Nearly thirty-five years ago, the problems with ‘forensic’ hypnosis were acknowledged as real –
“[T]hat hypnosis guarantees the accuracy of recall is as yet without established foundation…”
“[I]n fact, hypnosis often has no effect at all on memory.”
“The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections.”
“Three general characteristics of hypnosis may lead to the introduction of inaccurate memories[.]”
Rock v. Arkansas, 483 U.S. 44, 59 (1987). Nonetheless, because hypnosis sometimes helped memory, an absolute ban on a criminal accused testifying from and about hypnotically refreshed memory deprived the person of a fundamental right – to give testimony on their own behalf. Id. It was not that the memory was likely to be reliable; it was that a core Constitutional right was being unjustly restricted.
Yet Rock’s cautionary words have been in some instances forgotten. And two recent cases show that even courts may have irreconcilable views on the place this technique has in the courtroom. But first, what did Rock spawn?
If you ‘web search’ the terms “forensic hypnosis” advertisements for ‘experts’ who can assist in criminal investigation abound. Promises include the following:
- “With a trained Forensic Hypnotist, an individual can be brought back to an event and recall important information, making the difference between a conviction or an acquittal in court. The subconscious mind is capable of recalling everything that a person has seen, heard, felt or experienced.”
https://www.hypnosisofsavannah.com/forensic-hypnosis (last visited December 25, 2021).
- Some Examples Where Forensic Hypnosis Might be Helpful:
- Rape, Robbery, Child Abuse, Theft, Vandalism, Stalking, Murder, Assault, Corporate Espionage, Accident Reconstruction, Just about anything that requires the need to recall memory from the subconscious mind.
- One thing that a forensic hypnotist can not do is never called to do is to help a suspect confess to a crime. Not only is this impossible, but any confession arrived at through hypnosis would never be admissible in court. The truth is you can lie under hypnosis
https://thearizonahypnotist.com/forensic-hypnosis/ (last visited December 25, 2021).
Yet these claims arise when the science behind this is questionable. Indeed, an archived advisory from the United States Department of Justice admonished prosecutors that the technique should be used sparingly and “The information obtained from a person while in a hypnotic trance cannot be assumed to be accurate.” https://www.justice.gov/archives/jm/criminal-resource-manual-287-use-hypnosis-purpose (last visited December 25, 2021).
As disturbing as the claims are, what may be more concerning is the ‘certification’ process used by some forensic hypnotists. A series of five videos and completing “a short open book written quiz” (and payment of $199) can ensure receipt of a certificate from the American School of Hypnosis. https://americanschoolofhypnosis.com/forensic-hypnosis-certification-course/ (last visited December 27, 2021). ASH also cited to Rock v. Arkansas as a case in which forensic hypnosis was used. That decision, discussed above, is not one that extols forensic hypnosis or treated the hypnotically refreshed memory as accurate or leading to the truth.
One claimed certification – that of being a “Certified Hypnotist with the International Certification Board of Clinical Hypnotherapists” – can be obtained by paying $97 (on sale from $597) and taking an online course that covers topics both on hypnosis and the ‘business’ side of this expertise:
How to Attract New Clients
How to Structure Sessions and Get Paid Upfront
https://subliminalscience.com/product/gold-level-certification/ (last visited December 27, 2021).
Does this mean there are no credible experts in hypnosis? No. But is there validity in hypnotically ‘refreshed’ memory? Two court decisions come at this from differing perspectives, with radically different responses.
In Sims v. Hyatte, the sole eyewitness at trial – the survivor of a shooting was initially unable to positively identify Sims. As was learned years later,
when viewing the lineup administered by detective Faigh the day after the shooting, he merely stated the individual “looked like” the assailant because “at the time [he] was not extremely sure.”…
[The witness] attended one session of hypnosis in which he “fell asleep … [and] literally entered a dream state in which I … recall[ed] the shooting itself. And during that time I had another opportunity to uh, see the person that shot me.”
Sims’s attorney then elicited the following:
Q: Okay. So it was really only after this hypnosis that you were sure of the person was that shot you?
Sims v. Hyatte, 914 F.3d 1078, 1084-1085 (7th Cir. 2019). The problem was that the hypnosis was never revealed before or during trial.
