In a new article in the Harvard Law Review, Professor Osagie K. Obasogie scrutinizes how the concept of “excited delirium” — characterized as a psychiatric response that produces such severe agitation that a person could spontaneously die — has become a problematic diagnosis that’s often used to absolve law enforcement officers from responsibility when suspects die in their custody.
Opening with three powerful stories of deaths in custody and bolstered by the first empirical assessment of how the concept has been treated as an evidentiary matter in federal courts, Obasogie notes that no established standards exist for excited delirium.
“By treating its gatekeeping function in relation to expert witness testimony as a procedural inquiry — that is, as a process or series of boxes to check — instead of embarking on a deep assessment of the evidence and its broader implications, law has come to give excited delirium much more credibility than science or medicine ever has,” he writes.
From the long-term perspective of the history of forensic science and the testimony of expert witnesses, he argues that the diagnosis is closer to often-discredited evidence such as bite marks than to more robust and better proven methods, such as DNA typing, Obasogie adds.
His policy prescriptions include following the lead of California, which has banned the use of excited delirium as a diagnosis and as a listed cause of death. But that law does little to address the idea that a sudden psychiatric condition could cause sudden death, and in other states, law enforcement and medical officials have simply used a different term to describe the same alleged phenomenon.
The problem, Obasogie writes, is not with the term, but “how medical language might deflect attention away from uses of force that predictably lead to death and limit police accountability.” Ultimately, judges need more training on how deaths in custody happen to adequately assess the testimony of expert witnesses that the Federal Rules of Evidence require.
“The findings show that excited delirium often enters evidentiary proceedings as a contested medical concept. Yet, through the machinations of the law of evidence, these claims exit courtroom proceedings as legally relevant facts,” Obasogie writes. “How this transmutation happens, and the evidentiary moves that make it possible, highlight the extent to which legal doctrine can settle an otherwise unsettled — if not wholly discredited — area of medicine to make deaths in police custody seem natural, blameless, and unproblematic.