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Now finish the job!
If and when Texas governor Greg Abbott signs Senate Bill 338, the Lone Star State will ban hypnotically-induced testimony from criminal trials. The legislation prohibits law enforcement authorities from using any and all information gleaned from so-called “investigative hypnosis” as evidence in the guilt, innocence or penalty phase of a criminal trial.
This is the second time the bill has made it to Abbott’s desk; it’s been a long time coming. According to a 2020 Dallas Morning News investigation, Texas cops hypnotized some 1800 witnesses over the last 40 years. Prosecutors presented the hypnotically extracted “testimony” in several death row cases, including the trial of Kosoul Chanthakoummane, convicted of murdering a real estate agent in 2006.
While Mr. Chanthakoummane was also tied to the crime by bite marks and DNA, the eyewitness’ hypnotically induced testimony played a part in his conviction and subsequent execution. This despite the fact hypnotized subjects are, by definition, suggestible. In fact, hypnosis depends on it.
Experts in the field of hypnosis don’t use the term “suggestible” to describe a subject’s ability to be hypnotized. The two most respected hypnotic measuring tests – the Harvard Group Scale of Hypnotic Susceptibility and the Stanford Hypnotic Susceptibility Scales – use the word “susceptible” to take the heat off hypnotists. For good reason.
As anyone who’s seen a stage hypnosis show will attest, someone in a trance state can be led to believe anything. Stage hypnotists can convince subjects they’re meeting a celebrity, possess talents they don’t possess, or speak alien. Anything. By the same token, hypnotherapists can create memories with no basis in reality.
In the ‘90’s, therapists popularized Recovered Memory Therapy. Using hypnosis, their clients “recovered repressed memories” of childhood sexual abuse, incest and satanic ritual abuse. In a perfect example of the adage “when you’re a hammer everything looks like a nail,” a group of Boston-based therapists concluded that all their female clients suffering from eating disorders had repressed memories of sexual abuse.
Recovered memory therapists were willfully ignorant of their clients’ hyper-suggestibility/susceptibility under hypnosis. (Confirmation bias doesn’t begin to cover it.) Clients accepted hypnotically-induced “memories” as fact. In many cases, “victims” filed charges against family members for imaginary crimes.
It was a road to hell. High-profile lawsuits and the threat of disbarment eroded the technique’s popularity, but not before families were permanently ruined. Contemplating the wreckage, several states passed laws prohibiting “recovered memory” testimony in criminal or civil litigation.
As a hypnotist, I agree wholeheartedly with the prohibition. And welcome Texas’ move to bar hypnotically-induced evidence performed by law enforcement officials or their surrogates. But the new law doesn’t go far enough. The 800-pound hypnotic gorilla in the room: official police interviews.
Sitting in a small room without any external stimulus, under arrest or suspicion, faced with cops convinced of their guilt, interviewees often enter a trance state. You can see it in their body language. They’re listless if not immobile.
Police interviewers use hypnotic techniques to extract confessions, especially but not limited to their tone of voice, posture and language. The famous “good cop, bad cop” routine enacts the “mother voice, father voice” dual dynamic used by hypnotists. Reluctant suspects are further worn down by denying them food and sleep, or any concept of time, all of which shuts down their ability to think rationally.
Yes, suspects are offered a chance to evoke their Fifth Amendment right to silence and their Sixth Amendment right to counsel. But there are plenty of people who waive those rights without knowing the full implications of doing so. Specifically, the interviewers’ desire to make them say something they had no intention of saying at the beginning of the interview.
Video of police interviews is helpful when the suspect’s defense attempts to prove that a confessional was falsely – read hypnotically – attained. There are cases where judges have watched police interviews and disallowed confessions and testimony made “under duress.” Juries are also not completely insensitive to the possibility, though they rarely see a police interview from start to finish.
But video isn’t enough to protect suspects. Not by a long chalk.
There is but one answer to this danger: every formal police interview should include a lawyer representing the suspect. By law.
Someone familiar with hypnosis or at least coercion techniques. Someone who can intervene to prevent the police from manipulating the suspect to provide false or indeed any incriminating statements. Anything else leaves the door open to abuse and injustice.
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