1. Paper presented at the Third International Conference of the International Bar Association in London, in July 1950. Published with the kind permission of the author.
1. IMPORTANCE OF NARCOANALYSIS
NARCOANALYSIS is a topic which requires careful consideration by the legal profession. Its present importance has generally been overestimated by the public at large, which speaks of the truth serum as if it were sufficient to inject a person with certain drugs in order to make him confess. This is not the case. A drug which has such an effect has not yet been found.
In order to arrive at a proper evaluation of narcoanalysis from the standpoint of the law, the Executive Council of the International Bar Association has directed me to consult with members of the medical profession.
H. STANDPOINT OF THE MEDICAL PROFESSION
The best method is to let the members of this profession speak for themselves.
Martin J. Gerson, M.D., of New York and Victor M. Victoroff, M.D. of Cleveland, have published a highly interesting article 'Experimental Investigation into the Validity of Confessions Obtained under Sodium Amytal Narcosis' reprinted from the Journal of Clinical Psychopathology,
Vol. 9, No. 3. July 1948. I have quoted parts of their article, and summarized other parts.
In my opinion the legal profession should be grateful to these two outstanding medical experts for writing an article which gives in plain and easily understandable language a survey of the medical side of the problem, but who also understand that this problem cannot be solved by one of these professions alone, but only by the co-operation of both. They have also given proof of a remarkable understanding of the legal aspects of the question.
In the course of psychiatric study of patients hospitalized on the Neuropsychiatric Service of Tilton General Hospital, Fort Dix, N.J., the authors have uncovered the following data :
After it became apparent that we were uncovering data which could be considered inimical to the interests of the patient if it fell into the hands of the police or military authorities, we made an effort to investigate the possibilities and limitations of the use of narcoanalysis as an instrument of interrogation.
None of the material developed in these interviews was used in the prosecution of the charges against the patients, since it was considered by us to be a breach of medical ethics, and because this material, derived without the full knowledge and consent of the patient could not have been presented in court without violating the Twenty-Fourth Article of War and the Bill of Rights of the Constitution of the United States.
I quote from this article:
Technics and Observations
Prior to actual induction of the medication, the patients were interviewed by the psychiatrist. The patient-doctor relationship was maintained and the fact that the patient was in most instances a prisoner, or under police scrutiny, was quietly accepted but not stressed. It was established at the outset that everything the doctor learned was confidential, and could not be revealed without the explicit permission of the soldier. He was urged to describe his social and family background, army career and to discuss his version of the charges pending against him.
It was pointed out to the soldier that the circumstances leading to his arrest had been described to the doctor, and casual reference was made to obvious discrepancies in the explanation vouchsafed by the patient and the evidence collected by the police. Evasions, rationalizations or simple refusal to explain the contradictions were pursued only briefly by the medical officer. The doctor suggested without emphasis that it might be wiser for the patient to co-operate in the investigation, that this course was the more soldierly, honourable one to follow; that it would only complicate the work of the court martial to validate their charges; and that a policy of negativism would be likely to prejudice his case and increase his punishment if he were found guilty. The physician then proceeded to other topics.
The history of neuropathic traits, habits and symptoms was gone into frankly, as were psychosomatic problems. Much of the suspicion against the medical officer was lessened when his interest in the patient's 'nervousness', `irritability', 'tendency to get into trouble', and 'bad breaks' was expressed and an investigation of medical problems pursued.
An uncovering approach to the patient's psychic ailments was attempted, and psychotherapy offered. Concurrent with the interviews with the psychiatrist, a social history was taken by a trained psychiatric case worker, in nearly ever case, who detailed information given by the patient.
The patients were not informed that narcoanalysis would be performed until a few minutes before that procedure was undertaken. It was explained to them that the drug would make them feel sleepy, and encourage them to discuss things with the doctor that might enable him to gain fuller understanding of their personalities and motivations.
Patients who had claimed to suffer amnesia were told that the drug would help restore their memory for the forgotten episodes. The doctor was positive, forthright but considerate. He indicated by his manner that the patient had no choice but to submit to the procedure and was expected to co-operate when told to take off his shirt or jacket and lie on the bed. The attitude of the patients varied from unquestioning compliance to downright refusal to submit to the drug.
