- Email: [email protected]
Reply to Ebrahim and Fenwick
ARTICLE IN PRESS 244 Reply to Ebrahim and Fenwick To the Editors, Thank you for the opportunity to respond to Drs. Ebrahim and Fenwick’s letter concerning the review article ‘‘Factors that predispose, prime and precipitate NREM parasomnias in adults: Clinical and forensic implications’’1 and its accompanying editorial ‘‘Finally—Sleep science for the courtroom2 that appeared in volume 11(1) of this journal. As the letter writer’s comments refer to both articles somewhat interchangeably, we have chosen to respond to most comments jointly. Drs. Ebrahim and Fenwick’s letter makes the unique claim that the content of the review and editorial does not and cannot apply to the United Kingdom because the UK legal system excludes the admission of junk science as evidence and prevents misbehavior by expert witnesses. They state the editors of Sleep Medicine Reviews should have prevented this insult to the UK legal system by expressly excluding all references to it from discussion. They further imply that the UK legal system is superior to that found in all other jurisdictions with regard to scientific evidence and expert witnesses. Apparently, Drs. Fenwick and Ebrahim believe that the mere fact that some of the legal cases cited in the review were conducted in the UK should be sufficient to prove that the scientific evidence presented in those cases was valid and the expert witness well trained and possessed of requisite character and integrity. We find this approach disturbingly jingoistic.1 Our reaction is that one should always be careful when wrapping oneself in the flag not to cover one’s eyes and ears too tightly. Jingoism is no substitute for good scientific process, solid scientific facts, and well-trained expert witnesses. We do not appear to be alone in our opinions that the UK legal system shares many problems regarding expert witnesses and scientific evidence with other jurisdictions throughout the world. An article in the July 2, 2005 issue of the Lancet3 wondered ‘‘who determines whether a clinician is suitably expert?’’ The article goes on to quote the Emeritus Chairman of the Academy of Experts in the UK, Mr. Michael Cohen, that attention to scientific testimony ‘‘might help address the problem with low standards that currently plague the profession.’’ He further states that high profile cases ‘‘makes the flaws more obvious allowing unscrupulous barris1 Jingoism—‘‘the extreme belief that your own country is always best.’’ (According to the Cambridge Dictionaries Online).
LETTERS ters or witnesses to abuse loopholes’’. This is why the ‘‘system of expert witness testimony needs an overhaul.’’ The article further states ‘‘in the absence of an explicit requirement to seek training, the quality of witnesses that do court work remains hugely variable’’. The Lancet—one of the leading medical journals in the UK and the world—apparently did not believe Mr. Cohen’s statements were excessive. Drs. Ebrahim and Fenwick attempt to justify their seemingly jingoistic approach with a variety of easily disproven statements and incorrect citations. Among other claims, Drs. Fenwick and Ebrahim have stated that in the UK court system there is no advantage to a defense of sleepwalking, because even if acquitted the defendant would be sent to a secure psychiatric institution. Thus, the sleepwalker does not have ‘‘everything to gain’’ by his defense. Both Drs. Ebrahim and Fenwick have participated in UK criminal cases where the defendant did ‘‘gain everything’’ by putting on a sleepwalking defense. In the case of R.v. Bilton,4,5 the defendant was charged with three counts of rape. His defense was that he had committed these sexual assaults during an alcohol-induced episode of sleepwalking. Dr. Ebrahim appeared as an expert witness for the defense. Mr. Bilton was acquitted and set free by the judge, who decided not to send him off to a secure psychiatric facility. It was certainly worth using a sleepwalking defense for him. In the case of R.v. Lowe,6,7 Mr. Lowe brutally beat his own father to death. His defense was that this violence occurred as part of an alcoholinduced sleepwalking episode. Both Drs. Ebrahim and Fenwick provided testimony and data that assisted Mr. Lowe’s defense. As noted by Dr. Ebrahim in reference7, he was initially instructed by the prosecution in this case, but gave significant evidence that was of value to the defense. Mr. Lowe was acquitted and was remanded to a secure psychiatric facility. However, after 8 months he was released. If he had been convicted he would have been sentenced to life in prison. We think 8 months in a psychiatric facility verses a life sentence in prison is certainly a good deal and major gain for him. Thus, the claim that a defense of sleepwalking has no advantage in a UK court cannot be substantiated. It appears that Drs. Ebrahim and Fenwick believe this review and accompanying editorial are a direct attack on the UK Judicial System. That certainly was not our intention. But is the UK system of expert testimony superior to that of other countries? We can find no reason to think so in most regards. Should we have excluded cases from the UK from comment? We can find no reason to do so.
