Using hypnosis to search the unconscious for clues in cold casesListen
‘It’s just a tool the same as a polygraph, OK, the same as DNA, hair follicles, blood samples, and things of that nature. All of those things put together, are evidence.’
Hypnotist Oscar Vance is putting me under his spell. I’m sitting back with my legs extended in a black leather recliner in Vance’s Norristown office.
“I want you to just focus your eyes in an upward fashion, like you’re trying to look at your eyebrows. I’m going to count from one to five, [and when I] the reach of count to five, close your eyes,” he says in his low-pitched monotone. “One, two, three, four, five close your eyes.”
Then he begins a rhythmic countdown, known by hypnotists as an induction. I told him my favorite color and the most relaxing locale I could think of, two images he evokes to settle me into a tranquil mental state.
“I’m going to count back from 20 to 1. And as I count back form 20 to 1, I want you to go into a deeper state of relaxation,” Vance says. “I want you to focus in on the color green. And I also want you to focus in on the beach.”
Vance directed my attention on a fleeting interaction I had with a store clerk two years ago, asking me if I could summon the clerk’s appearance at all.
Feeling calm and alert, I described a guy wearing a blue flannel shirt whose eyes may have been green. He was around my height, a little skinnier than me and more gregarious than a typical clerk, I told Vance.
I have no idea — and maybe will never know — whether any of that’s true. Was it tapping into some deep-seated memory reservoir, or just completed fabrication?
Putting the truth of the recall aside, being under hypnosis wasn’t as enchanting and mystical as I had anticipated. Instead, it just felt like I was meditating, or had just mentally unwound after a relaxing yoga class.
“Three, breathing is becoming very normal now. Four, eyes are beginning to open now. Five, eyes are open, wide open, and feeling very good about yourself,” Vance says, bringing me out of the placid state.
‘Memory does not operate like a video recorder’
I wound up sitting in Oscar Vance’s hypnosis chair after learning about hypnotically refreshed testimony in a class I’m auditing at Penn Law School. I often report on courts, so decided to take the course to sharpen my legal skills, and a 1987 case called Rock v. Arkansas we examined in class really gripped me. Mostly because I just couldn’t believe it at first.
It involves this woman, Vickie Rock, who was accused of fatally shooting her husband, but she couldn’t really recall the events that led up to it. So she was hypnotized. And after being under the trance, she remembered crucial details. She remembered that she had her hand on the hammer of the gun but hadn’t had her finger on the trigger.
The hypnosis also helped her jog her memory to recall that the gun fired when her husband grabbed her harm in a scuffle. When evaluated by experts, the weapon was indeed proven to be defective. Courts in Arkansas were suspicious of hypnosis and didn’t let what they call “hypnotically refreshed” testimony come in during the trial. But then, the U.S. Supreme Court basically said, nope, a defendant should be able to testify at trial, regardless of whether the person was previously hypnotized.
Or, in the words of the court, Arkansas “has not shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her version of the events for which she is on trial.”
Paul Giannelli, a law professor at Case Western Reserve in Cleveland who has studied hypnotic evidence, said after the decision, hypnosis became a hot topic.
“A lot of books came out about hypnosis, and it became a major issue in criminal cases, and then, a lot of police officers were trained to use hypnosis,” Giannelli said.
“Let’s say there’s a kidnap case, and we think someone remembers part of the license plate of the getaway car,” he said. “And they try to hypnotize them and see if they can remember the rest of the plate number.”
Forensic psychologist Brian Cutler often serves as an expert witness and explains the latest science about hypnosis to juries. Yes, being at ease with a calm mind helps witnesses remember, but leaning on hypnosis to solve crimes? Maybe not the best idea, he said.
“The process of hypnosis involves putting a witness in a comfortable state, relatively free of distractions and just those conditions alone, we find in our research, enhances eyewitness recall,” Cutler said.
“The problem with hypnosis,” Cutler said “Is it makes it very difficult for us to separate what we actually remembered and what they confabulated.”
Confabulate is the word psychologists use to describe a false memory. Cutler said study after study has demonstrated that, when compared to a standard police interview, hypnosis doesn’t quite enhance someone’s ability to recall accurately.
Many investigators who have moved away from hypnosis now use what’s called a “cognitive interview,” which puts a witness in a state of focused relaxation but is guided by what the witness says, rather than asking questions.
“We know from decades of research on human memory that memory does not operate like a video recorder. Memory is a constructive, and reconstructive process, where we are continually updating our information in our memories,” Cutler said.
‘A last resort as an investigative tool’
The peril of hypnosis is, when put in a hyper-relaxed, trance-like state, and asked questions, people are more likely to sketch in blanks with their imagination. And they often do so confidently.
Courts today have recognized the latest science by making it really difficult to ever use hypnotically refreshed testimony in trials. New Jersey, in 2006, made hypnosis and hypnotically refreshed testimony nearly impossible to use in all state courts due to the harmful effects it could have on seeking the truth. The California Supreme Court has called hypnosis “inherently unreliable.” Other state courts have followed that trend, or have greatly restricted its use.
