Commentary Forum 3/26

Illustration by Dayton artist Sam Rhoden Illustration by Dayton artist Sam Rhoden

Forum Center: Shall the ‘truth serum’ set you free from Fifth Amendment rights?

 By Alex Culpepper

James Holmes is the man accused of walking into an Aurora, Colorado, movie theater on July 20, 2012, taking out his guns and opening fire, killing 12 people and wounding dozens more. After the incident, he was promptly arrested and booked on nearly 170 counts of murder and other charges. He was arraigned March 12 in a Colorado court and Judge William Sylvester entered a not guilty plea for him. Holmes’ lawyers may eventually enter a plea of not guilty by reason of insanity for an April 1 hearing in which prosecutors may seek the death penalty. If Holmes enters the insanity plea and it is accepted, the death penalty will probably be off the table. He may have a lighter sentence if convicted and he possibly could be acquitted and serve time in a mental institution rather than a prison.

There’s a catch in it for Holmes’ defense, though. If Holmes submits an insanity plea, then Judge Sylvester has given the green light for prosecutors to interrogate him while doctors administer a “truth serum.” This serum is a barbiturate fed intravenously and is intended to lower inhibitions and bring forth information normally unavailable in a sober condition. This process is known as a “narcoanalytic interview,” and it is both unusual in a criminal trial and a possible violation of a person’s constitutional rights.

Supporters of the judge’s decision in this case have a simple goal: they hope to find evidence Holmes was legally sane during the shooting and competent to stand trial for murder and other crimes. They believe evidence from the narcoanalytic interview would provide what they need to support their case. Opponents of the decision to use truth serum have a few problems with it. First, they say the attitude among medical experts is the narcoanalytic interview is not reliable. They say people can still lie under the drug’s effects and can be subject to suggestion, thus giving false statements. Then, opponents say this is a potential violation of the Fifth Amendment because Holmes would lose his right to remain silent while under the effects of the drug and could unlawfully incriminate himself. Further, violations of unreasonable search and seizure and due process under the Fourth and Fourteenth Amendments are possible, too, according to Judith Edersheim, the co-director of the Massachusetts General Hospital Center for Law, Brain and Behavior.

The determination of whether Holmes’ plea is not guilty or not guilty by reason of insanity is an important factor in this case. To get the latter plea to trial, he must first submit to the narcoanayltic interview. Courts are in place to allow people to seek justice under the law and supporters of using the truth serum want the interview to happen because they believe information from it will greatly support their case. Courts also must ensure that the rights of both plaintiff and defendant are protected, and opponents fear drugging someone and getting him or her to recall events of an alleged crime may violate the Fifth Amendment right to prevent self-incrimination.

Forum Question of the Week

A Colorado judge has approved government use of a “narcoanalytic interview” for the purpose of confirming whether accused Aurora, Colo. shooter James Holmes had been legally insane when he engaged in his shooting spree. Is this judge’s decision sound? Or is it a challenge to our Constitution’s right to remain silent under the Fifth Amendment? 

The sad demise of common sense

 By Marianne Stanley

Did the judge who recently approved the use of the administration of a pharmaceutical drug for the express purpose of determining if James Holmes is sane or insane make a sound decision or did he violate the Fifth Amendment of the U.S. Constitution that allows the accused to “remain silent”? If we take our own “slippery slope” fears out of it, the judge’s decision is a sound one. Why?

1. The right to remain silent is there to protect us from having to incriminate ourselves in criminal activity. Holmes is already “incriminated” in this crime; there is no question that he was the killer so “taking the Fifth” is moot in this particular case.

2. The legal system’s job is always to balance the rights of the individual against the rights of society.

3. Pretending that our Constitution is still intact and that its amendments are still valid is a joke. Within the past decade or two, we have been stripped of most of our long-cherished rights under the First, Fourth, Sixth, Fifth and Eighth Amendments anyway. People are arrested for exercising their rights of free speech, right to assemble peaceably, right to petition government for a redress of their grievances. They are no longer “secure in their persons, houses, papers and effects against unreasonable searches and seizures.” Police often unreasonably stop pedestrians and drivers and search them with little or no cause. Drug raids involve the seizure of property before conviction. Cars are now towed in many communities for unpaid parking tickets. None of our “papers or effects” are secure anymore with government eavesdropping and all of our records up for grabs, from our financial to our medical data. There is often no speedy trial and courts routinely impose unreasonable fines and cruel and unusual punishment on decent American citizens. Our “right to privacy” has been completely obliterated with scarcely a whimper from the public.