Six patients obeyed without temporizing and accepted the doctor's explanation; three were suspicious and wary but offered no protests; three indicated they thought the procedure unnecessary and asked to be excused; four were hostile and spoke bitterly about the proceedings, objecting to being given 'truth serum', demanding their rights to `see the Inspector General', or becoming abusive; one patient flatly refused to have 'needles stuck in me', and talked antagonistically, hinting against the procedure, but sullenly submitted when he demanded (and was given) a 'direct order' to comply.
Sodium amytal was the narcotic agent used in every case. One gram (1.0 Gm) of the drug in 10 cc. of distilled water was available, and was injected slowly into the antecubital vein. It was found necessary to bring the patient through the stages of light sleepiness; mild disorientation with a tendency toward euphoria; confusion and somnolence, with irritability if roused by painful stimuli (rubbing the sternum or pinching the skin); to complete narcosis (second plane of the third stage anaesthesia). The patient was then permitted to sleep. As he became semiconscious, and could be stimulated to speak he was held in this stage by discreet additional use of the drug while questioning proceeded.
The subject matter introduced by the psychiatrist in the early stages was relatively innocuous and referred to material in the soldier's background which had previously been discussed with him and had bearing on his basic personality structure. Early childhood incidents of traumatic character, relationships with siblings, attitude toward parents and others, father and mother surrogates in the patient's constellation of adult influence, relevant sexual experience, friendships with other soldiers, incidents in his army history, and attitude toward the army career and environment all provided leads for questioning. Whenever possible the soldier himself was manipulated into bringing up the charges pending against him and it was not until he had that the questioning was directed to that sphere. It was found to be more successful to ask the patient to 'talk about that later', and interpose a topic which would diminish suspicion, delaying interrogation of his criminal activity until he was in the proper stage of narcosis.
Speech was thick, mumbling, disconnected and characterized by echolalia and paralogia when going from unconsciousness back to consciousness. But discretion was markedly lessened and if the patient did answer questions at this time, the answers were usually revealing.
This most valuable interrogation period lasted only five to ten minutes, after which unless more amytal were injected and the patient put to sleep again, he rapidly revived, became aware that he had been questioned about his secrets, and, depending upon his underlying personality structure, his fear of discovery, or his degree of disillusion in the doctor, became negativistic, hostile or physically aggressive.
Some patients had to be forcibly restrained during this period to prevent them from injuring themselves or others. The doctor continued questioning and sometimes, because of the patient's fierce, regressive, diffuse anger, the assumption that he had already been 'tricked' into confession, and his still limited sense of discretion, he defiantly acknowledged his guilt and challenged the observer to 'do something about it'. As the excitement stage passed, the patient either fell back on his original story or verified the confessed material.
Approximately half the patients were given 500 mg. of caffeine with sodium benzoate intramuscularly in order to hasten recovery from the narcotic effects of the drug. This practice was abandoned after it was found that the patient became garrulous, euphoric and hyperactive, staggering ataxically around the ward several hours. Without the stimulant, he was encouraged to go to bed and sleep, after which, though mentally dull, he was fairly well oriented. On the day following narcoanalysis, another interview was held with the patient, the material unearthed was discussed in toto and the possible psychic etiology of his criminal behaviour was taken up.
Two major differences from ordinary narcoanalysis in the method described above must be stressed. First, the period of obliviscence of consciousness was invariably longer than average. Second, the patient was maintained in the period of beginning recovery from the nadir of narcotic sleep. This was a period which proved richest in productivity of the material most threatening to him. It is seldom necessary to narcotize a patient for so long or as deeply in simple narcoanalysis.
The technique of questioning varied in each case according to what was known about the patient through history and interview, the seriousness of legal charges, the patient's attitude under narcoanalysis and his rapport with the doctor. Sometimes it was useful to assume that the patient had already confessed in the amnestic period of the analysis, and while his memory and sense of self-protection were still limited, he was urged to continue to elaborate details he had 'already described'. Key questions were reworded when it was obvious that the patient was withholding the truth, and the fact of a given denial was quickly passed over and ignored.
In our series of patients, nine admitted the validity of their confessions, eight repudiated the confessions and persisted in their original stories when confronted, with the evidence confessed during the narcotic period.
