, see MEDLINE 16184018 from the University of Illinois:
This essay reconstructs a social and cultural history of “truth serum” in America during the 1920s and 1930s, … The paper also argues that truth serum helped develop an account of memory as a permanent record of experience, accessible through altered states of mind. 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.