Orne, M. T. Hypnosis and victim/witness recall. NLADA Briefcase, Winter 1980, 37(1), 6-11. (NLADA Briefcase was replaced by the NLADA Cornerstone in 1981.)

Hypnosis and Victim/ Witness Recall

Martin T. Orne, M.D., Ph.D.

Over the past several years there has been a sudden upsurge of cases throughout the country which have involved the use and misuse of hypnosis. While there have been some isolated instances of confessions elicited under hypnosis, these clearly involved self-incrimination and thus have not been introduced in court. On the other hand, there have been a number of instances where hypnosis was used in an effort to exonerate the defendant. [An] increasingly widespread use of hypnosis [is] to help victims and/or witnesses recall crucial aspects of a crime or to facilitate the identification of a criminal prior to their testimony in court.

To appreciate the problems inherent in the use of hypnosis with witnesses and victims, it is necessary to review the facts about the nature of the phenomenon and its effect on recall.

The phenomenon of age regression induced by hypnosis is among the most dramatic and widely known procedures designed to increase recall for events which happened many years ago. The hypnotized individual may be told that he is six years old and at his birthday party. As a consequence, he will begin to act, talk, and to some degree think as a child. He may play as a child would, address the friends who apparently were at his birthday party, and describe in detail the room where the party is occurring, the people who are in attendance, the presents he is receiving, and so on. The naturalness with which these descriptions are given and the conviction that is communicated by the individual are compelling even to trained observers. The feelings which are expressed appear appropriate to a child more than to an adult, and the entire phenomenon is such that it is generally described as beyond the skills of even an outstanding actor. Finally, the material that is recovered during hypnotic age regression in a therapeutic setting is often of great importance to a patient's treatment. For these reasons, there is a widely held belief among both laymen and practicing clinicians that the events relived during hypnotic age regression are historically accurate.

Recent work has shown that some of the events which patients relive in treatment may accurately reflect the emotions of the individual but need not accurately portray actual historical events. Indeed, many such relived episodes actually combine several experiences. This fact in no way detracts from the usefulness of reliving these events in treatment where the purpose is to help the patient gain relief from his symptoms rather than to establish historical facts.

[A 1932] study first clearly established that there are two tendencies in hypnotic age regression: (1) a modest increase in the amount of

Excerpted with permission from an amicus affidavit before the U.S. Supreme Court in John Philip Quaglino vs. The People of the State of California.

Martin T. Orne, M.D., Ph.D., is Professor of Psychiatry at the University of Pennsylvania and senior attending psychiatrist at the Institute of Pennsylvania Hospital. He has a Ph.D. in psychology and has been principal investigator of a major research group working on the nature of hypnosis and related phenomena since 1960. Orne has served as an expert hypnosis witness in state and federal court cases in jurisdictions from Maine to California.




material available to memory, and (2) a tendency to confabulate, to fill in those aspects which the individual cannot remember in an effort to comply with the suggestions of the hypnotist. In subsequent research we have repeatedly documented both processes occurring within the same age regression session: an apparent increase in recall as well as an increased tendency to confabulate, to make up suitable memories, using whatever information was previously available to the individual.

Because of the two tendencies which are facilitated by hypnosis, increased recall and increased confabulation, it is extremely difficult to know which aspects of hypnotically aided recall are historically accurate and which aspects may have been confabulated. The details of material that is confabulated depend upon the subject's total past experience and all relevant cues that had been made available to him in the past. Subjects will use cues previously provided in the wake state in an inconsistent and unpredictable fashion; in some instances such cues are incorporated in the confabulated material, while in others the hypnotic recall may be virtually unaffected by them.