The following factors operated in greater or lesser degree in the cases to interfere with the completeness and authenticity of confessions :
1. Inept questioning.
2. Tendency of patient to persevere on unrelated topics.
3. Echolalia and paralogia.
4. Mumbled, thick, inaudible speech.
6. Contradictory but apparently truthful evidence.
7. Poor rapport between doctor and patient.
The modification of consciousness by a narcotic is characterized by confusion, bewilderment, inability to assay and select thought, impoverishment of vocabulary, automatic rather than reasoned responses, disturbed memory, expanded or contracted (distorted) sequence of chronology, and the loss of discrimination between what is real and what is illusory. Several patients revealed fantasies, fears and delusions sometimes approaching th quality of delirium, much of which could readily be distinguished from reality by its fantastic quality. At times, however, it was necessary to check the facts by reference to objective sources for information because otherwise there was no way for the examiner to distinguish the truth from the fantasy.
It must be admitted that had investigation not previously established as fact that J. L.'s parents were his own and that the child he claimed did not exist; that E. F.'s wife was not actually in prison, and his child was as yet unborn; and that G. H.'s stepfather of whom he said, `I'll kill the bastard when I see him on the street', had been dead a year, the examiner would have been unable to determine that these experiences were fantasied, and might well have accepted them verbatim.
Testimony concerning dates and specific places are untrustworthy and often contradictory because of the patient's loss of time-sense. Names and events are of questionable veracity. Contradictory statements are often made without the patient actually trying to conceal the truth, but succeeding in this by his confusion between what has actually happened, and what he thinks or fears may have happened.
This is borne out, for example, by P. V.'s conflicting description under narcosis, of his part in the robbery of the Post Exchange. He vehemently denied having been present at the actual scene of the robbery, but later, during the same session, described plausible details of 'what happened' the night the Post Exchange was robbed. Investigation by the Criminal Investigation Division had independently established that the soldier had not been a direct accomplice, but had bought goods from the men who committed the robbery. His description of the details of the crime was a reconstruction of second-hand information and pure fantasy.
In this instance, if the auditor chose to give credence to his 'admission' of having participated in the crime, and if it were admissible as evidence in court without further verification, the man might have been prosecuted for a more serious crime than the one of which he was guilty (receiving stolen property).
Persistent, careful questioning can reduce the ambiguities, but cannot eliminate them.
In the final stages of narcoanalysis, it was necessary to reassure the soldier that his confession was not going to be released to the police, and that the problem was now one which the doctor would share and help him to decide. An attempt to assuage the guilty feelings that arose out of recollection of the offence was made by indicating that the confession may well have been an indication that the patient was ready to make amends, was remorseful and had 'learned his lesson'.
An attempt to develop insight and the self-evaluation of the patient's admission of his guilt was most successful in our neurotic patients and immature personalities, and least successful with the confirmed psychopaths.
Discussion of Mechanics and Psychodynamics of Confession A number of explanations have been offered for the production of confession under narcotic drugs.
A masochistic wish to seek punishment which may motivate psychopathic behaviour puts the criminal in a peculiar dilemma. His natural caution urges him to seek seclusion and avoid all future connexion with the crime he may have committed, but his desire to claim credit for the act, plus a potent wish-for-punishment may cause him to neglect his safety and perform acts which may inevitably lead to his capture.
Aside from the desire to achieve self-aggrandizement and recognition and the wish-for-punishment, confessions may follow when fears attendant upon their declaration are reduced. Fears of retaliation, social stigma, pecuniary loss and punishment are better met by the reinforced ego which may make a realistic compromise with the community, balancing the precarious safety of the secret against the squaring of accounts with the social environment.
Kubie, Grinker, Freed and Barbara have commented on this phenomenon, suggesting that narcosis promotes removal of tension, anxiety, and defence barriers and helps the reintegration of the ego functions.
Kubie suggests that 'Cortex and diencephalon are depressed by the drugs, loosening the patient's grip on reality, making it possible for the individual to release those anxiety-laden impulses and attitudes which would be of unbearable nature if expressed in the conscious state'.
Grinker states that the anxiety appreciated by the cortex arising from the diencephalon is markedly reduced and the discriminatory part of the ego which represents cortical functioning is thus inhibited. This could readily be applied to the mechanics of confession if the physiologic basis were sound.
