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Martin Reiser, Ed.D.
Director, Behavioral Science Services
Los Angeles Police Department
Although there is general agreement that hypnosis can be useful when employed as
an investigative aid to enhance the recall of witnesses in major crime cases, there has been violent opposition to the police use of this tool, especially to the testimony of hypnotized witnesses
in court [Orne, 1979; Diamond, 1980]. Some opponents have invoked science but employed scientism, injected pseudo-ethical issues as a political whip and have engaged in power games in their
zeal to maintain territorial rights over the many domains of hypnosis.
During the past several years, a small group of antagonists to the police use of
investigative hypnosis have testified in courts around the country with the stated purpose of "shooting down" this tool as used by law enforcement.
Additionally, during interviews with the media and in articles appearing in respectable journals, they have often presented misinformation, distorted information and in some instances, blatantly misrepresented the "facts" without the substantiating data normally required of knowledgeable professionals [ Orne, 1978; Orne, 1980: Diamond, 1980]
About the Author
Dr. Reiser is director of Behavioral Science Services, Los Angeles Police
Department. A Diplomate in clinical psychology of the American Board of Professional Psychology, he is a Fellow of the American Psychological Association and a past president of the Los
Angeles County Psychological Association. He is also Clinical Assistant Professor at the UCLA School of Nursing and a training and supervising psychologist at the Los Angeles Institute for
Psychoanalytic Studies. He is also a member of the advisory board of American College of Forensic psychology.
Dr. Reiser has authored over 75 papers and four books, the latest of which are
Handbook of Investigative Hypnosis. Los Angeles, LEHI Publishing Co., 1980 and Police Psychology- Collected papers. Los Angeles, LEHI Publishing Co., 1982.
Since 1975, well regarded enforcement agencies have been utilizing investigative
hypnosis and in a significant number of major crimes cases have found it useful [Reiser, 1976: Stratton, 1977: Kroger, 1977: Ault. 1980: Kroger & Douce 1979: Schafer & Rubio, 1978].
Defense attorneys have also reported hypnosis helpful as both investigative and as analytical tools [Warner, 1979: Sannito & Mueller, 1980].
The major movement to train police professionals in investigative hypnosis
techniques for use with voluntary witnesses in major crimes evolved from a feasibility study.
In June 1975, a one-year pilot project was initiated within the Las Angeles Police Department (LAPD) to test the notion that trained detectives could learn to use hypnosis as an additional tool for enhancing recall in certain traumatized victims and witnesses [Reiser, 1976]. The end-of-year results showed that it helped in a significant number of cases. In 77% of the instances where hypnosis was added to the interview process, new information of investigative value was elicited. The solution of 16% of the cases (N-67) was attributed essentially to the hypnosis information since the cases were at a dead end previously [Ross,1977].
The data over the following six years show that investigative hypnosis continues
to be useful in a large number of cases. Through December 1981, additional information was obtained in 81.6% of the hypnosis sessions conducted (N 631). The new information obtained
via hypnosis was considered to be somewhat accurate to extremely accurate in 89.3% of those cases where follow-up was possible (N-260).
Of the 180 cases solved (N 637), hypnosis was considered valuable in 64.4% of the sessions [LAPD Hypnosis Survey, March 1982].
ISSUES IN CONFLICT
Numerous unsubstantiated assertions made by opponents to the police use of
investigative hypnosis are being presented to courts, the media and the public as "scientific fact".
In the process, myths continue to be perpetuated by those academic authorities, who, on close examination, are self-styled experts in the specialty of investigative hypnosis. Many of these myths are those that conscientious hypnosis professionals have been trying to dispel for at least 50 years.
HYPESUGGESTIBILITY
The notion that hypnosis is the same as suggestibility and invariably results in
a condition of hypersuggestibility was popularized by Clark Hull (1933).
Sheehan & Perry (1976) point out that although historically suggestibility theory provided a means whereby hypnosis could be studied as a primarily psychological phenomenon. "It is remarkable how small a role suggestibility plays". Bernheim (1890) separated hypnosis and suggestion and recognized that each existed independently of the other. Erickson, et al (1976) pointed out that hypersuggestibility is not a necessary characteristic of trance:
"This is a major misconception that has frustrated and discouraged many
workers in the past and has impeded the development of hypnosis as a science.
Trance is a special state that intensifies the therapist's relationship and focuses patients' attention on inner realities. Trance does not insure the acceptance of suggestions."