As a consequence of these limitations, I have found hypnosis dramatically useful in some instances where I have used it to help bring back forgotten memories of witnesses to crimes, while in others a witness might, with the same conviction, produce data that is totally inaccurate. This means that material produced during hypnosis or immediately after hypnosis, inspired by hypnotic revivification, may or may not be historically accurate. As long as this material is subject to independent verification its utility is considerable and the risk attached to the procedure minimal. However, there is no way by which a psychologist or psychiatrist, even with the most extensive experience in the field of hypnosis, can differentiate between an actual memory or a confabulation in a particular case without independent verification. Thus, there are many instances when subsequently verified accurate license numbers were recalled in hypnosis by individuals who previously could not remember them; by the same token, however, a good many license numbers which witnesses recalled turned out to belong to individuals where neither they nor their cars could possibly have been implicated. Unfortunately, a witness who is uncertain about his recall of a particular set of events can, with hypnosis, be helped to have absolute subjective conviction about what had happened, though the certainty can as easily relate to a confabulation as to an actual memory.

While under normal circumstances memory distortions may occur, the use of hypnosis can well nigh guarantee that a responsive subject develops subjective certainty about what has happened. He may come to believe that he can identify someone with certainty even though he had never actually seen him. By the same token, of course, he may also correctly recall that he had never seen the individual, or in another instance it will turn out that he did catch enough of a glimpse to be able to bring an accurate image to mind. The crucial fact is that neither the subject nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. The only way that can be done is on the basis of external corroborative data.

A deeply hypnotized individual will, with sufficient suggestive pressure almost always produce something which appears to be a memory.


Recognizing the nature of the phenomenon, it becomes clear that hypnotizing either a victim or a witness, while not infringing upon their rights (unless it turns out they were an accomplice), certainly compromises the rights of an individual who is incorrectly identified. Courts have in the past tended to recognize that information obtained under hypnosis may not be accurate, that it may be confabulated, and that a deeply hypnotized individual is capable of actually lying. Further, it is acknowledged that a jury or even a judge unfamiliar with the dramatic impact of the hypnotic phenomenon may easily be unduly influenced and may, therefore, give inappropriately great weight to the material brought forth under hypnosis -- even if it is explained that this material is not historically accurate. For these reasons and because proper cross examination cannot be carried out, courts have generally held that testimony given under hypnosis is not admissable, a ruling which seems eminently appropriate in view of the ease with which even trained psychiatrists or psychologists are misled by material produced by the hypnotized individual.

Largely unrecognized, however, has been the potential effect of hypnotic techniques designed to "refresh the memory," i.e., facilitate recall of a witness. Starting over three years ago the Los Angeles Police Department began training detectives in the use of hypnosis in interrogation. This program, under the supervision of a psychologist, has been enthusiastically endorsed by the police officer students and has inspired interest in police departments across the country. Not only have police officers come to Los Angeles to obtain training, but lay hypnotists in several parts of the country have been engaged by police departments to provide "training" so that their detectives may utilize this modality in their work. Even the Federal Bureau of Investigation has had great interest in the use of hypnosis, and while it has been their policy to engage competent psychiatrists or psychologists to induce hypnosis, they have trained special agents to carry out interrogation during hypnosis once it has been induced.

As was discussed earlier, there is no doubt that hypnosis can be a useful investigative tool when a witness is



enabled to remember verifiable factual information which provides new leads to the solution of a crime. Provided the witness or victim is willing, I can see no reasonable objection to the use of hypnosis in this manner as long as the material remembered during hypnosis is not subsequently used in court as part of the testimony given by an eyewitness. It is in that context where an ever increasing number of abuses are encountered.

If the hypnotist has beliefs about what actually occurred, it is virtually impossible for him to prevent himself from inadvertently guiding the subject's recall.

To fully appreciate the problems which may follow from a hypnotic session, it is necessary to recognize the scientific fact that a deeply hypnotized individual who is asked to remember or describe something which occurred while he was asleep or not actually present will, with sufficient suggestive pressure, almost always produce something which appears to be a memory. This is best illustrated by the phenomenon of age progression where a subject is told that it is the year 2000 and asked to describe the world around him. Such a suggestion given to the deeply hypnotized individual will lead to a vivid and compelling description of all kinds of new, as yet unseen, scientific marvels. Obviously, the plausibility and the precise nature of the subject's description will depend upon his scientific knowledge, his reading, and his intelligence.

