The use of hypnosis in the defense of criminal cases.

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The use of hypnosis in the defense of criminal cases Kenneth E. Warner

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To cite this article: Kenneth E. Warner (1979) The use of hypnosis in the defense of criminal cases, International Journal of Clinical and Experimental Hypnosis, 27:4, 417-436 To link to this article: http://dx.doi.org/10.1080/00207147908407576

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Jhr Inlernaiional Journal of Clinical and Erperimmtal Hypnosis 1979. Vol. XXVII. No. 4. 417-438

THE USE OF HYPNOSIS IN THE DEFENSE OF CRIMINAL CASES KENNETH E. WARNER’I~


N m York City

Abstract: The 4 principal stages in a criminal proceeding are discussed

with a view toward determining the role that hypnosis can and does play in the American judicial system. In the preliminary investigative stage, hypnosis is primarily a technique for the discovery of evidence and its use is largely unfettered by court imposed restrictions. In the pre-trial stage, however, hypno-related testimony will be screened for abuses in obtaining it. At the trial stage, hypno-related testimony is generally admissible as a basis for expressing an opinion concerning mental condition, although no opinion may be expressed concerning the truthfulness of statements made under hypnosis. Where the testimony of a trial witness has been enhanced by the prior induction of hypnosis, the extent to which taint has occurred is usually a question for the jury to determine. In cases of flagrant suggestion during the induction process, however, such testimony will not be allowed in evidence. Learned societies in the field of hypnosis must bear the responsibility for educating the judiciary on the limits of hypnosis as an evidentiary technique. T h e l a w has come a long way since the court in People v . Ebanks (1897) held that “‘The law of the United States does not recognize hypnotism [p. 10531.”’Since that time-and particularly after World War I1 --there has been a renewed interest in the introduction of hypnotically related evidence a n d techniques into the legal process. The present paper will be devoted to discussing the four main a r e s of criminal law in which hypnosis can and does play a n important role, together with the rules of evidence which apply in those areas. The four a r e a to be considered are: (a) preliminary investigative stage, (b) pretrial hearing stage, (c) trial stage, and (d) sentencing stage.

PRELIMINARY INWTICATIVE STAGE This stage commences for the police and the prosecution from the moment that the crime is committed. Except for the constitutional limitations imposed by the Fifth and Fourteenth Amendments of the ConstituManuscript submitted March 2, 1979; final revision received July 13, 1979. ‘The author acknowledges the editorial and research assistance of Rita Warner, LL.B., in the preparation of this paper. *Reprint requests should be addressed to Kenneth E. Warner, LL.B., Warner and Gillers, P . C . , 500 Fifth Avenue, New York. New York 10036.

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tion, which prohibit involuntary examination of a defendant or of a potential defendant3, almost any legal use of hypnosis is permissible. Hypnosis can be used to diagnose a mental condition, to enhance a witness’s memory, or to penetrate an amnesia. Discovery is the only issue at this time and consequently evidentiary questions of the admissibility of hypnosis in court do not arise. It should be noted, however, that the misuse of hypnosis during the investigative stage is a matter that courts have addressed with concern. As noted in the United States u . Adarns et al. (1978): We are concerned, however, that [the] investigatory use of hypnosis on persons who may later be called upon to testify in court carries a dangerous potential for abuse. Great care must be exercised to insure that statements after hypnosis are the product of the subject’s own recollections, rather than of recall tainted by suggestions received while under hypnosis [Pp. 198-1991,

For the defense, the investigative stage usually begins as soon as possible after arrest. Where a defendant’s mental condition either impedes the investigation (e.g., lack of memory) or is part of the investigation (e.g.,competence to stand trial or development of an insanity defense), courts have recognized the right to expert assistance for the express purpose of using hypnosis. In Cornell u. Superior Court (1959), the defendant was charged with murder but he was unable to remember the facts surrounding the events in question. Cornell was incarcerated when his attorney came to see him and neither the sheriff nor the local trial court would allow him to be examined in jail by a hypnotist as requested by his attorney. On appeal, the court held that the Sixth Amendment right to effective assistance of counsel entitled the defendant to the services of a qualified hypnotist to probe his memory (see, also, In re Ketchel, 1968; but, see, State ex re1 Sheppard u. Koblentz, 1962, for a contrary ruling at the post-appellate level). During the preliminary investigative stage where a defendant is not incarcerated (e.g., where he is free on bail), there are no problems for the defense in conducting whatever mental examinations are considered necessary. Where a defendant is incarcerated, however, although court decisions generally allow all appropriate examinations to take place, the practical problems imposed by the prison environment are a great obstacle. Prior court approval is necessary before any examination can ’“Involuntariness”falls into two categories, actual and constitutional. and both are prohibited. Actual involuntariness arises where an individual is physically or mentally coerced into answering questions (and usually confessing). See, for example, Leyra o. Denno (1954) discussed on p. 420 of the present paper. Constitutional involuntarinessarises where an individual is questioned without having been first advised of his constitutional right to remain silent, to have an attorney, etc. See, for example, Miratida 0. Arbono (1966).


HYPNOSIS IN DEFENSE OF CRIMINAL CASES

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be conducted. This poses problems for a defendant because it enables the prosecution to know the identity of all of the experts who examine him, as well as the general techniques which are being employed in such examinations. In mitigation of the prejudicial character of such disclosures and to encourage defense counsel to seek professional advice freely, some courts have held that it violates the attorney-client privilege to permit the government to call as a witness a psychiatrist originally engaged by the defense who concluded that the defendant was sane at the time of the crime (United States v . Alvarez, 1975; San Francisco v . Superior Court, 1951; Lindsay v . Lipson, 1962; and State v . Kociolek, 1957). In People v . Edney (1976), however, the New York Court of Appeals rejected this extension of the attorney-client privilege. The doctor-patient privilege was also not applied in this case, since it is automatically waived by the entry of an insanity defense. From a defense viewpoint, the present author considers the Edney (1976) decision unfortunate. Prosecutors argue, however, that the Edney rule is fair because it discourages “psychiatrist shopping” and it treats the prosecution and defense equally (i.e., both know each other’s psychiatric witnesses). The present author disagrees, since in his opinion the Constitution never intended the prosecution and defense to be “equal.” The great discrepancy between the power and resources of the government and that of defendants has long been recognized in our criminal justice system as entitling the defense to more than equality in an effort to rectify this imbalance. PRE-TRIAL STAGE The hard questions in connection with hypnosis-related testimony arise when a case reaches the courtroom. Although not generally familiar to laymen, the pre-trial phase of court proceedings is, in many ways, the most critical. It often determines the outcome of the case and is probably the area where hypnosis will make its most significant breakthroughs. The pre-trial phase is a screening period during which threshold questions of admissibility and competence are determined. For example, a defendant is entitled to notice of whether the prosecution will offer in evidence at trial either confessions or statements allegedly made by him, eyewitness testimony identifying him, or physical evidence of any kind. Prior to the commencement of the trial and the selection of the jury, a defendant is entitled to make a motion for the purpose of suppressing any of the aforementioned evidence. These “suppression” motions may well be dispositive of the entire case. For example, where little evidence of a crime exists except for the confession of a defendant, the suppression of


