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Automatism and the Ambien Defense
We’re betting you know what the ‘Ambien Defense’ would be—but that maybe the definition for automatism has escaped you. Generally it refers to a robot, specifically to an autonomous robot—which is a pretty scary thing when you think about it. And in this case, scary things happened. Here’s the story, courtesy of the Fayetteville Observer.
Robert Stewart is charged with shooting and killing eight people with a shotgun at the Pinelake Health and Rehabilitation Center in Carthage, North Carolina. He had taken Ambien the night before but the shootings occurred the next morning. His attorneys have said:
“Stewart was not in control of his actions because of a combination of alcohol and three prescription drugs he was taking, including Ambien. As such, they say, he should not be held legally responsible.”
In essence, the defense has given strong hints they will be pursuing the automaton defense—that Stewart was not in true control of his actions due to the impact of his prescription medications mixed with alcohol. This defense is a bit different than the insanity defense although the attorneys say they also may file insanity and diminished capacity defenses.
We’ve seen similar strategies before with defenses for sexsomnia, and other ‘my brain made me do it’ defenses like this one or this one. We still think it’s a long shot.
You are not supposed to drink alcohol with Ambien (or probably with any of the other drugs he was taking). Mr. Stewart says he did. That’s a point for Mr. Stewart’s irresponsibility with his medications, and in most jurisdictions it creates problems for using it as a defense.
Mr. Stewart had pre-existing “emotional issues” and had visited a doctor 48 hours before the shootings for depression and anxiety. Jurors may think his pre-existing mental health issues are more at fault here than the use of Ambien.
His ex-wife says he had “violent tendencies” and that he would “get mad because of things that didn’t go his way. He never really hurt me, but he would get mad and blow up.”
An early news report stated Mr. Stewart’s current wife (from whom he was separated) worked at the Pinelake facility and speculated that is why he targeted that location.
Most of the cases of odd behavior on Ambien are described as occurring a few hours after you take Ambien (people who drive, mow their lawns, or sleepwalk/sleepeat) but the Pinelake shootings occurred the morning after.
It’s one thing to believe Ambien will result in sleepwalking or even sleep-driving. But killing eight people [seven elderly patients and their nurse] and wounding two others?
It’s a long road to convince jurors of the idea that Mr. Stewart was simply robotically obeying the influence of the Ambien when he had preexisting conditions, a history of rage, his estranged wife worked at the Pinelake facility and he acknowledges he had consumed alcohol. But stranger things have happened. We’ll keep an eye on this one.
And for those of you who are involved in Ambien liability litigation, we don’t mean to be taking sides on the merits of these disputes. This case caught our eye because of the seriousness of the conduct, and some evident problems related to Mr. Stewart’s history. We have worked on many pharmaceutical cases and diminished capacity cases, and understand that they can be brought about by myriad influences. And perhaps most importantly, we got these reports from the media. As we learned from the Casey Anthony trial, that may not be the whole picture…
September 6, 2011:
See an update on how the jury deliberated and decided in this case.
Praveen Kambam, MD, & Phillip Resnick, MD (2010). Ineffective Counsel and Mental Health Expert Witness Testimony in an Insanity Defense. Journal of the American Academy of Psychiatry and the Law, 38 (4)
Measuring knowledge of the insanity defense: Scale construction and validation. Tarika Daftary-Kapur Ph.D., Jennifer L. Groscup Ph.D.†, Maureen O’Connor Ph.D.‡, Frank Coffaro M.A.§, Michele Galietta Ph.D. Behavioral Sciences & the Law, Volume 29, Issue 1, pages 40–63, January/February 2011
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Why are you so heartless?
Not everyone has the excuse of really not having a heart like the Tin Man in the Wizard of Oz. But there are certainly those among us who seem not to have a heart. Our sense of this differentness among us has led to familiar sayings: ‘Heart of stone’ versus those of us who have ‘bleeding hearts’.
Why is it that we are so different? New research says it might be oxytocin (the love hormone) or maybe it’s mirror neurons (the brain parts that give us empathy for others).
When we have less oxytocin, we are less loving, caring, or prone to put others before ourselves. Dutch studies of oxytocin in human mothers found that those with lower levels of oxytocin were less likely to be patient and helpful with their toddlers. (Where oh where are the Dutch studies of human fathers?)
And those of us with fewer mirroring neurons don’t get misty-eyed over holiday commercials for coffee made by your returning college student, or documentaries on puppy mills or watching heartwarming movies.
It’s a tradeoff. There are differing kinds of brains and they have different chemicals that result in varying levels of thinking and feeling. This would be precious information when you are exercising that last strike or two. And we probably know this quite well in our personal relationships. The challenge is in identifying (and then choosing) those who are best for our juries and for our lives. And since we can’t measure oxytocin or mirror neurons in our jurors—we have to examine what we can see or intuit attitudes, values and life experiences. Not as nifty perhaps, but much more manageable. The point of this blog is to point out a new level of the truth was all knew—there are genuine differences, and there isn’t much we can do to influence jurors to be different than their nature. See lots of ways to assess those variables in our voir dire category.
Excuse me, potential juror, but just how big is your amygdala?
New research touts findings that conservatives have bigger amygdalas while liberals have bigger cingulate cortices. The bigger amygdala means conservatives could be driven by fear while the bigger cingulate cortex means liberals have more decision-making power. Hmmm. Is it possible that our politics are fixed at birth?