The same process that is involved in permitting an individual to hallucinate the environment of the year 2000 can also be involved when he is urged to recall what happened six months ago, especially if he lacks the memory traces to permit him to remember accurately. Unfortunately, such pseudomemories can and often do become incorporated into the individual's memory store as though they had actually happened. It is worth noting that this can occur even with bizarre memories such as when people "recall" their past lives and become convinced that these events really took place or, in other instances, when individuals under hypnosis remember encounters with flying saucers and become convinced they have actually communicated with beings from another galaxy. In such instances, the sophisticated listener smiles about the individual's assertions since it is obvious that they represent pseudomemories. Unfortunately, if such pseudomemories relate to events which occurred six months ago and are eminently plausible, there is no way for either the hypnotist or the subject or the finder of fact to distinguish between them and actual recall of what occurred.

The content of pseudomemories when they are wittingly or unwittingly induced during hypnosis is, of course, not random. If someone has just seen a science fiction film, one can usually recognize elements of that film in his description of what is going on about him in the year 2000; similarly, if a witness is hypnotized and has factual information casually gleaned from newspapers or inadvertent comments made during prior interrogation or in discussion with others who might have knowledge about the facts, it is inevitable that many of these bits of knowledge will become incorporated and form the basis of pseudomemories. Furthermore, if the hypnotist has beliefs about what actually occurred, it is virtually impossible for him to prevent himself from inadvertently guiding the subject's recall so that he will eventually "remember" what he, the hypnotist, believes actually happened. It must be emphasized that we are not usually dealing with a conscious effort on the part of the hypnotist to distort a witness's memories; on the contrary, the process of cuing the hypnotized subject is usually outside of the hypnotist's awareness.

In every instance I have examined where tapes have been available of sessions conducted under hypnosis there are clear examples of explicit and implicit suggestions to the subject which unmistakably communicate what is wanted by the hypnotist and/or other questioners. The nature of hypnosis is such that the individual's suggestibility is increased. Therefore, the risk of creating memories for an eyewitness, rather than merely bringing forth recollections that were not previously available, is tremendous. This is true even with a highly qualified psychiatrist or psychologist. For this reason, in research complex control procedures are utilized to evaluate the effects on unwitting communication to the subject, and the importance of these factors is generally recognized in all research involving interaction with human subjects. Considering the ease with which one may unwittingly produce data in the laboratory where the scientist has been trained to work under standard conditions and in a neutral fashion, the likelihood of producing the memories the hypnotist hopes to find when he is a detective sergeant who has a profound commitment to a theory of a given crime seems overwhelming. Only the most stringent control procedures can reduce the likelihood of contaminating a witness.

There are a large number of instances where a victim or a witness is hypnotized and as a consequence significantly altered his recollection of



the events surrounding a crime. Some of these new memories represent accurate recall while others are the consequence of confabulation. Unfortunately, without independent verification, it is simply not possible to know whether the changed memories reflect an augmented recall or whether they represent alterations in a witness's memory in ways congruent with the theories held by the investigating authorities and the hypnotist.

A more complex problem is illustrated by a case involving a trial not yet completed (State of California v. Bicknell and State of California v. Terri Milligan and Karen Kirby). The witness in this case is a 14-year old girl whose sister, aunt, grandmother, and cousin were stabbed to death in their home. The witness lived with her mother and other sister in another house and had apparently been visiting her grandmother's house with a girl friend. The individuals accused of the murder are a 19-year old cousin, another 15-year old girl who was his mistress, and a girl who had been the witness's closest companion, also 14 years old. The issue here is not the facts of the case but rather the inherent problems raised when the prosecution decided two days prior to the preliminary hearings to have Rayleen undergo hypnosis before she could be questioned by the defense.

Prior to this event, Rayleen had been interrogated extensively and had developed a good relationship with the interrogator. After initially denying being present during the murder, she admitted, 4 months after her initial questioning by the police, that she had been there and gave a variety of descriptions of the events which took place. Each description differed from the others in important aspects, though it is reasonably clear from the two taped interrogations that even in the wake state she was very responsive to leading questions from the interrogator. Overall, her reports were extremely inconsistent and, furthermore, she insisted that the whole episode was merely a bad dream; she allowed it could have happened but asserted that she really did not believe this was so. Finally, she became quite emotional during the interrogation.