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that confession from evidence may so emasculate the prosecution that a guilty verdict becomes almost impossible. Similarly, where a prosecution rests upon eyewitness identification testimony which is suppressed, the government may be unable to connect the defendant to the crimes. Finally, physical evidence such as bloody clothes and the like may, if suppressed, severely impair the ability of the prosecution to present its case. The standard for suppressing a confession is either that it was involuntarily given or that it was otherwise in violation of a defendant’s constitutional rights (Miranda u . Arizona, 1966; Jackson u. Denno, 1964). Interestingly, hypnosis has at times been found to be the cause of involuntary confessions. In the Canadian case of Rex u. Booher (1928), the accused was visited in jail by a criminologist who practiced hypnosis. After the last visit, the criminologist told the police that a confession would be forthcoming. Shortly thereafter the defendant confessed. The confession was held inadmissible as involuntary in the absence of proof that the accused did not confess under the influence of a posthypnotic suggestion. In the New York case of People u . Leyra (1951), the defendant was accused of the hammer murder of his mother and father. While in police custody, he was allegedly hypnotized by a psychiatrist called in by the District Attorney’s office who elicited a full confession from him. The examination, recorded by the police, indicated that the psychiatrist called himself the defendant’s doctor, told him that he was not morally responsible for what he did, massaged his forehead and temples repeatedly, commanded him to stare into his eyes, suggested that he picked up the hammer and struck his mother and, finally, threatened to give him an injection if he did not cooperate. The confession was introduced at trial and the defendant was convicted. On appeal, the judgment was reversed on the grounds that the confession was involuntary and coerced. The defendant was retried and again convicted. On appeal to the United States Supreme Court, the defendant ultimately prevailed (Leyra u . Denno, 1954). The statement by Justice Black, writing for the majority, is noteworthy: First, an already physically and emotionally exhausted suspect’s ability to resist interrogation was broken to almost trance-Zike submission by use of the arts of a highly skilled psychiatrist. Then the confession petitioner began making to the psychiatrist was filled in and perfected by additional statements given in rapid succession to a police officer, a trusted friend, and two state prosecutors. We hold that use of confessions extracted in such a manner from a lone defendant unprotected by counsel is not consistent with due process of law as required by our Constitution

[Italics added, p. 5611.



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In addition to hearings concerning the admissibility of evidence, the competence of the defendant to stand trial is a crucial pre-trial issue. The standard by which competence-as opposed to sanity-is determined is whether the defendant (a) understands the nature of the charges against him and (b) is able to assist in his own defense. Competence may be lacking as a result of a mental disease or defect, but it may also be lacking as a result of amnesia. Where a defendant is unable to remember the events surrounding his alleged commission of a crime, he is unable to assist in his defense (Wilson u. United States, 1968 [setting forth tests to be followed by trial courts to assure amnesic defendants a fair trial] and People 11. Francobandem, 1974). In People u. Shelly (1973) in the Supreme Court of the State of New York, County of Bronx, the defendant was amnesic with regard to the facts surrounding his alleged murder of two people, as well as the facts surrounding his lengthy and incriminating confession to the police. He was incarcerated and court orders were obtained permitting entry into prison for hypnotic interviews and examinations. Revivification was attempted with partial success. No breakthrough was achieved with regard to the homicide itself, which was important for the purpose of establishing the authenticity of the amnesia. On the other hand, the defendant quite dramatically recreated the events surrounding his confession, including taking the role of each policeman involved through changes of voice and manner. Without the use of hypnosis, the defendant remembered nothing whatsoever about his confession, including the fact that he had given one. Under hypnosis he presented dramatic evidence that he had been subjected to exceptionally coercive tactics, including the denial of medical assistance and the infliction of extreme pain. The result was a very favorable plea bargain, a practical benefit of innovative techniques that cannot be discounted. One of the greatest barriers to the expanded use of hypnosis in the courtroom has been the fear, on the part of the judiciary, that juries will be unduly influenced by the techniques and appearance of the hypnotic trance situation and be unable, as a consequence, to evaluate the testimony itself objectively. It will be shown, later in the present paper, that such fears may very well have no basis in fact. However, the belief of the judiciary in this regard is the reason why most breakthroughs in the use of hypnosis in the courtroom will probably come in the pre-trial stage. Although judges are people too-subject to the same social and personal conditioning forces as jurors-they have long maintained the fiction that they can place themselves beyond the ordinary influences of life. Consequently, courts have been more willing to consider hypnosisrelated testimony during the pre-trial hearing stage since the court alone, without a jury, considers and evaluates that evidence.

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TRIAL STAGE Prior to discussing the use of hypnosis during a trial proceeding, it is necessary to explain three fundamental rules of evidence. First, no person may testify on any scientific matter unless he is recognized by the court as a qualified expert in his field. Second, no scientific technique or procedure may be put forth in evidence unless it has been accorded general acceptance within the scientific community for reliability. Third, a doctor testifying on behalf of a defendant may not repeat, for the truth of what they contain, statements made by the defendant during the doctor’s examination, unless that examination was for the purpose of treatment rather than to enable the doctor to testify at trial.4 In determining whether someone is an expert in a particular field, a court looks for indicia of knowledge and experience sufficient to justify such a status. Contrary to popular belief, a professional degree is not a prerequisite to being qualified as an expert. Nor is a professional degree a guarantee of being so qualified, although, of course, it would weigh very heavily in a court’s decision. The determination in each case is based upon a review of the witness’s educational background, training, writings, and recognition within hidher field. The requirement of general scientific acceptability is often referred to as the Frye rule, based upon the explanation of that principle given in Frye u. United States (1923). In rejecting the admissibility of lie detector evidence, the court in Frye noted: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs [Italics added, p. 10141.