In support, Freed proposes that the release of strong affect demonstrates the specific effect of barbiturates on the diencephalon. In our cases the affective responses could not be correlated with the depth of narcosis, the amount of resistance or the productivity of the patient in confession. However, strong affect was brought out against the physician as an expression of hostility and by fear of imminent betrayal. Rage reactions were common and intense after confession or as an immediate precursor to confession.
It was suggested by House that the patient under scopolamine, `. . . cannot create a lie and that there is no power to think or reason'.
We must indicate that our experience with amytal does not bear out his statement in that our patients could sometimes lie and that their reasoning powers were sometimes present though much distorted.
Patients who have a strong desire to confess, but who for either emotional or politic reasons cannot bring themselves to it may even on a conscious level welcome narcosis as an excuse to inform. Into this category fell men who feared to violate the 'criminal's code' against squealers even when it was to their interest to do so.
Other patients, who had placed themselves in difficult situations by malingering amnesia, used the analytic sessions as a device to 'recover' their memory without loss of 'face'.
On page 372 Dr. Gerson and Dr. Victoroff mention the medical application of narcosis as a deception indicator whose possibilities have been relatively unexplored or unreported in literature. This fact is of interest for the present paper only insofar as it demonstrates that many problems in connexion with narcoanalysis have not yet been fully investigated. The authors finally summarize their opinion as follows:
Although amytal narcoanalysis has been successful for the revelation of deception, validity of information garnered by this method is not so decisive that it should be admissible in court without further investigation and substantiation. The doctor cannot tell when the patient's recollections turn into fantasy, cannot positively state whether he is stimulating deep narcosis and actually maintaining his lies, and cannot, without social investigation, determine which of contrary stories told under narcoanalysis are true.
This complicates the position of the doctor who hears during analysis testimony or information from the patient which might indicate that he had been guilty of crime. To expose his patient to police investigation might even with the best of intentions on the part of the physician lead to humiliation and embarrassment of the patient, and possibly a lawsuit for malpractice against the doctor.
It would seem at the present writing that there is no such thing as a 'truth serum'. Certainly, more study of amytal narcoanalysis as a method for interrogation should be done before its findings can be offered to the courts as valid, unquestioned evidence.
There is quite a tradition and precedent which might make submission to narcoanalysis mandatory some day in the routine investigation of certain crimes. The taking of fingerprints; premarital Wassermann examinations; the reporting of venereal disease contact to the Board of Health; blood, urine or breath analysis of suspected alcoholics; the enforced hospitalization of active tubercular and typhoid fever patients; and the submission to examination by alienists and psychologists are all limitations of freedom, and in a sense force the individual to give evidence about himself whether he wants to or not.
Much discussion will have to be invested by psychiatrists and lawyers to determine when narcoanalysis performed in the interest of the state violates the fundamental rights of the patient and the ethics of the doctor.
There are also a few other statements which may be mentioned.
In their Narco-investigation et expertise psychiatrique' (Rev. Sc. Crim. Dr. Pen. Comp., Paris, 1948, p. 131) M. Bouvet and F. Gravejal give a survey of a number of cases from which a negative result was obtained, although the patients had asked for the treatment.
A well-known member of the medical profession in the United Kingdom, Dr. Denis Carroll, reported the following interesting case:
During the war he treated an officer who suffered from mental disturbances and suggested to him that he should undergo narcoanalytical treatment. The patient said that he did not feel that he could submit himself to such treatment as he was the bearer of important military secrets. The matter was submitted to the commanding officer, who authorized the treatment and who also authorized the doctor, during the treatment, to ask questions about the secrets which were not known to the doctor. The treatment as such developed satisfactorily, but the doctor could not elicit any information from his patient concerning the secrets.
During World War II Grinker, Spiegel and others of the American Air Force, and Wilde, Sargent, Slater and many others of the British Armed Forces developed this method on a large scale in an effort to improve and expedite the treatment of psychiatric casualties (Carl P. Adatto, M.D., Narcoanalysis as a Diagnostic Aid in Criminal Cases', Journal of Clinical Pathology, April 1947).
To-day the seasoned opinion holds that the therapeutic significance of narcoanalysis is limited.
