| Eyewitness testimony is far from being full-proof. | | | | stage operators and fringe medical and psychology |
| Despite the assumption that witnesses under oath are | | | | practitioners. When legitimate psychologists began |
| honest, sincere, and credible and that they claim that | | | | performing forensic hypnosis interviews, courts around |
| their memories are clear and accurate, there may be | | | | the nation found it convenient to throw hypnotically |
| sufficient discrepancies. Witnesses may remember | | | | enhanced testimony citing the Frye Test, which is used |
| accurately, but misremember what they originally | | | | to prevent the admissibility of polygraph test results. |
| perceived. | | | | The Frye test was used to lump hypnosis as "new |
| Any two witnesses to the same event will | | | | and unproven technologies." The question of |
| undoubtedly and unfailingly observe it differently. What | | | | confabulations was not directly ruled upon. |
| is subjectively true to a witness may be objectively | | | | Another factor was that the clinical psychologists |
| false due to faulty or defective perception. Perception | | | | were ruining hypnotic interviews because they had a |
| is not a fixed or static ability that all people have to the | | | | difficulty differentiating between therapy and a forensic |
| same degree. It is highly variable and fluid. | | | | interrogation. There were several cases in a row in |
| As a forensic hypnotist, one of the first things that I | | | | Alabama, for instance, where such testimonies were |
| must ask a witness or victim is the condition of their | | | | thrown out because the psychologist used techniques |
| vision (i.e., farsightedness, nearsightedness, | | | | that led the courts to feel like they were too |
| colorblindness) or whether that are taking medication. I | | | | suggestible. Therefore, once experienced police |
| must also ask them about visual conditions such as | | | | investigators began being trained as forensic |
| light and darkness, fog or smoke, etc. | | | | hypnotists, the trend towards accepting such |
| Another set of factors involve the fact that witnesses | | | | testimony changed drastically. (The rivalry between |
| often do not see what they thought that they see. | | | | clinical psychologists and forensic hypnotists still exists. |
| This issue of visual attentiveness is a factor that | | | | One charge the psychologists make is that forensic |
| magicians use to create illusions due to misdirected | | | | hypnotists are usually ill-equipped to handle abreactions. |
| attention. Witnesses are not immune to this problem. | | | | To the contrary, the truth is that most of the hypnotists |
| Speaking of illusions, witnesses generally tend to judge | | | | are police officers who routinely handle more |
| the physical dimensions of objects in relation to | | | | abreactions in a year than most psychologists do in a |
| surroundings. For instance, the designers of Walt | | | | whole career. Nevertheless, I attribute much of |
| Disney World in Orlando, used this concept to give the | | | | psychologists pseudo-opinions against forensic |
| castle the appearance of being taller than it is. (The | | | | hypnotist as due more to this professional rivalry than |
| City of Orlando requires all buildings over 250 feet to | | | | to scientifically derived opinions.) |
| have flashing red lights. To Disney designers, this was | | | | Note that even in Alabama while rejecting hypnotically |
| unacceptable. So they built the castle just shy of the | | | | enhanced memories for years, courts recognized the |
| limit and used comparative illusions to make it appear | | | | use of hypnosis as an investigative tool. |
| to be taller.) | | | | Still until 1987 there was no consistency among state |
| Witnesses also misjudge the speed of a moving | | | | courts nationwide. Courts normally used the Frye Test |
| object based upon the distance from the observer. | | | | to avoid accepting such testimony. That year the U.S. |
| All of these factors call into question the accuracy of | | | | Supreme Court ruled in the Rock case that the |
| a witness's perception. This means that perception | | | | Arkansas Supreme Court was wrong for excluding |
| must be considered before discussing the factor of | | | | hypnotically refreshed testimony as their action |
| memory. | | | | "infringed on criminal defendant's right to testify on her |
| It is very disconcerting to trial lawyers that memories | | | | own behalf." Specifically, they cited that such testimony |
| will change over time. The statement made to | | | | has the support of the Fourteenth Amendment, the |
| investigators (to include a forensic hypnosis interview) | | | | Sixth Amendment, and the Fifth Amendment. In the |
| near the time of an incident, normally has substantial | | | | majority opinion, Justice Blackmon stated the Arkansas |
| changes by the time that a deposition or trial occurs. | | | | per se ruling against such testimony was not valid. |
| This is especially true when the witness is confronted | | | | Furthermore, he stated that the interview was |
| with their original signed statement. | | | | conducted without undue suggestibility and that the |
| That there are sometimes drastic changes in witness | | | | testimony had been corroborated by other evidence. |
| statements cannot be denied. For instance, in 1974, a | | | | Generally, the Rock ruling and subsequent case law |
| man in California was erroneously convicted on the | | | | states that hypnosis interviews do not necessarily |