The nuances of the F y e rule, however, raise questions far more subtle than the wholesale rejection or acceptance of an entire field of science. With hypnosis, for example, the Frye rule would ask not merely whether it is considered reliable as a general scientific technique, but also whether a particular use to which it is being put is reliable as well. Thus, since hypnosis is generally recognized as a reliable means of diagnosis, hypnotic interviews may be referred to and used as a basis for forming an opinion on a defendant’s mental condition (see Pp. 424-425 of the present paper). On the other hand, with regard to memory enhancement (discussed on Pp. 425-430 of the present paper), there is a significant ‘This principle is the law of New York. Each state varies in the extent to which treatment-related statements may be repeated in court.



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body of opinion to the effect that hypnosis is simply not a reliable means of retrieving memory, because it renders a subject far too susceptible to suggestion and produces a proclivity for confabulation which the subject has no means of recognizing. The result is the creation of a “pseudomemory” and the irretrievable loss of the original recollection. An excellent explanation of this phenomenon may be found in the affidavit of Orne (submitted amicus curiae in Quaglino u . California, 1978; for complete text of affidavit, see Orne, 1978).5 The threshold determination that must be made by a court is whether the challenge to a particular use of a scientific technique goes to admissibility or weight. If it is the former, then the objection is so fundamental that no testimony on the subject may be presented. If the latter, the testimony will be heard in the first instance and then evaluated by a court or jury to determine the amount of weight it should be given, based upon all the circumstances (e.g., the possibility of suggestion by the hypnotist, confabulation, lack of corroboration, etc.). The third rule regarding treatment-related testimony is perhaps best illustrated by an example. Imagine a situation in which a doctor examines a criminal defendant and determines, from his examinations, that at the time of the crime the defendant was insane. If that doctor then testifies at trial on behalf of the defendant, he may wish to quote some of the statements made by the defendant in order to explain and justify his diagnosis. In this situation, the law distinguishes between an examination for the purpose of treatment and an examination for the purpose of giving testimony. If the doctor’s examination was conducted for the latter purpose, then he may not testify on direct examination as to any statements made to him during the examination by the defendant, either for the truth of such statements or to indicate the defendant’s state of mind when making them. On the other hand, if the defendant’s relationship with the doctor was for the purpose of treatment, then a different rule prevails because the law presumes that a patient’s interest in getting well will prompt him to tell the truth. Under federal law, the doctor has almost carte blanche to testify to any statements made by a defendant during the course of treatment in regard to any aspect of his condition, including history and present symptoms. State laws vary on this point, but all permit at least testimony by the treating physician as to statements of his patient which reveal present symptoms of the ailment. With this background, we may now proceed to a consideration of the four areas in which the use of hypnosis-related testimony arises at a trial. These areas are: (a) testimony by the doctor that the results of a hypnotic SFora detailed review of the cases involving testimony based upon hypnotically induced memory enhancement, see the article by Worthington (1979).

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interview contributed to his opinion concerning the mental condition of the defendant; (b) testimony by a witness whose memory has been enhanced by the use of hypnosis; (c) hypnosis as a “lie detector”; and ( d ) testimony by a defendant while under hypnosis.


Basis For Opinion On Mental Condition There is now general acceptance under United States law of the validity of hypnosis as an analytical tool for diagnosis. Consequently, there is no problem in a doctor testifying that his opinion concerning the mental condition of a defendant is based, in whole or in part, upon the results of a hypnotic examination. It is important to note, however, that notwithstanding the aforementioned general acceptance of hypnosis, it is still essential that the testimony concerning the hypnosis be offered by a qualified expert. In the People u . Busch (1961), the court found that the testifying doctor, a general practitioner who had specialized in hypnosis for less than 1 year, was unqualified in that field and it rejected both his testimony and the general validity of hypnotic techniques. The court instead found that hypnosis was “an analytical tool still seeking recognition in the field of psychiatry [p. 3201.” Thus, the cause of hypnosis, as well as the individual defendant’s case, can suffer if an unqualified witness seeks to testify in areas where he lacks expertise. The threshold question of whether a doctor may refer to the use of hypnosis as contributing to his opinion is an easy one. The difficult questions arise when one considers how far the doctor can go in explaining and elucidating the details of the hypnotic interview. For example, would it be permissible for defendant’s doctor to repeat, in court, statements made by the defendant while under hypnosis? Such statements, of course, are often exculpatory. The general rules applicable to testimony by a doctor as to statements made by his patient when offered for their truth have already been discussed above. Assuming that the defendant was examined by the doctor for purposes of treatment, there would be no bar to the doctor’s repeating statements the patient made during the hypnotherapy to the extent permitted by law. However, in states where the extent to which such statements can be repeated is limited to present symptoms (for example, of pain and suffering) and excludes history, would the fact that the patient was under hypnosis be a reason for extending the scope of that rule? Similarly, where the patient has seen the doctor for purposes of testimony, would the fact that the patient’s statements were made under hypnosis be a reason for permitting the doctor to testify about them in court For the truth of what those statements contain? In other words, does the induction of hypnosis add sufficient reliability to a statement so as to render it admissible where a statement made without the influence of hypnosis would not be admissible?