ARTICLE IN PRESS LETTERS One of us (MRP) recently gave testimony in the Kingston Crown Court in London for the Crown in an alcohol-induced sleepwalking rape case. The UK court system did allow for scientific testimony without the distractions, attacks and arguments sometimes present in the US courts. Nevertheless, at the end of the day the issue still came down to whether the expert witness had accurate and up-to-date knowledge of the state-of-the-art sleep science. Does high level alcohol intoxication increase or decrease slow wave sleep? Does alcohol trigger sleepwalking? Can sleep studies be of any value in a forensic setting? etc., etc., etc. If the ‘‘expert’’ has no knowledge of the current science and depends on second- or thirdhand information from textbooks is he really an expert? If the expert uses unvalidated diagnostic procedures to produce his evidence, is he an expert? Two or even three uninformed ‘‘experts’’ are no better than one uninformed expert. There is nothing to prevent junk science from being given in evidence in the UK court system and considered by the jury as real evidence. Are ‘‘poorly educated sleep experts’’ and ‘‘junk science’’ truly gone from the UK as stated by Drs. Ebrahim and Fenwick?? We are puzzled as to how Drs. Ebrahim and Fenwick came by this knowledge. We respectfully request that they make available the data supporting this claim. To the best of our knowledge, UK sleep experts do not have to (1) pass any sort of certifying test, (2) complete any advanced training in sleep medicine, (3) take a certain number of hours of continuing medical education in sleep medicine each year or (4) complete a certain amount of supervised experience. This is not to say there are not highly competent and well-trained sleep experts in the UK. However, we have noted previously the criticisms of a leading UK specialist on expert witness testimony who complained of the lack of training requirements for expert witness.3 Unfortunately, there is nothing to prevent an unqualified expert or even a completely fake expert from giving testimony in the UK or for that matter, in any other country. A case in point is a trial at Minshull Crown Court in Manchester, UK as described in the Times Online January 18, 2007,8 One Gene Morrison claimed to have both a B. Sc and Ph. D and worked as an expert witness for almost 30 years. However, it was recently determined that Mr. Morrison had bought his credentials online from an unaccredited American diploma mill for $1300. As noted in the Times Online report he had no training or experience whatsoever and usually paid others to do the work he then passed off as his own. He offered civil, criminal and insurance services. Of course, this type of fakery no doubt has occurred before in many jurisdictions in the world and may
245 occur in the future. However, the UK is not immune to these types of problems. Drs. Ebrahim and Fenwick also see fit to instruct the editors of Sleep Medicine Reviews as to what is appropriate and not appropriate to appear in their journal. They take issue with our use of quotations from the media, but misstate how the media quotes were actually used in the review. These quotes were not descriptions of the actual proceedings of the trial as suggested by Drs. Ebrahim and Fenwick, but rather direct quotations from Drs. Ebrahim and Fenwick themselves about the trial and their role in the trials. Dr. Ebrahim is quoted in the Mirror’s online newspaper9 following an acquittal in the case of R.v. Sandler as saying that ‘‘The diagnosis to us is clear, and there would not be a single expert in the world who would differ from this diagnosis.’’ Is this quotation an ‘‘accurate account of the proceedings of the trial’’? It does not appear to be so to us. Dr. Fenwick is quoted by the BBC as saying that the scientific evaluation in R.v. Lowe ‘‘was the most detailed scientific tests in British legal history’’.10 Unless, Drs. Ebrahim and Fenwick think their statements were incorrectly quoted, we do not see the problem. If Drs. Ebrahim and Fenwick do not want to see their quotations to the media appearing in scientific journal articles for other reasons, they should stop giving interviews to the press. Drs. Ebrahim and Fenwick refer with pride to the standards set forth by the Expert Witness Institute in its ‘‘Code of Guidance for Expert Witnesses, 2002’’. Unfortunately, they seem to be unaware that this document is out of print and has been replaced by another the document ‘‘Code of Practice For Experts’’ as of June 22, 2005. This was adopted for use in criminal proceeding in the UK in June of 2006.2 Additionally, Drs. Ebrahim and Fenwick have declared without any substantiation that unpublished legal cases should not be referred to, quoted or cited. They specifically refer to R.v. Catling, 2004 and R.v. Sandler, 2005. One of us (MRP) was the Crown expert witness for R.v. Catling and thus was privy to all evidence and reports. Drs. Ebrahim and Fenwick were the defense expert witnesses for this case and they have had access to Dr. Pressman’s reports. Should Dr. Pressman be prevented from discussing a case he played a central role in as an expert witness? Can he or should he be prevented from discussing the content or conclusions of his own report? Dr. Ebrahim was also the defense expert witness for R.v. Sandler. Both cases received considerable attention in the UK media. Often, interesting unpublished legal cases come to the attention of the legal and scientific 2
http://www.academy-experts.org/codeofpractice.htm
ARTICLE IN PRESS 246 communities in this manner. Drs. Ebrahim and Fenwick could easily remedy any problem by getting the necessary permissions—if needed at all—and releasing their own reports to those interested in the sleep medicine community. Drs. Ebrahim and Fenwick incorrectly provide the citation ‘‘R.v. Finnegan’’ that would indicate an English case, when it should be ‘‘Finnegan v. Heywood’’, a Scottish case. The letter writers suggest that this case prevents use of an alcohol induced sleepwalking defense in the whole of the UK This case occurred in the year 2000. Since that time at least four alcohol-induced sleepwalking defenses have been presented in England, many with Dr. Ebrahim and/or Dr. Fenwick as consultant. One of us (MRP) testified in an English alcohol-induced sleepwalking case in December of 2006. The Scottish case of Finnegan v. Heywood was not mentioned. We would be thrilled if Finnegan v. Heywood were actually enforced in England as incorrectly suggested by the Drs. Ebrahim and Fenwick. Most of the English alcohol-induced sleepwalking cases would then never be permitted to go to trial. Drs. Ebrahim and Fenwick take issue with Dr. Pressman’s statement ‘‘The general principle is that if a sleepwalking episode can be triggered in the sleep laboratory in the same way the defense has hypothesized was triggered prior to the criminal act, the court would find this convincing evidence.’’ They state that the sleep study does not have a role in trials in the UK that is more important than other evidence. A review of two published articles with Dr. Ebrahim and Dr. Fenwick as author or co-author in the forensic science literature shows that it is clear that Drs. Ebrahim and Fenwick accord a special place to sleep laboratory data. They have published numerous statements that demonstrate this. In a recent case report of the R.v. Bilton case, Dr. Ebrahim wrote5
1. ‘‘In the forensic arena objective criteria become more important, to make it clear in court that this defense is not one which has just been dreamed up optimistically by the defendant’’ (p. 221). 2. ‘‘The following findings on the PSG indicate a higher likelihood for Sleepwalking’’: (p. 222). 3. ‘‘In addition, he showed all the features indicating a tendency to sleepwalkingy’’ (p. 223). 4. ‘‘None of the previously reported cases had the three night protocol of investigation, including the use of provocative tests, which in this case provided an opportunity to thoroughly assess and diagnose all possible aspects of the condition’’ (p. 223).