| basis of a testimony of seven eye witnesses who | | | | create a greater risk of confabulations than other |
| identified him as a bank robber. In another case in 1973, | | | | types of interviews and interrogation. |
| seventeen witnesses identified a man who has | | | | Currently every state in the U.S. accepts hypnotically |
| erroneously charged with shooting a police officer. It | | | | refreshed memories provided that the interview is |
| turned out that the man was no where in the vicinity of | | | | conducted by a trained investigator, who is careful to |
| the shooting at that time.) | | | | avoid any techniques which may create a condition of |
| Experimental studies have also demonstrated the | | | | suggestibility. Such interviews must be video recorded, |
| fallibility of the eyewitness. A simulated purse-snatching | | | | "head to foot" and "hello to good bye." Rules are |
| was staged before sixty-four witnesses. Forty-eight of | | | | clearly laid out in post Rock case law and even in a |
| the witnesses attempted to identify the suspect from | | | | Texas statute. Generally, the role of the psychologist |
| two videotaped lineups, one with and one without the | | | | has been relegated to being the "expert witness" on |
| suspect. Only 13.5 percent made a positive | | | | the opposing side. This "expert" must go up against |
| identification while the remainder either chose the | | | | corroborating evidence to the contrary. According to |
| wrong man, made no identification, or impeached | | | | Dr. Martin Reiser of the LAPD Behavior Science |
| themselves by picking two men. | | | | Services unit, a study hypnotically refreshed memories |
| It is obvious that something drastic happens to | | | | showed that 80% of the cases in which this technique |
| memories after the original event, unless of course, it | | | | was used provided new information which led to either |
| was originally misperceived. It can be inferred that | | | | a conviction or opened up substantially new avenues |
| memory may change as a result of psychodynamic | | | | for investigation. |
| defense mechanisms within one's own personality, | | | | Of course, I take great exception to David Myers |
| faulty reconstruction, or interference and | | | | psychology textbook, which states that forensic |
| mis-associations. Two additional factors are imagination | | | | hypnosis is out of favor. Based upon the information |
| and suggestion. | | | | that I've presented here (and extensive research that I |
| Retention and recall decreases in direct proportion to | | | | have conducted) Myers is totally incorrect in his |
| time interval. The greater the time interval, the greater | | | | statements. Last week I had breakfast with Marx |
| the possibility there is of influence from the imagination. | | | | Howell while I was at a conference in Newport Beach, |
| Also, a person may be influenced by what they | | | | CA. A retired Texas Ranger, a student of Dr. Reiser, |
| thought they saw. Then, explicit or implicit suggestion | | | | and the head investigator handling the Branch Davidian |
| may lead the witness to think they witnessed | | | | massacre in Waco, he is the leading authority in this |
| something that was not seen. And, there is a distinct | | | | field. He regularly conducts hypnosis interviews in the |
| possibility that a person can have a false memory of | | | | U.S., Asia, and Europe. I told him about Myers' |
| an event. This hallucinated memory is called a | | | | statements. Based upon the numerous convictions as |
| confabulation. | | | | a result of his work in forensic hypnosis (and that of |
| Until several years ago courts struggled with the | | | | his students - which includes FBI agents), we both |
| concept of suggestibility as a key factor in questioning | | | | share the opinion about the text's inaccuracy. |
| the validity of hypnotically refreshed memories. Many | | | | However, neither one of us were surprised. As I |
| psychologists (such as Drs. Diamond and Ohrne) have | | | | stated above, there are several psychologists that |
| testified as expert witnesses disputing the validity of | | | | dispute the validity of forensic hypnosis. Their only |
| forensic hypnosis. Indeed, even today there are | | | | reasoning is based upon the same concept that calls |
| several respected clinical psychologists who have | | | | into question any and all eye witness testimony. |
| added their voices to the skeptics. Unfortunately, some | | | | (Memories enhanced by hypnosis is subject to all of |
| of my classmates have seen some of these articles | | | | the problems which I listed in the beginning of this reply. |
| and come to the unfounded opinion that hypnotically | | | | Hypnosis merely aids in recall without enhancing the |
| refreshed memories are inaccurate (as compared to | | | | accuracy.) Simply their unfounded opinions stand in the |
| other memories) and therefore inadmissible in the | | | | face of case law (including the U.S. Supreme Court |
| courts. Unfortunately, this is far from being true. | | | | rulings), the Texas statute, and a solid record of |
| After the 1950's there was a trend for courts to reject | | | | convictions. There is no valid research conducted by |
| hypnotically refreshed memories. Basically they first | | | | psychologists that specifically dispute forensic hypnosis. |
| misunderstood hypnosis. Until the late 1950's when the | | | | (By the way, I was trained by Investigator Howell and |
| American Medical Association and the American | | | | Dr. Jerome Beacham of the Detroit Police Department. |
| Psychological Association, hypnosis was the domain of | | | | |