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.html14 de 23 19/03/2012 17:24have been the same whether or not he could actually remember the assailant. Thus, if he continued to beunable to remember him--which was highly likely considering the difficulties encountered in eliciting therecollection--he would have been prone to confabulate an individual who appeared to be the most likelycandidate. He had seen the defendant accused during the preliminary hearing and was aware that thewitness had identified him with certainty; further, that it was the general belief of the prosecution that thedefendant was guilty. The hypnotic session altered the victim's memory and, while he would now testify towhat he erroneously believed his original memory to have been, he was in fact testifying on the basis ofwhat he had been led to recall during hypnosis, which was quite different from his actual earlier memories.In this instance, the military judge ruled as a matter of law that the victim could testify to those things thathe had previously testified to but that since his memory was altered by hypnosis he was not permitted toidentify the defendant. In the weeks following this event, two individuals who had left for overseas theevening of the incident returned from Germany and independently corroborated the defendant's alibi,330 MARTIN T. ORNEmaking it extremely unlikely that he was the actual assailant. In this case, it is interesting that the effect ofhypnosis on the victim's memory persisted, and well over a year after the event he still asserted hisconviction that the defendant had in fact fired the shot which nearly killed him.Another example is a recent capital case in Milwaukee, Wisconsin (State v. White, 1979). A 20-year-oldIndian girl nicknamed "Sweetie Pie" had been found strangled several years before. The case had not beensolved but had raised considerable attention and concern and had not been closed. Sometime later,another girl contacted the police because her boyfriend had beaten her several times and she wanted himto seek psychiatric help. When questioned, she admitted that on occasion he had choked her, presumablyin an attempt to frighten her. The authorities became more interested at that point, particularly when itturned out that the boyfriend, also an Indian, had known "Sweetie Pie." At that point, the girlfriendbecame uncooperative because she had wanted only to induce the boyfriend to seek treatment and had nowish to have him become involved with the police. On further investigation, however, it was found thatthe boyfriend did not have an alibi for the time in question, and the authorities talked at length with hisformer wife from whom he had been separated about a year, and her sister. Both women had lived withthe defendant and had children by him.The wife, who maintained some relationship with the defendant, was not particularly helpful to theauthorities, but the sister, who was felt to be more willing to discuss matters, was interviewed on severaloccasions by police officers. She was asked whether she had been beaten up and indicated that there weretimes when this had occurred but claimed that she could not remember much else. When it was suggestedthat she and the former wife participate in a hypnotic session, they agreed to do so. The hypnotic sessionwas carried out by a well trained psychologist. Prior to hypnosis, he showed a gruesome picture of thedead body to the sister who had also been a close friend of the murdered girl. He then induced hypnosis,and shortly thereafter said,For the moment I want you to think about just you and me and Sweetie Pie, who got strangled, thrown outon the road, taken to the morgue, put in a box, and buried in the ground. Now somebody did that. I don'tknow who, and you may not know who, but you know that Joe White is a suspect in this case, don't you?Do you think that there is any reason why Joe White should or should not be a suspect in this case? [N. T.p. 8]At the end of the session, which included an age regression-like procedure that did not work very welldespite the subject's otherwise good response to hypnosis, there was a posthypnotic suggestion given thatshe
Orne 1979 IJCEHhttp://www.sas.upenn.edu/psych/history/orne/orneijceh19794311341.html15 de 23 19/03/2012 17:24331 USE AND MISUSE OF HYPNOSIS IN COURTwould be thinking about telling the truth, how good it would feel to tell the truth, and that she was going totell the truth. Within a week after the session, the sister called the police and told them how the defendanthad often choked her, that he seemed to enjoy it, and that one time shortly after the murder he waschoking her and said something to the effect, "If you don't behave, the same thing can happen to you thathappened to Sweetie Pie." When she asked whether he had killed "Sweetie Pie," he allegedly broke downcrying and said that he had not intended to but admitted that he did.The case against the defendant was primarily based upon the sister's hearsay testimony which becameavailable shortly after the hypnotic session. After a lengthy hearing, the court ruled that as a matter of lawshe could not testify before a jury because, thanks to the hypnotic session, the presumed memory waslikely to have been created rather than remembered. It is unlikely that anyone will ever know for certainwhether the defendant was or was not responsible for the murder. There was no doubt in the sister's mind,however, as to the kind of memory which was wanted, and the sister was amply motivated to testifyagainst the defendant. She had continued to live with the defendant, supposedly knowing that he was amurderer, for many months until he rejected her. Consequently, her testimony would have been totallydiscounted if it had not come after the hypnotic session. The court recognized the danger of permittinghypnosis to be used in a context where it is more likely to create a memory than to refresh it.Whereas in the first case the identity of the defendant became known to the victim during a pretrialhearing, and in the second case the nature of the memory was shaped by conversations with the policeofficers, with the sister, and particularly by the way the hypnotic session was conducted, it is equallypossible for the suggestion about what to recall to come from entirely different sources unrelated to andlong before hypnosis. For example, in the Minnesota case of State v. Mack (1979), a physician insistingthat a laceration must have been made by a knife led to a total reorganization of an apparent victim'smemory about how she had acquired an internal wound. In other cases, the media have provided thecritical information, while in still others, the manner in which a lineup was conducted facilitated thecreation of "memories" at hypnotic sessions conducted at a later date (e.g., State v. Peterson, 1979).In addition to criminal cases, it is not uncommon to find something of this kind in civil cases where anindividual is helped by hypnosis to remember details of an accident he had been unable to recallpreviously. By the time hypnosis is carried out, it is generally clear to the subject which of the possibleevents that could have occurred would be most332 MARTIN T. ORNEhelpful to his case. Though it is possible that accurate information is recovered, the important effects thatmotivation can exert on memory--hypnotically enhanced or otherwise--must be taken into account inassessing the "memories" that are obtained.To Affirm the Reliability of the Witness's Statement or to Create an Apparently Reliable WitnessMany witnesses are unreliable in the sense that they tell somewhat different stories each time they areasked to tell what had occurred. These differences may relate to important details of the crime. Theadversary system upon which Anglo-Saxon justice is based is particularly effective in unmasking theunreliability of witnesses by means of cross-examination before a jury.The effect of hypnotizing witnesses of this kind, presumably to help refresh their memories, is generallydramatic. Even if the subject is not particularly responsive to hypnosis, reviewing the events in thehypnotic context and having the memories legitimized by the hypnotist generally fixes one particularversion of the testimony in the witness's mind which is then faithfully and reliably reproduced every time.In these cases, hypnosis does not serve to produce any new information, but the procedure can bolster awitness whose credibility would easily have been destroyed by cross-examination but who now becomes
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