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Expert Forensic Psychology ArticleThe Impact of Drugs on Mental State Defenses:Stephen M. Pittel, Ph.D.Drugs often play a role in crime. But it may not be worth the bother to use them as a defense. The merits of drug related defenses depend on how much you can find out about who used what drugs, how often, how much, and how they were (or might have been) affected. Except in easy cases when drugs play a minor role or toxicological evidence is all you need to establish that drugs were used, the role of drugs should be an integral part of the defense theory. Never use a drug-related defense as an afterthought. Find out what you need to know early on. Consult with a toxicologist and other experts who can tell you what information you need, and then focus your discovery motions and investigation on getting the information you need to build a solid case. A wide variety of drugs -- both licit and illicit -- have profound effects on the way people feel, think and act. The attached outline covers the most basic facts. In addition to these mostly obvious effects, there is a wide spectrum of less wellknown drug effects and a variety of related issues that may also be helpful. The list of subtle, indirect, and frequently overlooked issues is almost limitless. The following are a few examples to illustrate the point: The effects of cocaine and amphetamine on mental state may be exacerbated by sleep deprivation, obstructive sleep apnea or other sleep disorders that frequently afflict stimulant abusers. The negative impact of a defendant’s drug abuse may be blunted if you can show that they began to use drugs as self-medication for an underlying (and typically) undiagnosed neurological or medical condition. In some cases the use of drugs as self-medication may justify the use of “medical necessity” as a defense. Strenuous activity, stress or consuming food or drink that acidifies the blood can release PCP stored in fatty tissue. It is important to note, however, that there is some controversy in the scientific literature on this phenomenon. Chronic use of a variety of drugs may cause subtle impairments in mental functioning that can be detected by a number of neuropsychological tests that aren’t included in standard test batteries. The same is true for the tendency to dissociate (which may also be a familial trait). Cocaethylene is a unique metabolite of cocaine that occurs when cocaine and alcohol are used in combination. Recent studies show that cocaethylene intensifies the subjective effects of cocaine and slows down its rate of excretion. The apparently obvious conclusion that alcohol (a downer) and cocaine (an upper) cancel out each others’ effects is simply incorrect. A variety of licit and illicit drugs including over-the-counter sleep and cough medicines, marijuana, alcohol and all prescription tranquilizers may increase suggestibility and decrease resistance to being tempted or coerced into doing bad things. The fact that alcohol impairs the capacity for maintaining divided attention was used in a relatively recent article to describe the phenomenon of “alcohol myopia”. The basic argument is that people do stupid things when they are drunk because they don’t take in enough information to make appropriate judgments. The authors provide considerable evidence to show that “alcohol myopia” is especially likely to impair judgment in situations that involve a high degree of conflict. Cocaine, amphetamines and related drugs are classified as central nervous system stimulants but they also mimic the effects of adrenaline -- the hormone that triggers the instinctive tendency to “fight or flight” when danger lurks. Eventually these drugs lead to paranoia and perhaps to violence, but the underlying motive is fear (not anger) and defending yourself against a perceived threat is triggered by instinct (not intent). People who are asked to fake amnesia tend to “forget” more than people who really have amnesia. This applies to alcoholic ‘blackouts’, head injuries, and a variety of other causes of memory loss. Using one or more of the tests that have been devised to detect malingering can help to establish the credibility of defendants or witnesses who claim amnesia for important events. Two other fascinating -- and little-known -- facts about alcoholic ‘blackouts’ are worth mentioning. The first is that some people experience ‘blackouts’ after consuming moderate amounts of booze. The second is that people who observe their drunken friends do things that they (their friends) can’t recall the next day typically report that they didn’t have a clue that their friends were even a wee bit under the influence. When the facts fit, the defense of ‘total unconsciousness’ or ‘automatism’ is worth considering. Jurors are usually as interested in testimony about drugs as they are typically misinformed and biased against drug users. They will not be enlightened by technical information about neurotransmitters, studies done with laboratory rats or a lot of big words. Avoid using experts who are more interested in impressing the jury than in educating them about the issues they need to know about. Rely, instead, on experts who can describe how drugs work by using metaphors and examples based on everyday experience. Most jurors probably haven’t used illicit drugs (or won’t admit it if they have) but most of them have used prescription drugs that have comparable effects. Along the same lines, most jurors haven’t experienced any of the weird, aberrant mental states or disorders you want them to believe your client was experiencing when they did whatever they did to land them in court. But you can be sure that all of them have had their share of bad days when they have done or thought or felt things that they don’t usually do or think or feel. Because even the most bizarre mental states have a less extreme counterpart in normal experience, jurors are more likely to believe experts who use examples of these commonplace experiences than those who try to impress them with a lot of fancy psychobabble. The use of examples that remind jurors of their own occasional mental lapses will also help them to identify with your client. There is no doubt that drug abuse is one of the serious problems of our time, but it is important to let jurors know that at least some drug abusers are more deserving of compassion than contempt.
A VERY BRIEF OVERVIEW OF DRUG EFFECTS
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