Supreme Court to Rule on Validity of Hypnotized Witnesses

Vicki Rock remembers how the fight started. When she wanted to go out for a hamburger on a hot July Arkansas night, her husband blocked the door and bounced her off a wall. She also remembers picking up his loaded gun lying next to a beer can on the kitchen table.

What happened next, she told police, was a blank. The next thing she remembered was calling for an ambulance as her husband lay dying on the floor, a bullet wound in his chest.

To refresh her memory, her lawyer had her hypnotized. Relaxed, her mind floated back to the struggle.

‘Remembered Clearly’

“She remembers her husband grabbed her from behind,” said her current attorney, James Luffman. “They wrestled and the gun went off. And she also remembered clearly that her finger was outside the trigger guard.”

Vicki Rock’s jury never heard this story. The judge, suspicious of hypnosis, did not permit her to testify about what she recalled while hypnotized. She was convicted of manslaughter and sentenced to 10 years in prison.

So on Monday, Luffman will try to convince the Supreme Court that Rock’s hypnotic recollections are valid. It will be the court’s first opportunity to rule on the validity of evidence obtained from hypnotized witnesses, an issue that has divided scientific opinion.

Does the sleep-like trance of hypnosis allow a person to relive a hazy moment from the past, accurately recalling details of a crime scene that have been blocked from the waking memory? Or does it allow for a vivid account of dreams and visions, many of which are entirely false and self-serving?

The California Supreme Court in March, 1982, declared that hypnosis was “inherently unreliable.” It barred witnesses who had been hypnotized from testifying in court on any of their recollections, whether under hypnosis or not.

Didn’t Apply to Defendants

After that landmark ruling, the state court issued an unusual clarification saying that its broad ban did not apply to defendants. That outraged prosecutors and police, who pointed out that rape victims, once hypnotized, may no longer testify in court, while accused rapists may testify even if they have previously been hypnotized.

At latest count, 14 other states have also barred or limited the testimony of witnesses who have been hypnotized. When Rock’s case reached the Arkansas Supreme Court, the court upheld the trial judge’s decision to limit her testimony to only those recollections that came before her hypnosis.

Both the American Medical Assn. and the American Psychological Assn., which earlier endorsed hypnosis as a therapeutic tool, in recent years have passed resolutions opposing its use in court.

Critics of hypnosis say that court records from the last decade abound with examples of startling testimony being accepted as true by prosecutors and juries, even though it contradicted other concrete evidence or common sense:

--Police in a small North Carolina town were baffled in 1983 by the brutal beating and murder of an 88-year-old woman in a field behind her house. Clearly visible were her footprints and those of one pair of tennis shoes walking from the house to the field. Nevertheless, a semi-retarded young man who lived nearby recounted under hypnosis that he had seen four local men committing the murder in the dark of the night. All four were convicted based entirely on this testimony. The North Carolina Supreme Court set aside the verdicts.

Testimony Discredited

--In an Illinois case, a teen-ager saw two men running from the scene of a killing more than 250 feet away but could not identify their faces from mug shots. He was hypnotized by the police, who asked him to “zoom in” to the scene, and he clearly described two faces. But as the defense pointed out, no human eye at night and at that distance could have seen what he claimed to have seen.

--In North Dakota, a teen-ager and his mother who plunged over a hillside in a Chevrolet sued General Motors for damages. The young driver told police repeatedly that he had not touched the car’s brakes. But after his lawyer had him hypnotized and he was asked 32 times what he was doing with his feet, he recalled pumping the brakes as the car picked up speed. That was enough to persuade a jury to award him damages, but an appeals court overturned the award.

UC Berkeley psychiatrist Bernard Diamond, in an influential law review article, said that hypnotized persons, “being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated” by others, including the police, a lawyer or a hypnotist.

Risk of Contamination

“After hypnosis, the subject cannot differentiate between a true recollection and a fantasy or suggested detail,” said Diamond, whose conclusions are cited in most court rulings on the subject. The risk that hypnosis will “contaminate” the memory of a witness is so great, he said, that the practice is “tantamount to the destruction or fabrication of evidence.”

It is the witness’s convincing recounting of what may be fantasy that makes hypnotism so dangerous in court, said University of Pennsylvania psychiatrist Martin Orne, whose work is also cited frequently by courts.

A previously hypnotized witness “seems to relive the moment right before his eyes,” Orne said in an interview. “It is very compelling to an observer. Most people, including jurors, tend to believe (a hypnotically induced account) is more reliable than ordinary evidence. In fact, the reverse is true.”

Great Believability

A hypnotized person “can read tomorrow’s stock page to you,” Orne added. “The only problem is, you’d go broke if you believed it.”

Proponents of hypnosis concede that it should be used with controls, such as taping the actual session. Juries, they say, should be permitted to judge whether the testimony is truthful.

The nation’s most prominent advocate of hypnosis in police work is Martin Reiser, director of behavioral sciences services for the Los Angeles Police Department. Hypnosis, he said, “is not a truth detection technique. It is just another variation on interviewing.”

Until the 1982 state Supreme Court ruling, Reiser applied hypnosis in about 100 cases a year. Now, he said, police resort to hypnosis only when investigations would have to be closed in the absence of new evidence.

Chowchilla Case Cited

And hypnosis, according to police and prosecutors, can help witnesses to crimes recall vital information. They often cite the 1976 school bus kidnaping in Chowchilla, Calif.

Hypnotized, the bus driver was able to recall two digits of a license number, and that led police to the kidnapers. Under the California rule now in place, police might have declined to have the driver hypnotized because that would have barred him from testifying in any subsequent court case.

Reiser said that hypnosis is most valuable when a victim has been traumatized by a horrible crime and blocked out the memory.

“A typical example is a woman who has been raped,” Reiser said. “She may remember very little about the incident, even though she has seen her attacker.” Hypnosis, he said, “allows her to relax and bring back painful information.”

Reiser insisted that the examples often cited to discredit hypnosis actually say more about the hypnotized subjects than about hypnosis. Self-serving stories recounted by defendants under hypnosis should be no surprise, he said.

‘Motivation Problem’

“Any suspect will try to come up with an alibi,” Reiser said. “This is a motivation problem, not a hypnosis problem.”

In his studies for the LAPD, 75% of the hypnotized persons “provide additional information of investigative value,” Reiser said. Where the testimony “can be checked out, 80% turns out to be accurate or to have some verifiability.”

Citing Reiser’s work, California Atty. Gen. John Van de Kamp filed a friend-of-the-court brief in the Arkansas case urging the Supreme Court to permit testimony of persons who have been hypnotized under carefully controlled circumstances.

Short of that, Van de Kamp asked that the court lay down a guideline that would prohibit testimony by all previously hypnotized persons, defendants as well as witnesses for the prosecution. That would overturn the exception for defendants that the California Supreme Court carved out to its prohibition against testimony by previously hypnotized witnesses.

The 1982 California Supreme Court ruling, Van de Kamp said, “excoriates the unreliability of investigative hypnosis and then allows criminal defendants to use the technique and to offer its product, no matter how unreliable, as evidence in court.”

Flat Prohibition Assailed

But Rock’s attorney says that a flat prohibition on testimony of all previously hypnotized persons would deny his client her right to testify in her own defense.

The 33-year-old Rock is out on bail pending her appeal to the Supreme Court.

“She felt this was an accidental shooting. The jury should have had the opportunity to hear her full testimony,” Luffman said.

A ruling in the case (Rock vs. Arkansas, 86-130) is expected by July.