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Sleepwalking in People v. Reitz: The Expert Evidence of Dr. Clete Kushida, M.D., Ph.D.
Compiled by William Wilcox, Trevor Thompson, Apriele Minott, Julia Giffin, and Thomas Shannan
Background
Defendant worked as a commercial fisherman. He testified that he would sometimes sleepwalk, and told police that he once walked through a plate glass window while sleepwalking. He allegedly had problems with somnambulance (sleepwalking) since a young age and would sometimes speak or yell in his sleep. His sleepwalking was sometimes destructive at a young age and continued into adulthood.
Additionally, Defendant was diagnosed with bipolar disorder and had a tendency towards violent outbursts while awake, getting worse as Defendant got older. He also had a substance abuse problem, exacerbating his other problems. He once jumped or fell out of a second story window and had no idea what happened--he told his father he was sleepwalking but his friends believed it was due to his being under the influence of methamphetamine. He also had an incident of bumping into a female police officer because he was bigger and more powerful than her and “knew he could”.
Defendant and the victim were romantically involved. Defendant met the victim (Eva) through her son while she was still married. Eva often had bruises on her body during the course of her relationship that she said were due to her own clumsiness or rough sex. Eva told some friends and relatives that Defendant abused her on a few occasions. Defendant at one point disclosed to a friend that she woke up to the Defendant on top of her, strangling her. She confessed that if she stayed with Defendant he would kill her, but she could not leave as he was like a “drug” to her.
Defendant broke into Eva’s apartment after an argument and said that he would kill someone by gutting them like a fish and naming them after her. She fled and had a security guard call the police. She expressed to the police that she was afraid of the Defendant.
After that, Defendant moved back in with her husband to repair their relationship. She told her ex that she was going on a trip with her friend to Catalina Island, but she actually was going with the Defendant.
On October 1, 2001 at approximately 1:00 a.m., Defendant called his parents to tell them he may have killed Eva. Defendant’s father called the police and when they arrived they noticed the base for a plant with the plant itself missing. They found Eva’s bruised and broken body lying on the floor with three gaping stab wounds. A pocket knife and pieces of a plastic fork were also on the floor. Shards of broken pottery were in her scalp.
Autopsy revealed that Eva sustained blunt force injuries and knife and cutting wounds. Her skull was fractured and her brain bruised.
Defendant told detectives that he had no memory of the events that caused Eva’s death, but later testified at trial that he had “flashbacks” and “visions” of being in a struggle with a male intruder and feeling threatened. He testified he noticed the knife wounds in her back after becoming aware of her body. He testified the knife wounds looked similar to how sharks are killed by commercial fishermen.
Defendant admitted he acted “quite bizarre” the night of the incident, having been in a fight with five people outside a liquor store earlier in the evening. He got into an argument with Eva and left, but then changed his mind and decided to come back. He knocked on her door and hid from her view by inexplicably staying out of the range of her peephole. He then climbed onto her balcony and argued with her through the sliding glass door. When she refused to admit him he smashed through the glass. He had a knife and told Eva he would fillet a person and name the person after her. Defendant alleges he was entirely unconscious at the time of the crime, generally a complete defense to criminal homicide.
Credentials/Qualifications
Dr. Clete Kushida is a neurologist who specializes in the diagnosis and management of sleep related breathing disorders, sleep-related movement disorders, and parasomnias (e.g., sleepwalking, REM sleep behavior disorder). He is a neurologist, a Professor in the Department of Psychiatry and Behavioral Sciences at Stanford, Division Chief and Medical Director of Stanford Sleep Medicine, and Director of the Stanford Center for Human Sleep Research. He is founding President of the World Sleep Society, past President of the World Sleep Federation, past President of the American Academy of Sleep Medicine, and founding President of the California Sleep Society.
Dr. Kushida has conducted basic and clinical sleep research since 1977, served as Principal Investigator for numerous large federally and industry sponsored studies, and his research interests include the anatomic and physiologic changes associated with sleep apnea, the management of restless legs syndrome, and countermeasures for sleep loss.
He has authored or edited over 200 publications; he also authored or edited six books, including serving as editor-in-chief of the largest publication on the field of sleep to date, the Encyclopedia of Sleep (4 volumes, 429 chapters, 748 authors).
Professional Education
- Fellowship, Stanford University, Sleep Medicine (1996)
- Residency, University of California San Diego, Neurology (1994)
- Internship, University of Hawaii, Internal Medicine (1991)
- M.D., Univ of Chicago, Medicine (1990)
- Ph.D., Univ of Chicago, Neurosciences/Biopsychology (1986)
- M.S., Stanford University, Biological Sciences (1982)
- B.A.S., Stanford University, Biological Sciences/Psychology (1981)
Dr. Kushida has appeared in seven judicial opinions. Six of these were on behalf of the defendant. His expert testimony has been challenged on three separate occasions including People v. Reitz.
The Social Science Research
Dr. Kushida conducted an observational study on Stephen Reitz. Reitz stayed overnight in a sleep clinic. During the study, Reitz’s brain waves and physical movements were monitored. During the study, Reitz stood up, screamed, and jumped out of the bed. The brain wave monitor showed that during these acts, Reitz consistently measured within Stages 3 and 4—the deepest levels of sleep. Dr. Kushida diagnosed Reitz with sleep terrors and other sleep disorders, and that Reitz was capable of harming others while sleeping.
