Sleep Deprivation and Expert Witnesses Introduction (the issue(s) presented and purpose of your paper)

The paper will focus on the links between sleep deprivation, false confessions and torture. The paper is written in the context of Federal Rules of Evidence 702 and the testimony of an expert witness. The focus lies in the fight between experts on each side (defense and prosecution) and how an expert witness can provide clarity regarding a confession and where the line drawn on the continuum between a voluntary confession and someone who is being tortured.

Findings of primary/secondary sources

Sleep Deprivation

Sleep Deprivation in the Context of Interrogation

Extreme sleep deprivation is widely used in the context of interrogation and has risen to a fine art. The executive summary of The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency's Detention and Interrogation Program defines "sleep deprivation" as "keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads."[footnoteRef:1] Sleep deprivation is accomplished through various methods, including loud music, sometimes alternated with loud hissing sounds, extended interrogation periods, interjection of renewed interrogation as the subject is about to fall asleep, spraying the interrogatee with cold water and/or subjecting the detainee to sustained low temperatures.[footnoteRef:2] In addition, for purposes later made evident in this paper, sleep deprivation is often used in concert with slaps, compulsory nudity and "wallings," which consist of slamming the interrogatee against walls.[footnoteRef:3] Whether employed alone or in concert with other tactics, international reports indicate that sleep deprivation is a common weapon in an interrogator's arsenal. [1: Feinstein, D & The Senate Select Committee on Intelligence, The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency's Detention and Interrogation Program. New York: Random House Publishing Group, 2014.] [2: International Committee of the Red Cross. ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody. http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf, Feb. 2007.] [3: Feinstein, D & The Senate Select Committee on Intelligence.]

ii. Is Sleep Deprivation Torture?

The question of whether sleep deprivation is a form of torture is hotly debated. The United Nations Convention Against Torture defines torture, in relevant part, as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession...when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[footnoteRef:4] [4: Office of the High Commissioner of Human Rights, United Nations. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx December 1984.]

Furthermore, the third Geneva Convention prohibits withholding basic necessities, such as food, water and sleep.[footnoteRef:5] Given these two definitions, extreme sleep deprivation would seem to fit snugly within the definition of "torture." Nevertheless, sleep deprivation is not classified as torture by U.S. law. The abovementioned CIA memo noted that the maximum allowable sleep deprivation is 180 hours, after which the detainee must be allowed to sleep for 8 continuous hours[footnoteRef:6] and yet another CIA memo asserted that none of the employed methods, including sleep deprivation, violated United Nations sanctions.[footnoteRef:7] [5: Geneva Conventions. International Humanitarian Law - Third 1949 Geneva Convention. International Committee of the Red Cross (ICRC) - Home. ICRC, 1949. https://www.icrc.org/ihl/INTRO/375?OpenDocument, Oct. 2010.] [6: Feinstein, D & The Senate Select Committee on Intelligence.] [7: Mazzetti, M, Interrogation Memos Detail Harsh Tactics by the C.I.A. New York Times 16 Apr. 2009.]

iii. Psychological and Physical Effects of Extreme Sleep Deprivation

The majority of experts conclude that most adults require between seven and eight hours of sleep per night.[footnoteRef:8] While sleep requirements vary, the science community treats sleep deprivation as deviation from the amount of sleep to which an individual is accustomed.[footnoteRef:9] Even mildly insufficient sleep can cause sleepiness, clumsiness and impaired cognitive performance.[footnoteRef:10] As sleep deprivation increases in severity, its harmful effects multiply and deepen. While science had found that severe sleep deprivation harms the human body's biochemical and physiological functions, extreme sleep deprivation most seriously affects human functions requiring a high degree of cerebral involvement.[footnoteRef:11] Prior to 2016, behavioral studies already linked severe sleep deprivation to a laundry list of harms: poor regulation of emotions and mood;[footnoteRef:12] increased emotional problems; [footnoteRef:13] loss of the brain's "medial prefrontal cortex connectivity,"[footnoteRef:14]...

