Christina Rodriguez was working as clerk in a Texas convenience store when two men wearing camouflage clothing and bandanas entered the store and pushed a gun into her ribs. They stole $400 from the store register. Rodriguez told police that she had seen the two men before and knew they were of Hispanic descent but when the police asked her for their names, Rodriguez drew a blank.
Police called in Sgt. Perez, a narcotics investigator with hypnosis training. With Rodriguez under his spell, Perez ascertained that the gunman smelled like tar, had a scar on his face and worked at a roofing company. Rodriguez also provided enough information for a sketch of the gunman. From this information, Samuel Soliz was arrested, tried and convicted of aggravated robbery by the District Court sifting in Texas.
In a San Antonio Court of Appeals, Soliz argued that Rodriguez's hypnotically enhanced testimony should have been suppressed and that Sgt. Perez should have been disqualified from testifying because be was not a licensed hypnotist.
Holding: Reversed and remanded. The court found Rodriguez's hypnotically induced testimony unreliable.
The court followed Zani v. State, 758 S.W.2d 233 (1988), which laid out a 10-factor test for determining the dangers and potential unreliability of hypnosis induced testimony. The factor most relied on by the court was the first, which questions the level of training in the clinical uses and forensic applications of hypnosis by the person performing the hypnosis. While Sgt. Perez had completed 80 hours of hypnosis training, he was not licensed or certified to perform hypnosis and did not even know of the 10 Zani factors.
The court also looked to the fifth factor, the recording of the contact between the hypnotist and the subject during the hypnosis session. Perez focused the recording camera only on Rodriguez, without recording the gestures of anybody else in the room, leaving ample room for suspicion. The court had no way of knowing whether or not Rodriguez had been coaxed with hand signals or silent gestures.
 | Robert A. Karlin, Ph.D. Associate Professor of Psychology Rutgers University |
Dr. Karlin comments: The Zani factors derive largely from the Orne safeguards (Orne, M.,USE AND MISUSE OF HYPNOSIS IN COURT, 1979). Interestingly, by 1984, Orne had declared those safeguards inadequate and called for a per se exclusion. The Society for Clinical and Experimental Hypnosis and the American Medical Association (AMA) soon followed suit and in 1994, the AMA reiterated this position. Only one professional organization has challenged this view—the American Society of Clinical Hypnosis.
Why all this fuss about hypnosis? Isn't it enough to let the use of hypnosis go to the weight of the evidence or, at most, to specify safeguards for its use? Unfortunately, the answer is no and even the clear and convincing standard used in Soliz and Zani may not be enough to prevent hypnosis from having a far more prejudicial than probative effect on fact finding.
Hypnotic procedures produce testimony that for a number of reasons, is less reliable than ordinary recall. First, a standard hypnotic induction asks people to relax, close their eyes, and experience, for example, a movement of their arms that "happens by itself." Response to such suggestions requires one to lower critical judgment temporarily (e.g., ignore the absurdity of the idea that one's arms can move by themselves) and blur the boundary between fantasy and reality. Second, when hypnosis is used to "refresh recollection" the participation of authorities (from the police to an expert hypnotist) and expenditure of time and effort suggest strongly that memory change through hypnosis is possible and expected. Any subsequent change is also legitimized by our culture's belief that someone who has been hypnotized can and perhaps should, remember things differently after hypnosis.
Hypnosis also often produces an overall increase in confidence' about both correct and incorrect memories. Studies show that this increased confidence weakens the usual correlation between certainty and accuracy. This results in what are known as confident errors. Consequently, a jury may be presented with a factually incorrect witness who provides vivid detail with more confidence than is warranted. And juries are swayed by witness confidence and detail, both of which hypnosis promotes.
ZANI FACTORS FOR HYPNOSIS TESTIMONY RELIABILITY
- The hypnotist's level of training
- The hypnotist's independence from law enforcement investigators and attorneys involved in the case
- The existence of a record of information given by the hypnotist concerning the case prior to the hypnosis session
- The existence of a recorded account of the facts as the subject remembers them prior to hypnosis
- Recordings of all the contacts between the hypnotist and the subject
- 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
- The appropriateness of the induction and memory retrieval techniques used
- The appropriateness of the hypnosis for the kind of memory loss experienced
- The existence of evidence to corroborate the hypnotically-enhanced testimony
- The presence or absence of overt or subtle cueing or suggestion of answers during the hypnotic session
Studies also show that subjects are generally unable to discriminate accurately what they remembered of the original events before hypnosis, what material they learned subsequently from other sources, and what additional material they remembered during hypnosis.
When we take together the decreased critical judgment the blurring of the boundary between fantasy and memory, the increase in certainty unrelated to accuracy, the misattribution of whether information was learned during hypnosis or before it and the fact that hypnosis makes a major change in memory credible, we find a formidable basis for automatically keeping hypnotically influenced testimony out of court.
The use of hypnosis to increase memory is often justified by the notion that it allows people to overcome the effects of traumatically induced psychogenic amnesia. This is almost always nonsense; the central events in traumatic experiences are remembered better, not worse, than ordinary material. Psychogenic amnesia (as distinguished, for example, from unwillingness to remember, ordinary forgetting, intoxication and other memory problems) is a very rare phenomenon. In over 20 years of clinical experience in this area, I have seen one such case.
Hypnotically influenced testimony is an unusual threat to the fact finding process; memory is often irreversibly altered without awareness by the subject or hypnotist that anything untoward has occurred. The resulting testimony is less reliable but more certain, vivid, and detailed than testimony resulting from ordinary recall. The admission of hypnotically influenced testimony has led to potential and actual miscarriages of justice in the criminal arena. In civil cases, where the burden of proof is lower, the prejudicial effects of hypnosis may be even more extreme. In general, it will be the rare case where a careful consideration of the totality of the circumstances will really show by clear and convincing evidence that hypnotically influenced recall is as reliable as recall without hypnosis.
