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The use of hypnosis and extensive news media
coverage of the kidnapping of 26 school children and a bus driver in Chowchilla,
California, probably was one of the catalysts that stimulated the use of
hypnosis in criminal investigations. On July 25, 1976, three persons kidnapped
26 school children and the bus driver. All occupants were buried alive
underground. After the bus driver and children dug their way out of the
makeshift grave and contacted law enforcement authorities, it was decided that
hypnosis would be used for memory enhancement to develop investigative leads.
Dr. William S. Kroger, a Clinical Professor of Anesthesiology, University of
California, Los Angeles School of Medicine; Teaching Consultant, Department of
Psychiatry, Cedars-Sinai Medical Center, Los Angeles; Consulting Psychiatrist,
Department of Neurology, City of Hope Medical Center, Duarte, California; and a
leading authority on hypnosis conducted the session on Frank Edward Ray, the 55
year old bus driver, and retrieved all the digits except one on the license
plate of the vehicle used in the kidnapping. As a result of the information
developed through the use of hypnosis and investigation of leads, three suspects
were arrested and convicted of kidnapping the students and bus driver.
On September 13, 1979, Leo E. Gossett,
Assistant Director of the Texas Department of Public Safety, by memorandum,
established a seven-member committee responsible for studying available data
concerning law enforcement uses of hypnosis; developing recommended guidelines
and criteria to be used in the selection and training of DPS personnel in the
use of hypnosis; and developing recommended guidelines relative to such use.
The Texas Department of Public Safety (DPS)
hypnosis program was implemented in 1980 after the committee reviewed numerous
articles, training material, books on hypnosis; and met or consulted with
numerous experts in the field. The committee then developed self-imposed
guidelines and selected a 50-hour training course. The training course consisted
of various lectures, demonstrations, and applications as related to the history
of hypnosis; basic psychodynamics; emotional development; the nature, theories,
and laws of hypnosis; principles of suggestion, criminological versus
psychotherapeutic use of hypnosis; myths, misconceptions, indications, and
deepening techniques; and information eliciting techniques; just to name a few.
Personnel selected to receive this training were veteran law enforcement
officers with many years of experience and numerous hours of classroom
instructions in criminal investigation and interviewing techniques.
The initial basic training for our
investigators was conducted in the DPS Academy by the Therapeutic and Forensic
Hypnosis Institute of Houston, Texas, after an evaluation of the availability
and adequacy of various training courses.
Some of our personnel had received basic and
advanced training at the North Texas Regional Police Academy in Arlington, Texas
and at the Law Enforcement Hypnosis Institute in Los Angeles, California. We
subsequently developed and coordinated two in-service hypnosis schools in the
DPS Academy, emphasizing practice session testifying in court, and advanced
techniques to enhance the skill and confidence of our investigators.
From July 1, 1980 through December 31, 1990,
1,187 hypnosis sessions were conducted by DPS investigators resulting in
additional information reported in 876 sessions (73.80%) and no additional
information in 311 sessions (26.20%). The additional information gained in 876
of the hypnosis interviews varied from minimal information in some cases to
additional information which led to the identification and arrest of the
perpetrator. The cases in which hypnosis was used included a wide variety of
offenses such as hit and run traffic fatalities, rapes, assaults, robberies,
kidnappings, and murders.
The DPS stresses that hypnosis should be used
as an aid to investigations, not a substitute. Investigators have been cautioned
to assure that standard investigative methods have been fully utilized before
hypnosis is used.
The Texas appellate courts have upheld
convictions where hypnosis was used with either a crime victim or witness for
the purpose of memory enhancement. See, e.g., Vester v. State, 713 S.W.
2d 920 (TEX. Cr. App. 1986); Goudette v. State. 713 S.W. 2d 206 (TEX.
App. –Tyler 1986); Walters v. State. 680 S.W. 2d 60 (TEX. APP—Amarillo
1984); Zani v. State. 758 S.W.2d 233 (Tex. Cr. App. 1988); Laird v.
State.650 S.W. 2d 198 (Tex. App—Fort Worth1983).
Many police officers, prosecutors and
civilians have limited understanding about what occurs during an investigative
hypnosis interview to refresh recall of a witness or victim of a crime event. It
is hoped that the profile and brief explanations of what occurs during an
investigative hypnosis interview will provide a better understanding of the
components of this type of interview.
THE PROFILE CONSISTS OF:
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Pre-hypnosis Interview
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Induction
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Information Eliciting
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De-Hypnotizing
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Post-Hypnosis Interview
(Refer to Exhibit #1 for Details)
PRE-HYPNOSIS INTERVIEW
The pre-hypnosis interview consists of very
important components which may negatively affect the outcome of the session if
not handled properly. The police hypnotist is NOT a member of the
investigative team assigned to the case and should have only limited knowledge
of the facts, i.e., if the person to be hypnotized is a witness or victim, as
well as the time, date, location, and type of crime. There should be enough
information to set the scene for the hypnotic review during information
eliciting.