Dr. Kushida testified outside the presence of a jury that he had on two separate occasions witnessed subjects commit violent acts while sleeping. Dr. Kushida also testified that other sleep disorder experts have similarly concluded that sleepwalkers are capable of violent acts while unconscious, and that those experts relayed those anecdotes to him. In addition, Dr. Kushida examined information and evidence from other criminal cases where the defendant used a sleepwalking defense. Dr. Kushida further testified that it is “generally accepted within the scientific community” that serious cases of sleepwalking can result in the sleepwalker committing murder.
Dr. Kushida also retroactively conducted a seven-factor analysis based on the facts of the case to determine if Reitz was indeed sleepwalking. The seven criteria were:
- whether there was a reason to suspect the sleepwalking based on the perpetrator’s history or based on a sleep study;
- whether the duration of the incident was compatible with the presumed diagnosis (whether the perpetrator had a sleepwalking problem at the time of the incident);
- whether the conduct was seemingly senseless and without motivation;
- whether, immediately afterward, the perpetrator was confused and horrified by what he had done;
- whether the perpetrator had amnesia for most of the events;
- whether the act occurred during the first third of sleep (Stages 3 and 4); and
- whether there was prior sleep deprivation which can trigger sleepwalking.
Dr. Kushida found all seven criteria had been met in Reitz’s case.
The court noted that there was an absence of empirical data to support Dr. Kushida’s assertions regarding general acceptance within the scientific community. The Court used a version of Frye known as the Kelly-Frye standard, which requires a consensus in the scientific community before testimony concerning a new and novel technique or methodology would be admissible. Within this rule, judges are granted wide discretion in admitting or denying expert testimony on new or novel techniques/information.
Ultimately, the trial court found that there was no general acceptance of Dr. Kushida’s assertions and noted there was an absence of empirical data to support Dr. Kushida’s expert opinion. However, this finding appeared to be at odds with Dr. Kushida’s statements that general acceptance on sleepwalkers being capable of committing murder was present within the sleep disorder community. This issue is still somewhat up for debate because the California Supreme Court declined to analyze whether the trial court applied the Kelly-Frye standard correctly because relevant portions of Dr. Kushida’s testimony could be excluded on hearsay grounds alone.
Under a theoretical Daubert analysis:
- Testable: Presumably, yes—other neurologists and sleep disorder experts could conduct studies similar to Dr. Kushida’s study on Reitz. However, as Dr. Kushida notes, it’s impossible to know whether Reitz (or any defendant) meets the exact criteria in the moment of the act because he was not monitored in a lab setting while he committed the murder.
- Peer Review: This study itself was not subject to peer review, and neither were the case reviews conducted by Dr. Kushida. But sleepwalking studies themselves as well as the sleepwalking defense have been subjected to peer review in various journals.
- Error Rate: Theoretically, the results are falsifiable. However, Dr. Kushida’s testimony demonstrated that brain wave measures are indicative of levels of sleep, which would arguably be harder to falsify.
- General Acceptance: Unclear, as explained above.
Expert’s Relevance to Central Legal Question
The defendant was presenting the expert as support for his defense that he did not have the necessary mens rea (mental state) required for the charged offense of murder. Dr. Kushida, had he been permitted to testify, was intended to testify that he administered a sleep study to the defendant and found that the defendant got seizures in his sleep which caused him to sleepwalk. Furthermore, Dr. Kushida would have testified that based on his studies it is possible for someone to commit murder while sleepwalking.
These aspects of the testimony in combination were intended to show the jury that the defendant was a person who sleptwalked, individuals could commit murder in their sleep, thus the defendant was asleep when the victim was killed.
The court felt that Dr. Kushida’s testimony was not relevant to the central legal question. Firstly, there were issues with the studies themselves. Secondly, the testimony would not have been able to show the defendant’s mens rea the night the victim was killed, but rather show that the defendant had a history of sleepwalking.
The Court’s Treatment of the Expert Testimony
California’s Supreme Court reviewed the trial court’s ruling to exclude or limit the scope of expert testimony under an abuse of discretion standard of review. The Court began its discussion with an inquiry into the trial court’s treatment of Dr. Clete Kushida, a neurologist and director of the Stanford University Center for Human Sleep Research. The trial court precluded Dr. Kushida, one of defendant’s experts, from testifying that a person is capable of committing murder or “violence” while sleepwalking. Dr. Kushida was also restricted to testifying only to harmful or dangerous acts by sleepwalkers that he had personally observed; he was thus not permitted to discuss sleepwalking incidents he had heard about through his research into other criminal cases. California’s Supreme Court declined to consider whether the trial court erred in its application of the Kelly-Frye standard to Dr. Kushida’s testimony, reasoning that the trial court reached its conclusion on the alternative ground that hearsay accounts—e.g., anecdotal accounts of sleepwalking incidents relayed to Dr. Kushida and information Dr. Kushida gathered from reviewing other criminal cases—could not form a sufficiently reliable basis for an expert opinion.