Many other writers have focused on the issue of hypnosis and suggestibility and
have concluded that there is no one-to-one relationship [Frankel, 1976: Hilgard, 1965; Bowers, 1977; Hilgard, 1981] Hilgard, (1977) and Barber (1980) have discussed the necessity for not
confusing hypnosis ability, hypnotic susceptibility, and suggestibility but differentiating among them as covariance.
Kroger (1977) has pointed out the prevalence of suggestion and belief in
everyday life. With or without hypnosis, people are suggestible in varying degrees. The multi-billion dollar advertising industry relies essentially on suggestion. The placebo
effect present in doctor-patient relationships, particularly in 80% of the contacts which are psychosomatically motivated, the effectiveness of medications, utilizes suggestion and belief in
powerful authority as its motive force [Conn, 1959].
Confidence men have long recognized the usefulness of get-rich-quick suggestions in separating gullible victims from their money, without the need for hypnotic induction. People in love relationships epitomize the omnipresence of belief and suggestibility in idealizing perceptions.
Therapists know that the nature of early childhood suggestions by parents, can
lead to a lifelong influence on the individual's self-concept. A steady barrage of negative criticism leads to a self-critical, insecure and inadequate self-image [Berne, 1961].
It is apparent from studies of voodoo, communications, systems theory and
beliefs and values that suggestibility and influencing potential are the sine qua non of normal waking life and don't require hypnosis to operate [Barber, 1961; Watzlawick, 1978; Von Bertalanffy,
1968: Rokeach, 1968].
POLICE AS "LAY HYPNOTISTS'
Opponents to the police use of investigative hypnosis make unequivocal
assertions with the intent of making it appear as if police practitioners were unqualified to conduct hypnotic interviews with witnesses in major crime cases [Orne, 1979;Diamond, 1980].
These dogmatic statements focus around several main questions. First, that hypnosis in any form is a medical or psychological technique requiring health practitioner expertise and credentials. Second, that hypnosis is potentially dangerous, particularly if practiced by other than health professionals. And, third police are not to be trusted with witnesses because of their proclivity toward coercion, the implanting of ideas, or unwittingly, cueing desired responses in the subject.
It is apparently very difficult for the opponents to police use of investigative
hypnosis to distinguish between hypnotherapy processes and investigative hypnosis techniques, even though they are two distinct different areas of specialization.
Unlike the psychotherapist, the police investigative hypnotist is not interested in eliciting unconscious material, fantasies, or childhood-linked conflicts. The latter is interested solely in the possibility of factual recall of relatively recent events in a real crime case. This application of hypnosis does not require deep somnambulistic states of hypnotic or long-range age regression experiences.
Physicians, psychologists, and dentists bring to their basic hypnosis training
preexisting areas of expertise and acquire the knowledge and skill to use hypnosis as an additional tool. In like fashion, police science professionals add investigative hypnosis techniques
to their interviewing repertoire. Both health and police professionals work with traumatized people routinely in their own areas of expertise with or without hypnosis. Erickson (1978) has
opined that police officers deal with more trauma on a day-top-day basis than most physicians.
The hypnosis training itself is not expected to provide all of the professional and interpersonal knowledge needed in one basic specialty.
As Spiegel (1980) points out, to define legal and police personnel as
"laymen" is arbitrary.
In other area of police investigations, it is the psychologist or psychiatrist who is the lay person rather than the investigator or investigative hypnotist. Law enforcement professionals have the capability of making assessments and referrals to relevant health professionals when physical or emotional problems so indicate.
Seven years of experience with investigative hypnosis at the LAPD reveal that
virtually all of the subjects, victims and witnesses, who have participated in investigative hypnosis sessions have reported a positive experience and some constructive outcomes as a consequence
(LAPD, 1982).
To state or imply that hypnosis is dangerous, unless invoked by health
professionals, is to fly in the face of reality and to reify the myths of dangerousness, coercion and mind control which conscientious professionals have been trying to dispel for at least 50
years [Conn, 1972; Kroger, 1977;Spiegel, 1980;Udolf, 1981]. It should be apparent by now that hypnosis is an innate natural capability that all persons possess to some degree. The role of
the investigative hypnotist is to guide or teach the subject to tap into the existing potentials for experiencing altered states of consciousness. Hypnotic states occur in many people everyday
spontaneously. To presumptuously assert that only health professionals can utilize hypnosis knowledge for any purpose is grandiose, invites ridicule and fosters unnecessary guild rivalry
[Spiegel, 1980].
