The Current Status
In 1986, Ted Bundy made a last ditch effort to appeal one of his capital sentences. He was convicted of first degree murder of his last victim, twelve-year-old Kimberly Leach. His conviction was significantly influenced by the testimony of a witness who had been put under hypnosis. Bundy claimed that this was "constitutionally suspect" and he wanted his conviction overturned. The Florida Supreme Court had reviewed his petition and found that the inclusion of the testimony was harmless error. Bundy asked for a review by the U. S. Supreme Court.
Leach was reported missing in 1978 and suspicion turned to Bundy when the Florida police discovered that he was a suspect in numerous murders in the Pacific Northwest. Leach had been abducted and murdered, and her body was found two months after she was last seen. The only witness to the abduction was Clarence Anderson. He came forward five months later and said that he could not give a detailed account of either the victim or her abductor. He was several months off on the date.
At the request of the Assistant District Attorney, Anderson underwent hypnosis in two separate sessions. He then was allowed to testify, after unsuccessful attempts to suppress what he would say, that he had seen a man leading a young girl to a white van near the junior high school that Kimberly had attended. He identified Bundy as the man and Kimberly as the girl, describing their clothing in a manner that seemed convincing, although he had not known these details prior to hypnosis. His testimony was the critical link in a chain of circumstantial evidence. Throwing it out would collapse the case.
The Florida Supreme Court recognized that many higher courts barred hypnotically refreshed testimony, noting that the subject may erroneously credit memories that formerly were unreliable. Nevertheless, the court stated that if the witness is competent to recall facts in court that were "demonstrably recalled" prior to hypnosis, then the testimony can be admitted.
That meant, however, that the court should have thrown out Anderson's testimony, because his pre-hypnosis recall was extremely limited. The highest court of appeal found the Florida court in error, yet they still denied Bundy's petition. Eventually he confessed to the murders of twenty-eight women, so the point became moot. Nevertheless, the way his case was handled demonstrates the inconsistencies in judicial proceedings when it comes to this type of evidence.
In Little v. Armontrout, the court reviewed three major approaches within the United States court system regarding hypnotically-enhanced testimony, stating, "The approach adopted by a particular court generally reflects its perception of the degree to which the above-mentioned problems affect a person's memory of an event."
The first approach permits the admission of such testimony, and any credibility issues are addressed during the proceedings. The second permits it as long as it complies with certain guidelines. The last approach bars the use of any hypnotically refreshed testimony, premising this on the Frye test.
Partly because of this lack of consensus, some investigators are substituting a different procedure that has better results with recall than a mere interrogation produces, but without the controversy surrounding hypnosis. It's called "context reinstatement" and it works by having people who have witnessed a crime mentally recreate a scene and report everything they remember. The interviewer guides them with questions about what they saw, smelled, felt, and heard during the experience. They may be encouraged to re-experience the same moods they were in at the time, or even to try to recall the experience backwards. A cognitive interview that emphasizes this technique tends to have good results.
Hypnosis, when used with proper procedure and precautions, can generate information that can be helpful in a police investigation, but which may be deemed less reliable when taken into court. Given the potential difficulties involved in hypnotic recall, it seems best that courts adopt conservative measures and evaluate the probative value of this technique on a case by case basis.