The Seventh Circuit found the withheld information to be “material,” i.e., sufficient that there is a probability that an acquittal would have resulted if disclosure had occurred. Why? The Court started with the concerns raised in Rock and tracked them through subsequent research, concluding that “[e]ssentially, ‘[n]ot only do hypnotized witnesses find it difficult to distinguish their original memories from those brought out under hypnosis, but they also tend to become more confident about their recall despite the fact that it might contain false recollections.’” 914 F.3d at 1089, (quoting Edie Greene, Kirk Heilbrun, William H. Fortune, & Michael T. Nietzel, Wrightsman’s Psychology and the Legal System 140 (6th ed. 2007)).
The decision to order a new trial for Sims came down to the following:
Given the well-known problems that hypnosis poses for witnesses’ memories, we can be confident that Carey’s identification testimony would have been subjected to withering cross-examination. As noted, the prosecution’s case against Sims depended completely on Carey’s credibility, which the suppressed hypnosis evidence would have severely undermined.
914 F.3d at 1091.
Seemingly to the contrary is the determination by Texas courts in the case of Charles Don Flores, a Texas death row inmate. Convicted at a trial in 1999 where the sole eyewitness identified him as a participant in the crime after having been hypnotized, Flores sought reassessment of his conviction under a Texas law allowing review if a science or technique relied upon at trial had been since discredited. Flores’ jury was told of the witness being hypnotized; he was now trying to show that the hypnosis rendered the identification unreliable.
Flores had an evidentiary hearing with competing expert testimony. The hearing court concluded that evidence challenging/discrediting forensic hypnosis was already available at the time of trial, thus making him ineligible for relief.
That judge made an additional finding that can fairly be described as damning hypnosis with faint praise:
the Court finds that the hypnotic technique used in this case has not been discredited to the extent that Applicant asserts. While the Court finds that there may be disagreement amongst the experts concerning the use of the technique, both [prosecution experts] testified that this technique is still presently used in a clinical and forensic setting and is useful in a forensic setting
Ex Parte Flores, Finding of Fact 180, 195th Judicial District Court of Dallas County (issued October 5, 2018). Omitted from the findings, which came verbatim from those proposed by the prosecution, was any discussion of the advances in understanding memory and that given the limited opportunity of the eyewitness to see facial details in a brief pre-dawn January exposure there might have been no memory to hypnotically refresh.
Given that the witness initially described the men as white males, the subsequent identification of Mr. Flores, an Hispanic male, raises additional and serious concerns – especially since the witness never identified Flores until at trial, over a year later. And the witness – who described the men as having long hair, was asked during the hypnosis session if the passenger had “neatly cut” hair and was shown a photo spread that same day with only Hispanic men with neat/short hair. Flores was in that spread but not picked – but at trial that is who she identified.
Flores’ lawyers persisted, seeking certiorari from the United States Supreme Court on a claim that allowing a death sentence based on identification testimony following hypnosis was unconstitutional under the Eighth Amendment and its demand for “heightened reliability” in capital cases.
Flores had substantial support. An amicus petition filed by 28 scientists concluded that “[in the years after petitioner’s 1999 trial, scientific debate has given way to overwhelming agreement among experts that post-hypnosis memories are unreliable and that currently known safeguards cannot eradicate the risk of introducing misinformation into forensic contexts.” Flores v. Texas, No. 20-5923, Brief of Dr. Steven G. Penrod and 27 Additional Cognitive Scientists as Amici Curiae in Support of Petitioner.
The request for certiorari was denied in January, 2021.
Are the Flores and Sims cases irreconcilable? In one way, no – Sims had a direct challenge to proof that had been hidden from him by prosecutors, while Flores had to show that his claim of hypnosis’ problems was ‘new’ evidence unavailable at trial. But Flores is much more tolerant of hypnosis as a forensic tool and that should give pause at a time when its scientific foundation is at best questionable.
The Rock majority worried about the risk of inaccurate memories but gave the accused an extra protection – the right to testify. The majority’s worries remain and indeed have worsened – and what was intended to honor a right particular to the accused has perversely been turned into a tool where law enforcement and prosecutors may rely on those who claim certification as forensic practitioners and inject questionable proof into the determination of liberty and, indeed, death.