LETTERS Additionally, with regard to R.v. Lowe7 Drs. Ebrahim and Fenwick have written: ‘‘Were it not for the three-night protocol and had the defence team relied on the one-night study, Jules Lowe may well have been found guilty of murder’’ (p. 611). ‘‘After following the three-night protocol, it became clear that Mr. Lowe had the signs of sleepwalking and confusional arousal’’ (p. 611). We believe the clinical and forensic principles reviewed in the review article and editorial can and should be applied internationally. Science is international and not specific to any particular country. We do not believe any particular jurisdiction conducts forensic science cases any better than any other. The basic principles of scientific evaluation and expert witness testimony in the UK are laudable, but that does not mean they work in practice any better than rules of scientific evidence in the United States or elsewhere. Jingoism is not a substitute for good scientific evidence and valid expert testimony. Bad science can still find its way into the courtroom in many ways. As scientists, we cannot control what the courts do, but we can be sure we go to court in possession of the best science possible. We note with some concern that after reading the review and editorial Drs. Ebrahim and Fenwick persist in calling tiredness, stress and alcohol ‘‘triggers’’. Tiredness is not sleepiness. A major point of the review was to show there is no evidence that alcohol is a trigger for sleepwalking. Drs. Ebrahim and Fenwick’s comments do not in our view serve to inform or educate the sleep medicine community. Good sleep science should be the only goal for us all. We advise Drs. Ebrahim and Fenwick to pull the Union Jack away from their eyes and ears, and pay attention to the valuable research on sleepwalking that has been published worldwide in the last 10 years. Much of that science can be found in the review and editorial in SMR. We note in closing that this is the second time we have exchanged letters to the editor of a scientific journal with Dr. Ebrahim concerning his use of forensic techniques in the evaluation of violent acts committed while purportedly sleepwalking.11–14 For unknown reasons, Dr. Ebrahim fails in his letter to discuss or even cite his published case report on the Bilton case nor the exchange of letters to editor with us concerning it that appeared in the Journal of Forensic and Legal Medicine. In this exchange of letters, Dr. Ebrahim acknowledged that the polysomnographic markers of sleepwalking he used and discussed at length in his case report were not consistent with the state of the art sleep medicine
ARTICLE IN PRESS LETTERS and could be considered of research interest only. We refer the readers to those published letters to the editor for more details. In this exchange of letters to editors of SMR, it is our opinion that Drs. Ebrahim and Fenwick’s views on forensic sleep medicine do not represent the state of the art of forensic sleep science in the UK or anywhere else in the world. We see no purpose in repeating ourselves further. If Drs. Ebrahim and Fenwick do not understand or will not accept the positions we have elucidated in great detail, we can do nothing further to convince them. What Drs. Ebrahim and Fenwick see as ‘‘excesses to be curbed’’, we see as the plain, unvarnished truth about forensic sleep science as it is often practiced worldwide. We leave it up to the reader to review the science, the law and the cases, and make their own determination. A jingoistic approach to forensic sleep science cannot lead us on the path to justice. We most certainly stand by our all of our previous comments. ‘‘There is no national science just as there is no national multiplication table; what is national is no longer science’’ Anton Chekhov
References 1. Pressman MR. Factors that predispose, prime and precipitate NREM parasomnias in adults: clinical and forensic implications. Sleep Med Rev 2007;11:5–30. 2. Mahowald MW, Schenck CH, Cramer-Bornemann M. Finally— sleep science for the courtroom. Sleep Med Rev 2007;11:1–3. 3. Brown H. Clinician expert witnesses take the stand /www.thelancet.comS 2005; 336: 16–7. 4. R.v. James Bilton, 2005.
247 5. Ebrahim IO. Somnambulistic sexual behaviour (sexsomnia). J Clin Foren Med 2006;13:219–24. 6. R.v. Lowe, 2003. 7. Ebrahim IO, Wilson W, Marks R, Peacock KW, Fenwick P. Violence, sleepwalking and the Criminal Law: (1) The medical aspects. Crim Law Rev 2005:601–13. 8. Jenkins R. Court expert ‘was bogus scientist who bought PhD on Internet’. Times Online, January 18, 2007. 9. Allen L. NOD Guilty: sleepwalking pub landlord who smashed up BMW is cleared of drink-driving /Mirror.co.ukS, 2005. 10. Sleep tests on alleged murderer 11 March 2005. BBC News. 11. Pressman MR, Schenck CH, Mahowald MW, Bornemann MC. Sleep science in the courtroom. J Foren Legal Med 2007;14: 108–11. 12. Pressman MR, Schenck CH, Mahowald MW, Bornemann MC. Further comment. J Foren Legal Med 2007;14:114–5. 13. Ebrahim I. Author’s response. J Foren Legal Med 2007;14: 111–3. 14. Ebrahim I. Author’s further response. J Foren Legal Med 2007;14:116–8.
