Court OKs Some Testimony on Hypnosis Recollections

A sharply divided Supreme Court, in a decision that likely will increase the use of hypnosis in court cases, ruled Monday that a criminal defendant whose memory was hypnotically “refreshed” may testify about her enhanced recollections even if their validity is questionable.

Without clearly finding whether hypnosis helps someone recall fact or fantasy, the high court said in a 5-4 vote that a defendant’s right to testify may not be abridged.

“There is no justification today for a rule that denies any accused the opportunity to offer his own testimony,” Justice Harry A. Blackmun wrote for the court.

The ruling granted a new trial to an Arkansas woman who was convicted of fatally shooting her husband but who was not permitted to tell the jury that she recalled during a hypnosis session that her finger was not on the trigger.

However, the beneficiaries of the decision may include prosecutors and police, who on occasion want to use hypnosis to help witnesses and victims recall details of a crime.

Law enforcement officials in California said that, even though the ruling addresses only defendants, it opens the door on the legal issue and that they will try to take advantage of it.

“I think this will buttress our position” that previously hypnotized witnesses and crime victims should be allowed to testify in court, said Steve White, chief assistant attorney general in California. “If (hypnosis) is sufficiently reliable to let a defendant’s testimony be admitted in court, the same criteria would presumbly apply to crime victims and witnesses.”

Blackmun’s opinion did not say how the court would rule if the witness in question were a crime victim, rather than a defendant.

“We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool,” Blackmun said, a comment that virtually ensures a further court test.

Since 1982, California police have been using hypnosis only for witnesses whose testimony will not be necessary in court.

‘Inherently Unreliable’

That year, the California Supreme Court ruled that hypnotically refreshed accounts are “inherently unreliable” and may not be used in testimony. Although some experts had contended that hypnosis can help a person remember details of an incident that might be obscured by shock or confusion, others had asserted that some subjects recount self-serving tales that they come to believe are true.

At the time, investigators in the Los Angeles Police Department said they were using hypnosis in about 100 cases a year.

The state court later issued an unusual clarification, declaring that the ruling on hypnosis did not apply to defendants. However, courts or legislatures in 14 other states, including Arkansas, took action to prohibit testimony on information obtained through hypnosis, in most cases including defendants in the ban.

White, who heads the criminal division in the California Department of Justice, said that he hopes the high court opinion will encourage the state Supreme Court to allow testimony from hypnotized victims, at least in special cases.

Clint Miller, an assistant attorney general in Arkansas, foresaw another effect of the ruling.

“It will be a great windfall for expert witnesses,” Miller said, because prosecutors and defense lawyers will try to use experts who accept or discount the technique when witnesses who have been hypnotized are called to testify.

The Arkansas case arose in 1982, when Vicki Rock and her husband got into a fight in their kitchen. When she was pushed back against a table, she picked up a gun and shot him. Mrs. Rock told police officers that the shooting was an accident but she could not remember exactly what happened.

In a hypnosis session arranged by her lawyer, she recalled the struggle vividly, including the detail that her finger was not on the trigger of the gun. But a trial judge refused to let her testify about the recollections that emerged during hypnosis. She was convicted of manslaughter and sentenced to 10 years in prison.

Last year, the Arkansas Supreme Court upheld her conviction and issued a blanket ruling that hypnotically refreshed testimony may not be used in the state’s courts.

“In the absence of clear evidence by the state repudiating the validity of all posthypnosis recollections,” Blackmun wrote, the state’s rigid rule “infringes impermissibly on the right of a defendant to testify on his or her own behalf.”

Dissenting in the case (Rock vs. Arkansas, 86-130) were Chief Justice William H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and Antonin Scalia. Rehnquist said that hypnotically enhanced testimony is “inherently unreliable” and therefore should not be allowed.

Death Sentence Rulings

In other actions, the court:

--Rejected the last remaining mandatory death sentence law. The justices said that a Nevada murderer who killed a fellow inmate when serving a life term may not be sentenced to die under a law mandating an automatic death penalty for such crimes. By a 6-3 vote, the justices said that all murderers must have a chance to present “mitigating evidence.” However, the ruling (Sumner vs. Shuman, 86-246) affects only three Death Row inmates nationwide who were sentenced under such laws. All mandatory death laws, including Nevada’s, have been repealed in recent years.

--Reinstated a death sentence for John Harvey Adamson, convicted of killing Arizona Republic reporter Don Bolles in 1976 (Arizona vs. Adamson, 86-6). On a 5-4 vote, the justices said it was not “double jeopardy” to resentence Adamson to death after he reneged on a plea bargain that would have gotten him a 20-year prison term.