Justices to Rule on Use of Hypnosis : Refreshing the Memory of a Witness Has Troubled Courts

The Supreme Court agreed Monday to decide whether hypnosis may be used to refresh the memory of a witness to a crime, an issue that has troubled courts in California and elsewhere for the last decade.

In 1982, the California Supreme Court outlawed the use of hypnosis, concluding that a sleep-like trance can induce “the formation of pseudo-memories,” particularly in the minds of crime victims. The state Legislature passed a narrow law two years later that allowed some use of hypnosis, but only in strictly limited cases.

The Arkansas Supreme Court ruled earlier this year that hypnotically refreshed testimony is “inherently unreliable,” a conclusion that the high court agreed to review.

Recalls Shooting

The case now before the justices began in 1983, when Frank Rock was shot and killed during a dispute with his wife, Vicki. She was charged with manslaughter, but before her trial and without consulting a judge, she underwent hypnosis at her lawyer’s suggestion. In that session, she recalled that the gun had gone off accidentally as her husband tried to prevent her from leaving the apartment.

The trial judge ruled, however, that these recalled details could not be presented to the jury. Mrs. Rock was found guilty and was given the maximum sentence of 10 years in prison and a $10,000 fine in the case (Rock vs. Arkansas, 86-130).

In upholding this ruling, the state Supreme Court said that experts had raised substantial doubts about the reliability of any witness who had undergone hypnosis.

Called Contaminated

In a law review article cited by the court, one of the experts, Dr. Bernard Diamond, a professor of clinical psychiatry at UC Berkeley, wrote: “I believe that once a potential witness has been hypnotized . . . his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions . . . (and) then cannot differentiate between a true recollection and fantasy.”

But Steve White, chief assistant attorney general for California, said in a telephone interview that some witnesses have accurately recalled key details of a crime after hypnosis, such as the license plate number of a fleeing suspect.

“I don’t think you can say it is entirely unreliable,” White said, adding that he would welcome a high court ruling that would again permit wide police use of hypnosis. “You are only talking about maybe one case in 1,000, but when you need to use it, you hate to have to say ‘no’ to the police.”

The Los Angeles Police Department said in 1982 that it had used hypnosis in 700 cases in the six years before the practice was banned by the state high court.

Strict Guidelines

The Legislature in 1984 tried to restore the use of hypnotically induced testimony, passing a bill that permitted limited use of hypnotism, but only under strict guidelines in investigations.

Under that legislation, judges must decide after hearings whether to allow such witnesses to testify. However, White said, the measure sets so many precise requirements “that most police departments have decided it’s not worth the trouble.”

States such as New York, Arizona, Colorado, Minnesota and Massachusetts do not permit the use of hypnotically refreshed testimony, while others such as Florida, Missouri and North Carolina do. Still others allow it only under special conditions.

In other cases, the high court:

--Agreed to decide whether Nevada may execute a prisoner under a mandatory death law. In 1976, the Supreme Court rejected several state laws with broad mandatory death clauses, but Nevada’s is quite narrow. It applies only to prisoners serving life sentences for murder who commit another murder. In this case, Raymond Shuman, a convicted killer, “doused a fellow inmate with lighter fluid and ignited” him. But an appeals court threw out his death sentence (Sumner vs. Shuman, 86-246).

--Let stand a Michigan court ruling that said police may not conduct a pat-down search of a drunken driver without “probable cause” to believe that the person is concealing a weapon or an illegal substance. Police had found a gun on a person stopped for erratic driving, but the court had thrown out the evidence (Michigan vs. Parham, 86-22).

--Agreed to decide whether U.S. officials may strip of his American citizenship a New Jersey man accused of helping the Nazis kill 2,000 Jews in Lithuania in 1941. The government contends that Juozas Kungys lied to American officials in 1948 to gain a visa to emigrate here, but his attorneys say he is being falsely accused through videotaped testimony taken in the Soviet Union (Kungys vs. United States, 86-228).