Hypnotically Refreshed Testimony
The first use of hypnosis to solve a crime was documented in 1845. A clairvoyant was put into a trance to try to identify a thief who had stolen four dollars from a store. She described in detail a fourteen-year-old boy and told where he had gone when he left the store. When he was located, he was so startled that he confessed. Other such cases went to court, using "hypnotic influence" as a defense against a murder charge, but by 1897, the Supreme Court of California ruled that evidence discovered through hypnosis was inadmissible.
For decades, hypnosis made little impact on legal proceedings, but that changed in a 1968 case, Harding v. State. The victim of a shooting and attempted rape identified her assailant only after she was hypnotized. The Maryland Supreme Court decided that hypnosis was like any other memory aid device, and allowed it without much qualification. That set an important precedent, but things would soon change again.
A more restrictive approach arose from cases in the early eighties, notably State v. Hurd. In 1978 in New Jersey, Jane Sell was attacked with a knife while sleeping in her bedroom. She escaped, but afterward, could not recall any details. Put under hypnosis by psychiatrist Herbert Spiegel— who did not interview her prior to the procedure—and with considerable leading, she identified her attacker as her former husband, Paul Hurd, with whom she had two children. It turned out that on the evening before the assault, Jane's current husband, David Sell, had engaged in a heated phone conversation with Paul Hurd regarding visitation rights. That made Hurd a likely suspect.
In her post-hypnotic state, however, Jane Sell expressed mistrust about her thinking, but Dr. Spiegel and the investigating detective encouraged her to accept her identification to protect her children. She went ahead and identified Hurd as her attacker, and he was indicted and charged with assault with intent to kill, assault with a deadly weapon, possession of a dangerous knife, and breaking and entering with intent to assault.
His defense counsel argued on the basis of Frye v. U. S. (1923) that hypnotically refreshed testimony is inadmissible per se. The Frye court had decided that anything on which expert testimony is based must be "sufficiently established to have gained general acceptance in the particular field in which it belongs." Thus, the lawyer was insisting that hypnosis was not generally accepted as a reliable technique. Furthermore, he argued, Jane Sell's testimony was tainted by suggestion and coercion. In 1981 the case went to the New Jersey Supreme Court.
Justices Pashman, Clifford, and Sullivan reviewed the issue of whether Sell's testimony was true recall or confabulation. In reaching their decision to bar the testimony, the Court came up with state guidelines:
- Witnesses must use a psychiatrist or psychologist trained and experienced in the use of hypnosis.
- The hypnotist should be independent of, and not regularly employed by, the prosecution, police, or defense.
- Information given by any party to the action to the hypnotist should be written or recorded and made available to all parties.
- The hypnosis session(s) should be video- or audio-taped, including pre- and post-interviews.
- Only the expert and the witness should be present during all phases of the hypnosis.
- The subject's pre-hypnosis memories for the events in question should be carefully recorded and preserved.
The Court determined that Sell's testimony had failed to follow any of the proposed safeguards.
In another case in Minnesota, State v. Mack (1980), there was a ruling that a witness who has been hypnotized cannot testify about either pre- or post-hypnotic recollections in prosecuting a case. This ruling was based on that fact that there were a number of errors in the hypnotically-induced testimony.
In this case, the victim initially recalled nothing about her attack, but under hypnosis, she remembered her male companion, who had ordered her to remove her clothes. He had threatened her with a knife, she claimed while in a trance, and had stabbed her repeatedly. She also remembered that she had danced with a man that same night. However, when the facts were investigated, her account proved to be problematic: She remembered eating at a restaurant that did not serve the meal she recalled in some detail; she described the defendant's maroon motorcycle as black; she actually had danced with someone other than the man she described on the night of the attack; and she had suffered only a single wound. These discrepancies and her strong confidence in the hypnotically-restored "facts" caused the Minnesota Court of Appeals to rule that testimony was too inaccurate to be accepted in court.
However, once guidelines were in place, the role of hypnosis was not so easy to dismiss, as we shall see in the cases that came afterward.