This week, a look at investigative hypnosis! We'll take a look at the Texas "Junk Science" law and what investigative hypnosis is.
What on earth is "Junk Science"?
Forensic science is evidence from crime scenes examined and analyzed by forensic scientists used to develop objective findings to either assist investigations and prosecutions of perpetrators of crime or absolve an innocent person from suspicion. From DNA matches to ballistics to fingerprints, forensic scientists use a wide range of techniques to analyze evidence from crime scenes during trials. The evidence produced by the science is mostly used for the explicit purpose of convincing the jury and judge of a defendant's guilt.
In 2017, Last Week Tonight With John Oliver focused on how not all "forensic science" is accurate or dependable over time. Sometimes, what is known about the science used draw conclusions based on evidence changes over time as we develop more technology and have more people study outcomes of scientific methods. When what is known about scientific processes change, sometimes it can lead to certain science and practices being dubbed as "junk science". Junk science is "science or scientific results of a fraudulent or misleading nature." If a type of science has been dubbed "junk science" in Texas, it can have a huge impact on past convictions.
What is this Texas "Junk Science" Law?
In 2013, Texas became the first state in the nation to provide a legal avenue allowing prisoners to challenge potential wrongful convictions due to "Junk Science". SB 344, known as Junk Science Writ, provides current Texas prisoners (even those in solitary or on death row) a pathway to challenge their convictions if they can prove their conviction was based on “junk science.”
SB 344 amended the Texas Criminal Procedure Code to expand prisoners' right to apply for a writ of habeas corpus due to scientific evidence. A writ is an order issued by a legal authority with administrative or judicial powers, typically a court. Writ of habeas corpus (literally meaning to "produce the body") is a court order demanding a public official deliver an imprisoned individual to the court and show a valid reason for their detention. This writ procedure provides a means for inmates to dispute the legal basis for their confinement and make the courts rule whether or not their imprisonment is valid or if they have the right to release based upon the role of junk science in their original trial.
The following must be present in a trial for an inmate to apply for a writ of habeas corpus related to "Junk Science":
- The inmate has current, relevant scientific evidence which wasn’t available at the time of their conviction
- The new evidence would be admissible under Texas law if it was around when the original trial took place
- If the evidence was available to the prisoner's team at the time of the original trial, the prisoner would not have been found guilty
The Texas junk science law states that if new scientific evidence comes out which contradicts the findings of a previously tried case, the new evidence can be used to overturn the case. This could happen for numerous reasons, including: a scientific field has evolved or been discredited since the conviction, experts state they would have given a different opinion at trial under today’s scientific standards due to scientific developments in their field, or, if new forensic testing techniques emerge which were not available at the time of the original trial.
What is Investigative Hypnosis?
Investigative hypnosis, often referred to as forensic hypnosis, is the use of hypnotic techniques to help witnesses and victims recall “facts” about a suspect or a crime. Hypnosis can be used to relieve stress and anxiety according to the Mayo Clinic. When performed by a trained therapist or healthcare professional, hypnosis is thought to be a safe, complementary, and alternative medical treatment.
A 2012 article in the American Journal of Clinical Hypnosis, Maximizing the Usefulness of Hypnosis in Forensic Investigative Settings, provided a guide for using hypnosis in forensic investigative settings.
The article discusses a brief history of this practice, stating the first ever documented case was in 1845 when a neighbor in a state of hypnotic “clairvoyance,” or “magnetic sleep,” stated they saw a teenage boy (who later confessed) to stealing cash from their neighbor storekeeper. A year later in New York, a trial judge admitted a witness's testimony about a murder she had recalled after her husband "mesmerized" her. In 1897, a hypnosis expert in People v. Ebanks wanted to submit testimony stating that because the defendant (Ebanks) maintained their innocence while hypnotized, they must be innocent. The trial judge did not allow this to be included in the trail, stating “The law of the United States does not recognize hypnotism. It would be an illegal defense, and I cannot admit it” (People v. Ebanks, 1897, p. 665).
