Here’s
an article I researched and wrote near the end of my freelancing career in 1996
about the controversy surrounding attempts by law enforcement to use hypnosis
as a tool for investigations and prosecutions. Although a couple of the sources
quoted here have died, it appears the basic conclusions on the controversy of forensic
hypnosis remain about the same as I discovered in 1996, according to a 2016
article in the Journal of Law and Criminal Justice.
My
article was published in a quarterly magazine for the Texas Highway Patrol
Association, appearing in the summer edition for 1996.
HYPNOSIS—UNLOCKING
THE MIND
Twenty
years ago in Chowchilla, California, 26 children aboard a school bus were
abducted by masked men who herded them into vans and hid them underground in a
rock quarry.
Although
the bus driver and two students managed to claw their way out of the hideous
grave, they couldn’t recall pertinent details about their abductors. Hypnotized
and told to imagine himself lounging in a chair and watching the event on
television, the bus driver simply read the license plates on the vans.
Timely
disclosure of those numbers closed the case, making it a well-publicized event
in California law enforcement annals.
Nevertheless,
20 years later, hypnosis has still not gained mainstream status as an
investigative tool. Today it’s little comfort for law enforcement to know that
the legal guidelines for hypnosis still remain murky; the U.S. Supreme Court
has yet to provide absolute guidelines on the subject of witness hypnosis and
laws differ from state to state. Several factors, such as declining membership
in the 19-year-old ISIFH (International Society for Investigative and Forensic
Hypnosis), indicate that hypnosis has less impact on criminal investigations
now than a decade ago.
As
a result, law enforcement agencies must use hypnosis with extreme caution. They
need advice from their local prosecutors before they ever ask any witness to be
hypnotized. Otherwise, they risk jeopardizing their case in court, since juries
may view witnesses’ memories as having been tampered with. Hypnosis is tricky
business both technically and legally, but it can also be an invaluable tool. Knowledge
of some of its standard guidelines for use can provide officers with useful
tools on difficult cases.
The Professional
Battle
“My
experience is that it’s being used less frequently because prosecutors don't want
their cases compromised,” says Alan M. Goldstein, an associate professor in forensic
psychology at New York’s John Jay College of Criminal Justice. “If used
correctly as an investigative tool, it is a technique of last resort. It’s a
tool with a downside. Court decisions have limited more and more the use of
eyewitness testimony of witnesses who have been hypnotized.”
Nevertheless,
Goldstein's use of hypnosis helped solve a series of rape cases in New York
last year and demonstrated the investigative power of the tool. Hypnotizing a
traumatized woman who could not provide a description of the man who had raped
her twice because she had blocked the assaults from her mind, Goldstein asked
her to try to recall details.
“Through
forensic hypnosis, she recalled a ring he wore and his cologne,” says
Goldstein. “But she also remembered watching him run away. She said he ran as
if he were a runner.”
That
sent investigators thumbing through the pages of local high school yearbooks,
reviewing photos of track stars. The process prompted identification, arrest,
and the solution of five other similar cases.
With
the power to turn a witness’s quick glance into a critical clue, it’s no wonder
that many investigators have championed hypnosis. But a combination of
aggressive court battles and scientific research into the hypnotic process have
produced a division among participants in the hypnosis arena. Exuberant fans
like Paul Kincade, former president of ISIFH, blame a couple of prominent
researchers for reining them in: the late Bernard L. Diamond from the
University of California at Berkeley and Martin T. Orne of the University of
Pennsylvania.
Diamond,
who used hypnosis to assess the mental condition of Robert F. Kennedy assassin
Sirhan Sirhan, had contended that hypnotized witnesses are incompetent to
testify. And restrictive guidelines devised by Orne in a New Jersey case have become
the standard for forensic hypnosis in most states, according to Goldstein. Orne
is currently sidelined by illness and unavailable for interviews.
“It
used to be a very active area,” says Irv Gullen, director of the Institute for
Forensic
Psychology, an independent organization in Oakland, N.J. “But ten years ago
data started to emerge that the information was unreliable. Although there were
dramatic instances, it was more the exception than the rule. It’s now done as a
last resort. Courts are reluctant to accept it unless it can be corroborated in
another way.”
The
scientific community began seeing dangerous consequences for the use of
hypnosis in the legal process about ten years ago. In 1983, Dr. Orne chaired a special
panel of the American Medical Association's Council on Scientific Affairs, a
panel that reviewed all scientific evidence on the use of hypnosis to refresh memories
of witnesses and victims of crime. Two years of study prompted a conclusion
that hypnotically-obtained recollections can involve distortions called
confabulations—fabricated details that the subject uses to fill in memory gaps
of an event. But as Martin Reiser points out in The Handbook of Investigative
Hypnosis, the same problems of confabulation, fantasy and suggestibility occur
in non-hypnotic memory recall as well.
