View Full Version : A new "defense" for accused characters

L.C. Blackwell
11-18-2011, 07:22 AM
And I suspect it won't be long before this actually ends up in a court case, if it hasn't already.

Doctors note increase in 'sleep texting' (http://www.msnbc.msn.com/id/45331733/ns/health-behavior/)


Drachen Jager
11-18-2011, 07:46 AM
I wonder how many of those, especially the 'sexting' one were simply after-the-fact excuses for bad behaviour.

L.C. Blackwell
11-18-2011, 07:58 AM
Hard to say. But I think in a court case, it might be difficult to prove that the accused texter wasn't asleep, or that they were. If it were allowed as expert testimony--for example, the doctor stated the accused had a history of it--it would come down to what the jury believed, and could swing a case either way.

I just think it's got some interesting possibilities, legally speaking.

Becky Black
11-18-2011, 01:59 PM
Interesting. People can certainly do quite elaborate things while sleepwalking. But I'd expect in that case to see someone who was sleep-texting had some history of sleepwalking too. The idea that out of the blue they're suddenly sending texts while fully asleep would be dubious.

I'd be more inclined to believe what one person in that news story said about them doing in while in a halfway state between sleeping and waking. I can imagine hearing the sound of a text coming in, and sort of, but not quite, waking up, picking up the phone to reply and ending up sending a random text to someone else, then going back to sleep and not remembering anything about it in the morning. I have my phone by the bed, but put it on silent, so I can't wake me in the night with emails and texts and stuff.

11-18-2011, 07:40 PM
I imagine the prosecution attorney would want the defendant to explain why, if they knew they were prone to this behaviour, they did nothing to prevent a recurrence.

11-18-2011, 08:08 PM
I've heard a couple of cases about doing things in your sleep, there have been a couple of people who have tried to kill their partners 'in thier sleep' and I remember reading something recently (I think it was in the Daily Mail, so I#m cautious about it's accuracy) about people who try to have sex with their partners while 'asleep'

I'd be wary of it as a defence without a history of sleep related disorder though as it would be hard to prove or disprove.

That said, sleep can be a weird thing. My youngest brother talks in his sleep, and if you talk to him when he's doing it he will answer you back in fully coherent sentances which he doesn't rememeber.

11-19-2011, 12:07 AM
I'm not sure I believe it - in fact I'm sure I don't. "One conservative young patient found herself sending compromising pictures of herself while asleep"? Why would a "conservative" young person have a compromising picture of herself on her phone all ready to send? Or does she claim she took it while asleep, too?

I do believe kids have the phone next to the bed, though. My daughter does. It's her alarm clock.

11-19-2011, 01:39 AM
My best friend and my youngest son both suffer from sleepwalking.

The friend even eats in her sleep. Recently she was trying to figure out if her husband, or one of her kids, were raiding the kitchen in the middle of the night. It went on for a week before she realized it was her. (she found the wrappers in her room) It seems to happen mostly when she's under a lot of stress.
She's also gotten hurt during her late night strolls, and woken up not knowing how she got there.

One night I woke up to yelling. I found my youngest son standing in the corner of his room, facing the wall. He was waving around a book in one hand, and a drumstick (the musical kind) in the other. From what I could gather from his incoherent rambling, he was mad at his sister, and apparently yelling at her in his dream.

When I spoke to him he turned around, blinked, and said, "What?". His eyes were open, he was replying, but he was not awake. No matter what I said or asked, he responded with "What?". It was clear he was very out of it, and finally climbed back into bed.
The next morning he had no recollection of any of it.

11-19-2011, 07:16 AM
Sleep disorder defenses are about as popular with attorneys as the Twinkie defense. They're much more popular with the press and the public.

Every so often, you've got a criminal case where you can't argue that your client didn't do it. The plea offer sucks or is refused by your client (who if he was a rocket scientist wouldn't have gotten himself into this mess). So having nothing, you do some variation of the Twinkie defense. Because as attorney for the criminal defendant, it's frowned upon to get up in front of the jury and say your client is guilty.

Personally I believe that there are sleep disorders, although whether they constitute a defense is questionable. In the cases where they are used, you need several experts the jury finds believable. Incredibly hard to do. Because not only do you have to prove that the action occurred while the defendant was asleep, but that by being asleep the defendant didn't have the appropriate state of mind to commit the offense.

For example and using texting while asleep, defendant is accused of harassing the victim via texting. Defendant argues that he wasn't aware he was doing the texting because he was asleep. First you have to convince the jury the defendant did the act while asleep. Assuming you can sell the jury on that, then you have to convince the jury that being asleep means he wasn't aware of what he was doing. Which raises the question of why was the defendant harassing the victim.

Best of luck,

Jim Clark-Dawe

11-19-2011, 09:32 AM
There was a case where a man drove across town, murdered his parents-in-law, then drove back home. For sleep-during-sex, there are hundreds and hundreds of pages of documented evidence kicking around, though the balance between actual cases and excuses may be slightly off there. If you can do something when you are awake, then your body is capable of doing it while you sleep.

11-19-2011, 03:59 PM
This is a sleepwalking homicide case: http://www.bbc.co.uk/news/uk-wales-mid-wales-11998813

11-20-2011, 01:24 PM
So, in reading all of this, I found myself contemplating a "what if" scenario. What if many of these "sleep crimes" were in fact the product of mind control (the perpetrator couldn't affect the waking mind, but the sleeping mind is more pliable)? What if your MC was the attorney having to defend a client being charged with one of these crimes? How do you defend an absolutely unbeleivable situation?

As far as using sleep texting as a defense, it would only be one part of my defense, in a case of harrassment. My thinking is with something like this.

Once I got the concept introduced and entered as an argument, I would base the rest of my defense on that precept.

As to how to convince the jury, I figure that would come down to proving time of texts compared to the defendant's schedule. Especially if I could prove that not all of the texts were sent during a time the defendant was KNOWN to be awake. Tricky, yes, but that would be the track I would follow. Because as the defense, my job would not be to completely refute the prosecution's case, but to convince the jury that there was reasonable doubt as to my client's guilt.

So, the prosecution's burden of proof is to show beyond reasonable doubt that my client was awake for every single text, or enough of them to be considered harrassing. My job is to prove that he COULD have been asleep for some or most of them, thus limiting the number of texts he was aware of. That in turn could cast doubt on intent, if my thinking is correct. So, I would attempt to shift the burden to the prosecution to prove he was awake for the bulk of them, and force them to define how many texts could be considered harrassing, so I could redefine the case on terms more to my favor.

If the plaintiff also responded to said texts, I would use that as implicit permission to continue the to keep the line of dialogue open, unless every single response was a request to leave them alone. Especially if the plaintiff, like many people, responded in kind, or with a lot of invective and expetives. If I could, I'd use that to paint the plaintiff as an active party who decided to file the charge as revenge, and paint the whole case as a case of frivolous one-up-manship on the part of the plaintiff. Plus, if my client was sleep texting, and the plaintiff was replying, was he not acting on simple reflex? With every response, his societally preprogrammed responses would be kicking in, thus the plaintiff (unknowingly, of course, not wanting to seem to attack the poor guy) could have been creating his own problem.

Of course I'd bet a real lawyer could rip my amateur case to shreds.

11-21-2011, 08:47 AM
Years ago, my grandmother was great for talking/arguing with you while she was sleeping. I recall her calling me by my (male) cousin's name and ordering me to "take that ice out to the barn" because it was melting all over the floor.

Of course today they claim that some of the sleep-aid drugs promote doing all sorts of odd things in your sleep.