Prosecutors in Philadelphia, New Jersey and Delaware all say they don’t officially use hypnosis in investigations anymore, but it could be used in informal ways, like a hypnosis done to gather a tip but then only brought into a case if it can be corroborated with another witness or piece of evidence.
Still, the 1987 decision from the U.S. Supreme Court stands insofar as state courts cannot impose blanket bans on hypnosis, especially when the witness in question is the defendant. That carve-out has created some wiggle room for prosecutors and police officers interested in hypnosis.
“It was a major thing in the ’70s and the ’80s,” Giannelli said. “It’s going to be something you would not use right away. You might use it as a last resort as an investigative tool.”
Not a panacea, but why not try?
In those last resort situations, when investigators have turned over nearly every stone and still are staring down an unsolved case, Oscar Vance might just get a call.
“Now it’s not a panacea for all cases,” Vance said. “However, when you get a case and you can’t go any further with it, and you don’t have any information, then why not give it a try?”
These are safeguards. Each session is tape-recorded and video taped. Lengthy notes are taken about what the witness remembered prior to hypnosis. Investigators also call on forensic hypnotist investigators, like Vance, who are disconnected from the actual investigation of a case to mete out any potential bias.
“There is no Svengali,” Vance said. “We don’t dress up or anything. I have a suit and a tie on, the same as I have on today. And we proceed with the actual induction.”
Vance did a short training at the now-closed Law Enforcement Hypnosis Institute in the 1970s while at the Montgomery County District Attorney’s Office. He became the office’s forensic hypnosis investigator. He stayed there as the chief of the detectives until 2012.
“And during that period of time, I had approximately 400 actual forensic hypnosis cases,” he said.
He now runs a private firm and a school where he instructs everyone from Texas rangers to beat cops to private investigators the basics of witness hypnotizing over a four-day class for $1,300.
Does he think it’s unethical to use a witness interview method that has been shown to yield unreliable results?
“No I don’t,” Vance said. “It’s up to the investigator to go out and check that information. Now that’s the same if they don’t use hypnosis. They still have to go out and corroborate what that witness told them.”
He talks about success stories. He said he’s put rape victims under hypnosis who have been able to describe their attackers. Composite drawings, based on the hypnotic recollection, led to arrests.
He recalls one such hypnosis he did in Indianapolis.
“The investigators that were in the opposite room that were looking at the monitor during the course of the hypnosis session, they were astonished in terms of the information that was coming from this woman who remembered this case which happened 24 years ago,” Vance said.
Sociologist Judith Pintar has some thoughts about this. She wrote a book on the history of hypnosis. She’s looked into what makes someone hypnotizable.
“Is it an aptitude? Can it be taught? What affects it?”
What it often comes down to is expectancy. If you expect it will be helpful, it might be. It’s almost like a placebo.
“A person who expects that pills help is more likely to have that placebo work,” Pintar said. “Someone who is really skeptical about pharmaceuticals in general, who does not expect that’s going to work, the placebo will work less well.”
The same is true of hypnosis. Some have even called it “the ethical placebo,” since it has a similar effect but doesn’t require lying to someone about, for example, a sugar pill being some kind of medicine.
This realization has allowed hypnosis to make inroads in a lot of other areas.
“Particularly, dentistry has committed a lot of research and time to working with hypnosis with patients, to smoking, obviously that’s quite famous, anxiety, and PTSD, but also eating disorders, asthma, waters, irritable bowel syndrome, and most powerfully I would say, on depression, Pintar said.
That’s how Center City psychologist Eric Spiegel has used hypnosis on patients.
“There is some research that shows different centers of the brain are activated in hypnosis. It’s controversial about how the consciousness shifts. And it’s also a difficulty area to capture because it’s going to vary person to person,” Spiegel said.
He said hypnosis can be used as therapy to change behavior, or to gain insight about an area of someone’s life and to cope with trauma. But what does he make of its use in solving crimes?
“So here’s the problem,” Spiegel said. “The goals of the legal field and the goals of the mental health field are divergent. You know, in law, there’s an objective truth that one is trying to pursue. In mental health, we understand that truth is inherently subjective.”
Vance said, these days, if the hypnosis I went through were part of an interview as part of a criminal investigation, it would be handed over to cops as a maybe-true/maybe-not piece of evidence. It wouldn’t be brought in to a trial unless it was verified some other way.
He said cops and prosecutors use hypnosis almost like an anonymous tip from the subconscious of a witness. Might lead to a suspect, but could also point to the wrong guy. But it’s information, however dicey it may be.
Nonetheless, criminal investigators all over the country keep calling Vance, seeing hypnosis as a last-ditch effort in closing a cold case. Because, as Vance will be quick to say, a hypnotic spell has, at times, brought back elusive details.
“This is just a tool,” Vance said, “It’s just a tool the same as a polygraph, OK, the same as DNA, hair follicles, blood samples, and things of that nature. All of those things put together, are evidence.”
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