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To date, courts have consistently answered these questions in the negative. At the present time, absent scientific support for the reliability of hypnotically induced statements as being greater than the reliability of statements made by a patient in his ordinary condition, the law does not accord such statements the benefit of any different rule (State u. Pwch, 1951). However, suppose the doctor offers to play an audiotape-recording or a videotape-recording of his examination, not for the purpose of presenting the patient’s statements under hypnosis for their truth, but rather to demonstrate the technique of his examination. Would such recordings be admissible? The law is divided on this point and the rule now is one of discretion. Assuming that a proper foundation has been laid, some courts have permitted the doctor to state that he has used hypnosis, but they have not allowed him to relate the actual responses of the subject or to play or refer to recordings made during such an interview (Greenfield u. Commonwealth, 1974; State i). Harris, 1965). Other courts have permitted disclosure of the defendant’s responses along with the expert’s analysis of them (People v . Modesto, 1963). A few courts have permitted the expert to support his testimony by playing videotape- or audiotaperecordings of the actual examination (see, for example, People u . Thorn&, 1969). The main consideration for a court is whether the impact of seeing or hearing the hypnotic interview will so overwhelm the jury that their objectivity and judgment will be lost. The court, then, weighs the possibility of prejudice against the usefulness of demonstrating the doctor’s techniques. In such instances, the prosecution is concerned that the jury will be unable to make the distinction required by law. As a practical matter, can we really expect laymen to listen to an entire hypnotic interview without determining for themselves whether they believe or disbelieve the statements being made by the defendant? Such a determination, however, would be contrary to the requirements of law, since technique only and not truth is to be evaluated. In People v . Modesto (1963), discussed above, the defense psychiatrist testified as to her expert opinion regarding defendant’s state of mind, based in part on hypnotic examinations. However, the trial court excluded the expert’s proferred explanation of hypnotic techniques and excluded without consideration an audiotape-recording of the hypnotic interview. Both rulings were reversed on appeal. This case was distinguished from Bwch (1961, discussed above on p. 424), on the grounds that in Modesto (1963) the defense was able to lay a proper foundation by offering to prove that hypnosis is an accepted analytical tool in the psychiatric profession for the determination of an individual’s state of mind. In addition, the psychiatrist testifying was qualified as an expert

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in the use of hypnosis for that purpose. In principle, all of the data upon which the expert based her opinion was admissible and the court therefore erred in failing to exercise its discretion in determining whether the audiotape-recording should have been admitted. As to whether in fact the audiotape-recording should have been admitted in this particular case, the appellate court set forth a balancing test: Although the tape recording of defendant’s statements while under hypnosis might properly have been excluded in the exercise of the trial court’sdiscretion to weigh its probative value as part of the basis for the expert’s opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein, the record shows that the trial court did not exercise this discretion, . . [p. 391.

.

Thus, at the very least, upon an offer to introduce a video- or audiotaperecording or film of a hypnotic interview, the trial court must listen or view such proposed evidence out of the presence of the jury and exercise reasonable discretion in determining its admissibility. In State u. Harris (1965), the defendant, accused of murdering his wife, claimed to have been suffering from retrograde amnesia at the time of trial. His doctor testified to the successful use of hypnosis to restore defendant’s memory. The doctor was permitted to testify that before inducing hypnosis the defendant demonstrated a memory loss concerning the essential elements of the alleged criminal events. The issue then arose as to whether the doctor would also be permitted to repeat the recollections of the defendant given under hypnosis and whether he could play, as well, an audiotape-recording made of those hypnotic sessions. The trial court refused to allow either the oral testimony or the recording and that determination was upheld on appeal on two grounds. First, the recollections of the defendant under hypnosis were not admissible for their truth, notwithstanding the fact of treatment, because they went beyond the expression of present symptoms. Thus, we see that Oregon is one of those states referred to where the scope of testimony concerning statements made during treatment is narrowly limited. Second, the appellate court felt that the recollections under hypnosis would be evaluated by the jury not merely as evidence of defendant’s memory restoration and the techniques employed to bring that about, but would be listened to by the jury as evidence of the defendant’s version of the crime (i.e., that it was an accident) (see, also, People v . Hiser, 1968-tape-recording of hypnotic session excluded in exercise of trial court’s discretion). Are such fears of jury prejudice reasonable? Will juries be as overwhelmed as courts seem to fear by the sight or sound of hypnotic interviews? The unreported case of People u. Thomas (1969) indicates the


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contrary. In that case, the court permitted the defense, in a first degree murder case of a mother accused of killing her baby, to show the jury a 49-minute film of the defendant’s examination under hypnosis in which she relived the killing. Despite the realistic re-enactment of what appeared clearly from the film to be an unpremeditated murder, the jury found the defendant guilty as charged (see, also, State u. Turner, 1970, discussed on p. 430 of the present paper). Testimony of Witness Enhanced b y Prior Hypnosis Occasionally it happens that a witness’s memory as expressed in his testimony at trial has been enhanced or bolstered as a result of the induction of hypnosis at some point prior to the time of testimony. The defense is entitled to know of this use of hypnosis. Thus, in United States v . Miller (1969), a criminal conviction was reversed and a new trial ordered because the defense had not been informed that pre-trial hypnosis was used to bolster the memory of a prosecution witness. The lack of notice, not the use of hypnosis, was the crucial fact. Courts have generally permitted testimony which has been affected by the induction of hypnosis, holding that “the fact of hypnosis affects credibility but not admissibility [United States u. Adams et al., 1978, p. 1981.” (See, also, State u. McQueen, 1978; State u. lorgensen, 1971.) A precautionary instruction is given to the jury to assist them in evaluating such testimony. An example of such an instruction may be found in Harding u. State (1968) as follows: “You have heard, during this trial, that a portion of the testimony of the prosecuting witness, Mrs. C[-I., was recalled by her as a result of her being placed under hypnosis. The phenomenon commonly known as hypnosis has been explained to you during this trial. I advise you to weigh this testimony carefully. Do not place any greater weight on this portion of Mrs. C[-1,’s testimony than on any other testimony that you have heard during this trial. Remember, you are the judges of the weight and the believability of all of the evidence in this case [p. 3101.”

