If attorneys for James E. Holmes, the criminal defendant in the Aurora Colorado movie theater shootings recommend their client plead not-guilty by reason of insanity, his judge has said that he can be subjected to a “truth serum” injection and a polygraph examination as part of an evaluation to determine if he was legally insane at the time of the July 20 massacre.
Holmes will be administered a powerful drug to reduce his inhibitions in a procedure called a “narcoanalytic interview” while hooked up to a polygraph machine for the purpose of evaluating his credibility. Presumably, if he refuses to submit, he’ll not be allowed to claim insanity as a defense.
Obviously, anything he says while undergoing the interview will be taken down and used against him at his trial. In short, he must give up his right to remain silent, a fundamental constitutional right under the Fifth Amendment in the Bill of Rights. That could very well have disastrous consequences for his defense.
I was trained to apply the legal courtroom standard that in a criminal case the prosecutor has the burden to prove each and every element of the alleged crime beyond a reasonable doubt, including the fact that the accused exhibited the necessary intent and mental capacity to know what he was doing and that what he was doing was wrong. The defendant has no obligation to prove anything.
This boils down to a legal requirement that a potentially insane accused is assigned the burden of proving that he’s not insane. It’s akin to compelling a mentally incompetent defendant to prove his or her own mental incompetence, something that is not likely given that the person is probably retarded or insane in the first place – one would have to be competent to accomplish that task.
Naturally this prospect has his defense attorneys up in arms. They've filed motions objecting to it before their client’s plea hearing on to multiple counts of murder and attempted murder. He is charged with killing 12 people and wounding 70 at a midnight showing of batman film “The Dark Knight Rises.”
If he actually is insane or mentally incapacitated it would be easy for his inquisitors using skillful cross-examination to manipulate the interview in such a way as to make things appear that he was perfectly sane and mentally competent at the time of the crime. That’s precisely why our centuries old justice system permits defendants to remain silent and make their accusers prove the case.
What is next in the evolution of American criminal law after forcing defendants to take truth serums and undergo polygraph examinations if they wish to plead not guilty?
Can you imagine an Orwellian process like this in which defendants in every criminal case are required to prove it if they plead not guilty? The Fifth Amendment would evaporate completely right before our eyes.
This situation illustrates the problem with the insanity defense in American jurisprudence.
What possible difference does it make whether or not a person was insane when considering the question of whether or not he committed the acts forming the basis of the crime?
Insanity or mental incapacity should not even enter the picture until the trial is over and the accused is found guilty. The jury should determine only whether the accused is the person who committed the crime. They aren’t psychiatrists.
If the verdict is not-guilty then the question of mental state need not ever be considered. If guilty, it should affect only the disposition of the sentence.
Throughout the process the defendant should retain the right to remain silent and his Fifth Amendment rights should be respected. If he’s found guilty the trial is over and the question becomes what to do with him.
In that situation Fifth Amendment rights do not apply.
There is simply no good reason to erode the Fifth Amendment during the accusatory phase of the proceedings.