As Debbie Nathan and Michael Snedeker reveal in Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt, the interview techniques used on children in recent alleged sexual abuse cases are frequently, even invariably, leading. For example, in order to encourage the children to talk about what might have happened, anatomically correct dolls were used. Having got a child involved in imaginative play, the questioner would bring on these dolls and sometimes almost force the child to accuse whoever it might be of performing obscene acts. If the child said that nothing happened, this was taken to be shyness or reluctance, and the questioner, in her enthusiasm for her cause (an enthusiasm often fuelled by feminism or Christian fundamentalism, or both in an unlikely alliance), would continue to press the child to make accusations, and praise the child once he or she had made the accusations. Although a number of these cases have since been overturned, there are undoubtedly people in prison today who should not be; and even apart from their torment, one wonders what the long-term effect of these forms of questioning might be on the children.
Here is a fragment of an interrogation (not involving the use of dolls) of a five-year-old boy:
ADULT: Did she put a fork in your butt? Yes or no?
CHILD: I don't know, I forgot.
ADULT: … Oh, come on, if you just answer that you can go.
CHILD: I hate you.
ADULT: No, you don't.
CHILD: Yes, I do.
ADULT: You love me, I can tell. Is that all she did to you? What did she do to your hiney?
SECOND ADULT: What did she do to your hiney? Then you can go.
CHILD: I forgot.
SECOND ADULT: Tell me what Kelly did to your hiney, and then you can go. If you tell me what she did to your hiney, we'll let you go.
CHILD: No.
ADULT: Please.
CHILD: Okay, okay, okay.
ADULT: Tell me now: what did Kelly do to your hiney?
CHILD: I'll try to remember.
ADULT: What did she put in your hiney?
CHILD: The fork.
The case against Kelly Michaels, it should be added, was thrown out, partly as a result of this kind of interrogation technique – but not before she had spent some years in jail. Perhaps the most astonishing aspect to the whole hysterical business is that the children's accounts were accepted as more authoritative than common sense and good evidence. Even if a day-care worker had been in plain view of other responsible adults, and of dozens of children, all the time, it could still become accepted that he was abusing the children in his care.
Confabulation is not always as crude as this, however; it is subtle and hard to guard against. Consider these two questions: ‘How fast were the cars going when they smashed into each other?’ ‘How fast were the cars going when they collided?’ The first question seems only to use an innocent colloquialism for ‘collision’, but in fact when put that way the question elicits responses which exaggerate the speed of the cars. Or again, the question ‘Didn't you see a gun?’ encourages respondents to answer yes more than ‘Did you see a gun?’
As an appendix, I cannot resist adding the little-known fact that the modern mass hysteria about sexual abuse of children was played out, on a small scale, in the analysis rooms of Freud. In the early years of his work, he found that almost all the ‘hysterical’ women coming to see him had a history of sexual abuse, often of a perverted kind, by their fathers. However, it was gradually borne in on him that hardly any of this was true. For Freud, this was a crisis point; he nearly threw up the whole enterprise of analysis in disgust. If he, the analyst, could be taken in so thoroughly for so long, and if his patients could come up with lies as if they were truth, how could progress be made by means of psychoanalysis? Nevertheless, he persevered – for better or for worse.
Cryptomnesia, Hypermnesia and Forensic Hypnosis
Cryptomnesia means ‘buried memory’. We all have them. Sometimes we have buried a memory because it is too distressing to face (though this is rarer than Freudians would have us believe); sometimes an event was just too trivial to be fully registered at the time in our conscious minds, though it was taken in unconsciously. Hypermnesia is the ability to recall, under hypnosis, such forgotten memories.
There is no doubt that hypnosis can significantly enhance memory recall. I argued (in Chapter 1) that it is hit and miss, but when it scores a hit it can be very dramatic, and has been used in criminal cases. In 1976, for instance, a school bus was hijacked at Chowchilla near San Francisco and held to ransom. In the course of the adventure, the driver and the children were shoved into the back of closed vans. Under hypnosis the bus driver was able to recall enough of the number plate of one of the vans to allow the police later to arrest the gang. He caught only the merest glimpse of the number plate, and was unable to remember its details by conscious recall. Actually, he ‘recalled’ two numbers, only one of which was right – perfectly illustrating the hit-and-miss nature of hypnotically refreshed memory.