There are many problems as yet unsolved in regard to the admissibility of testimony under these circumstances. A serious question arises as to whether it is at all possible to induce hypnosis for the purpose of recalling events without in some way suggesting the general outline, if not the details, of the hoped-for recollection. Notwithstanding the testimony of experts that their induction contributed nothing to the witness’s recollection, can that ever really be true? If not, to what extent can experts in the field of hypnosis adequately inform courts and juries to enable them to judge hypnotically assisted recollection properly? An excellently reasoned approach to this problem was set forth in the recent caSe of State v . White (1979). White was charged with first degree


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murder and moved for an order suppressing certain statements of the main prosecution witness, C.P.,because they were the product of a hypnotic session in which Ms. P. volunteered to participate. The defense challenged the admissibility of hypnosis as scientific evidence and asserted that its use affected andlor created some or all of Ms. P.’s testimony. Specifically at issue was the admission of inculpatory statements allegedly made by White to Ms.P. approximately 8 months after the death of the victim. Ms. P. came forward with this evidence approximately 3?h years after the death, but only 4 days after the hypnotic session. The State, of course, maintained that the use of hypnosis was proper. A lengthy hearing was conducted at which many witnesses were called. Dr. Martin T. Orne testified as the court’s witness and was critical of the suggestions he found implicit in the hypnotic interview. After a thorough review of the testimony and the prevailing case law, the court suppressed the statements and held that there is little or no basis to support the State’s position that C[-].P[-].’s statements to law enforcement agents subsequent to the hypnotic session on June 10, 1978 [and based upon posthypnotic suggestionsgiven to her during that session] were independent of the hypnotic session andlor an independent accurate recollection of what she was told by Joseph White [per Wedemeyer, J., Slip opinion, p. 31.

The great value of this case for purposes of our analysis, however, is the court’s two-prong test for determining the admissibility of the statements. The court ruled that such statements would be suppressed ( a ) if there was unnecessary suggestiveness in the hypnotic session and (h) if the totality of the circumstances of the information-seeking process did not prove the reliability of the statements made. Having found the interrogation to have been unduly suggestive, the court set forth the following “safeguards” to increase the likelihood that pre-testimony hypnotic sessions could be evaluated at a later time: 1. The person administering the hypnotic session ought to be a mental health person with special training in the use of hypnosis, preferably a psychiatrist or a psychologist. 2. This specially trained person should not be informed about the case verbally. Rather, such person should receive a written memorandum outlining whatever facts are necessary to know. Care should be exercised to avoid any communication that might influence the person’s opinion. 3. Said specially trained person should be an independent professional not responsible to the prosecution, investigators or the defense. 4. All contact between the specially trained person and the subject should be videotaped from beginning to end.



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5. Nobody representing the police or the prosecutor or the defendant should be in the same room with the specially trained person while he is working with the subject. 6. Prior to induction a mental health professional should examine the subject to exclude the possibility that the subject is physically or mentally ill and to confirm that the subject possesses sufficient judgment, intelligence, and reason to comprehend what is happening. 7. The specially trained person should elicit a detailed description of the facts as the subject believes them to be prior to the use of hypnosis. 8. The specially trained person should strive to avoid adding any new elements to the subject’s description of herlhis experience, including any implicit or explicit cues during the pre-session contact, the actual hypnosis and the post-session contact. 9. Consideration should be given to any other evidence tending to corroborate or challenge the information garnered during the trance or as a result of post-hypnotic suggestion [per Wedemeyer, J . , Slip opinion, Pp. 11-12]. I n commenting on the safeguards set forth above, the court made the following very wise observation: Hypnosis can irreversibly alter one’s memory. The paramount issue, then, in deciding the reliability of the consequences of hypnosis in a specific setting is whether what is recalled is what the witness actually saw or experienced. Expressed in other terms, it is the Court’s function to determine whether there is the ability for recall to be accurate. . . . I t is the jury’s function to determine the credibility of the recall once reliability has been established. Precautionary measures are therefore necessary to determine whether evidence has been changed or created. These safeguards are being adopted because it is this Court’s judgment that the data revealed by applying these safeguards can be evaluated to objectively establish the changes that may have taken place in a witness’s recollection and to determine whether such changes have bmn affected by the circumstances of the hypnotic session [per Wedemeyer, J , , Slip opinion, Pp. 12-13].

For a trial court case that failed to reach the conclusions of the State u . White (1979) case, however, see United States u. Narciso et 01. (1977), involving the well publicized prosecution of two government nurses. Significantly, in that case after the court’s ruling that the validity of the hypnotic techniques used to produce an identification was a jury question, the prosecutor never presented the witness whose memory was supposedly enhanced through hypnosis. A guilty verdict was obtained at trial, but was reversed on appeal (on grounds not related to hypnosis). Problems of confidentiality can arise where hypnosis-induced testimony derives from a n examination by a third-party witness’s private physician. In Emmett v . State (1974), the key prosecution witness to an alleged murder, a n accomplice granted immunity, testified that hypnotherapy (12 visits totalling 35 hours) enabled her to remember details


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of the crime she had forgotten due to time lapse and drug use. However, when the witness’s doctor was called by the defense, he refused to testify and asserted the privilege of confidentiality since the witness had been his patient at the time the recollection was brought about. The trial court refused to listen in camera to videotape-recordings of the hypnosis sessions, sustained the privilege and allowed the witness’s testimony to stand. Incredibly, the defendant’s conviction was upheld throughout the Georgia appellate system. It was not vacated until it reached federal court (Emmett v . Ricketts, 1975), where the judge described the proceedings as “Kafka-esque.” He noted in particular “the extreme measures to which the state resorted in extracting information from (or more accurately, in supplying information to) [p. 10481” the hypnotized prosecution witness. Hypnosis As “Lie Detector”

Courts will not permit testimony by a doctor as to his opinion of the truthfulness of a defendant’s exculpatory statements made under hypnosis, on the grounds that the truthfulness of hypnotically induced statements is not generally accepted in the scientific community (Jonesv . State, 1975). However, sometimes the prosecution and the defense will agree to permit such testimony at trial by stipulation. These agreements normally arise prior to the induction of hypnosis and with regard to a mutually agreed upon doctor. In State TI. Turner (1970), a doctor testified by stipulation that the defendant’s exculpatory statements under hypnosis were, in his opinion, truthful. The jury nevertheless convicted the defendant. Although courts have concluded that the scientific community rejects the notion that hypnotically induced statements are necessarily truthful, the ignorance of lay judges in the presence of medical professionals can easily result in discredited doctrine prevailing in a given case. Consider, for example, the following testimony given in the case of State u . Nebb (1962). The doctor testifying was Dr. T.R. Huxtable, Jr., a psychiatrist who claimed to have considerable experience in the field of hypnosis: Question: Doctor, would a statement made by a person under hypnosis, with medical certainty, be held to be a truthful, correct state-

ment? Answer: I would say yes. Question: Now, doctor, in the field of psychiatry, when one is placed under hypnosis, to what extent does that person have any control over his statements made under hypnosis? Answer: Usually none; the statementsyou get usually are fact. I would have to qualify that, in certain types of mental disorders, this