The investigator may be present but will not
participate in the hypnosis interview of the witness.
Introduction to Witness/Victim
The first step is the introduction of the
witness/victim to the police hypnotist at which time either an audio or video
recording must be operating to document this initial contact. It is imperative
that the entire contact between the police hypnotist and the witness/victim be
audio or video recorded. In addition, it may be desirable for the investigating
officer to make his/her own recording of the interview. The recording of the
entire contact will provide the prosecutors, judges, defense attorneys, and
jurors an accurate record of the interview; and to show that acceptable
techniques were utilized and the interview was not impermissibly suggestive. If
the police hypnotist is a uniformed officer, it may be desirable for him/her to
be dressed in civilian clothes. Almost any location is sufficient as long as it
is quiet, reasonably comfortable, and nonthreatening to the individual.
Rapport Building Session
One of the main tasks of the hypnotist is to
establish and maintain rapport with the individual to be hypnotized by building
a sense of trust in the hypnotist and the process.
Explaining Hypnosis
Explain the hypnosis process, what will be
said and will be expected of the individual.
Discuss the Misconceptions
Explain the common misconceptions which most
people believe about hypnosis, i.e., that the hypnotized person is not asleep or
unconscious, will not divulge his secrets, cannot be compelled to tell the
truth, will not get stuck in hypnosis, cannot be made to do foolish things, etc.
Many of these misconceptions come from the
Svengali-Trilby novel by George Du Maurier (published by W. H. Allen-London
A. Howard and Wyndham Company), and have been perpetuated over the years through
television, motion pictures, and stage hypnosis.
It should be noted that a person could lie,
confabulate, or make up information while hypnotized if the person is motivated
to do so. It is for this reason the
Texas Department of Public Safety’s policy prohibits the use of hypnosis
with suspects and defendants.
Answer Any Questions
Allow the individual an opportunity to ask any
questions which he/she may have and provide appropriate response.
Have the individual sign a voluntary consent
to participate in a hypnosis session for the sole purpose of aiding in the
criminal investigation. . If the witness/victim is a juvenile, obtain parental
consent.
Checklist
Utilize the appropriate checklist with the
subject to determine if the person is under the treatment of a psychologist,
physician, or psychiatrist; wearing contact lenses; or has any phobias; etc.
By policy, the Texas Department of Public
Safety prohibits a Department authorized hypnotist from hypnotizing a subject
who is under treatment for a heart condition, epilepsy, diabetes, or other
serious physical problem or is taking stimulants or sedatives, without the
consent of the subject’s physician. Consent is also required for persons who
are under the care of a psychologist or psychiatrist.
Hypnosis Data Report
The hypnotist should keep notes or use an
agency form to document the specific information relevant to the hypnosis
sessions. Examples would be the names of all persons present, the time the
initial interview started and ended, the time the hypnosis session started and
ended, the type of crime, and the results of the hypnosis session, etc.
INDUCTION
The hypnotic induction starts with a series of
suggestions to the witness/victim to allow the eyes to close, to become aware of
breathing, to allow the experiencing of mental and physical relaxation, and to
count numbers backwards slowly. Some induction techniques commonly used by
hypnotists are progressive relaxation, confusion techniques, counting,
fractionalization, Chiasson’s method or some version of these techniques.
INFORMATION ELICITING
The various information-eliciting techniques
are designed to permit the victim/witness to recall forgotten or repressed
information if he/she is willing and able to have such recall.
Some of the techniques used for eliciting
information are the movie theater technique, the calendar technique, ideomotor
finger signal, the blackboard technique, automatic writing, and artist composite
sketch, to name a few. A commonly used technique for regression to achieve
hypermnesia is the movie theater. This technique is designed to regress a
person back in time for the purpose of mentally reviewing the circumstances
while experiencing a feeling of detachment. This technique is used to separate
the event and the mental review process by time as it is well documented that
tension, anxiety, and trauma have a negative effect on recall and interrupts
memory.
The procedure utilized in the movie theater
technique consists of a series of instructions given to the subject, while in
hypnosis, indicating they are going to review a special documentary film of the
sequence of events as they occurred on the day in question. They are advised
that the film can be stopped, reversed, fast-forwarded, freeze-framed, or played
in slow motion to provide them an opportunity to make a closer review of any
segment of the events. The person is told even though the event was traumatic
they will be watching the documentary and will be able to remain calm, relaxed,
and able to report the events as an investigative reporter.
