1. Whiskey in the Courtroom Evolving Trends in Forensic Science NC Indigent Defense Services and the Duke Law Center for Criminal Justice and Professional Responsibility

2. Whiskey in the Courtroom The Application of Sleep Deprivation Research on Jury Deliberation Theresa Newman and Pate Skene

3. 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.

4. court starts 8:30 jurors wake up about 6:30 a.m. state rests 5:00 p.m. jury retires 10:38 verdict 3:01 a.m. 20½ hours

5. 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

6. THE SCIENCE

7. 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

8. 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

9. 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

10. 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 performance

11. THE SCIENCE Impairments extend to many areas of cognitive performance and judgment J.A. Caldwell. 2008. Sleep Med. Rev. 12: 257-273.

12. THE SCIENCE Ghumman and Barnes. 2013. J. Appl. Soc. Psych. 43: E166-E178. Moderate sleep deprivation makes it more difficult to suppress racial bias

13. 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

14. THE SCIENCE Cognitive depletion / ego depletion model Decreased self-regulation More reliance on intuitive judgments: heuristics and biases initial impulse emotional reaction (amygdala) Less effective inhibition of these impulses: “executive functions” (prefrontal cortex)

15. 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 AmygdalavmPFC (ventromedial prefrontal cortex)

16. 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

18. 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.