Dec 18, 2014

In Texas, Hypnosis Aids Police in Prompting Witness Memories

Texas is one of 22 states that allow hypnosis of witnesses before they testify. Hypnosis supporters say it improves memory, while skeptics say it can reinforce inaccurate memories. Photo illustration courtesy of Daniel Lee/Flickr

By Andy East
For Reporting Texas

When a masked gunman robbed an Amarillo bank and fled with $257,000, police turned to the Texas Rangers and a controversial investigative technique to help with a composite sketch of the suspect: hypnosis.

The Rangers hypnotized two witnesses who had seen the robber flee the Amarillo branch of FirstBank Southwest in May 2013, which helped police produce a drawing of the suspect. That led to the arrest of Gabriel Tenorio of Lubbock, who later pleaded guilty and was sentenced to 12 years in prison.

Amarillo Assistant Police Chief Perry Gilmore said hypnosis was used to enhance the witness’s memory.

“Hypnosis a lot of times will help … focus [witness] attention on detail,” he said.

Skeptics argue that it also can reinforce inaccurate memories because people are more suggestible when they’re hypnotized.

“…What [hypnosis] is doing is just exacerbating all the flaws we already know about with human eyewitness testimony,” said Art Markman, a psychology professor at the University of Texas at Austin.

Texas and 21 other states allow court testimony by witnesses who previously were hypnotized to enhance their memories, according to a study by Steven Lynn, a professor of psychology at  Binghamton University in New York. The Texas Rangers have used hypnosis 66 times since 2009, according to the state Department of Public Safety. Most law enforcement agencies in Texas don’t keep statistics on hypnosis.

Police have used hypnosis for years in these states. Yet despite disagreement among social scientists about its effectiveness, hypnosis hasn’t drawn much attention from advocacy groups. The ACLU of Texas, for instance, said it has no one on staff who studies the use of hypnosis in criminal investigations. The same was true at the MacArthur Research Network of Law and Neuroscience at Vanderbilt University, an interdisciplinary research network focused on neuroscience and criminal justice.

Police in Texas use hypnosis to corroborate leads and gather information under rules established by a 1989 Texarkana Court of Appeals case, Zani v. Texas.

The court addressed the hypnosis  that helped to convict  Robert Zani for the 1967 murder of a store clerk in North Austin.

Texas Ranger Carl Weathers hypnotized a witness 13 years after the murder, according to court documents,. Before the hypnosis session, the witness had provided only a general description of the white male suspect. During hypnosis, he provided a much more detailed description. And afterwards, he picked Zani’s photo out of a series of photos.  Zani was convicted and sentenced to 99 years in prison in 1981.

The appellate court ruled that the “hypnotically-enhanced testimony” from the witness was admissible in court, provided that police follow protocols. Among those protocols: The hypnotist should record the session,  know as little as possible about the investigation and not not ask leading questions.

“It’s proven that people are able to enhance their memory with a relaxation technique,” said Austin criminal defense lawyer Joe Turner, who was a prosecutor in the Zani case. “It’s not a circus act.”

Investigative hypnotists in Texas must be certified by the Texas Commission on Law Enforcement. That requires taking a 50-hour course and passing an exam. Since licensing was mandated in 1987, commission records show that 858 law enforcement officers have been certified . Four officers have been certified in the past two years. In October 2013, the commission began requiring licensed investigative hypnotists to take a refresher course every two years.

Marx Howell, a licensed investigative hypnotist and retired DPS officer with 32 years of experience, said hypnosis is controversial because it can be misused. But he said he believes that  the safeguards established in Zani v. Texas prevent misuse.

“Any time you use hypnosis, they’re going to challenge you….” he said. “The first is that you didn’t need to, the second that didn’t meet the standards, the third you’re not competent enough to do hypnosis.”

Hypnosis is not always successful. The Texas Rangers asked Howell to hypnotize a witness who saw the getaway car in the 2013 slayings of a district attorney, his wife and an assistant prosecutor in Kaufman County. The hypnosis didn’t help and a suspect was identified through other means.

Joseph Green, a psychology professor at Ohio State University at Lima, is skeptical of the effectiveness of hypnosis as a memory-enhancement technique.

Green said that some states have an exclusion rule, “so if an individual has been hypnotized and they recall information during the session, typically it’s not admissible in a court of law.”

“Memory is not reproductive, it’s reconstructive,” he said. “…It’s not acting like a tape recorder laying down verbatim all the events that transpired, rather just bits and pieces.”

Markman, the UT professor, said hypnosis increases the subject’s susceptibility to suggestion.

“What you’re really doing when you hypnotize somebody is relaxing them to the point that their natural tendency to inhibit actions is lowered–and then getting them to go along with what you’ve asked them to do,” he said.

Hypnosis should be used more, said Gilmore, the Amarillo assistant police chief.

“Hypnosis has had some extremely good results. I really think it’s an underutilized technique in criminal cases,” he said.

Texas Rangers Lt. Wende Wakeman, a state-certified investigative hypnotist since 2010, said hypnosis is usually not law enforcement’s first option.

“It’s very helpful with cold cases as well, where a very long time has passed since the actual event occurred,” she said. “Once you run out of everything else, it’s a tool that we sometimes use.”