The well-known psychiatrist and author, Professor Franz Alexander, Director of the Psychoanalytic Institute of Chicago, Illinois, has gained the impression 'that whenever a person suspected of an illegal act really wants to withhold information the use of narcotics cannot overcome his resistance, and that, on the other hand, more reliable information can be obtained by prolonged psychiatric interviews conducted in the waking state'.
Dr. Roy R. Frinker, Chairman of Division of Neuropsychiatry, Michael Reese Hospital, Chicago, Ill., made the following statement:
Under narcoanalysis, the truth is not invariably brought forth. The subject may be able to disguise the truth for a considerable length of time and perhaps always. I cannot say that any particular area may be falsified. I would agree that narcoanalysis from a medical standpoint should be used only to report on the condition of the patient until such time as society has an adequate attitude toward a suspect murderer. In regard to the circumstances which may prevent discovery of the truth, I believe that no general statements can be made. The subjects with highly developed guilt feelings will of course spill easily. -
I quote further from his letter of 14 September 1949: `The capability and experience of the medical expert are of course a great significance in determining the efficacy of the treatment . . . a subject may be hypnotized under the drug'. I submitted some questions to Dr. Grinker, and give below the question and answer:
Q. What should be submitted to a court as a result of the treatment?
A. A summary is probably all that is necessary rather than a complete statement although it is possible for a complete transcript to be made. I think the results should be submitted by transcript and testimony. In general, I might say that there has not been enough
work on suspect criminals to validate any of my impressions. I have had a few in the Army and have fortunately been able to disclose circumstances which mitigated the crimes.
Q. May witnesses be present during the treatment?
A. Witnesses can be present and they may be lay people, except for the problem of medical ethics which should be• modified if such a procedure were used for legal purposes.
Q. Is it possible to have a cross-narcoanalysis?
A. It is possible to have a cross-narcoanalysis by another medical expert and I believe the subject's own legal adviser and own medical examiner should be present.
Q. Can narcoanalysis show harmful results to the patient, and can a patient be influenced with regard to the attitude taken after treatment?
A. Narcoanalysis has never been shown to be harmful. Yes, a defendant can be influenced with regard to the attitude taken after a treatment, as in hypnosis. Under our present legal system, a subject must give his free consent. In my mind, it may be advantageous for the court to be privileged to request such an analysis as they may request a lie detector test for suspects, but again this is dependent upon society's attitude toward a suspect criminal.
I also cite from Psychological Abstracts (Vol. 23, 1949 No. 2792):
Schneider, Pierre B. (U. Basel, Switzerland), Psychiatrie legale et narcoanalyse. (Legal psychiatry and narcoanalysis), Schweiz. Arch. Neurol. Psychiat.,1948, 62,352-371 :
Examination under subnarcosis (pentothal induced) was made on four criminals or individuals presumed such and on five non-delinquent subjects to ascertain whether so-called 'truth-serum' can actually elicit the truth in the sense of a confession and whether subjects are rendered more suggestible in the subnarcotic state to the examiner. The results somewhat differing from subject to subject led the author to the conviction that narcoanalysis could be useful for examination of delinquents reticent or refusing to confess; that a subject under pentothal does not admit a crime he has not committed; that confession pure and simple is not the rule; that the subject will most often sketch a confession, only to recover himself immediately; that his affective reactions, a word-too-much, an unfortunate gesture will betray him. It is not therefore a question of confessions in the strict juridical sense of the term but of psychological indices which, if they are reproduced in an expert psychiatric report, will represent a serious charge against the subject. Finally, it appears possible that a criminal is able, in spite of narcoanalysis, not to make confession and never to allow himself to be caught in a trap.— F. C. Sumner.
In order to avoid misunderstanding it must be pointed out that narcoanalysis has been extensively applied in the U.S.A. for therapeutic purposes but it has been applied only in a very limited number of criminal cases and only if the defendant has given his consent.
Summary of the Standpoint of the Medical Profession
The standpoint of the medical profession can be summarized as follows:
Narcoanalysis is not a sure method of bringing out 'the truth and nothing but the truth'. Any confession made is not necessarily true; and if no confession is made this does not necessarily prove that the patient has not committed the crime with which he may be charged. Does this mean that narcoanalysis has no importance all from the angle of the administration of justice?
The answer to this question is again in the negative, because in many cases the confession is true, and often facts are brought out which are very helpful to the public prosecutor in proving his case. It seems fair to say that in the present stage of development narcoanalysis can be of great help in finding the truth.