The person is then directed, in imagination,
to the inside of a theater and the review of the documentary film is started.
While the person is in hypnosis with eyes closed mentally reviewing the events,
they can verbally respond to the police hypnotist as to what is occurring or to
questions by the hypnotist.
The witness/victim knows they are not in a
theater while in hypnosis or after they are dehypnotized; however, this
technique allows them to isolate some of the emotions attached to the event
while they are mentally reviewing what occurred.
The calendar procedure is another regression
technique, which would not be used with a witness or victim who has been
traumatized. The witness/victim is instructed to imagine a calendar on the
wall. The person is then instructed to look at the calendar and see that it is
___________ (month) _________(date) _____________(year) which is a _________
(day of the week). You should always start with the current date. The police
hypnotist then starts regressing the witness/victim backwards by each day
(seeing the previous day on the calendar) for recently occurred events. If it
has been some time since the crime event occurred, one may want to regress the
individual by months or even years. It may be necessary to regress the
witness/victim back to the day prior to the crime event and have them seeing
themselves go to bed that night and getting up the next morning, if that is what
the person advised happened, continuing the mental review and verbalizing the
sequence of events as they are occurring. The structure of the interview will
depend on the circumstances surrounding the event as reported by the
witness/victim.
An artist composite sketch can be developed
while the person is in hypnosis or afterwards. The police hypnotist conducts
the induction, has the witness/victim mentally review the events and then, while
in hypnosis, asks the witness/victim to describe the physical characteristics of
the perpetrator. The artist may be present and start the artist composite sketch
of the perpetrator based on the description provided. The witness/victim should
then be instructed to remain in hypnosis and open their eyes and compare it to
the mental picture in their mind. It is permissible for the artist to discuss
any changes which may need to be made with the witness as long as they are
trained in forensic interviewing techniques. The police hypnotist may
occasionally need to use deepening techniques between viewing of the sketch.
Upon completion the subject is told to close their eyes and then dehypnotize.
These techniques or a variation of these
procedures are used by many practitioners for memory refreshment as reported
throughout the literature.
Being an expert in the clinical use of
hypnosis does not qualify the hypnotist to conduct the information eliciting
phase of an investigative hypnosis session with a witness/victim to a crime
event for the purpose of refreshing recall unless he/she is also trained in the
use of investigative hypnosis and forensic interviewing techniques.
It is imperative that the hypnotist use
neutral non-leading questions, allowing the person to report in free narrative
recall, and use compound or zeroing-in questions for specific details. An
example would be if the witness/victim tells the hypnotist the suspect has a
mustache while mentally recalling the characteristics of the perpetrator’s face;
the hypnotist may then ask the witness to describe the mustache, and then if it
is thin, medium, or thick.
DE-HYPNOTIZE
One of the most common techniques used to
de-hypnotize a person is for the hypnotist to tell the subject that, “In a
moment I’m going to count from one to ten and when I reach the number ten you
will become alert, feeling refreshed and relaxed, opening your eyes on the count
of ten.”
The police hypnotist then counts from one to
ten slowly while giving positive suggestions to the individual of feeling
refreshed, relaxed, clear headed, and having all of the normal sensations return
to all parts of the body. Upon reaching number ten, the hypnotist tells the
individual to open his/her eyes feeling refreshed and relaxed.
It is important that the hypnotist makes
certain that the person is fully de-hypnotized and reoriented before terminating
the post-hypnosis interview, especially with individuals who achieve a deep
level of hypnosis. In most instances, this takes only a short time.
P0ST-HYPNOSIS INTERVIEW
The post-hypnosis interview may include
questions, comments, or additional information.
Whether or not the investigator uses standard
interview techniques or hypnotic interview techniques, a witness/victim often
will think of something else at a later time which may be important to the
investigation. The police hypnotist should tell the witness/victim that if
he/she recalls any additional information in the future, it should be reported
to the investigator assigned to the case.
The audio or video recording documenting the
entire contact between the police hypnotist and witness/victim may be terminated
only when the hypnotist and witness/victim separate.
Chain of custody of the original recording
should be maintained by the police hypnotist until all appeals have been
exhausted in cases where an offender was arrested and convicted or until the
statute of limitations has run out.
For a more detailed accounting of the various
aspects of hypnosis and its use for investigative purposes, refer to the
Handbook of Investigative Hypnosis
by Dr. Martin Reiser (LEHI Publishing Company) and Clinical and Experimental
Hypnosis by Dr. Williams S. Kroger (J. B. Lippincott Publishing Company).
While this is a basic outline of the hypnotic
interview, it is not intended to oversimplify the investigative hypnosis
process, because all aspects cannot be covered in a condensed article on this
topic.
