Whiskey in the Courtroom

Evolving Trends in Forensic Science

NC Indigent Defense Services and

the Duke Law Center for Criminal Justice and Professional Responsibility

Whiskey in the Courtroom

The Application of Sleep Deprivation Research on Jury Deliberation

Theresa Newman and Pate Skene

THE INGREDIENTS• A judge with a Friday commitment

• Multiple warnings, including we WILL be done on Thursday

• Early start Thursday

• Close of State’s case at 5:00 p.m.

• Close of Defense’s case about 8:45 p.m., followed by closing arguments/jury instruction

• Start of jury deliberation about 10:30 p.m.

• Guilty verdict on all counts (murder, arson, robbery) at 3:01 a.m.

court starts

8:30jurors wake

up

about6:30 a.m.

state

rests

5:00 p.m.jury retires

10:38

verdict

3:01 a.m.

20½ hours

THE LEGAL CLAIM• Newly discovered evidence claim

• Legal right to a neutral and impartial jury

• Which discharges duties honestly, intelligently and free from the influence and dominion of impairing conditions (1895 N.C. case)

• Jurors must be able to “discuss evidence, and to properly consider its weight and the effect of their conclusions” (id.)

• New science demonstrates the jurors were significantly impaired by the effects of fatigue and sleep deprivation

THE SCIENCE

THE SCIENCE

• Equivalence of sleep deprivation/fatigue and alcohol in degrading psychomotor performance (1997-2005)

• Extends to cognitive performance and racial bias

• Impact in aviation/transportation/operations

THE SCIENCE

Lamond and Dawson. 1999. J. Sleep Research 8: 255-262. doi 10.1046/j.1365-2869.1999.00167.x

Sleep deprivation and cognitive fatigue are equivalent to alcohol in impairing psychomotor performance

THE SCIENCE

Van Dongen and Dinges. 2003. J. Sleep Res. 12: 181-187. doi 10.1046/j.1365-2869.2003.00357.x

Cognitive impairment late at night is separate and synergistic with fatigue and sleep deprivation

Circadian rhythm of impairment

THE SCIENCE

Van Dongen et al. 2004. Sleep. 27: 423-433.

People cannot report accurately their level of impairment by sleep deprivation

Self-report

Actual performan

ce

THE SCIENCE

Impairments extend to many areas of cognitive performance and judgment

J.A. Caldwell. 2008. Sleep Med. Rev. 12: 257-273.

THE SCIENCE

Ghumman and Barnes. 2013. J. Appl. Soc. Psych. 43: E166-E178.

Moderate sleep deprivation makes it more difficult to suppress racial bias

THE SCIENCE

Ma et al. 2013. Basic & Applied Social Psych. 35: 515-524. doi: 10.1080/01973533.2013.840630

Moderate sleep deprivation makes it more difficult to suppress racial bias

Reaction time for shoot / don’t shoot

THE SCIENCE

• Cognitive depletion / ego depletion model

• Decreased self-regulation

More reliance on intuitive judgments:heuristics and biases initial impulseemotional reaction (amygdala)

Less effective inhibition of these impulses:

“executive functions” (prefrontal cortex)

THE SCIENCE

Libedinsky et al. 2011. Front. Behav. Neurosci. 5: doi: 10.3389/fnbeh.2011.00070

Sleep deprivation selectively alters activity of brain regions involved in social judgments and decision-making

Amygdala

vmPFC (ventromedial prefrontal cortex)

THE SCIENCE

• SUMMARY

• Extensive research over the last 20 years (new evidence)

• Convergent findings from aviation/military operations research, management researchers, sleep psychologists, neuroscience

• Psychomotor and cognitive effects equivalent to legal intoxication

• Circadian (time of day) effects separate from fatigue

• Affects memory, vigilance, judgment, self-regulation, rule-following, racial bias

• Self-assessment is NOT reliable measure of actual impairment

THE SCIENCE

• Impact in military/aviation/transportation operations

J.A. Caldwell. 2009. Aviation Space & Env. Med. 80: 29-59. doi 10.3357/ASEM.2435.2009

U.S. Air Force Guidance for Scheduling Flight Missions to Avoid Fatigue in Aircrew:

• Generally speaking, the maximum flight duty period for any given day should fall within the range of 12 to16 h in situations where crew augmentation is not possible. When augmented crews are an option, duty days normally can extend to 16 to 24 h.

U.S. Navy Guidance for Scheduling Flight Missions to Avoid Fatigue in Aircrew:

• Flightcrew should not be scheduled for continuous alert or flight duty in excess of 18 h.

• If operational tempo requires the flight time limitations to be exceeded, the commanding officer, with the flight surgeon's advice, will closely monitor and specifically clear flight personnel, commenting particularly in regard to stress level and adequacy of rest and nutrition.