But it is also a dangerous means of investigation as the right interpretation of statements made depends largely on the skill of the analyst.
It is therefore a means of investigation which should not be applied without certain specific guarantees, if, indeed, it is applied at all.
III. ATTITUDE OF MEDICAL AND LEGAL ORGANIZATIONS TOWARD NARCOANALYSIS
Many organizations have voted resolutions against the use of narcoanalysis. In a very interesting article in the Rechtskundig Weekblad of Antwerp, Belgium, Judge Versele of Leuven, Belgium, has listed a number of such resolutions; among others that of the French Association for Forensic Medicine (Annales de Medecine Legale de France, 1945, No. 44, p. 44).
On 22 March 1949, the Academy of Medicine in Paris unanimously adopted a resolution against the application of narcoanalysis in criminal proceedings. It rejected by a large majority, a resolution to the effect that narcoanalysis could be used in order to facilitate medical diagnosis at the request of the defendant and his lawyer. (Rev. Dr. pen., 1948-1949, p. 880.)
In his `Le depistage scientifique du mensonge, ou la question moderne' (Rev. Crim. Pol. tech., Geneve, 1948, p. 163) Justice Jan Graven of Geneva also cautioned the profession against the indiscriminate use of narcoanalysis.
After having heard an address by Maitre de CoulhacMazerieux (published in the Gaz. Pal., Paris 21/23 Juli 1948) the Paris Bar, on 6 July 1948, voted against the application of narcoanalysis, which it considered as `tine atteinte au principe de l'inviolabilite de la personae humaine' (Rev. Intern. Dr. pen., Paris, 1948, p. 431).
On 18 July 1949, the Belgian Association for Penal Law accepted-a motion made by our learned friend, Professor S. Sasserath, against the application of drugs.
On the other hand my co-rapporteur, Dr. Christo P. Yotis of Athens, Greece, in his paper presented to the Conference, writes on the assumption that narcoanalysis may be given general application.
Judge Versele of Leuven, Belgium, takes an optimistic look on the development of criminal proceedings. He sees the judge of the future as a friend of the defendant, who tenders him his help. Within the framework of this development narcoanalysis should not be an instrument in the hands of a prosecutor, but would be used in a spirit of confidence with full respect for human dignity which is now so often endangered.
IV. CONSTRUCTIVE SOLUTION: APPLICATION OF NARCOANALYSIS WITH CAREFULLY DRAI FED LIMITATIONS
Although the weight of authority to-day is against the application of narcoanalysis as a means of eliciting confessions, extensive development of narcoanalysis in the U.S.A. as a therapeutic measure makes it appear very probable that it will find a place in the scope of criminal proceedings. The legal profession should look ahead and now give its constructive advice.
It is suggested that this should be to the effect that narcoanalysis be permitted with carefully drafted limitations.
A. Rule against self-incrimination
Article V of the Bill of Rights of the U.S.A. says . . . No person . . . shall be compelled in any criminal case tp be a witness against himself.'
In the above-mentioned article in Rechtskundig Weekblad Judge Versele gives a summary of the national rules that a defendant is not under obligation to do anything which he does not wish to do. This rule implies that narcoanalysis can only be applied to a defendant if he has given his consent to it. It also implies that it cannot be applied to a minor, who cannot properly give his consent.
B. Rules of Ethics of the Medical Profession
The basic New York rule is laid down in Article 352 of the Civil Practice Act, which provides that physicians shall not disclose professional information. (See Lloyd Paul Stryker, Courts and Doctors, New York, 1932.) This Article applies:
(a) if a patient-doctor relationship exists. It has been held that no such relationship exists in a criminal case when a physician examines a prisoner at the request of the District Attorney for the purpose of testifying with regard to the question of the prisoner's sanity. So held People v. Sliney, 137 N.Y. 570; People v. Hock, 159 N.Y. 291, 302, 44 N/E. 976, Kelly v. Dykes, 174 App. Div. 786, 161 N.Y. 5.551. (See also Sidney Smith, Forensic Medicine, Boston 1939.)
(b) only to information necessary to enable the physican to prescribe for or treat his patient and not to any other information. Green v. Metropolitan Street Ry. Co., 171 N.Y. 201, 63 N.E. 958.