Probably not. Neuroskeptic takes a look at the research and makes us question, yet again, if we can believe anything we read these days. In essence, he says this is probably a fluke and that you really should not look to the brain for information on political views. Political views do not originate in the brain, according to the Neuroskeptic—but in the wider culture. Thankfully, we are not doomed to robotically carry out whatever political orientation our genes would design for us.
So—if we cannot look to the brain for insight about political orientation—what about the eyes? “The eyes are the window to the soul” after all—might they tell us something? As a matter of fact, they do, according to researchers at the University of Nebraska at Lincoln. We wrote about this study recently but are bringing it back today. The Nebraska researchers found that there are big differences in how liberals versus conservatives followed directives to shift their attention in response to another’s eye movements. Liberals tended to look where you look while conservatives did not. Hmmm. Is it possible our politics are fixed at birth? Where is the Neuroskeptic when you need one?
We continue to make efforts to find ways to explain why we do the things we do. While we happen to think the ‘gaze cues’ research is really pretty intriguing (since we cannot whip out MRIs to scan potential jurors brains without anticipated objections) much of the brain hoopla is just that, hoopla. We just don’t understand enough about how brains work and how they interact with our awareness and our unawareness.
We assisted on a case about two years ago in which a young mother with a very young child was hit by an oncoming train as she drove up to and then crossed some railroad tracks. The mother was killed but her child survived (horribly injured). Mock jurors questioned how she could simply not have seen nor heard the oncoming train. After these questions were raised, another juror tentatively stated that she had had several near misses. After this admission, several others agreed. The room was split. The animations of what was visible from the young mother’s vantage point were not of use to them (so they thought) since they “were not in the car with her” and did not know if she had been distracted by her child or music.
These jurors were discussing something called “change blindness” well before the gorilla videos emerged. Now, the phenomena is well-known. We can see something and yet not recognize and understand it simultaneously. It’s about the brain, yes. And it’s about vision. And perception. And attention.
An oncoming train—huge, loud, fast, rattling and ground-shaking—can be invisible. It’s hard to understand. But for some people who tragically experience it—it is a harsh and life-changing real experience.
Michael D. Dodd, John R. Hibbing, & Kevin B. Smith (2010). The politics of attention: gaze-cuing effects are moderated by political temperament. Attention, Perception and Psychophysics.
“You know who else lies?” she screeches. “LAWYERS lie!”
Mark Bennett writes Defending People blog and we stole this line from him. Mark elicited this line from opposing counsel in a jury trial. (And no. This is not going to be a post on what one should never allow to pass from one’s lips during closing argument. That list is simply too long although we would think this line should be included.)
Instead we are turning again to our abiding desire to detect deception. You’ve seen the ongoing efforts to show deception via MRIs submitted to the court for potential evidence. We’ve tried to keep up with it on this blog. But the publication of new work in this area continues faster than we can keep up!
Lower tech efforts to identify deception are also afoot (thankfully!). Bob Sutton of Stanford wrote the (in)famous book on civility at work. Now he is focusing on practices that make for a good boss or a bad boss and blogs about how to tell if your boss is lying. He cites a really terrific piece in the Economist emphasizing that it is “not just that his lips are moving”! Sutton summarizes the ways you can identify deception based on comments in conference calls (and provides a link to the original article). The findings are certainly relevant to litigation advocacy and to life in general as they give insight into how we attempt to deceive in high-stakes communication.
We don’t want to be deceived. We don’t want to be tricked. We (above all) do not want to be lied to, believe and be seen as gullible. While we await the magic (high tech) answers promised by MRI purveyors—it is likely a really good idea to keep reading the lower tech research. (Plus it’s a whole lot cheaper!)
Confused about brain scans? Welcome to the club!
We’ve tried to keep up with the many studies/articles on neurolaw. We started tracking these when it was a new concept. It has gotten to be a bigger challenge as the pace has accelerated, but the importance of keeping up with this is growing along with the research pace. Brain scans are in. Brain scans are out. It happens faster than we can type. Just in the past few months…
- Lie-detection and neurolaw: do brain scans have a place in the courtroom?
- Brain Scan Evidence Rejected by Brooklyn Court
- fMRI lie detection and the Wonder Woman problem
- Can Brain Scans Detect Lying? Exclusive New Details From Court Hearing
Researchers are using brain scans for everything! They’re checking for brain activity in dead fish. They’re even putting people in brain scan machines with snakes which is just nasty.
Thankfully, two law professors are offering pretty straightforward information to help us weed through what makes sense and what doesn’t as more and more information on brain scans and neurolaw comes forward. Both pieces are available at no charge via SSRN:
1. Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts by Jonathan R.H. Law.
This article discusses fMRI-based research techniques in the context of US federal courts. The fMRI is seen as providing data that is more prejudicial than probative. The authors then propose an approach to the Daubert standard and recommend that US courts wait a while before incorporating fMRI data into evidence.
2. Brain Imaging for Legal Thinkers: A Guide for the Perplexed by Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, and Rene Marois.
This article provides an introduction for legal professionals to brain imaging. It describes the techniques and methods used by fMRIs and then offers a tutorial on reading and understanding a brain-imaging study. Finally, the articles shares information on how to avoid misunderstanding brain images and how to recognize when others are misusing brain images in legal contexts.
And, a third piece has been put out entitled: A Judge’s Guide To Neuroscience: A Concise Introduction with multiple authors. This one is put out by the Law and Neuroscience Project and is written especially for judges. You may find this one the most user-friendly in terms of vocabulary but all three are worth a read if you would like to understand the shifting sands of the neurolaw area a bit better.
Read them. We will too. Then come back for more updates on Neurolaw.
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