ScienceNews 176.9 (2009), https://www.sciencenews.org/pictures/sleep/sn_sleep_dyingtosleep_lo.pdf. ] [9: Pinel, J, Sleep, Dreaming, and Circadian Rhythms. Biopsychology. Boston: Pearson Allyn and Bacon, 2007, 348-71. ] [10: Alhola, P and Paivi Polo-Kantola. Sleep Deprivation: Impact on Cognitive Performance. Neuropsychiatr Dis Treat. 3.5 (2007): 553-67.] [11: Fiorica, V, Physiological Responses of Men during Sleep Deprivation. Aviation Medicine 70.8 (1970): 1-14.] [12: Gujar, N, Seung-Schik Yoo, Peter Hu and Matthew Walker, Sleep Deprivation Amplifies Reactivity of Brain Reward Networks, Biasing the Appraisal of Positive Emotional Experiences, The Journal of Neuroscience, 31(12): March 2011. 4466-4474.] [13: Simon, E, Oren, N, Sharon, H, Kirschner, A, Goldway, N, Okon-Singer, H, Tauman, R, Deweese, M, Keil, A, and Hendler, T, Losing Neutrality: The Neural Basis of Impaired Emotional Control without Sleep, The Journal of Neuroscience, 35(38), September 2015. 13194-13205.] [14: Gujar, N, et al.] [15: id.] [16: id.]
Though prior studies indicated harms and concerns that might affect the reliability of confessions by sleep-deprived individuals, February 2016 saw the first published scientific study specifically linking severe sleep deprivation to false confessions. Published February 2016 in Proceedings of the National Academy of Sciences for the United States of America, the study was conducted by researchers from Michigan State University using eighty-eight Michigan State University students. Each of the eight-eight subjects accomplished a number of computer tasks and completed a Cognitive Reflection assessment of his/her intelligence during several sessions over the course of a week in psychology professor/researcher Kimberly Fenn's Sleep and Learning Lab. While performing the tasks, the subjects were monitored and repeatedly warned to avoid hitting their computers' "escape" keys because "this could cause the computer to lose valuable data."[footnoteRef:17] On the last day of the study, half the subjects slept for eight hours and half the subjects received no sleep overnight. On the following morning, before leaving the lab, each subject was given a written statement recapping his/her activities in the lab and falsely stating that the subject pressed the "escape" key. Each subject was asked to check a box on the statement confirming the statement's accuracy and sign his/her name to the statement. Only eighteen percent of the subjects who slept 8 hours the night before signed the inaccurate statement; however, fifty percent of the sleep-deprived subjects signed the statement. Furthermore, subjects who scored lower on the Cognitive test were even more severely affected by sleep deprivation and were far likelier to sign the false confession. According to the researchers' calculation, sleep-deprived subjects were four-and-one-half times likelier to sign the false confession than were rested subjects. The researchers found this data troubling, surmising that as sleep deprivation during police interrogation is common, that as many as seventeen percent of all police interrogations occur between Midnight and 8:00AM and that as many as fifteen percent to twenty-five percent of all wrongful convictions in the United States are based on false confessions.[footnoteRef:18] Professor Fenn stated: [17: Frenda, S, Berkowitz, S, Loftus, E and Fenn, K, Sleep deprivation and false confessions. Proceedings of the National Academy of Sciences of the United States of America, 113(8), February 2016. 2047-2050.] [18: id.]

It's a crucial first step toward understanding the role of sleep deprivation in false confessions and, in turn, raises complex questions about the use of sleep deprivation in the interrogation of innocent and guilty suspects.[footnoteRef:19] [19: Bhanoo, S, Study Links Sleeplessness and False Confessions, The New York Times, http://www.nytimes.com/2016/02/09/science/study-links-sleeplessness-and-false-confessions.html?_r=0. February 2016.]

As one of the study's authors, Elizabeth Loftus, a cognitive psychologist from the University of California, Irvine, states: "It's true, this is a far cry from confession to a murder. But we do know we can also get people to confess to things with more serious consequences."[footnoteRef:20] Concerned by the evident link between sleep deprivation and false confessions, the study's authors concluded, "A false admission of wrongdoing can have disastrous consequences in a legal system already fraught with miscarriages of justice. We are hopeful that our study is the first of many to uncover the sleep-related factors that influence processes related to false confession.[footnoteRef:21] Finally, the researchers recommended that police interrogations be videotaped to give additional insight to attorneys, judges and jurors regarding an accused's psychological state during interrogation.[footnoteRef:22] [20: id.] [21: Frenda, S, et al.] [22: id.]

b. Groundwork for Exclusions of Coerced Testimony

The U.S. Criminal Justice System is interwoven with compelling competing interests. The government's interest in securing a confession and conviction…