In 1987, the U. S. Supreme Court reviewed a case from Arkansas in which hypnotically- refreshed testimony had been rejected, as dictated by state law. Mrs. Vickie Lorene Rock had shot her husband during a fight and claimed it was an accident, but she could not recall the details. She remembered that she had wanted to leave their apartment, but her husband had prevented her and had begun to choke her. She'd picked up a gun, and while he hit her again, she shot him. She believed that her finger had been on the hammer not the trigger, but that the gun had gone off anyway.
At her attorney's suggestion, Mrs. Rock twice underwent hypnosis by a trained neuropsychologist, Dr. Bettye Back, who first interviewed her for an hour. The sessions were recorded. In a trance, she recalled that her gun had misfired when her husband had grabbed her arm. A gun expert testified that the Hawes .22 Deputy Marshall was indeed faulty and was prone to fire if dropped or hit, even if the trigger was not pulled. However, the prosecutor filed a motion to exclude this testimony and the trial court ruled that hypnotically-refreshed testimony was inadmissible. The only statement Rock was allowed was what she had told the doctor prior to hypnotic treatment. She was convicted of manslaughter and sentenced to ten years in prison and a $10,000 fine.
The Arkansas Supreme Court affirmed the conviction and restated that hypnotically-refreshed testimony is inadmissible per se because it is unreliable. Yet grounds for further appeal rested on whether a state law could so restrict a defendant's right to testify by excluding material parts of the testimony.
The U. S. Supreme Court vacated the Arkansas decision on the basis that a total ban of such testimony restricted Mrs. Rock's Fourteenth Amendment Right to due process and her Sixth Amendment right to call witnesses. Arkansas's law seemed to have followed other state court rulings, yet those other states had not applied this to defendants but to other witnesses.
Hypnosis has its weaknesses, the Supreme Court stated, but to totally exclude it is too arbitrary, and no state's rules may be arbitrary or disproportionate to the purpose for which they were designed. "Arkansas's rule excluding all hypnotically refreshed testimony infringes on a criminal defendant's right to testify on his or her own behalf."
Since the hypnotic procedure has been credited with obtaining certain types of information, such as investigative leads and identifications later corroborated, and since inaccuracies can be reduced with procedural safeguards, the state's interest in barring such testimony does not justify the exclusion. In this case, the tape recordings indicated that the doctor did not suggest responses, and there was expert corroboration regarding the defective weapon. The Arkansas Supreme Court was instructed to review the case again in a manner "not inconsistent" with the U. S. Supreme Court ruling on allowing the hypnotically-refreshed testimony.
That same year, 1987, the U. S. Court of Appeals for the Eighth Circuit ruled in Little v. Armontrout that an indigent defendant was entitled to a court-appointed expert to assist him in challenging hypnotically refreshed testimony used against him. On the evening of August 13, 1980, the victim, M.B.G., was raped in her apartment. The assailant wore one of her blouses wrapped around his head and another around his torso, but she noticed his hands were black. When the blouse on his head slipped, she glimpsed a partial profile. A policewoman interrupted the attack and the assailant fled through a window. M.B.G. gave a description of her attacker to police.
Two days later, M.B.G. was hypnotized by a police officer who had been to a four-day training workshop, and the session lasted two hours. An audiotape was made, but subsequently erased. However, M.B.G. was unable to recall any further details under hypnosis. Four months later, she was again hypnotized to assist her in sleeping better. The case was not discussed, as the officer later testified, and no tape was made. Soon thereafter she looked through photographs of suspects and picked out Leatrice Little, who had recently become a suspect, and then successfully identified him in a lineup. He was convicted of rape and burglary, but he appealed on the basis of the court's violation of his Fourteenth Amendment right to due process.
The Missouri Court of Appeals for the Eastern District reversed the conviction and remanded the case for a new trial, but then through some confusion, transferred it to the Missouri Supreme Court, which affirmed the conviction, because Little had failed to prove that the testimony was tainted by suggestion. He appealed again.
In reaching their decision, the Eighth Circuit Court reviewed two central theories of hypnosis: the "retrieval theory" proposed by Dr. Martin Reiser, and the "construction theory" proposed by Dr. Martin Orne. In the retrieval theory (in which the police officer who hypnotized the victim was trained), the idea is that all experiences are recorded and stored in a memory bank, and hypnosis aids in recalling details. The subject is encouraged to "watch" the event as if watching television, with the hope that more details will emerge. The construction theory holds that a memory of any given event is "constructed" by many factors, particularly the person's perception of the event relative to other experiences. Proponents of this theory believe that the past is continually remade in the interest of the present, which entails serious problems with accuracy in hypnotically-induced recall.
In evaluating M.B.G.'s testimony, the court determined that the hypnosis sessions did not adhere to any of the safeguards cited in State v. Hurd (no recordings, no written pre-hypnosis interviews, the hypnotist was an amateur and not impartial, and others were present), and that some of the testimony was suspect. M.B.G.'s original physical description of the suspect did not match the defendant, and there could have been some suggestion planted during the second session (closely following the time when Little came under suspicion). The lack of record of the session deprived the defendant of a means of attacking its credibility. Since M.G.B.'s was the only testimony that placed Little at the crime scene, and fingerprints found on a windowsill where the assailant escaped did not match Little's, there was no corroborating evidence. The state was ordered to commence a new trial within three months or release Little from custody.
One of the reasons that hypnosis used during an investigation is so controversial is that there are several key problems associated both with the technique and with memory itself. Let's put this issue into proper perspective.