Edmonston (1981) painstakingly reviews the theories of hypnosis as a state and
concludes that it is "basically and fundamentally relaxation". Hypnosis has been used non therapeutically for thousands of years. Currently, hypnosis is being used in numerous non
clinical fields with apparent effects. These include enhancement of athletic abilities [Galwey, 1964], education [Lozanov, 1978]. Improvement of memory [Sparks, 1962] and self-hypnosis
[LeCron, 1964].
There is now a considerable background of experience to include investigative hypnosis as practiced by trained criminal justice professionals as another non-clinical area with demonstrated efficacy [LAPD, 1982]. Kroger (1977) points out that hypnosis cannot be claimed by any medical specialty or school of psychotherapy. He cites varieties of waking hypnosis including spiritual, religious practices and the human potential movement as examples of successful non therapy hypnosis applications.
The myth of dangerousness has been invoked by opponents of police use of these
techniques. Conn (1972) pointed out that there are no significant or specific dangers intrinsically associated with hypnosis. Any dangers are those which are possible in every
psychotherapeutic relationship. He quotes Janet who said that, "even in bad hands, suggestion and hypnotism do not seem to have been able to do much harm". Erickson (1980)
says that, although any tool can be misused, there is no body of acceptable scientific evidence that hypnosis and the experience of trance is harmful in itself.
Even Orne (1972) states that it is the subject who retains the ultimate decision to comply with or refuse the suggestion, and the more this is understood the less likely it is that the fiction of hypnotic power will be used in a destructive way to both hypnotist and subject.
A recent study and review of the literature [Coe & Ryken, 1979] indicated
that hypnosis is no more bothersome to subjects than other activities such as taking a college exam, attending a class, participation in a learning experience, or college life in general.
HYPNOSIS AND TRUTH
The opponents to the police use of investigative hypnosis make two very
interesting and somewhat contradictory assertions in regard to hypnosis and the truth [Orne, 1979;Diamond, 1980].
The first incorrect statement is that police practitioners of investigative hypnosis think that hypnosis techniques elicit the truth from witnesses. The fallacy lies in the fact that the basic training in investigative hypnosis for criminal justice practitioners reiterates in considerable detail the fact that hypnosis, is an interview - not a truth detection technique. Interestingly, the anecdotal examples given by critics of police practitioners are those where hypnosis was either incorrectly used by psychiatrist practitioners or where the psychiatrist expert is on the record in court as stating that hypnosis will elicit truthful statements from hypnotized witnesses. Examples are State v. Nebb, 1962 and State v. Hicks, 1982.
The same critics who claim that police think that hypnosis is a truth detection
technique then attempt to make a case for the unreliability of hypnosis testimony, in order to impeach the previously hypnotized witness by noting that hypnosis doesn't guarantee absolute
accuracy.
Obviously, no form of interviewing technique with or without hypnosis, with or without so-called truth serums or other devices can assure truthfulness. From the legal perspective, what is required is the best available information that may have probative value.
"Factual accuracy of testimony is not an inflexible requirement for
admissibility.
Psychologist concur in their estimation that eyewitness testimony is often factually inaccurate and unreliable, being riddled with fantasy, prejudice, misperception, and biased. Yet such testimony is routinely admitted for jurors' consideration because it is insulated to some degree from the dangers of ambiguity, erroneous recall, flawed perception, and prevarication by the enforcement procedural safeguards., such as the opportunity for cross examination. Regarding hypnosis as merely a device that aids the procurement of testimony and offers no guarantees concerning its factual accuracy would permit the development of concomitant procedural safeguards. Thus, the admissibility of relevant testimony that might be otherwise unattainable would be assured, while the integrity of the judicial process wold be unimpaired" [Spector and Foster, 1977]
Very strong assertions have been made [Orne, 1979;Diamond, 1980] that
confabulation and fantasy are invariable consequences and products of investigative hypnosis. The "evidence" for this position consists mainly of extrapolations from therapeutic
hypnosis sessions wherein psychiatrists or therapists are working with patients to elicit unconscious material, dreams and fantasies, which are all grist for the psychotherapeutic mill. No
data from investigative hypnosis have presented to back up the claim of the consistent production of confabulation and fantasy when witnesses are hypnotized in real life crime cases.
The data my colleagues and I at the Los Angeles Police Department, with that of other investigative hypnotists, have collected over a 10 year period - some 700 cases, yields no support whatever for confabulation and fantasy claims [Reiser, 1981: Ault, 1980; Stratton, 1977].