Mark R. Pressman Diplomate, American Board of Sleep Medicine, Sleep Medicine Services, Lankenau Hospital, 100 Lancaster Avenue, Wynnewood, PA 19096, USA Jefferson Medical College, Philadelphia, PA, USA E-mail address: [email protected]
Mark W. Mahowald Michel Cramer–Bornemann Diplomates, American Board of Sleep Medicine, Minnesota Regional Sleep Disorders Center, Department of Neurology, Hennepin Count Medical Center, Minneapolis, MN, USA University of Minnesota Medical School, Minneapolis, MN, USA
10.1016/j.smrv.2007.02.004
Response to Ebrahim and Fenwick Dear Editors We have reviewed the letter submitted by Drs. Ebrahim and Fenwick. We stand behind our evidence-based comments. Mark W. Mahowald, Michel A. Cramer Bornemann Department of Neurology, MN Regional Sleep Disorders Center, Hennepin County Medical Center, University of MN Medical School, Minneapolis, MN, USA doi:10.1016/j.smrv.2007.02.003
Carlos H. Schenck Department of Psychiatry, MN Regional Sleep Disorders Center, Hennepin County Medical Center, University of MN Medical School, Minneapolis, MN, USA
LETTERS ters or witnesses to abuse loopholes’’. This is why the ‘‘system of expert witness testimony needs an overhaul.’’ The article further states ‘‘in the absence of an explicit requirement to seek training, the quality of witnesses that do court work remains hugely variable’’. The Lancet—one of the leading medical journals in the UK and the world—apparently did not believe Mr. Cohen’s statements were excessive. Drs. Ebrahim and Fenwick attempt to justify their seemingly jingoistic approach with a variety of easily disproven statements and incorrect citations. Among other claims, Drs. Fenwick and Ebrahim have stated that in the UK court system there is no advantage to a defense of sleepwalking, because even if acquitted the defendant would be sent to a secure psychiatric institution. Thus, the sleepwalker does not have ‘‘everything to gain’’ by his defense. Both Drs. Ebrahim and Fenwick have participated in UK criminal cases where the defendant did ‘‘gain everything’’ by putting on a sleepwalking defense. In the case of R.v. Bilton,4,5 the defendant was charged with three counts of rape. His defense was that he had committed these sexual assaults during an alcohol-induced episode of sleepwalking. Dr. Ebrahim appeared as an expert witness for the defense. Mr. Bilton was acquitted and set free by the judge, who decided not to send him off to a secure psychiatric facility. It was certainly worth using a sleepwalking defense for him. In the case of R.v. Lowe,6,7 Mr. Lowe brutally beat his own father to death. His defense was that this violence occurred as part of an alcoholinduced sleepwalking episode. Both Drs. Ebrahim and Fenwick provided testimony and data that assisted Mr. Lowe’s defense. As noted by Dr. Ebrahim in reference7, he was initially instructed by the prosecution in this case, but gave significant evidence that was of value to the defense. Mr. Lowe was acquitted and was remanded to a secure psychiatric facility. However, after 8 months he was released. If he had been convicted he would have been sentenced to life in prison. We think 8 months in a psychiatric facility verses a life sentence in prison is certainly a good deal and major gain for him. Thus, the claim that a defense of sleepwalking has no advantage in a UK court cannot be substantiated. It appears that Drs. Ebrahim and Fenwick believe this review and accompanying editorial are a direct attack on the UK Judicial System. That certainly was not our intention. But is the UK system of expert testimony superior to that of other countries? We can find no reason to think so in most regards. Should we have excluded cases from the UK from comment? We can find no reason to do so.