The
result has been that there are now widely differing rules about hypnosis in
each state. Three states reject testimony altogether from previously hypnotized
witnesses; 21 allow only those memories recorded prior to hypnosis as admissible;
12 will consider it with a variety of different safeguards on a case-by-case
basis; four admit such evidence without condition; and, 11 have yet to develop
a hardened rule.
“We
had 1,000 members in 1982 but now we’re down to just over 100,” says the
ISIFH’s Kincade, who still travels the nation conducting hypnosis seminars and
advocating for legislative change that will override the key court decisions.
Marx
Howell, a 32-year-veteran of the Texas Department of Public Safety, says, “I
think defense attorneys have taken away from law enforcement a viable investigative
tool in some cases. I think there are some unsolved cases where hypnosis could
develop new leads to investigate.”
Howell,
who retired with the rank of inspector two years ago, also serves as vice
president of the Texas Association for Investigative Hypnosis and says that
Texas officers use the technique about 100 times each year. Initially opposed
to its use in the 1970s, Howell became a fan of forensic hypnosis in 1979 when
he chaired a DPS task force established to review the technique and establish
guidelines for its use. As a result of the committee's work, Texas, in 1988,
became the only state with a law that regulates the certification of police
officers as hypnotists. He says the DPS has about 35 or 40 officers certified
for the technique and he continues to teach it whenever requested. He agrees
that officers must use caution because state laws and court rulings differ so
widely across the country.
“Hypnotically
refreshed recall is a viable investigative technique if used properly,” says
Howell. “But if officers already have a suspect or a witness, they shouldn’t normally
be using hypnosis to further their case.”
A History of the
Tool
Both
European and American investigators have employed hypnosis since the 19th
century in what Diamond had called “very rare, exceptional and freaky” cases.
California officers pioneered more use of the techniques in the 1960s under encouragement
from the legendary Martin Reiser, who founded the now defunct Law Enforcement
Hypnosis Institute in Los Angeles. Always at the forefront of the hypnosis
controversy, Reiser insisted that police officers should be trained in the
discipline. But he met with much skepticism, and became so discouraged that he
no longer grants interviews on the subject, according to Debra Glaser, a staff psychologist
in the Behavioral Sciences Section of the Los Angeles Police Department.
Reiser’s
followers contended that hypnosis could remove amnesia and provide valuable
information in 60 to 90 percent of cases where it's needed, according to the
most recent and comprehensive report on forensic hypnosis, a 1993 report by
Louis B. Laguna in the “Campus Law Enforcement Journal.”
Laguna
showed that hypnosis plays a role in decreasing inhibitions about volunteered
information that can later prove crucial in solving a case. Although few
investigators would recommend arrests or prosecutions based solely on
hypnotically induced testimony, a study of 400 hypnotic sessions conducted by
the LAPD between 1974 and 1979 showed that officers learned vital, new
information 67 percent of the time.
Before
his death, Diamond charged in an interview with The National Law
Journal
that hypnotism became a “fad” and an “epidemic” with the LAPD. He said the
department trained at least 10,000 investigators in the discipline. He alleged
that this army of law enforcement hypnotists may have contaminated hundreds of
witnesses.
Critics
and court challenges have drastically reduced law enforcement’s use of the tool.
Perhaps the most influential case comes from a 1982 decision by California’s
Supreme Court. Known as the “Shirley Case,” after a California rape case in which
a Marine was wrongly convicted on the testimony of a victim whose memory had
been “refreshed” with the help of hypnosis, its ruling states that anyone
hypnotized in an investigation may not testify.
“We
still use hypnosis in California in cases that have multiple victims or
witnesses—cases in which we can afford to ‘throw away’ one witness,” explains Kincade.
The
Shirley case has slowed the use of hypnosis but not stopped it completely,
according to Glaser. “We might use it if a detective calls and is absolutely
stuck,” she says. “I might be called in to hypnotize a witness but that’s all I
can know about the case. My only connection is—I do it.”
Her
aloof presence stems from the assumption that police agencies should use independent,
third-party resources for hypnotic sessions. This ensures that opponents can’t
charge that the hypnotist had a stake in the outcome and suggested helpful
answers to the witness.
Hope for the
Future of Hypnosis
Kincade
cites Texas as one jurisdiction where hypnosis continues to play a substantial
role in police investigations. That's due to a 1988 ruling from the Texas Court
of Criminal Appeals in the 1967 murder case of an Austin store clerk. Unsolved
for a decade, the case came to life in 1980 when a Texas Ranger hypnotized a
witness who then selected a suspect from a photo spread.