Our data show that investigative hypnosis does tend to increase recall with
traumatized witnesses who are motivated and cooperative in approximately three quarters of the investigative hypnosis session conducted. On follow-up, which is possible in only
approximately 50% of these cases, the accuracy of information elicited is around 90% [LAPD, 1982].
Certainly it is quite possible that a hypnotized witness may lie, confabulate or fantasize if there is motivation to do so. However, this applies to any witness with or without hypnosis, and there are certainly more examples in the legal literature of misidentifications of individuals by non-hypnotized eyewitnesses who are certain of their identifications than there are of those who have been hypnotized. What is essentially a problem involving human cognitive processes including perceptual mechanisms, apperceptive variance, attitudes, values, beliefs and motivations of witnesses, is incorrectly labeled by critics as an investigative hypnosis problem.
MEMORY DISTORTION
Critics [Orne 1979; Diamond 1980] assert that the crime witness who is
hypnotized, through the very process of hypnosis, will lose the ability to discriminate what was perceived and known prior to hypnosis, what was recalled and said during hypnosis and what is
remembered after hypnosis.
They also state that the hypnotized witness will develop extreme certainty about the final version of recall of the crime event and will become impervious to cross-examination. Aside from a few anecdotal accounts, wherein investigative hypnosis was either misused or abused by improperly trained psychiatrist [Orne, 1979], there are no convincing data to support this assertion. The voluminous studies on eyewitness testimony with all of the problems inherent in recall, suspect identification, and certainty, concur that eyewitnesses generally are highly unreliable [Buchout, 1974; Loftus, 1979; Yarmey, 1979]. In my experience, theorists, such as Orne are patently incorrect in asserting that eyewitness identification under hypnosis is less reliable than non-hypnotic recall. Hard data collected at the Los Angeles Police Department and other jurisdictions indicate a generally high corroboration rate of significant crime-related details. This assumes that the sessions are properly conducted by trained investigative hypnosis persons using relevant cueing techniques.
In dozens of investigative hypnosis cases which I have personally conducted and
in numerous others where I have consulted as an expert witness, the Los Angeles Police Department records clearly indicate that hypnotized witnesses were able to discriminate what they knew
before, during and after hypnosis.
They did not develop the hardening of perceptions as asserted by critics and did not become unshakably certain of their recall after the hypnosis experience. Orne (1981) has recognized the undesirability of making implausible statements and undocumented assertions.
Clearly, to get a proper perspective does not merely involve counting how many
people agree with a particular point of view but also requires examining the evidence upon which these views are based.
In our field in particular, we have all heard speakers present essentially self-serving ego trips rather than meaningful observations. Not only are so-called contributions annoying, but at times they actually confuse the unsuspecting listener".
Many of those "unsuspecting listeners" have been trial and appellate
court judges: Dr. Orne needs to heed his own advice.
By presenting inaccurate and biased accounts of the current state of research and knowledge in the area of memory, the opponents to the police use of investigative hypnosis have utilized scientism under the guise of science in courtrooms, in the media, and at "scientific" conferences. For example, one psychiatrist, is quoted as telling a meeting at the American Association for the Advancement of Science that "Hypnosis makes recall less reliable..." [Orne, 1982].
A psychologist who has written widely on the effects of leading questions in
eyewitness testimony, but with little expertise in hypnosis, nevertheless asserts that totally false information comes out under hypnosis all too often.
However, she presents no data to back up her assertion! [Loftus, 1980]. She also declares the theory of permanent memory to be a myth based on her finding that a review of all of the major evidence is inadequate [Loftus, 1982].
Another critic flatly asserts that the very process of hypnosis will
automatically distort the subject's memory and make that individual impervious to later cross-examination.
Again, there are no data to support this assertion, merely the color of authority [Diamond, 1980].
The fact is, that despite a hundred years of research on memory issues, no one
is really sure today of how memory works [Neisser, 1978].
Factors affecting memory concepts include the easier recall of meaningful material; interference factors; trace decay factors; relationship of short and long-term memory processes; behavioral extinction; perceptual and sensory processing factors; and underlying neurophysiological mechanism [Baddeley, 1976; Nilsson, 1979].
**
SCIENTIFIC RELIABILITY OF TESTIMONY
Opponents to police use of investigative hypnosis have injected scientism into
the courts by confusing laboratory truth and legal probity. They claim that because hypnosis-aided recall cannot be tested for truthfulness, it should be excluded along with the polygraph,
voiceprints, voice stress analyzers and other instruments [Orne, 1979; Diamond, 1980]. However, hypnosis is not a truth detection instrument, but an interview technique, and therefore
cannot be classed with instruments designed to review objective facts or truth.
