Shadow of a Doubt: The Clarence Elkins Story
By this time, Clarence's family had taken Brooke to a hypnotist to try to help her recall more specific detail. Given the foibles of human memory, hypnosis has been used by many to try to fill in gaps and add detail and accuracy in eye witness testimony. The most popular techniques involve past-memory regression and memory enhancement. A hypnotist exploits the subject's suggestibility in order to induce a relaxed mental state. The subject becomes attentive, focused, and less prone to critical judgment that can block memory. Going into such a trance purportedly allows the heightening of recollection, with the hope that some detail, such as a license plate number or facial features, might be recalled that would otherwise remain inaccessible.
Now age 7, Brooke submitted to the procedure and said she remembered what her attacker's eyes looked like. They'd been brown. Since Clarence's were blue, this raised his defenders' hopes that he could get a new trial. But there was a problem: Few court accepted the use of hypnosis.
A landmark appellate case in 1968, Harding v. State, involved a request to allow the admission of testimony that had been "refreshed" —enhanced - through hypnosis. Prior to that, hypnosis had been considered too unreliable for lawful admissibility. In the Harding judgment, such testimony was admitted, but jurors were instructed to evaluate its credibility. More such cases followed, and soon courts devised guidelines. However, many opted for the decision in State v. Mack, in which the Minnesota Supreme Court had ruled that hypnosis had not been generally accepted by the scientific community and therefore any memory recall that was the product of hypnosis would be inadmissible. Even today, courts remain divided on this issue.
Problems with hypnosis-aided recall include the possibility that a recovered memory is incomplete, inaccurate, or based on some leading suggestion. There also might be hypermnesia or confabulation—filling in the gaps with false material that supports the subject's self interest. In addition, hypnotized subjects may experience hypnotic recall, in which a posthypnotic suggestion of something that did not happen gets retroactively integrated into the subject's memory as if it did. Also, personal beliefs and prejudices may influence how an event was initially registered, how it is interpreted during recall or both. More problematic is "memory hardening," which occurs when a false memory evoked through hypnosis seems so real that the subject develops false confidence in it. All of these problems have been documented in experiments, along with the realization that a false memory, once articulated, can be difficult to distinguish from genuine memories.
In a videotaped deposition, Brooke changed her story and now said she did not believe her uncle would do such things to her or her grandmother. However, prosecutors thought family members trying to exonerate Elkins had coached her. "This court should definitely not take this deposition as establishing any reason to question the evidence at that defendant's trial about the identifications of him," wrote assistant prosecutor Richard S. Casey. He firmly resisted any request for a new trial. Judge John Adams agreed, saying it was clear that Brooke had been exposed to too many people with a biased interest in the outcome. There would not be another trial.
Melinda was devastated. "After today," she vowed to a Plain Dealer reporter, "the fight is back on. And this time I'm going to be very much more aggressive to try to bring this situation to justice."