Orne, M.T. The use and misuse of hypnosis in court. International ...

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Orne 1979 IJCEHhttp://www.sas.upenn.edu/psych/history/orne/orneijceh19794311341.html12 de 23 19/03/2012 17:24clearly communicates that something else or something more is wanted. It requires only a modest decreasein the level of support to alter the subject's behavior, after which there is a return to the previous frequentlevel of reassurance. Similarly, in the relaxed and apparently benign context of hypnosis, an individualmay be generally less anxious and less critical--allowing himself to bring forth bits of information aboutwhich he is uncertain but that may in fact be accurate and important--information that would not bebrought forth in a context where the individual is made to feel responsible for his memories andchallenged about their consistency. Thus, one might say that the hypnotic situation itself serves to changethe subject's "guessing strategy."To date, little systematic research has sought to distinguish between different kinds of effects that thehypnotic situation may exert on recall. Some mechanisms may require a profound level of hypnosis andrelate primarily to the recall of material which is actively kept out of aware-327 USE AND MISUSE OF HYPNOSIS IN COURTness; other mechanisms may be involved in the recall of meaningful details in emotionally neutralcontexts.Finally, there are aspects of the hypnotic situation that are not related to hypnotic depth, but nonethelessfacilitate the increased reporting and acceptance of detailed information. For example, once a series ofdetails are reported and accepted as valid by the hypnotist, that very fact serves to help convince thesubject about the veridicality of these memories--memories that might previously have been extremelytentative and about which the individual had little or no subjective conviction. While there has been littlesystematic exploration of the means by which the hypnotic context itself may alter the experience ofindividuals who are only lightly hypnotized, from a pragmatic point of view, it is necessary to recognizethat these effects exist and may be profound. While careful research will be needed to clarify preciselywhich kinds of individuals--under what circumstances, relating to what kinds of memories, and in responseto which specific techniques--will be more or less likely to yield reliable information, in the absence ofsuch data, it seems best to illustrate these issues in a life context by a selective review of relevant legalcases.THE USE OF HYPNOSIS WITH WITNESSES OR VICTIMS TO ENHANCE MEMORYGiven the limitations of the hypnotic technique to facilitate recall, it becomes crucial to distinguishbetween apparently similar applications which in fact are very different and which consequently rangefrom entirely appropriate to completely misleading. The key issue is not only the possible benefits thatmaterial obtained under hypnosis might accrue but also the need to assess the potential harm that wouldbe caused by erroneous information. The use of hypnosis in an investigative context, with the sole purposebeing to obtain leads, is clearly the area where hypnotic techniques are most appropriately employed.Thus, we will examine separately the situation where hypnosis is used exclusively to provide leads in acontext where the facts are not known and contrast it with the use of hypnosis where a suspect has beenidentified and an effort is made to help a witness recall sufficient details to permit them to testify in court;there is less emphasis here on the uncovering of details unknown to the investigating officers but rather tohelp the witness remember them. We will then consider yet a third situation where a witness may havegiven a number of conflicting statements and hypnosis is utilized in an effort to "help the witnessremember what really happened;" here the search is not for new facts at all nor is the emphasis onindependent verification. Rather there is an effort to use the hypnotic session itself as a means of verifyingthe witness's statement. The overall effect is to help328 MARTIN T. ORNEthe witness become reliable in his statements while reassuring both the authorities and the witness himself
Orne 1979 IJCEHhttp://www.sas.upenn.edu/psych/history/orne/orneijceh19794311341.html13 de 23 19/03/2012 17:24about the validity of these statements.When Facts are Not Known or PresumedThere are many cases involving a victim or a witness to a crime who cannot recall potentially importantdetails and where the enforcement authorities are equally in the dark. In cases of assault, for example,hypnosis has made it possible for the victim to recall the assailant's appearance, enabling police artists todraw a reasonable likeness. To the extent that the victim or witness, police, artist, and hypnotist alikeshare no preconceived bias about what might have occurred, the situation approaches the ideal case forhypnosis to be most appropriately employed: to develop investigative leads.Hypnotic suggestions may directly or indirectly enhance memory by providing contextual cues, and therelaxed environment of a sensitively conducted session may help diminish the anxiety which otherwiseinterferes with attempts to recall. Several cases of this type are described by Kroger and Douce (1979).Many of the limitations of the technique--even under such circumstances--have been emphasized earlier,while other pitfalls are described by Kroger and Douce. Given appropriate care, however, hypnosis hasprovided important new information to the authorities in many instances. If the sole purpose of thehypnotic session is to provide clues which ultimately lead to incriminating evidence, the fact that hypnosiswas originally employed becomes irrelevant. However, if there is even the vaguest possibility thathypnotically enhanced recall is to be used in court, it is essential that the entire contact of the hypnotistwith the subject be videotape-recorded in order to allow an independent assessment of the eventspreceding, during, and following the hypnotic session to determine whether or not the memories mighthave inadvertently been guided by cues in the situation.When Significant Facts are Known or PresumedAn increasing number of instances are finding their way into law courts where hypnosis is used to help"refresh" the memory of a witness or victim about aspects of a crime which are known to the authorities,the media, or the hypnotist and may involve presumed facts that in one way or another have been madeavailable to the subject. Of course, the witness or victim cannot testify on this matter unless he is able toremember it personally. Particularly when the interrogation focuses on some relevant detail and involvesleading questions, there is the greatest likelihood of mischief. A "memory" can be created in hypnosiswhere none existed before. While cases of this type were once rare, there has329 USE AND MISUSE OF HYPNOSIS IN COURTbeen a dramatic increase in the number in recent years. Although the source of the factual informationmay vary widely, all of these cases have the quality that information is somehow introduced into thesubject's memory which causes him to testify to the facts as if they were based on prior memories.A Pennsylvania case (United States v. Andrews, 1975) illustrates the kind of problem that may occur. Twoseamen recuperating from illness were working in an office when a sailor appeared in the doorway, aimeda pistol at one of the sailors, shot at his head, and fled the scene. Fortunately, the intended victim movedquickly and suffered only a grazing wound to the ear. When the seamen were shown pictures ofindividuals who might fit the description and could have been in the area, the victim was unable toidentify anyone. The witness, however, identified one of the pictures as the assailant. Subsequently, at apreliminary hearing, the victim was present when the witness identified the defendant as the assailant. Thevictim, however, indicated that the accused looked like but was not the assailant. The victim was thenhypnotized on two occasions by an experienced Navy psychiatrist to facilitate his recall. During the firstsession, he was still unable to make an identification; however, during the second session he claimed torecognize the defendant who had previously been identified by the witness as the assailant.At the General Court Martial, the issue of the role of hypnosis was raised by the defense and I was askedto testify as an expert. My testimony pointed out that the victim's reaction to hypnosis would probably
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