As Justice Doerr points out ( People v. Hughes, 1982), these tests are generically different from hypnotically refreshed testimony:
"The former are tests, therefore they can have no probative worth unless
the validity of the test has been established, and it is of no consequence that the test produced a correct result in a particular case.
By contrast, the evidence at issue is a witness's identification which is presumed reliable unless some 'suggestive' procedure has tainted it".
It is inappropriate to attempt to apply scientific tests of validity, such as
the Frye Rule, to hypnosis interviewing to replace legal tests of credibility [Frye v. United States, 1923]. "The important legal issue is to whether the recall is truthful, per se,
but whether the recall is based upon what the witness actually saw or experienced, as opposed to suggestion." [Commonwealth v. Colihan. 1981].
In their cogent law review article, Spector and Foster (1977) point out the
erroneous equation of the polygraph and hypnosis:
"Unfortunately, hypnosis has become linked in the minds of courts and
commentators with the polygraph and narcoanalysis as a technique for mechanically ascertaining the truth of the witnesses' testimony. Requiring hypnosis to perform a truth determinant function,
however, distorts the scientific process and aborts its potential benefit for litigation. The value of hypnosis lies in its scientifically-established reliability as a device for retrieving
relevant testimony previously forgotten or psychologically suppressed, regardless of the factual truth or falsity of that testimony".
Acknowledging that it isn't proper to extrapolate from one context to another,
from therapy to investigation, Orne (1979), nevertheless, transposes the therapy-linked issues of confabulation, hallucinating about the future, decrease in critical judgment, and memory
difficulty into the investigative hypnosis realm without supportive data.
Apparently ambivalent about the facts of the matter, Orne (1979) in one place avers that much of what he says is documented empirically, and in another place admits that little systemic research has been done on the effects of hypnosis on recall.
Diamond (1980), another vocal critic who makes assertions about the effects of
hypnosis on the recall of witnesses which are directly contrary to the experience of the trained investigative hypnotist, admits that he hasn't done any hypnosis personally since 1968.
He indicated that he has used hypnosis as part of a determination of the mental state of a defendant. Dr. Diamond acknowledges that, "I have never used hypnosis in police investigation. I have been very strongly identified from the beginning as a defense psychiatrist". [Diamond, 1981].
Dr. Diamond (1980) has asserted that hypnosis always freezes the witnesses'
memory, that it definitely changes the mental processes of the subject, that the witness is always tainted on recall by hypnosis, and that ordinary eyewitness testimony is more reliable than
hypnotically refreshed memory.
None of these seemingly authoritative statements is backed by relevant data or experience in the investigative hypnosis realm. In my own experience over a ten-year period in investigative hypnosis [Reiser, 1980], and as reflected in data collected at the LAPD since June of 1975, these statements are wholly incorrect {LAPD, 1982}.
ETHICS AND POWER GAMES
The stated aim of critics who protest the use of investigative hypnosis by
experts in law enforcement agencies and who deplore the practice in court, also involves personal disparagement of the advocates of investigative hypnosis and of the growing knowledge in this
field.
Diamond (1980) has claimed that the literature for police is inaccurate and unscientific. Is this not a propagandistic exaggeration, possibly based on personal biases and misunderstandings about some of the elementary facts and pertinent current research data in the fields of hypnosis and memory? [Cheek, 1982]. Diamond's (1980) own admittedly bad hypnosis results in the Sirhan Case have perhaps influenced him to conclude that hypnosis will not work for other experts. Yet, experience of other practitioners, since Sirhan, have proven him wrong.
HYPNOTHERAPY/INVESTIGATIVE HYPNOSIS - A DISTINCTION
Orne (1979), in order to bolster his position, claims to speak for the
"scientific community". However, the scientific community he claims to represent is that of hypnotherapy and not of investigative hypnosis. In a homicide case in Stockton
California, Orne acknowledged on the record that he was not qualified in the field of investigative hypnosis and, in fact, that there was no such field (State v. Terry Lee Williams 1979 p.
1556). The "scientific community" in investigative hypnosis are those who are practicing and doing research in that specialized area. At present, these are essentially
criminal justice professionals and a few behavioral science consultants.
