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Saturday, April 16, 2011

Sleep Deprivation and Criminal Intent: A New Defense?

Could your lack of sleep put you at risk of being charged with a serious crime?

Tomorrow's New York Times Magazine  has an article which may spark debate about the adverse effects of sleep deprivation.  The article goes back to a 2003 study finding that just one all-nighter reduces cognitive ability to the level of someone legally drunk, while cognitive performance deteriorates significantly after even mild but prolonged sleep deprivation.

In an age of renewed white-collar criminal prosecutions focusing on insider trading and similar, sometimes hard-to-define crimes where issues of criminal intent may be fuzzy, such findings may give renewed vigor to a line of defense based on the effects of prolonged sleep deprivation in corporate cultures where workers routinely operate on four to six hours of sleep each weeknight. 

According to the seminal 2003 study by the Hospital at the University of Pennsylvania's Dr. David Dinges (perhaps one of the foremost authorities on this topic), cited in the Times article, test subjects who received six hours of sleep each night for a 14-day-period were found by the end of the test period to be as cognitively impaired as a person who had gone without sleep for one 24-hour-cycle (see page 4 of this 2003 report), which the Times Magazine article writes is the equivalent of being as impaired as a legally drunk person.  (Interestingly, in New Jersey, an automobile driver who operates a vehicle without any sleep for the preceding 24 hours is presumed incapable of operating that vehicle and held liable for any accidents that may occur.) 

See this 2003 Dinges slide presentation on the topic.  I suggest looking carefully at slide 21, which details how sleep deprivation may affect us the worst during the hours of 6:00-10:00am before we "catch our second wind."  Also look at slide 25, listing the neurobehavioral effects of sleep loss and ominously citing "behavorial lapses (errors of omission)" and that "working memory and related executive functions decline."  Another interesting section includes slides 32-34 and slide 37, all of which show how logical reasoning and other functions really decline sharply (like falling off a table) with sleep loss.  Perhaps the most visually compelling chart is the bottom chart on slide 37. 

For those of you with the patience to read serious scholarly articles, I strongly recommend this concise 2003 report by a team including Dinges, or this still-rather short 2005 article co-written by Dinges and Hans Van Dongen. 

The cited study goes on to report that even mild nightly deprivation results in accelerating declines in performance, such that one quarter of the test subjects with successive nights of six hours' sleep were falling asleep in front of their computers by the sixth day.

The article should renew questions as to whether sleep deprivation or disorders can be used as effective defenses when civil lawsuits allege claims based in part on a person's professional judgment, or criminal cases where circumstantial evidence may exist as a result of a person's action, or failure to act, which could very plausibly be the result of a misconception, misperception or other cognitive impairment.

Could your lack of sleep put you at risk of criminal liability?

Eric Dixon is a New York lawyer who investigates complex matters and will help defend people against certain claims.  Mr. Dixon can be reached at 917-696-2442 and via e-mail at edixon@NYBusinessCounsel.com. 

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