Question:

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may not be true but, generally speaking, using the hypnosis, or pentothal or amytal, or what is commonly referred to as “truth serums”, you get the facts. Now, doctor, is it possible . . . for a given subject to absolutely convince himself over a period of months or years that something which didn’t happen actually did happen, or vice versa, and then maintain that statement under hypnosis? I don’t think so. Would you say that it is impossible? Yes. You used the words, in response to one of [defense counsel’s] questions, I believe he asked you what control the subject had over his statements and your answer was “usually none.” Why did you use the word “usually”? I used the word “usually” in a qualified sense that if patients are not in a complete hypnotic trance, then they may be able to qualify what they are saying, but if they are they can’t. Doctor, is it possible for a person to be in a hypnotic state, and when asked to relate the details of a given transaction that he relates most of the details but not all of them? I have not found it in my practice to be so. But you do-even though you have not found it to be so from your experience can you deny the possibility? I cannot deny the possibility; I will deny the probability [Frumer, Biskind, Milgrim, Minzer, et al., 1975; See. 149.04, footnote 141.

Testimony by a Defendant While Under Hypnosis The present author knows of no case in the United States where a defendant was hypnotized in the presence of the jury and permitted t o testify while under hypnosis. In State u. Nebb (1962), the defendant was examined in the courtroom while under hypnosis, but the proceeding took place before the trial judge with the jury absent and upon the consent of the prosecuting attorney. Thus, it cannot be considered as evidence in the trial. Nebb was being tried for first degree murder of his estranged wife’s male “visitor.” He insisted that while he was shooting at his wife (believing that she had been unfaithful), he did not see the deceased in the room and that therefore the killing of him was accidental. During the course of the trial and b y agreement with the prosecutor and the trial judge, Nebb was placed in a hypnotic state by Dr. Huxtable and questioned as to the shooting. He told the same story he had told in a conscious state on the witness stand. As a result, h e was permitted t o plead guilty to the lesser crime of manslaughter. T h e Nebb case is instructive in many ways. First, it indicates the extent to which the court relied upon the invalid qualifying testimony of


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Dr. Hwtable concerning the truthfulness of statements given under hypnosis. Interestingly, in the course of the subsequent testimony under hypnosis of Nebb, and notwithstanding the assurances of Dr. Huxtable, Nebb did in fact lie. The circumstances of the case were that Nebb had returned to his home and saw his wife, through the window, in the process of undressing and leading her male visitor to the bedroom. Nebb initially testified under hypnosis that he rushed to find a neighbor and said “I got them” to the neighbor, urging him to come and witness the adultery. The neighbor testified that Nebb said “I ought to kill them” not “I got them.” Under hypnosis Nebb at first specifically denied having said “I ought to kill them.” Only when he was confronted by the fact that his neighbor had said that he had made that other-more incriminating-statement did he admit to it. In addition, this case demonstrates how impressive a hypnosis situation can be to laymen and helps us to understand why courts are so worried that the impact of such testimony will overwhelm a jury. During the course of the hypnosis, and to demonstrate the extent of Nebb’s trance state, Dr. Huxtable stuck Nebb with a knife and offered to let the prosecutor do the same. Nebb evidenced no feeling whatsoever. In addition, and even more impressive, was Dr. Huxtable’s age regression of Nebb to the fifth grade and his instruction to Nebb that he write his name. Court observers watched in amazement as Nebb methodically wrote his name in the handwriting of a fifth grader, complete with a misspelling1 While those trained in hypnosis may not be terribly impressed-if at all-by these feats, one cannot minimize how impressive they are to laymen and how inclined an observer would be to consider that anything said by such a subject would be true. In the murder prosecution of Sirhan Sirhan, assassin of Robert Kennedy, a defense psychiatrist hypnotized Sirhan in his cell and then related how the defendant had re-enacted the crime in a manner that tended to indicate that Sirhan was psychotic at the time of the murder. Defense counsel’s application to have defendant hypnotized in court to present this re-enactment was denied (New York Times, 1969). The only other case of hypnosis in the courtroom to the present author’s knowledge is Regina u. Pitt (1967) reported by Hanley (1969). This case involved an amnesic defendant accused of attempted murder of her husband who was hypnotized in the courtroom in the jury’s presence and given a posthypnotic suggestion to remember the events at issue. Taken out of the trance, the defendant testified on direct examination and 15 minutes into cross-examination, at which point she became upset and her amnesia returned. Rather than trying to admit an audiotape-recording of an earIier hypnotic examination, the defense argued that the defendant’s initial testimony established her present



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“functional” amnesia. The defense then requested that she be placed under hypnosis for the purpose of stimulating her memory. The trial judge granted this request on the condition that no questioning be permitted during the trance. The hypnotist was only to give the defendant a posthypnotic suggestion to recollect everything she saw, heard, felt, did, smelled, and said. After being taken out of the trance and upon requestioning, the defendant was able to remember the incident and related it in a manner which proved her lack of premeditation. The Pitt case is to be contrasted with Greenfield v . Commonwealth (1974) in Virginia, where the defendant, accused of murder, sought to be placed under hypnosis during a recess of the trial in order to jog his memory before taking the stand. When hypnosis was tried and failed to improve his memory, the trial judge ordered the psychiatrist not to try again. It would appear that situations where defendants are unable to recall events as a result of amnesia will be the first points at which breakthroughs for the introduction of hypnosis in the courtroom will occur. In such situations, the alternative to hypnotically induced testimony would be silence on a defendant’s part. Assuming an amnesia which is medically documented, it would be grossly unfair to deprive a defendant of the only avenue by which he may be heard.

SENTENCING STAGE Perhaps the greatest opportunities for the introduction of hypnosis in the criminal process lie in the sentencing stage. At this point, after a defendant has been convicted and the court is considering the appropriate sentence, a total relaxation of all rules of evidence can be found. It is doubtful that any court will prevent a defendant from submitting any type of information in any scientifically recognized form that will place mitigating information before the court. In People u. Shelly (1973) and State v . Nebb (1962), referred to in the present paper, hypnosis resulted in a favorable plea to a lesser crime. In the Shelly case, the defendant faced the possibility of a double murder conviction. Based in large part, however, upon the hypnotically derived evidence presented to the prosecution and the court prior to trial, the defendant was permitted to plead guilty to a much lesser crime and received a maximum sentence of 10 years. The sentence for murder, on the other hand, was mandatory life imprisonment.