Orne (1979) has employed manipulation and power politics to publicly discredit
proponents of police use of investigative hypnosis. He engineered the passage of a resolution (identical in both cases) by two of the largest therapeutic hypnosis organizations declaring it
unethical for members to teach, supervise or consult with police practitioners of investigative hypnosis. Followers of Orne are presently attempting to extend the power play in the guise of
an ethics problem, to other national psychological and hypnosis associations.
The International Society for Investigative and Forensic Hypnosis was
established to safeguard ethical and professional practices in this specialized investigative area.
It has a code of ethics, a certification board, a journal, and a broad membership of criminal justice and behavioral science practitioners. In 1980, this society issued its own resolution deploring the intrusion of essentially untrained therapeutic hypnotists into the investigative domain [ISIAFH, 1980]. Spiegel (1980), a psychiatrist and hypnosis authority cogently asks, "Instead of condemning and excluding other professionals, why not join and share our knowledge and experience?"
It appears that bias against law enforcement and proprietary, guild interests
may underlie the emotional fervor of the opponents to police and judicial use of investigative hypnosis. Those clinical hypnosis society members who uncritically accept the knee-jerk
assertions of their leaders are unwittingly engaging in scientism rather than science, in attempting to control the conditions under which qualified experts may practice investigative hypnosis.
With considerable insight, Max Weber, long ago, pointed out the dangers involved when science is invoked for political decisions. He predicted that political decisions would be made on the basis of scientific or pseudoscientific knowledge, or worse, that such knowledge would be used as a rationalization for such decisions [Weber, 1946].
Court Decisions Against Investigative Hypnosis:
There exist several appellate court decisions against the testimony of witnesses
whose memory has been hypnotically refreshed. Close examination of these cases suggests that those decisions may well have resulted from several common factors: 1) misinformation given to
court by defense hypnosis experts; 2) a nonexistent or poor record on the prosecution side; 3) misuse of hypnosis or use in inappropriate cases, often by a psychiatrist.
State v. Hurd: New Jersey Supreme Court
In State v. Hurd (1981), the New Jersey Supreme Court adopted restrictive
hypnosis guidelines, essentially because of court-questioned tactics of prosecution involving the detective and psychiatrist who interviewed the hypnotized witness-victim. Ironically, the
first guideline adopted by the court requires the hypnosis of witnesses to be done by a psychiatrist or psychologist. Of course the hypnosis in question in this case was performed by a
psychiatrist.
Dr. Orne, the defense expert, managed to inject the issue of the general
reliability of hypnotically-enhanced recall rather than the relevant issue of witness credibility in this particular case.
Judge Diana accepted the defense expert's assertions that hypnosis causes a lack of critical judgment, compulsion to supply information, confabulation and fantasies. Thus, hypnosis refreshment of recall was put on trial instead of the facts and procedures in this questionable case.
State v. La Mountain/Mena/Silva: Arizona
The Arizona Supreme Court became very influential in the hypnosis testimony
arena by making negative decision in three notable cases.
In State v. La Montain (1980), with no expert testimony on the record about the effects of hypnosis on a witness, the court made a per se exclusionary ruling in regard to hypnotically-refreshed testimony.
In State v. Mena (1981), the same Court reiterated its negative opinion on
hypnosis, again in the absence of expert testimony on the record. Instead the Court relied heavily on a California Law Review article by Dr. Diamond (1980). In its opinion, the Court
pointed out that the prosecution did not call the doctor who had hypnotized the witness to testify on record. The Court obviously confused investigative hypnosis with medicine and
psychiatry by speaking about it as a medical practice.
In a subsequent case, State v. Silva (1982), the Arizona Supreme Court modified
its earlier position somewhat by indicating that hypnosis evidence would need to be reviewed on a case-by-case basis.
State v. Mack: Minnesota
In State v. Mack (1980), the Minnesota Supreme Court also issued a per se ruling
against hypnotically-aided testimony. This was a poor case involving an intoxicated victim hypnotized by a self-taught hypnotist, and there was no expert testimony on the record. The
Court relied largely on written statements on hypnosis by Dr. Orne in arriving at its decision.
Nazarovich, Taylor, Palmer, Wallach:
Pennsylvania, Nebraska, Michigan
In the Commonwealth of Pennsylvania v. Nazarovich (1981). The Pennsylvania
Supreme Court recognized that they were ruling in a bad case and did not make a per se ruling against hypnosis. They indicated they wanted more proof in future cases that hypnosis could be
useful. In a later case, Commonwealth V. Taylor (1982) a Pennsylvania Superior Court ruled that in spite of the Nazarovich decision, the rape victim could testify to Pre-hypnotic knowledge
about the rape and the suspects. Similar rulings have been reached in State v. Palmer (1982) by the Nebraska Supreme Court, and in State v. Wallach (1981) by a Michigan Appellate Court.