4. This is not about a person being “compelled to be a witness against himself.” This is about a person being accurately, fairly, thoroughly diagnosed prior to trial for the condition of insanity since an insane person, under the law, cannot be tried for a crime but must be treated in an institution for the mentally ill. The Fifth Amendment was never intended to apply to the determination of insanity. The issue here is really about whether or not we should be able to use all the tools at our disposal, including psychological evaluations and pharmaceuticals to reach an accurate diagnosis so that it can be determined if Holmes is fit to stand trial for a crime or not. If he is sane, anything less than prison is not secure enough to prevent further harm by him.

Sociopaths and psychopaths are amazingly skillful at duping, using and outwitting others. Why would we not be in favor of using any and all methods to help us uncover the truth of mental capacity? This man, if sane, needs to be imprisoned, safely kept away from the rest of society.  Law is ideally about seeking to do the least injustice in its pursuit of justice. Sometimes, individuals are the ones who lose in this tug o’ war; sometimes it’s society. Since we are putting the “rights” of a mass murderer up against the rights of the rest of us, we should win.

This whole “argument” about whether or not we can drug this man to obtain needed information prior to his trial reminds me of the similarly asinine discussions about banning assault weapons. How stupid not to! But the media is powerful in its service to those who control it and who seek certain beneficial outcomes, like the sale of more and more deadly weapons without thought to the outcome. Sadly, it is these self-serving few, not common sense, that are calling the shots these days. Same goes here. It would be just plain stupid to not use every available method to determine if this guy is insane or just play-acting to stay out of prison. Countless innocent lives may depend on it.

 Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at

Justice’s sword calls for truth

By Rob Scott

The protection of citizens is the government’s main role, which includes crime prevention. The punishment of crime, if proved, is also the duty of government. What needs to be weighed is the extent to which the government can do away with a citizen’s individual rights for the fulfillment of the government’s duty. Or the philosophical argument: the needs of the many outweigh the needs of the few.

Regardless of who committed the crime or what crime was committed, there is an ideal to carry out fair and swift justice. Many see Lady Justice depicted wearing a blindfold holding a doubled-edged sword in her left hand and a set of scales suspended in her right hand. The sword symbolizes the power of reason and justice which is wielded either for or against any party. The scales symbolize the measure of the strengths of a case’s support and opposition. This is where the saying and ideal of “justice is blind” has been established.

The Colorado movie theater shooting case will likely go down as one of the more famous cases this decade, which will test these two notions of the protection of citizens and justice. The national attention of the incident, including the legal maneuvers in the case, will be closely watched. One of the legal maneuvers the prosecution and defense are grappling with in the case may have effects across the country.

Colorado Judge William Sylvester ruled, in the event the alleged shooter James Holmes pleads insanity, the prosecutors would be permitted to interrogate him while he is under the influence of a medical drug designed to loosen him up and get him to talk. The idea is the “narcoanalytic interview” would be used to confirm whether or not Holmes had been legally insane when he embarked on his shooting spree on July 20, 2012.

During the interview, the prosecution wants to ask Holmes questions about the incident. Obviously, these questions asked are for the purpose of building evidence in the case against Holmes and brings in his Fifth Amendment rights, including due process concerns.

The Fifth Amendment protects a defendant from being forced to incriminate themselves. The privilege against compelled self-incrimination is the constitutional right of a person to refuse to answer questions or otherwise give testimony against them. When someone “pleads the Fifth,” they are stating their right to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act that is punishable.

However, when a defendant enters a plea of not guilty by reason of insanity, the rules change somewhat. In order for medical experts to get a mental evaluation to submit an expert opinion, the defendant must cooperate with the experts to get an admissible competency report.

Normally, an evidentiary hearing is held to determine whether the defendant was insane or is insane and thus cannot stand trial for the alleged crime due to the lack of the mental state required. During this hearing, expert opinions are admitted and weighed by the court to make the determination.

The judge in this case must feel the narcoanalytic interview will be helpful for the court to make that determination. Though not discussed by any news reports or the court, any evidence during the narcoanalytic interview could be excluded for the purposes of trial.

Though there are Fifth Amendment concerns, the interview will assist the court in determining if Holmes was insane at the time of the shooting. The court will weigh its probative value and can decide later if any evidence adduced can be used for trial purposes. If the court rules Holmes was not insane, then the defense will have an opportunity to motion the court to limit the evidence recovered by the prosecution from the interview.

Like Lady Justice, the court will weigh the evidence and reason through the issues.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is the Chairman of the Montgomery County Republican Party and the founder of the Dayton Tea Party. He can
be contacted at or

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