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.html16 de 23 19/03/2012 17:24quite impervious to such efforts, repeating one particular version of his story with great conviction.To appreciate the effect of hypnosis in these kinds of cases, it is important to view the use of thetechnique in its broader perspectives. Often it will involve a witness about whom the prosecution hasconsiderable doubts. In one California case (In re Milligan, 1978) for example, the prosecution's starwitness was a 14-year-old girl who had told many different stories to the police at different times andreadily changed her story during early depositions. Indeed, she repeatedly stated that it was impossible forher to say whether her recollections were a dream or represented actual events. The case involved themurder of the witness's aunt, sister, grandmother, and cousin, and there was some serious question as tothe degree of possible criminal involvement of the witness herself.The witness was hypnotized and again told her story to the district attorney and the police. However, nowit was during hypnosis which everyone agreed would reliably help her recall and she would know whetherher memories related to real events or to her dreams. Simply carrying out the hypnotic session committedthe prosecution to the view that the witness was not criminally involved since it would not be permissiblefor the state to hypnotize a defendant--especially a minor. Somehow the witness became reassured thatshe would be safe and her story became remarkably stable, virtually unshakable on cross-examination.333 USE AND MISUSE OF HYPNOSIS IN COURTIn a real sense, the hypnotic procedure also helped change the prosecution's attitude toward the witness.She was accepted as having no part in the crime, and instead of being considered as an unreliable juvenile,became an exceedingly effective witness whose testimony led to the conviction of the other individualsinvolved. This was so despite the fact that the story she brought forth under hypnosis and on subsequentoccasions contained a number of incorrect statements recognized as such by the hypnotist but ignored.Hypnosis had not resulted in accurate memories, but rather had served to produce consistent memories.Further, the technique served to reassure the law enforcement officials that the witness was in fact tellingthe truth, an aspect which was perhaps as important as the effect the hypnotic session had in stabilizingthe witness's recollections.In the case of State v. White (1979), a senior law enforcement official was asked under oath about hisviews of hypnotically aided testimony and he succinctly expressed widely held beliefs when he testifiedthat hypnosis lends "credibility and strength to your investigation." [N. T. p. 13] Perhaps the mostinteresting, as well as the most frightening, consequence of this belief is illustrated by a New Jersey case(State v. Douglas, 1978). A woman was stopped at a light and two black men entered the car and forcedher at gunpoint to drive to a deserted place on the outskirts of town. When they arrived there, the man inthe front seat attempted to rape the woman. When she protested that she was pregnant, the man on theback seat with the gun told the attacker to stop. They took the woman's purse, made her leave the car, andthreatened her that if she contacted the police, terrible things would happen to her family. On getting backto her home, the woman immediately reported the attempted rape, as well as the theft of her car andvaluables. At the police station, she was shown mug shots and identified one man and picked out anotheras a look-alike. Subsequently, she received several threatening notes which were turned over to the police.She continued to be unable to identify the second individual involved in the crime, and finally the policepersuaded her to undergo hypnosis. Although the police had videotape- as well as audiotape-recordingequipment available, it was claimed that the equipment would not work, and hypnosis was carried outwithout any objective record of what occurred. During the hypnotic session, however, the victimidentified the look-alike as the individual who was involved in the crime.It turned out that the district attorney had been quite skeptical about the case but was finally convinced toprosecute by the hypnotic session. However, when it was learned that the use of hypnosis would bevigorously challenged and that the public defender's office was prepared to use this case as a vehicle toprevent the abuse of hypnosis by the police, the district attorney decided to have another look at the factsof the case.
Orne 1979 IJCEHhttp://www.sas.upenn.edu/psych/history/orne/orneijceh19794311341.html17 de 23 19/03/2012 17:24334 MARTIN T. ORNEShe was struck by the peculiarity of the handwriting in the threatening notes, and for the first timesubmitted these to a handwriting expert who identified the writing as that of the woman who had filed thecharges. When the alleged victim was confronted with this fact, she confessed that there had never beenan attempted assault, that she had never met the two men whom she had accused, and that she hadgenerated the complaint and the threatening notes in an effort to reawaken the interest of her husbandwho was in the process of filing divorce proceedings against her.The appalling aspect of this case is that it was the hypnotic session which initially prompted the districtattorney to cast doubt aside and proceed with the prosecution. The hypnotically enhanced memorieswould have been the basis for the victim's testimony and might well have led to the conviction of twoinnocent individuals who happened to have been in the collection of photographs available to the policeand did not happen to have excellent alibis. It was only when the district attorney became aware that thedefense would have appropriate expert help to challenge the totally inappropriate way in which hypnosiswas employed in this case that a more careful review of the evidence uncovered the true state of affairs.Far from being helpful to the prosecution, the manner in which hypnosis was employed actually served toconfuse the authorities.THE ROLE OF THE EXPERT IN FORENSIC HYPNOSISIt is not possible in the context of a single article to more than touch upon the complex issues involved inthe forensic use of hypnosis. However, it behooves those of us experienced in the clinical use of hypnosisto use extreme care when we use our skills in a forensic context. We should keep in mind thatpsychologists and psychiatrists are not particularly adept at recognizing deception. We generally arrangethe social context of treatment so that it is not in the patient's interest to lie to us, and we appropriately donot concern ourselves with this issue since in most therapeutic contexts it is helpful for the therapist to seethe world through the patient's eyes in order to ultimately help him to view it more realistically.8As a rule, the average hotel credit manager is considerably more adept at recognizing deception than weare. Not only does his livelihood depend upon limiting errors of judgment, but he is in a position to obtainfeedback concerning those errors of judgment, whereas in most treatment contexts the therapist is neitheraffected by being deceived nor even likely to learn about the fact that he had been deceived at a later8 See Lindner (1955) for a superb description of the kind of countertransference which leads to theuncritical acceptance of the patient's views that, on the one hand, makes treatment possible, but on theother can be a source of serious difficulties.335 USE AND MISUSE OF HYPNOSIS IN COURTdate. While military psychiatrists and other health professionals who are required to make dispositionaljudgments on a daily basis do become adept at recognizing manipulation and deception, only a fewcolleagues who are experienced in the use of hypnosis have had this type of background. Consequently,they have little experience or concern about being deceived or used. On the other hand, a defendant in amurder trial or, for that matter, a witness or a victim in a crime of violence may well have an axe to grind,and it is essential that we recognize that in a forensic context the unwary expert witness may become apawn either for the prosecution or for the defense. With the increasing popularity of hypnosis in thecourts, it is essential that those of us who have an interest in these matters develop the necessarysophistication and judgment in the forensic context, much as we have had to acquire it in the therapeuticcontext. It would be foolhardy indeed to assume that familiarity with one context is sufficient to allow usto function effectively in the other. On the contrary, the ground rules governing the two situations are
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