People v. Shirley: California
In one of the most influential decisions against hypnosis, the California
Supreme Court in People v. Shirley (1982), arrived at a per se ruling against hypnotically- aided testimony.
This was another bad case involving an intoxicated alleged rape victim. There was only expert testimony on the defense side on the record, and none one the prosecution side in regard to hypnosis. Of the five hypnosis cases the California Supreme Court had accepted for review, it chose what is obviously the worse case for their decision. They cited the Arizona decisions as precedent.
In a subsequent modification of the Shirley decision, the Court amended their
original per se hypnosis prohibition by deciding that the decision would not be retroactive as previously indicated and that defendants who had been hypnotized in order to refresh their memory
would be able to testify in order to defend themselves. The ruling against witnesses and victims testifying stands.
People v. Williams: California
In a California hypnosis case after the Shirley decision, the presiding justice
in People v. Dexter Wayne Williams took the California Supreme Court sharply to task.
He stated that Shirley is really more of a polemic than an opinion. More importantly, he points out, on page one of his concurring opinion:
"Somehow, lost in the shuffle, is the fact that the majority rule in this
country is that hypnotically induced testimony is admissible. (See United States v. Awkard, 597F. 2nd 667 (9th Cir. 1979). Cert. Denied. 444 U.S. 885. 100S Ct. 179. 62L. Ed. 2nd 116 (1979; United
States v. Adams. 581F. 2nd 193 (9th Cir. 1978); U.S. v. Narcisco. 446/F. Supp. 252 (E.D. Mich. 1977); Clark v. State 370 S. 2nd 372 (Fla. D. Ct. Appt. 1980); Creamer v. State, 232 Ga. 136. 205
S.E. 2nd 240 (1974); People v. Smrekar, 68 III. Appt. 3rd 379, 24 III. Dec. 707385 N.E. 2nd 848. (1979); State v. McQueen. 295 N.C. 96, 244 S.E. 2nd 414 (1978); People v. Hughes, 99 Misc. 2nd
863, 417 N.Y. S. 2nd 643 (Ct. Ct. 1979); State v. Jorgensen, 8 Or. App. 1. 492 P. 2nd 312 (1971); Annotation, Admissibility of Hypnotic Evidence at Criminal Trials, 92 A.L.R. 3rd 442.)
These authorities hold that testimony of a witness whose memory has been revived
through hypnosis should be treated like any other refreshed recollection. That the witnesses' memory may have been impaired by hypnosis or that suggestive material may have been used to
refresh his recollection is considered to be a matter effecting credibility, not admissibility. It is assumed that cross-examination will enable the jury to properly evaluate the effect of
hypnosis on the witness and the credibility of the testimony.
CURRENT STATUS OF INVESTIGATIVE HYPNOSIS
The Shirley decision in California and similar rulings in several other states
proscribing or severely limiting hypnotically-refreshed testimony in court have cast a-pall over the use of investigative hypnosis with victims and witnesses of major crimes. District
attorneys are wary of losing cases because of the hypnosis issue and have communicated their sensitivity to police practitioners.
Consequently, hypnosis interviewing is being done in California and other court-sensitive jurisdictions when there is a "throwaway" witness or when the case is at a dead end and there is nothing to lose.
In California, the passage of Proposition 8, the Victims' Bill of Rights
theoretically mandated a return to the provisions of the Evidence Code which says that the jury has a right to hear all of the testimony, with few exceptions.
However, political realities suggest further opinions by the California Supreme Court which could blunt the effect of the Proposition 8 law. For this reason it was decided to introduce specific hypnosis legislation.
Legislation just passed in California, AB2669 (Sher), allow testimony of
witnesses who have been hypnotized if certain requirements are followed:
1. The testimony is limited to recall and reports prior to the hypnosis.
2. The pre-hypnotic memory was preserved in written, audio tape or videotape
from prior to hypnosis.
3. The hypnosis was conducted in accordance with all of the following procedures:
A written record was made prior to hypnosis documenting the subject's
description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis.
* The subject gave informed consent to the hypnosis.
* The complete hypnosis session, including pre and post hypnotic interviews was
videotaped.