It should also be understood that the law
enforcement officer with years of prior experience, who receives training in
hypnotic interviewing techniques, brings a wealth of interviewing skills and
experiences in dealing with both traumatized witnesses and victims to crime on a
fairly routine basis.
There are currently 24 commissioned officers
within DPS who are trained, certified in compliance with state law, and
authorized by the Director to conduct Investigative Hypnosis Interviews. Texas
is the only state in the U.S.A. which requires, by statute, mandatory training,
testing, and certification for police officers who use hypnotic interviewing
techniques.
DPS-authorized hypnotists are prohibited from
using hypnosis for therapeutic or public entertainment purposes. Although there
is a considerable difference of opinion as to what constitutes therapeutic use
of hypnosis, DPS policy includes weight reduction, stop smoking, and similar
applications of hypnosis as prohibited activity.
On June 29, 1988 the Texas Court of Criminal
Appeals issued an opinion in Zani v. State
addressing the use of hypnotically enhanced testimony and establishing ten
procedural safeguards.
In a case of first impression, the Texas Court
of Criminal Appeals has approved the admissibility of hypnotically enhanced
testimony under certain circumstances. This case involved the hypnosis of a
witness thirteen years after the murder of a convenience store clerk for which
defendant Robert Zani was subsequently convicted and sentenced to 99 years in
the Texas State Prison. The Court of Criminal Appeals, the highest appellate
court in Texas for criminal cases, held that in considering the admissibility of
hypnotically enhanced testimony, a trial court should consider the four-prong
dangers of hypnosis:
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hypersuggestibility
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loss of critical judgment
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confabulation, and
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memory cementing
The court listed several factors relevant to
the trustworthiness of hypnotic recall, including:
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The level of training in the clinical uses
and forensic applications of hypnosis by the person performing the hypnosis.
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The hypnotist’s independence from law
enforcement investigators, prosecution, and defense.
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The existence of a record of any information
given or known by the hypnotist concerning the case prior to the hypnosis
session.
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The existence of a written or recorded
account of the facts as the hypnosis subject remembers them prior to
undergoing hypnosis.
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The creation of recordings of all contacts
between the hypnotist and the subject.
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The presence of persons other than the
hypnotist and the subject during any phase of the hypnosis session, as well as
the location of the session.
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The appropriateness of the induction and
memory retrieval techniques used.
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The appropriateness of using hypnosis for
the kind of memory loss involved.
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The existence of any kind of evidence to
corroborate the hypnotically enhanced testimony.
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The presence or absence of overt or subtle
cuing or suggestion of answers during the hypnotic session.
Upon consideration of the totality of the
circumstances, if the trial court should find by clear and convincing evidence
that hypnosis neither rendered the witness post-hypnotic memory untrustworthy
nor substantially impaired the ability of the opponent fairly to test the
witness recall by cross-examination, the testimony may be admitted.
Of significant importance are the following
statements contained in the concurring opinion by Judge White with Judges Davis
and McCormick concurring.
There are several factors which satisfy the
test and support the conclusion that Magonye’s testimony was admissible. The
hypnotist, Ranger Carl Weathers, was independent of the law enforcement
personnel who investigated the case, as well as the attorneys for the State and
the defense. At trial, Weathers testified that he knew nothing of the details of
this case prior to the hypnosis session. There was a record in the instant
case, by interview with Jerry Magonye, Jr., of what Magonye recalled prior to
hypnosis. The hypnosis session was tape-recorded. The majority concluded that
the questioning was not overtly suggestive. Although two other persons were
present during the session, they did not exert an influence on the subject
during hypnosis. Lastly, there was sufficient corroboration, both direct and
circumstantial, of the hypnotically refreshed testimony.
The court rejected the
Per Se exclusion of hypnotically
enhanced testimony based upon the opinion of the U.S. Supreme Court in Rock
v. Arkansas. 107 S.Ct. 2704 (1987), which held that a trial court may not
automatically exclude the testimony of a criminal defendant who has been
hypnotized for memory enhancement prior to trial. The Court of Criminal Appeals
also held that Zani was not entitled to the presence of counsel at the hypnosis
session conducted prior to indictment. Finally, the court determined that a jury
charge cautioning against excessive reliance on hypnotically enhanced testimony
should not be given, since the requested charge would constitute a comment on
the weight of the evidence unauthorized by Texas Law.
Prior to considering the use of hypnosis for
the purpose of enhancing recall with a witness/victim to a crime, it is
recommended that the case investigator check with the prosecutor to determine
the legal status of hypnosis in his respective jurisdiction.
Copyright Inspector Marx Howell, BS (Ret.)
Full profile to follow - to learn more visit the authors web site:
www.marxhowell.com
