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James Holmes to receive 'truth serum?'

  • Dr. Brian Russell is a forensic psychologist and attorney
  • He says that 'truth serum' and a polygraph will likely be administered to James Holmes if he is found incompetent to stand trial
  • Since Holmes is facing a severe penalty for his crime, Dr. Russell says he has a 'powerful incentive to lie'
James Holmes to receive 'truth serum?'
Dr. Brian Russell

Editor’s note: Dr. Brian Russell is a licensed forensic psychologist and attorney at law. He is also the co-host of “Fatal Vows” on Investigation Discovery. He is on Twitter.

James Holmes, the Colorado movie theater massacre defendant, was arraigned on Tuesday, and at that hearing, the defense was unprepared to enter a plea. Therefore, the presiding judge entered a plea of not guilty on Holmes’ behalf, which the defense now has the option to change, either to guilty or to not guilty by reason of insanity.

However, coverage of that relatively uneventful arraignment seemed to be dominated by speculation about the prospects of “truth serum,” a polygraph examination and forced medication potentially being administered to Holmes, raising a lot of clinical and constitutional questions.

The "truth serum" and polygraph will likely come into play if/when the defense asserts that Holmes is incompetent to stand trial. At that point, the judge will order a mental examination of Holmes. Thereafter, the judge will conduct a hearing, at which evidence will be presented on both sides, and will then make a ruling as to Holmes' competence to proceed.

That ruling does not require proof beyond a reasonable doubt, as does a guilty verdict. Rather, it requires only a preponderance of evidence (i.e. that it be more likely than not) one way or the other. Therefore, techniques like narcoanalysis (an interview facilitated by the administration of “truth serum” to the examinee) and a polygraph, which generally are not considered reliable beyond a reasonable doubt, raise fewer constitutional concerns in a proceeding to determine a defendant’s competence to stand trial than in a proceeding to determine his guilt.

Holmes is charged with a total of 166 counts of murder, attempted murder and other charges, so unless he’s either ruled incompetent to stand trial or found not guilty by reason of insanity, he’s facing either the death penalty or life in prison without parole.

The defendant’s powerful incentive to lie, coupled with the inherent difficulty of disproving the authenticity of whatever symptoms he reports, are the essential justifications for statutorily permitting the use of extraordinary assessment tools like the “truth serum” (sodium pentothal, a disinhibiting agent intended to make it difficult for an examinee to maintain a deliberate façade under questioning about his symptoms) and the polygraph (a coordinated set of measurements of involuntary physiological reactions that tend to accompany intentional deception).

The idea here is to balance the defendant’s Fifth Amendment constitutional right to due process -- which requires that he be able to understand the proceedings by which his property, liberty and/or life may be taken and that he be able to participate meaningfully in those proceedings -- against society’s interest in ensuring, to the greatest extent possible, that the defendant does not escape accountability for his actions under the law by feigning an inability to understand the proceedings and/or to assist in his defense.

If Holmes were ruled competent, the case would move forward. If he were ruled incompetent, the case would be placed on hold until such time as Holmes were either restored to competency or ruled permanently incompetent, at which point he’d likely be involuntarily civilly committed for an indefinite period of time. But as we saw in the case of Jared Loughner, the convicted shooter of former Rep. Gabrielle Giffords, an incompetent defendant can be involuntarily committed to psychiatric treatment, including forced medication, in an attempt to restore his competency, prompting the case to proceed.

It’s important to keep in mind that when we’re talking about competence to stand trial, we’re talking about Holmes’ mental state at present, not back at the time of the massacre. Only if/when the case proceeds (if/when Holmes’ competence to stand trial is unquestioned), and if/when the defense changes Holmes’ plea from not guilty to not guilty by reason of insanity, will his mental state at the time of the massacre become relevant.

As I’ve said and written in the past, there are ample indications that, despite whatever mental illness(es) Holmes may have (had), his mind was functioning well enough to differentiate right from wrong (i.e. legal from illegal) and to form the intent to allegedly commit murder at the time of the massacre. But given the consequences of conviction, Holmes would again have a powerful incentive to lie.

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