In this case the doctor was held competent to testify to what the injured person told him as to how the accident happened, on the ground that such information was `unnecessary for any purpose of surgical treatment'.
Article 354 of the Civil Practice Act clearly states that the privilege is that of the patient and not of the physician. The doctor shall not testify, unless the patient waives his privilege.
It has however been held that the granting of the privilege was never intended to serve as a shield for murderers and other criminals. Pierson v. People 7A, N.Y. 424, People v. Harris 136 N.Y. 423. The plain purpose of the statute was held to be the prevention of any disclosure by the physician `which would injure the feelings, damage the character or impair the standing of the patient while living or disgrace his memory when dead'.
In 1944 the Penal Law of the State of New York was amended as follows:
1. Every physician attending or treating a case of bullet wound, gunshot wound, powder burn, or any other injury arising from or caused by the discharge of a gun, pistol, or other firearm, or whenever such case is treated in a hospital, sanitarium or other institution, the manager, superintendent or other person in charge shall report such case at once to the police authorities of the city, town or village where such physician, hospital, sanitarium or institution is located.
2. Every physician attending or treating a case of a wound actually or apparently inflicted by a knife, icepick, or other sharp or pointed instrument, which wound or injury is likely to or which may result in death, or whenever such case is treated in a hospital, sanitarium or other institution, the manager, superintendent, or other person in charge shall report such case at once to the police authorities of the city, town, or village where such physician, hospital, sanitarium or institution is located.
3. Failure to make such a report shall be a misdemeanour.
This is a clear exception to the rule stated above. The medical profession objected to the provisions of this amendment.
Drs. Gerson and Victoroff state:
The psychiatrist and psychoanalyst are exposed to a serious dilemma, since an intrinsic part of their diagnostic and therapeutic procedure is to obtain from the patient a description of his actions and thoughts, especially those which have been traumatic and for which he may have guilt feelings. According to the 'letter of the law' the psychiatrist should be expected to hand his patients over for prosecution when they have spoken of long hidden assaults, thefts, embezzlements and deceptions.
During narcoanalysis, quite by accident, as it were, the physician may discover evidence of some crime which his patient had no intention of disclosing. What criteria would have to be satisfied before the physician could in conscience say: My duty to respect the confidence this patient put in me, and my own allegiance to professional ideals are overweighed by the dire consequences of permitting him to go unpunished for his crime. The discovery by a physician that an innocent man had been punished for an offence committed by his patient might be a case in point.
C. Narcoanalysis of Witnesses or third parties
The question of narcoanalysis is generally discussed only in connexion with its application to the defendant. Drs. Gerson and Victoroff point out that during narcoanalysis a physician may discover evidence of some crime. Possibly he may discover that an innocent man had been indicted or punished for the crime. The question then arises: Should he inform the public prosecutor? and what about a narcoanalysis of witnesses, with or without their permission?
D. Limitation of cases in which narcoanalysis should be permitted
Drs. Gerson and Victoroff made the following suggestions :
1. Where an individual is guilty of crime and believes he can conceal his guilt even if subjected to `truth serum' :— His notice for submitting to the test might be to strengthen his defence in court. He might, by the terms of his agreement, be able to call the doctor who conducted the analysis as a defence witness, and bring up the transcript indicating his 'innocence' in open court. On the other hand, refusal to submit to narcoanalysis might be mentioned by the prosecution in an effort to undermine his defence and prejudice the jury against him. This tactic might be used in forcing the patient to submit in the hope that he could avoid incriminating himself. Ludwig's experience with malingerers, and ours, bears out the possibility that he might be successful in refraining from answering by a completely negativistic attitude. However, it is probable that he would only succeed in trapping himself if he tried to maintain an alibi with the assumption that he would be able to use his wits and reasoning powers to ward off incriminating questions while drugged.
2. The suspect who is innocent:—A man who has difficulty in establishing his innocence would make a strong mark in his own favour by submitting to lie detection or narcoanalysis. His attitude while under the influence of the drug would indicate whether his co-operation were simulated or real, entirely apart from the actual transcript and answers to questions.