The
result? A conviction and 99-year prison sentence.
The
state’s highest criminal appeals court allowed the hypnotically induced
testimony by citing an important 1987 U.S. Supreme Court case that had focused
on the testimony of a criminal defendant from Arkansas. In that case, a woman
charged with her husband's death had undergone hypnosis to recall details of
the murder. In the process, she recalled that the gun had discharged by
accident. The court denied her right to testify in her own defense about the
hypnotic experience, but the nation’s highest court overruled, providing its
only real opinion on the use of hypnotism.
If
investigators are hesitant to use hypnosis, Laguna notes, they can borrow
hypnotic techniques such as “guided imagery” to find critical information.
However, Laguna warns that scientists lack data about its reliability, which
may make it vulnerable in court. The technique helps witnesses relax and
meditate on events without hypnotic trances, allowing them to use their
imaginations to return to the day of the crime and re-experience its events and
details. The technique varies with each witness depending on the subject's ability
to relax and daydream about past events.
Hypnosis and the
Subconscious Mind
In
the words of PAUL KINCADE
It’s
not generally known that the conscious mind is critical, analytical and overly protective.
When a person experiences a traumatic event, the conscious mind will delete,
distort or generalize the event to make it acceptable to live with.
Take
as an example, the case of a police officer who arrives at the scene of an
accident to find the paramedics assisting an unconscious driver. When the
driver regains consciousness, the officer may ask him what happened. “Geez,”
the man might respond, “I don't know. The last thing I remember is seeing
headlights way down the road, coming toward me.”
A lot of things happened between the time the
driver first saw the headlights and the time he lost consciousness, but his
protective conscious said, “That’s too heavy to live with, so forget it.”
As
a result, he suffered a spontaneous amnesia. We also see this phenomenon with
victims of rape and other violent assaults. Before the conscious mind puts an experience
into memory, it will censor it. However, at the same time, the subconscious mind
will record the same event, but without any alteration, and file it away at a
subcortical level of the brain stem, below conscious awareness.
A
trained hypno-lnvestigator can create a trance state for the victim or witness,
bypass the critical conscious mind and retrieve the unaltered version. It
should be emphasized that any information retrieved by hypnosis is perceptual
and not necessarily factual. This is why all Information, from whatever source,
hypnotized or not, must be corroborated by hard evidence. It should be
understood that hypnosis is an information-gathering technique, rather than a
fact-finding one. It also is a tool of last resort.
Paul
Kincade, M.A., served twelve years with the San Diego Police Department as
their forensic hypnotist, working with crime victims and witnesses, police
officers with problems and the academy's cadets. He is currently a reserve
deputy sheriff with the Washoe County Sheriff's Office. He teaches the
techniques of forensic hypnosis at three Northern Nevada police academies and
at agencies that request these services.
Kincade
received a U.S. Congressional Distinguished Services Award and was nominated
for the California Governor's Crime Victims Services Award. He was inducted
into the International Hypnosis Hall of Fame in May in Pennsylvania.
GUIDELINES
Investigators
who decide to use hypnosis should note that:
· Investigators
should use only health professionals or law enforcement that have been trained
In forensic hypnosis with no previous knowledge of the case’s facts to
hypnotize subjects, To ensure that the hypnotist will ask proper questions,
investigators must carefully prepare a memorandum of basics without including opinions
to influence the session.
· They should
videotape all contact between the hypnotist and the witness from the
introductions to the final farewells to prove that casual comments haven't
produced suggestions for recreation of a crime.
· Only the
hypnotist and the witness can remain in the room during the session to prevent
inadvertent suggestions from third parties.
· Investigators
should have videotapes of all previous interrogations of the witness, so they
can document the changes or additions to the subject’s version.
“You
have to get pre-existing observations documented to distinguish between what
they knew before and later,” says Goldstein, emphasizing the need for earlier
tapes. “The worst thing that can happen to a police department is that they
call someone who doesn’t know about forensic hypnosis. Before you know it,
leading questions are asked and the prosecutor has to clean up the mess. Some departments
are using dentists.”
Investigators
like Kincade know that defense attorneys will remain quick to cite the
criticisms of top hypnosis critics, such as Diamond and Orne, when handling
cases where hypnosis played a role.
Defense
attorneys may argue that:
· Hypnotized
witnesses are susceptible to suggestions by the hypnotist.
· Witnesses may
fill memory gaps with confabulations—fantasies, fears or hopes—that contradict
the actual events.
· The process
leaves the witness with an almost unshakable belief in the memories produced—a belief
so strong that it usually defies cross-examination. Juries still perceive
hypnosis as infallible despite warnings from judges.
· The subject
usually works to please hypnotists, falling under their spell.