ARTICLE IN PRESS LETTERS One of us (MRP) recently gave testimony in the Kingston Crown Court in London for the Crown in an alcohol-induced sleepwalking rape case. The UK court system did allow for scientific testimony without the distractions, attacks and arguments sometimes present in the US courts. Nevertheless, at the end of the day the issue still came down to whether the expert witness had accurate and up-to-date knowledge of the state-of-the-art sleep science. Does high level alcohol intoxication increase or decrease slow wave sleep? Does alcohol trigger sleepwalking? Can sleep studies be of any value in a forensic setting? etc., etc., etc. If the ‘‘expert’’ has no knowledge of the current science and depends on second- or thirdhand information from textbooks is he really an expert? If the expert uses unvalidated diagnostic procedures to produce his evidence, is he an expert? Two or even three uninformed ‘‘experts’’ are no better than one uninformed expert. There is nothing to prevent junk science from being given in evidence in the UK court system and considered by the jury as real evidence. Are ‘‘poorly educated sleep experts’’ and ‘‘junk science’’ truly gone from the UK as stated by Drs. Ebrahim and Fenwick?? We are puzzled as to how Drs. Ebrahim and Fenwick came by this knowledge. We respectfully request that they make available the data supporting this claim. To the best of our knowledge, UK sleep experts do not have to (1) pass any sort of certifying test, (2) complete any advanced training in sleep medicine, (3) take a certain number of hours of continuing medical education in sleep medicine each year or (4) complete a certain amount of supervised experience. This is not to say there are not highly competent and well-trained sleep experts in the UK. However, we have noted previously the criticisms of a leading UK specialist on expert witness testimony who complained of the lack of training requirements for expert witness.3 Unfortunately, there is nothing to prevent an unqualified expert or even a completely fake expert from giving testimony in the UK or for that matter, in any other country. A case in point is a trial at Minshull Crown Court in Manchester, UK as described in the Times Online January 18, 2007,8 One Gene Morrison claimed to have both a B. Sc and Ph. D and worked as an expert witness for almost 30 years. However, it was recently determined that Mr. Morrison had bought his credentials online from an unaccredited American diploma mill for $1300. As noted in the Times Online report he had no training or experience whatsoever and usually paid others to do the work he then passed off as his own. He offered civil, criminal and insurance services. Of course, this type of fakery no doubt has occurred before in many jurisdictions in the world and may
245 occur in the future. However, the UK is not immune to these types of problems. Drs. Ebrahim and Fenwick also see fit to instruct the editors of Sleep Medicine Reviews as to what is appropriate and not appropriate to appear in their journal. They take issue with our use of quotations from the media, but misstate how the media quotes were actually used in the review. These quotes were not descriptions of the actual proceedings of the trial as suggested by Drs. Ebrahim and Fenwick, but rather direct quotations from Drs. Ebrahim and Fenwick themselves about the trial and their role in the trials. Dr. Ebrahim is quoted in the Mirror’s online newspaper9 following an acquittal in the case of R.v. Sandler as saying that ‘‘The diagnosis to us is clear, and there would not be a single expert in the world who would differ from this diagnosis.’’ Is this quotation an ‘‘accurate account of the proceedings of the trial’’? It does not appear to be so to us. Dr. Fenwick is quoted by the BBC as saying that the scientific evaluation in R.v. Lowe ‘‘was the most detailed scientific tests in British legal history’’.10 Unless, Drs. Ebrahim and Fenwick think their statements were incorrectly quoted, we do not see the problem. If Drs. Ebrahim and Fenwick do not want to see their quotations to the media appearing in scientific journal articles for other reasons, they should stop giving interviews to the press. Drs. Ebrahim and Fenwick refer with pride to the standards set forth by the Expert Witness Institute in its ‘‘Code of Guidance for Expert Witnesses, 2002’’. Unfortunately, they seem to be unaware that this document is out of print and has been replaced by another the document ‘‘Code of Practice For Experts’’ as of June 22, 2005. This was adopted for use in criminal proceeding in the UK in June of 2006.2 Additionally, Drs. Ebrahim and Fenwick have declared without any substantiation that unpublished legal cases should not be referred to, quoted