Over the first half of the 20th century, people advocated more and more for investigative hypnosis. In 1955, a New York County Assistant District Attorney stated “Hypnosis has outgrown its infancy. It now demands its legal emancipation. A court that will not heed this plea bespeaks rigidity and unenlightenment.” They believed investigative hypnosis should be a method used during investigations, except to obtain confessions. In 1968, in Harding v. State, Maryland ruled for the first time that "hypnotically refreshed recollection was admissible in court." "Hypnotically refreshed recollection" is when a witness in criminal trial gives testimony after their memory has been "refreshed" by the use of pre-trial hypnosis. Since then, there has been much discussion around the legality and usefulness of forensic hypnosis.
If you are interested in learning more about how this Association recommends leveraging hypnosis, its stated purpose is: For mental health professionals interested in using investigative hypnosis with law enforcement agencies in the effort to enhance the memory of witnesses and victims. Discussion focuses on how to work with law enforcement agencies so as to control for factors that can interfere with recall. Specifics include what police need to know about how to conduct case review, to prepare interviewees, to conduct interviews, and what to do with the results.
What is this Texas law about?
Texas is the only state in the nation that provides a certification program for their law enforcement officers to learn hypnosis through the Texas Commission on Law Enforcement (TCOLE). After earning their certification from the 40-hour course, police hypnotists are also required to complete hypnosis training every 24 months in order to maintain their good standing. Over years of allowing for investigative hypnosis in Texas, the state developed some procedural safeguards known as "Zani factors". Zani factors are named after the 1988 case, Zani v. State, where a Texas Court of Appeals admitted the hypnotically elicited testimony of an eyewitness. The case established that proponents of "hypnotically-refreshed testimony" must establish that hypnosis is a scientifically accepted method to refresh someone's memory and show by "clear and convincing evidence" that the testimony provided in court is trustworthy.
This practice in Texas gained national attention after death row inmate, Charles Don Flores, gained media attention due to his decades long attempt to appeal his accomplice to murder conviction. Flores was convicted after a hypnotized woman identified him for the first time after seeing him in court. In 2016 Flores received an execution date, which was stayed. He is currently hoping for a new trial after the Texas Court of Criminal Appeals denied him a new trial under the state's "junk science law."
Earlier this year SB 281 was unanimously passed in the Texas Senate and House. The bill aimed to prevent previously hypnotized witnesses from taking the stand in criminal court. It was introduced following an announcement by the Texas Department of Public Safety that they were ending the practice of using hypnosis in investigations for the Texas Rangers. The Texas DPS assistant chief of media and communications, Travis Considine, stated, “DPS has developed more advanced interview and interrogation techniques that yield better results.”
SB 281 defined "investigative hypnosis" means a technique that uses hypnosis to explore the memory of a witness to enhance the witness's recall of a legally relevant event, including descriptions of people, conversations, and the environment. The bill would have prevented anyone who underwent police hypnosis from testifying about that hypnosis in criminal court while also making statements during or after a hypnosis session inadmissible, if Governor Greg Abbott hadn't vetoed it.
Lauren McGaughy, Dallas Morning News investigative reporter, said Abbott didn't veto the bill because he is against cracking down on police hypnosis, but instead because he believes last-minute changes by lawmakers made the legislation “overly broad". The change states that statements a person makes "long after" hypnosis would be barred from being used as evidence in a criminal trial. He was worried the bill could unintentionally give defendants expansive immunity, stating this change “would dramatically expand its scope in an unacceptable way.” The bill states, "This article applies to all statements made during or after a hypnotic session by a person who has undergone investigative hypnosis for the purpose of enhancing the person's recollection of an event at issue in a criminal investigation or case, including courtroom testimony regarding those statements and including statements identifying an accused that are made pursuant to pretrial identification procedures."
I could not find a lot of information online about how other states address investigative hypnosis. I did find a 2012 study which stated about half the states in the nation refuse to admit evidence obtained through hypnosis.
Conclusion
This was an absolutely fascinating blog to write. I had no idea about investigative hypnosis or junk science before this research. I am not very familiar with the practice of hypnosis, but I do have friends that do hypnosis as a form of therapy and are certified hypnotists. I think there is a place and time for hypnosis, but I am not too sure that place is criminal court. I am interested to see if this bill makes a reappearance next session with some of the "problematic" language addressed.
Cover Photo by MK Hamilton on Unsplash
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