THEFUTURE The phenomenon of hypnosis-insofar as court procedures are concerned-is in its infant stage. The responsibility for explaining its techniques, drawbacks, and values rests on the shoulders of those most skilled

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and learned in this area. Courts are not always the most receptive forums for the presentation of scientific material. They are often ignorant and may, at times, serve to perpetuate the prejudices of the lay citizenry. As properly observed by one court (State u. Sinnott, 1956): Perhaps it may be said with some measure of truth that over a period of years the law has lagged watchfully, inquisitively, maybe critically, behind an adaptable recognition of the progress being attained in psychiatry. It is, however, a natural characteristic of the law, resting as it does upon established precedents and attitudes that have .received general acceptance, to follow rather than lead in the initial introduction of probationary advances of science [p. 4281.

Nevertheless, the fact remains that the major hypnosis societies have failed to put forward in published form, comprehensible to and accessible to the members of our judiciary, a clear statement of the uses and abuses of hypnosis in the legal process. They have also failed to take advantage of the source material which their members could supply concerning participation in unreported but significant court proceedings and to publish this information on a regular basis. Without such statements and information from authoritative and respected bodies, courts will continue to render individual decisions based upon the testimony of the expert who happens to appear. That testimony may fly completely in the face of generally accepted scientific principles and experience or it may accurately reflect them. Without the assistance of those major hypnosis societies dedicated to the study of hypnosis, the courts will have no way to know. &FERENCES

Benderi N . Y . Evitlenre. (Vol. 3, Sec. 149.04) New York. N.Y.: Matthew Bender, 1975. Cotnell v . Superior Court, 52 Cal.2d 99, 338 P.2d 447 (1959). Emmett u. Ricketts. 397 F.Supp. 1025 (N.D. Ca. 1975). Emmett v . State, 232 Ga. 110, 205 S.E.2d 231 (1974). FRUMER. L . R . . BISKIND,E.L.. MILCRIM,H . M . . MINZER.M . et al. Frye v . United States, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir. 1923). Greenfield v . Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974). HANLEY,F. W. Hypnosis in the courtroom. Canad. psychiat. Assoc. J . . 1969, 14, 351-354. Harding v . State, 5 Md. App. 230, 246 A.2d 302 (1968). cert. den., 395 U.S.949.89 S.Ct. 2030, 23 L.Ed.2d 468 (1969). Jackson v . Denno,378U.S. 368,84S.Ct. 1774, 12L.Ed.2d908, lA.L.R.3d 1205(1964). Jones v . State, 542 P.2d 1316 (OH. Cr. 1975). Ketchel. In re, 68 Cal.2d 397, 66 Cal.Rptr. 881, 438 P.2d 625 (1968). Leyra w . Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954). LindPay u. Lipson, 367 Mich. 1, 116 N.W.2d 60 (1962). Miranda v . Arizona, 384 U.S.436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Ncrr York T i m m (by-line: Douglas Robinson), March 25, 1969. p. 1. col. 6: p. 29, col. 2.


HYPNOSIS IN DEFENSE O F CRIMINAL CASES

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ORNE,M.T. Affidavit of Amicus Curiae, Quaglino u. California, U.S. Sup. Ct. No. 77-1288. cert. den. 11/27/78. In E. Margolin (Chm.), 16th annual defending criminal cases: The rapidly changing practice of criminal law. Vol. 2. New York: Practising Law Institute, 1978. Pp. 831-857. People u . Btrsch, 56 Cal.2d 868, 16 Cal.Rptr.2d 898, 366, P.2d 314 (1961). People u. Ebanks, 117 Cal. 652, 49 P. 1049 (1897). People u . Edney, 39 N.Y.2d 620, 385 N.Y S.2d 23, 350 N.E.2d 400 (1976). People u. Francobandera. 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292 (1974). People u. Hiser, 267 Cal.App.2d 47. 72 Cal.Rptr. 906, 41 A.L.R.3d 1353 (1968). People v . Leyra, 302 N.Y. 353, 98 N.E.2d 553 (1951). People 0. Modesto, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33 (1963). People u. Shelly, Ind. No. 1340/73 (Sup. Ct., Bronx Co., N.Y.). People u . Thomas, Crim. No. 3274 (Cal. Ct. App., 4th App. Dist. January 9, 1969). Quaglino u. California, cert. den.,-U.S.--, 99 S.Ct. 212; pet. rehearing den. ,-U.S.--, 99 S.Ct. 599 (1978). Regina u . P i t t , 66 W.W.R. 400, 68 D.L.R.2d 513 (1967). Rex u. Booher, 4 D.L.R. 795 (1928). San Francisco 0. Superior Court, 37 Cal.2d 227 (1951). State u . Harris, 241 Or. 224, 405 P.2d 492 (1965). State u . lorgensen, 8 0r.A. 1, 492 P.2d 312 (1971). State u. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957). State u . McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). State u. Nebb, No. 39,540 (Ohio Corn. PI., Franklin Co., May 28, 1962). State u . Ptrsch, 77 N.D. 860, 46 N.W.2d 508 (1951). State ex re1 Sheppard u. Koblentz, 174 Ohio St. 120, 187 N.E.2d 40 (1962). cert. den.. 373 U.S. 911, 83 S.Ct. 1301 (1963). State u . Sinnott, 43 N.J. Super. 1, 127 A.2d 424 (1956). State v . Turner, 81 N.M. 450, 468 P.2d 421 (1970). cert. den., 81 N . M . 506, 469 P.2d 151 (1970). State u. White, NO. J-3665 (Cir. Ct., Branch 10, Milwaukee Co., Wisc. March 27, 1979; unrep.). United States u. Adorns et al.. 581 F.2d 193 (9th Cir. 1978), cert. den.. -U.S.--, 99 S.Ct. 621 (1978). United States u. Aluarez. 519 F.2d 1036 (3d Cir. 1975). United States u . Miller, 411 F.2d 825 (2d Cir. 1969). United States u. Narciso et al., 446 F.Supp. 252 (E.D.Mich. 1977). Wilson u. United States, 391 F.2d 460 (D.C. Cir. 1968). WORTHINCTON, T. S. The use in court of hypnotically enhanced testimony. I n t . 1. c h i . exp. Hypnosis, 1979, 27. 402-416.