or cited. They specifically refer to R.v. Catling, 2004 and R.v. Sandler, 2005. One of us (MRP) was the Crown expert witness for R.v. Catling and thus was privy to all evidence and reports. Drs. Ebrahim and Fenwick were the defense expert witnesses for this case and they have had access to Dr. Pressman’s reports. Should Dr. Pressman be prevented from discussing a case he played a central role in as an expert witness? Can he or should he be prevented from discussing the content or conclusions of his own report? Dr. Ebrahim was also the defense expert witness for R.v. Sandler. Both cases received considerable attention in the UK media. Often, interesting unpublished legal cases come to the attention of the legal and scientific 2
http://www.academy-experts.org/codeofpractice.htm
ARTICLE IN PRESS 246 communities in this manner. Drs. Ebrahim and Fenwick could easily remedy any problem by getting the necessary permissions—if needed at all—and releasing their own reports to those interested in the sleep medicine community. Drs. Ebrahim and Fenwick incorrectly provide the citation ‘‘R.v. Finnegan’’ that would indicate an English case, when it should be ‘‘Finnegan v. Heywood’’, a Scottish case. The letter writers suggest that this case prevents use of an alcohol induced sleepwalking defense in the whole of the UK This case occurred in the year 2000. Since that time at least four alcohol-induced sleepwalking defenses have been presented in England, many with Dr. Ebrahim and/or Dr. Fenwick as consultant. One of us (MRP) testified in an English alcohol-induced sleepwalking case in December of 2006. The Scottish case of Finnegan v. Heywood was not mentioned. We would be thrilled if Finnegan v. Heywood were actually enforced in England as incorrectly suggested by the Drs. Ebrahim and Fenwick. Most of the English alcohol-induced sleepwalking cases would then never be permitted to go to trial. Drs. Ebrahim and Fenwick take issue with Dr. Pressman’s statement ‘‘The general principle is that if a sleepwalking episode can be triggered in the sleep laboratory in the same way the defense has hypothesized was triggered prior to the criminal act, the court would find this convincing evidence.’’ They state that the sleep study does not have a role in trials in the UK that is more important than other evidence. A review of two published articles with Dr. Ebrahim and Dr. Fenwick as author or co-author in the forensic science literature shows that it is clear that Drs. Ebrahim and Fenwick accord a special place to sleep laboratory data. They have published numerous statements that demonstrate this. In a recent case report of the R.v. Bilton case, Dr. Ebrahim wrote5
1. ‘‘In the forensic arena objective criteria become more important, to make it clear in court that this defense is not one which has just been dreamed up optimistically by the defendant’’ (p. 221). 2. ‘‘The following findings on the PSG indicate a higher likelihood for Sleepwalking’’: (p. 222). 3. ‘‘In addition, he showed all the features indicating a tendency to sleepwalkingy’’ (p. 223). 4. ‘‘None of the previously reported cases had the three night protocol of investigation, including the use of provocative tests, which in this case provided an opportunity to thoroughly assess and diagnose all possible aspects of the condition’’ (p. 223).
LETTERS Additionally, with regard to R.v. Lowe7 Drs. Ebrahim and Fenwick have written: ‘‘Were it not for the three-night protocol and had the defence team relied on the one-night study, Jules Lowe may well have been found guilty of murder’’ (p. 611). ‘‘After following the three-night protocol, it became clear that Mr. Lowe had the signs of sleepwalking and confusional arousal’’ (p. 611). We believe the clinical and forensic principles reviewed in the review article and editorial can and should be applied internationally. Science is international and not specific to any particular country. We do not believe any particular jurisdiction conducts forensic science cases any better than any other. The basic principles of scientific evaluation and expert witness testimony in the UK are laudable, but that does not mean they work in practice any better than rules of scientific evidence in the United States or elsewhere. Jingoism is not a substitute for good scientific evidence and valid expert testimony. Bad science can still find its way into the courtroom in many ways. As scientists, we cannot control what the courts do, but we can be sure we go to court in possession of the best science possible. We note with some concern that after reading the review and editorial Drs. Ebrahim and Fenwick persist in calling tiredness, stress and alcohol ‘‘triggers’’. Tiredness is not sleepiness. A major point of the review was to show there