The risk of creating memories for an eyewitness is tremendous.

All of these factors were felt to mitigate against her effectiveness as a witness, and since she was the only witness, the prosecution stated that it was their hope that hypnosis would allow her to give her testimony more comfortably. The investigators and the psychiatrist who hypnotized her indicated that hypnosis was safer than sodium pentothal which she had originally requested so that she would be believed and could remember more accurately. The doctor also assured her that there would be no difficulty and implied that she would know, following hypnosis, that her memories had not been a dream. Rayleen was hypnotized and told a story whose major outlines were similar to material she had brought forth previously, except that it was somewhat more consistent with what the investigator seemed to have been interested in, such as accounting for her arrival time at the house where the murder occurred. While the psychiatrist had induced hypnosis, the bulk of discussion during hypnosis was carried out by the investigator whom she apparently was very eager to please. Previously, the witness had been unwilling or unable to answer the question of how she got home to the friend with whom she was staying. She had claimed that she must have passed out but she wasn't sure because it was only a dream. During the hypnotic session the hypnotist clearly implied that the events she described had occurred and were not a dream. Rayleen also described how she was hit over the head and



knocked out at the scene of the crime and woke up the next day in her friend's bed with a pain in her head.

This latter kind of memory is an example of what is termed a "screen memory" in psychiatry. It is a memory designed to make it unnecessary to recall other things which the patient does not wish to recall. This fact was recognized by the prosecution psychiatrist, who acknowledged that it was very unlikely she had actually been hit over the head; however, he felt it would not be to the patient's' advantage to help her remember more. In sum, a story was obtained during hypnosis which clearly implicated the three suspects and Rayleen's screen memory was accepted as if it were true.

There is no way in which the process that has taken place could be reversed.

It is my understanding that under California law Rayleen's testimony, if she had been an accomplice, would have been considerably less useful, and in the absence of independent verification, it could not have been used.

The consequences of the hypnotic session were striking. Whereas before Rayleen's description of the events changed with every time she was asked to tell about them, there is now a consistent story; whereas previously she had insisted it was all like a dream, she now comes to accept the fact that it was not a dream, and by the time of trial is able to state with certainty that it was not a dream, a process which she clearly relates to the hypnotic session. Further, despite her age, she is now able to successfully resist any attempt by counsel to question her certainty about what occurred. Whereas before hypnosis she was highly responsive to leading questions, after hypnosis her story has become fixed.

In this situation hypnosis clearly altered the nature of the witness. Instead of an uncertain, confused individual who gives an inconsistent description which she believes might well be a dream, it is now a self­assured young girl who appears thoroughly convinced about what actually happened, including the fact that she was hit over the head and could not remember what happened until she woke up in her friend's bed.

That she now is convinced, even about an aspect of her story which is an obvious falsehood, is particularly instructive. Thus, not only does the prosecution psychiatrist acknowledge that she was probably not hit on her head, independent of my own evaluation, but we also have the record of a physical examination conducted within 48 hours of the event where a physician failed to see any evidence of trauma (whereas a blow on the head sufficient to cause unconsciousness for such a long period would still be clearly recognizable for some time after the event, at least in the form of localized swelling and tenderness).

Here hypnosis has the effect of radically altering the nature of the witness. While much of the content that is remembered stays the same, the subjective conviction of the witness is entirely different, and she has selected specific contents of her past descriptions which she now sticks to consistently. We do not know the truth of what she asserts; however, the aspect of the story relating to being hit on the head, which is virtually certain to be untrue, is now told with complete conviction. Rayleen's experience of having told the story in hypnosis and having it accepted as real by both the psychiatrist and the interrogator seems to have made it real for her.

I know of no procedure which could change a witness as effectively as hypnosis in such a situation.

There is no way in which the process that has taken place could be reversed. The defense simply does not have the opportunity to cross examine the witness who existed prior to hypnosis. The hypnotic process was not utilized in this instance to obtain additional information but to alter the nature of the witness and to convince her that the events she related under hypnosis had actually happened that way. I know of no procedure which could change a witness as effectively as hypnosis in such a situation.