* The hypnosis was performed by a licensed psychiatrist or psychologist
experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution or the defense.
4. Prior to admission, the court holds an evidentiary hearing wherein the
proponent of the evidence proves that the pre-hypnosis recollections are reliable and that its admission will not substantially impair the ability to cross-examine the witness.
In effect, the law disallows any new recall of crime details in hypnosis and
disenfranchises law enforcement practitioners, who are the most qualified in this area of police science. It also suggests that, in some mysterious way, the use of hypnosis in itself can
taint the witness.
In other states recent decisions about hypnosis testimony have tended to back
away from a per se exclusion as in California. The majority of state appellate courts have ruled that hypnotically-refreshed testimony is generally admissible if conducted in an acceptable
manner. The main question is how much weight should be given by the trier of fact.
These states include Illinois [State v. Gibson 4th App. No. 81CF243, 1983], Indiana [Morgan v. State, Ind. App. 445 N.E. 2d 585, 1983]. Louisiana [State v. Wren. 425 So.2d 764, LA., 1983]. Wyoming [Chapman v. State, 638P.2d 1280. 1982], North Dakota [State v. Brown, Crim. No. 906, Sup. CT., 1983], Idaho [State v. Iwakiri. 8414316, Sup. Ct., 1984], Alaska [State v. Contreras and State v. Grumbles, Ct. of App #6266, #6408, 1983], Florida [Brown v. State, 426 So.2d 76, Fla Dist Ct. App., 1983] Washington [State v. Martin, App. 486. 656 P. 2d 526. 1982], Ohio [State v. Hicks, Franklin Co. Ct. of App. 82 AP-27. June 10, 1982], and in the federal court [U.S. v Waksal, 539 F. Supp. 834, S.D. Fla., 1982].
At the Los Angeles Police Department, hypnosis interviewing is not used with
suspects or defendants.
This avoids constitutional rights issues and conscious or unconscious motivations for alibi. Currently there are twenty trained senior detectives who do the bulk of the hypnosis interviewing with crime victims. In special cases such as child rape or brain damage, a staff psychologist is usually called in to work with the witness. The session is completely audio taped and in particular situations videotaped if it is anticipated to be necessary.
Practitioners at LAPD and at many other law enforcement agencies belong to the
International Society for Investigative and Forensic Hypnosis and adhere to its ethical code and training standards.
The society also has a certification board to evaluate levels of training and expertise of field partitioners.
CONCLUSIONS
* Hypnosis does not invariably result in hypersuggestibility.
* Investigative hypnosis is a specialty within the criminal justice arena.
* Hypnosis does not require a doctor to invoke in criminal investigations.
* Trained police hypnotists are not "lay" persons but law enforcement
behavioral science professionals.
* The subject of hypnosis is not changed into a different person.
* Memory is not automatically tainted by hypnosis.
* The "scientific community" in investigative hypnosis are the
criminal justice researchers and practitioners.
* Hypnosis, unlike the polygraph, is not a truth detection instrument, but
merely and interview technique.
* Confabulation does not routinely occur in investigative hypnosis.
* Ordinary eyewitness testimony has not been shown to be more reliable or
accurate than hypnotically-refreshed testimony.
* Hypnotized witnesses do not usually lose their ability to discriminate among
events.
* Hardening of the perceptions is not a common result of hypnotically-refreshed
recall.
* The model of memory favored by the hypnotist is irrelevant compared to
properly cued recall [Tulving & Osler, 1968], and appropriate "demand characteristics" [Orne. 1972].
Certainly there are legitimate questions in any court case regarding the
credibility of witnesses. However, to manipulate the courts into believing that certain experts should have the power to limit what is admissible in a trial is improper. When many of
the issues are misrepresented and where assertion replaces substantive data, scientism replaces science and a fundamental tenet of our criminal justice process is perverted.
That a jury of one's peers is capable of understanding and evaluating all of the information in a case when presented completely, is a cornerstone of our court system, reflected in the evidence code of every state. For self-styled experts to attempt to replace this keystone with a form of "scientific" censorship is a dangerous move that needs to be reversed.
As Justice Kaus so aptly stated in his dissenting opinion in Shirley (1982. p.
70: "Indeed, given the majority's own rendering of modern views concerning the nature and fallibility of unhypnotized human memory, it may not be entirely facetious to suggest that if we are
to exclude eyewitness testimony unless shown to be scientifically reliable, we may, have little choice but to return to trial by combat or ordeal".
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