is no evidence that alcohol is a trigger for sleepwalking. Drs. Ebrahim and Fenwick’s comments do not in our view serve to inform or educate the sleep medicine community. Good sleep science should be the only goal for us all. We advise Drs. Ebrahim and Fenwick to pull the Union Jack away from their eyes and ears, and pay attention to the valuable research on sleepwalking that has been published worldwide in the last 10 years. Much of that science can be found in the review and editorial in SMR. We note in closing that this is the second time we have exchanged letters to the editor of a scientific journal with Dr. Ebrahim concerning his use of forensic techniques in the evaluation of violent acts committed while purportedly sleepwalking.11–14 For unknown reasons, Dr. Ebrahim fails in his letter to discuss or even cite his published case report on the Bilton case nor the exchange of letters to editor with us concerning it that appeared in the Journal of Forensic and Legal Medicine. In this exchange of letters, Dr. Ebrahim acknowledged that the polysomnographic markers of sleepwalking he used and discussed at length in his case report were not consistent with the state of the art sleep medicine
ARTICLE IN PRESS LETTERS and could be considered of research interest only. We refer the readers to those published letters to the editor for more details. In this exchange of letters to editors of SMR, it is our opinion that Drs. Ebrahim and Fenwick’s views on forensic sleep medicine do not represent the state of the art of forensic sleep science in the UK or anywhere else in the world. We see no purpose in repeating ourselves further. If Drs. Ebrahim and Fenwick do not understand or will not accept the positions we have elucidated in great detail, we can do nothing further to convince them. What Drs. Ebrahim and Fenwick see as ‘‘excesses to be curbed’’, we see as the plain, unvarnished truth about forensic sleep science as it is often practiced worldwide. We leave it up to the reader to review the science, the law and the cases, and make their own determination. A jingoistic approach to forensic sleep science cannot lead us on the path to justice. We most certainly stand by our all of our previous comments. ‘‘There is no national science just as there is no national multiplication table; what is national is no longer science’’ Anton Chekhov
References 1. Pressman MR. Factors that predispose, prime and precipitate NREM parasomnias in adults: clinical and forensic implications. Sleep Med Rev 2007;11:5–30. 2. Mahowald MW, Schenck CH, Cramer-Bornemann M. Finally— sleep science for the courtroom. Sleep Med Rev 2007;11:1–3. 3. Brown H. Clinician expert witnesses take the stand /www.thelancet.comS 2005; 336: 16–7. 4. R.v. James Bilton, 2005.
247 5. Ebrahim IO. Somnambulistic sexual behaviour (sexsomnia). J Clin Foren Med 2006;13:219–24. 6. R.v. Lowe, 2003. 7. Ebrahim IO, Wilson W, Marks R, Peacock KW, Fenwick P. Violence, sleepwalking and the Criminal Law: (1) The medical aspects. Crim Law Rev 2005:601–13. 8. Jenkins R. Court expert ‘was bogus scientist who bought PhD on Internet’. Times Online, January 18, 2007. 9. Allen L. NOD Guilty: sleepwalking pub landlord who smashed up BMW is cleared of drink-driving /Mirror.co.ukS, 2005. 10. Sleep tests on alleged murderer 11 March 2005. BBC News. 11. Pressman MR, Schenck CH, Mahowald MW, Bornemann MC. Sleep science in the courtroom. J Foren Legal Med 2007;14: 108–11. 12. Pressman MR, Schenck CH, Mahowald MW, Bornemann MC. Further comment. J Foren Legal Med 2007;14:114–5. 13. Ebrahim I. Author’s response. J Foren Legal Med 2007;14: 111–3. 14. Ebrahim I. Author’s further response. J Foren Legal Med 2007;14:116–8.
Mark R. Pressman Diplomate, American Board of Sleep Medicine, Sleep Medicine Services, Lankenau Hospital, 100 Lancaster Avenue, Wynnewood, PA 19096, USA Jefferson Medical College, Philadelphia, PA, USA E-mail address: [email protected]
Mark W. Mahowald Michel Cramer–Bornemann Diplomates, American Board of Sleep Medicine, Minnesota Regional Sleep Disorders Center, Department of Neurology, Hennepin Count Medical Center, Minneapolis, MN, USA University of Minnesota Medical School, Minneapolis, MN, USA
10.1016/j.smrv.2007.02.004
Response to Ebrahim and Fenwick Dear Editors We have reviewed the letter submitted by Drs. Ebrahim and Fenwick. We stand behind our evidence-based comments. Mark W. Mahowald, Michel A. Cramer Bornemann Department of Neurology, MN Regional Sleep Disorders Center, Hennepin County Medical Center, University of MN Medical School, Minneapolis, MN, USA doi:10.1016/j.smrv.2007.02.003
Carlos H. Schenck Department of Psychiatry, MN Regional Sleep Disorders Center, Hennepin County Medical Center, University of MN Medical School, Minneapolis, MN, USA