3. The suspect who has lost his memory for the event and cannot say whether he is innocent or guilty:—An individual may become implicated in a criminal action while under the influence of drugs or liquor, or while suffering a genuine fugue state or amnestic attack. Under narcosis he might divulge facts which would indicate his unconscious retention of memories relative to the events in question, and these in turn could clear or incriminate him.
4. The false avowers of guilt:—These are the publicity-conscious exhibitionists, the neurotic, morbid-minded individuals, the pranksters, and the pre-psychotic individuals who always crop up after an infamous crime and must be weeded out by the police at considerable expense and with difficulty. Narcoanalysis might quickly determine not only their innocence but their basic motive in falsely confessing. The fact that they have signed releases would make it possible to prosecute them for obstructing the course of justice should this be necessary to discourage recurrence of such behaviour.
5. Establishing the innocence or complicity of associates and friends of the criminal or patient:—Implication of buddies and accomplices is refused for fear of being considered an informer. We suggested to one soldier who had bought a radio from a barracks-mate and was under charges for being the thief that if he submitted to narcoanalysis he might be able to give us the name of the actual thief and be absolved of being an informer. He eagerly assented, and preparations were made for his hospitalization for the procedure when the aptual thief confessed.
P. V. feared the consequences of giving the names and description of the men who robbed a Post Exchange. Under narcoanalysis, in effect, he was relieved of his fear and gave excellent descriptions of the guilty men and their names, making it possible to identify them.
No less important was the emphatic and reiterated testimony of G. H. absolving a friend who was suspected of being his accomplice in the theft of butter and other foods from a warehouse at an Army post.
If we consider these suggestions from a legal standpoint, we at once see how difficult is the problem of drafting the text of rules of criminal procedure defining cases in which narcoanalysis should be permitted.
Who should rule on the application?
In view of the fact that narcoanalysis constitutes a very serious infringement of human rights, the Courts and not the public prosecutor (or in the Code Countries the juge d'instruction) should rule on the application of narcoanalysis.
E. Suggested Limitations of Application
W. F. Lorenz in 'Criminal Confessions under Narcosis' (Wisconsin M. J., 31: 245-51, April 1932), has suggested that both the prosecution and the defendant be represented during the analytical session by legal counsel and that questions by both lawyers, or by the authorities, should be permitted, with the physician acting in an auxiliary capacity only.
It may be suggested that the prosecutor and the defendant be represented by medical experts who understand the technique of narcoanalysis and to whom an opportunity must be given to study the case history and to suggest questions. The suggestion that the physician should act in an auxiliary capacity is probably inspired by the wish to avoid conflicts of an ethical nature. Many men of the medical profession, however, are of the opinion that under these circumstances the results will be far inferior to those obtained if the physician does not act only as the instrument of opposing lawyers.
Carl P. Adatto in his above-cited article says: 'Too much questioning on the part of the examiner usually yields poor results.' He also states that the patient is again interviewed after he wakes. 'Usually he recollects little of what he said under narcosis and at times he is curious as to what occurred.'
C. T. McCormick, M.D. in the Journal of Clin. Psychopathology, No. 8, 1946, said. 'If adequate safeguards could be provided, the questioning of suspects under narcosis might offer possibilities for protecting the innocent and discovering the guilty.'
F. Evaluation of Evidence
Evidence by narcoanalysis should be corroborated by evidence from other sources.
The following case in which a French court handed down a decision as to whether the injection of pentothal should be considered as criminal assault and battery is of considerable interest. The Court of First Instance held that it was to be so considered—The Tribunal Correctionel de la Sein (Judge Durkheim) 17 Chambre, 23 Feb. 1949 (Jrnl. Trib. 1949, p. 301). W. Kleinermann (Rev. intern. Dr. Pen., Paris 1949, p. 255) however reversed this decision.
It has been claimed that the truth drug was the instrument used in the Mindszenty and similar cases to obtain confessions. This however is not accurate. Such confessions were secured in a general environment of terror, a feeling of hopelessness being artificially created.
In actual fact, far more brutal means were used to secure the desired statements. The prisoner found himself in a position in which he would say anything required of him in order to obtain relief.
Narcoanalysis, from the time the first experiments-were made in the therapeutic field, has been a controversial issue both with the legal and the medical profession. At present indications appear to point very much in the direction of the advisability of its very limited use, but it is likely that this will prove a fruitful topic for discussion for several years to come.
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