Hypnoseanwendung bei der Verteidigung von Kriminalfiillen Kenneth E. Warner Abstrakt: Die 4 hauptsachlichen Stadien in Kriminalverfahren werden hier im Hinblick auf die Bestimmung der Rolle, die Hypnose im amerikanischen Justizsystem spielen kann und spielt, diskutiert. Im prdiminaren Untersuchungsstadium stellt Hypnose hauptsachlich eine Technik dar, durch die Beweismaterial entdeckt werden kann, und ihre Anwendung ist zum grossen Teil nicht durch die vom Cericht auferlegten Beschrankungen behindert. Jedoch wird in dem Stadium des Vorstrafverfahrens das hyp-


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noverbundene Zeugnis auf moglichen, darin enthaltenen Missbrauch durchgesiebt. Im Prozessstadium ist hypnoverbundenes Zeugnis gewahnlich zulassig als eine Basis, der Meinung iiber die geistige Kondition Ausdruck zu geben, obgleich keine Meinung in bezug auf die Wahrheit der Aussagen, die unter Hypnose gemacht wurden, ausgedriickt werden darf. In Fallen, wo die Aussage eines Zeugen durch vorherige Hypnoseinduktion verstarkt worden war, ist es gewohnlich der Jury uberlassen, die Frage des Ausmasses der stattgefundenen Kontamination zu beantworten. In Fallen einer flagranten Suggestion wkhrend des Induktionsprozesses wird solch ein Aussagematerial jedoch nicht als Beweis zugelassen. Celehrte Gemeinschaften auf dem Gebiet der Hypnose miissen die Verantwortung auf sich nehmen, die Justiz iiber die Grenzen der Hypnose als eine Technik, Beweismaterial zu erhalten, aufzukllren.

L'utilisation de I'hypnose pour la defense dans les causes criminelles Kenneth E. Warner Resume: L'auteur discute les 4 principaux stades de la p r k d u r e criminelle en essayant de pr6ciser le r d e que I'hypnose peut jouer et joue de fait dans le systeme judiciaire amhicain. Au stade de I'enqu2te pkliminaire, I'hypnose constitue surtout une technique visant B dkcouvrir des preuves, et son utilisation est largement 21 I'abri des restrictions impokes par la Cour. Cependant, au stade p&&dant le pro&, les tkmoignages relies a I'hypnose sont soigneusernent examines, afin de deceler tout abus possible associe a leur obtention. Au stade du pro&, les timoignages relies a I'hypnose sont generalement admis pour fonder une opinion sur I'Ctat mental d'un t h o i n , quoique aucune opinion ne peut btre emise concernant la veracitk de ce qui a ete dit sous hypnose. Quand le temoignage d u n temoin s'est enrichi sous I'effet d'une induction hypnotique, le jury doit generalement se demander jusqu'a quel point tel timoignage a pu ktre dCformC. Dans les cas de suggestions flagrantes pendant le processus d'induction, le temoignage ne peut pas btre amen6 en preuve. Les sociites savantes du domaine de I'hypnose doivent porter la responsabilite de renseigner le systeme judieiaire sur les limites de I'hypnose mmme technique probante en matibre finale.

La utilization de la hipnosis para la defensa en causas criminales Kenneth E. Warner Resumen: El autor discute 10s cuatros niveles principales del procedimiento criminal tratando de precisar el rol de la hipnosis en el sistema judicial de 10s Estados Unidos. A l nivel de la encuesta preliminaria la hipnosis constituye sohre todo una tecnica para descubrir las pruebas y, a este nivel, no hay muchas limitaciones impuestas para el tribunal. Al nivel precedente el proceso, las deposiciones hajo hipnosis son eaaminadas con precaucion para descubrir eventuales ahusos en ohtenerlas. A l nivel del proceso, estas deposiciones bajo hipnosis se admiten para obtenir una opinion sohre el estado mental dcl testigo, y es claro que no se puedcn admitir opiniones sobre la veracidad de dichas deposiciones. Cuando la deposicion se ha ohtenido bajo hipnosis, el jurado tiene que preguntarsc si esta deposicion ha subido influencias ulteriores. En caso de sugestiones flagrantes durante la induccion hipnotica, no se puede presentar esta deposicion como prueba. Las organizaciones profesionales tienen que enseiiar al sistema judicial las limitaciones de la hipnosis como tecnica de prueha en materia penal.

The Plea of Insanity in Criminal Cases.

The Plea of Insanity in Criminal Cases.

The use of hypnosis in anesthesiology.

Hypnosis with a criminal defendant and a crime witness: two recent related cases.

Mental Responsibility and the Diagnosis of Insanity in Criminal Cases.

The use of hypnosis in the treatment of bulimia nervosa.

Identification of suspects in criminal cases.

Defending the mentally ill: the insanity defense and the role of forensic hypnosis.

The use of hypnosis in police investigation: a preliminary communication.

The use and misuse of hypnosis in court.

The use of neuroscientific evidence in Canadian criminal proceedings.

Nosologic objections to the criminal defense of pathological intoxication: what do the doubters doubt?

The use of hypnosis and biofeedback procedures for essential hypertension.

Criminal use of anaesthetic drugs.

Notes on marijuana identification in criminal cases.

The use of self-hypnosis by children with cancer.

Use of hypnosis before and during angioplasty.

Acupuncture and hypnosis compared: fifty-eight cases.

The Legal Doctrine of Responsibility in Cases of Insanity, Connected with Alleged Criminal Acts.

Anger and the use of defense mechanisms in college students.

The use of genetic markers to estimate relationships between dogs in the course of criminal investigations.

The New APA Definition of Hypnosis: Spontaneous Hypnosis MIA.

Hypnosis in the HNS.

Experimental hypnosis in a clinical setting: a report of the atypical use of hypnosis in the treatment of a disturbed adolescent.