The misuse of hypnosis seems self-evident. The prosecution acknowledges that it was not primarily intended to obtain more factual information that could be verified, and the prosecution psychiatrist acknowledges that he was aware of the screen memory but chose not to explore the matter, thereby virtually foreclosing the possibility of the defense effectively exploring the matter under cross examination. Further, the prosecution psychiatrist under cross examination acknowledged that it is entirely plausible that the material which is concealed by the screen memory would actually implicate the witness either as a participant or an accessory to the crime.

Unfortunately, there are few experts willing and able to present the facts [on hypnosis] to the courts. The number of serious research scientists working with hypnosis is limited, and it requires an intimate familiarity with both the research and the clinical literature to clarify the problems in any individual instance. The scarcity of experts needs to be juxtaposed with the fact that police officers are being trained in large numbers throughout the country, that it requires very little training to induce hypnosis, and that in many instances hypnosis is conducted without video tapes or, as in a current case in New Jersey, without any tape record at all, though here again the witness's memories were greatly altered.

The use of hypnosis and related techniques to facilitate memory raises



profound, complex questions, and it is likely that the individual will only be protected if these issues are dealt with at the highest level of our court system. There are instances when hypnosis can be used appropriately, provided the nature of the phenomenon is understood by all parties concerned. However, it must be recognized that the use of hypnosis by either the prosecution or the defense can profoundly affect the individual's subsequent testimony. Since these changes are not reversible, if individuals are to be allowed to testify after having undergone hypnosis to aid their memory, a minimum number of safeguards are absolutely essential.

It should be emphasized that safeguards are necessary whenever there is any possibility that a witness or victim would be asked to testify in court as an eyewitness. They would not be necessary if there is no such possibility. On the other hand, it is crucial to recognize that if hypnosis is used during an investigative process without minimal safeguards, the subsequent testimony of the witness or victim in court can no longer be evaluated. Since the hypnotic phenomemon makes it possible to irreversibly alter memory, safeguards are essential to assess whether hypnosis is likely to have tampered with the evidence in the witness's mind. It is possible for experts to evaluate these data and, if necessary, objectively establish the kind of changes that have taken place in a witness's recollections following hypnosis, and determine whether these can be traced to specific cues which were made available to the individual. Only such an assessment would allow the finder of fact to make an informed decision about an eyewitness report of a witness or victim who had been hypnotized. Without such safeguards, recollections "facilitated" by hypnosis are less reliable than normal recall and should not be allowed in court.

Inevitably it will be argued by some that hypnosis has only been used to facilitate memory and that its possible distorting effects are minimal and can, as a practical matter, be ignored. Not only do such arguments fly in the fact of scientific evidence but the reason why hypnosis is receiving such attention by law enforcement agencies is because it is recognized as an effective tool, capable of facilitating (or altering) recollection. The testimony of a witness whose memories have been altered by hypnosis has all the pitfalls of testimony given during hypnosis, with the additional insidious complication that the effects exerted by hypnosis are no longer obvious.

Finally, it will be argued that many safeguards are not feasible as a practical matter, that they would interfere with the ready use of hypnosis in the course of criminal investigations. While it requires additional thought prior to the use of hypnosis, following the guidelines would actually improve the quality of the investigative use of hypnosis. However, there is no real choice since it is the only way that the rights of the defendant can be protected. The guidelines do not place an onerous burden on the investigating authorities; rather, analogous to the rules preventing the admission of coerced confessions, the insistence of such guidelines will minimize the likelihood of creating a false eyewitness. Only a clear ruling protecting the defendant's rights if eyewitnesses have been hypnotized prior to their testimony in court will prevent the widespread, uncontrolled misuse of this technique as training in the modality becomes increasingly widespread among our country's local, state, and national police forces.

The preceding paper is a reproduction of the following article (Orne, M. T. Hypnosis and victim/witness recall. NLADA Briefcase, 1980, 37 (1), 6-11.). It is reproduced here with the kind permission of the National Legal Aid & Defender Association. The NLADA Briefcase was replaced by the NLADA Cornerstone in 1981.