In 1973 a terrorist bomb exploded on an Israeli bus. By great good fortune, the bus had just pulled in at the main station in Haifa and unloaded its passengers, so although there were injuries, there were no fatalities. The bus had been packed; it was a normal busy day for the driver, and he could not be expected to remember all the passengers who had come and gone. But he agreed to be hypnotized by the police, and then he remembered that there was something odd about one of the passengers: he had been sweating profusely, as if in fear. The hypnotist asked him whether he could also remember details of his features, glimpsed for maybe a couple of seconds. A police artist sketched the driver's description not only of the passenger but of a companion who had not boarded the bus – and the police were able successfully to pick up one of the terrorists and chase the other out of the country.
In the 1980s a woman was found wandering in the dark, confused and amnesic, somewhere in North America (the precise place has been suppressed in my source). She had been beaten and sexually assaulted. Under hypnosis she was able to recover quite a few details of the man, the car he had driven (including the make of a can of beer that had been shoved down between the front seats) and the location. She told the police, among other things, that the car had crashed and dented its front wing during the abduction. The police went round repair garages and eventually found one that had fixed a car that fitted the description. They went to the man's house and found, inside the car, not only the squashed can of beer, but also the woman's small purse, which had ended up on the floor of the back seat, covered by some old clothes. The man was tried and convicted.
American psychotherapist Milton Kline once had to deal with a patient who had inexplicably started to have anxiety attacks. It turned out that these had begun four weeks earlier, the night after she had been invited to a party at her neighbour's; she had refused the invitation, but had lent him her steak knives. Under hypnosis she remembered having heard cries and the sound of a struggle in the next-door apartment. Police broke down the door to find a fourweek-old corpse, apparently killed with one of the steak knives.
Hypnosis has been used to recover memories even in such high-profile cases as the Florida State v. Bundy – Ted Bundy being better known as the charming, good-looking sex killer of at least twenty-two women in Washington, Oregon and Florida in the early 1970s. Or through hypnosis an innocent person might come to remember details establishing her alibi. More surprisingly, hypnosis has also been used to elicit or confirm confessions from suspects, as in the famous Boston Strangler case in 1962, when under hypnosis Albert DeSalvo willingly revealed details of the series of sex killings which only the perpetrator could have known.
What most impresses about these cases is their matter-of-factness: hypnotism simply seems to work well under these circumstances and can be used by open-minded police forces without fuss or bother. It may help and, with the proper legal guidelines and awareness of its hit-and-miss nature, it cannot hinder. It is a fact that memory can be refreshed under hypnotism in m
any cases, provided the operator suggests it – memory is not automatically enhanced by hypnosis – and the subject wants to remember. The technique is a form of age-regression: the subject is regressed back to the event details of which he or she is to remember. The hypnotist is either a professional brought in by the police, or, increasingly, a trained police officer. The Los Angeles Police Department (LAPD) pioneered the training of its own people, starting in the 1970s.
It goes without saying that checks and controls are needed. Only experienced hypnotists should be used, not policemen fresh from a four-day course on the topic – this has actually happened, and led to abuse: two suspects to a crime were identified and even arrested before it was found out that the victim was making the whole thing up. And whenever hypnotic testimony is given in court, it needs to be clearly stated that this testimony was gained under hypnosis, so that judge and jurors can look at it in that light. For, as we will see, although hypnosis can refresh memory, our memories are far from accurate.
Up until about the 1970s courts in the English-speaking world tended to rule that information gained under hypnosis was inadmissible. They did so for a variety of reasons, both good (such as worries that the hypnotist may have asked leading questions) and bad (such as ignorance about hypnotism). But one of the basic reasons was the equal inadmissibility of the evidence of a lie-detector test. Both methods of arriving at the ‘truth’ were felt to offer useful corroborative evidence out of court, but to be too unreliable for the degree of certainty courts aspire to attain. Only gradually did courts come to see that hypnosis could be a valuable tool where, for instance, a defendant had a complete blank in his memory due to alcoholic stupor, perhaps. And even now courts chop and change. In the 1959 Californian case of Cornell v. Superior Court it was clearly stated that the defendant had a right to be hypnotized to help him recall forgotten facts, but in the 1982 People v. Donald Lee Shirley it was equally clearly stated that the testimony of witnesses who had been hypnotized to aid their memories ‘should not be admitted in the courts of California’. Similar rulings have been passed in other American States (such as State v. Mack (1980) in Minnesota). British and French courts don't accept testimony which has been elicited under hypnosis, although like most other courts around the world they are prepared to give it a guarded hearing, provided it has been confirmed by proper police investigation. In America, although hypnotic testimony can be viewed with some suspicion, courts are reluctant to outlaw it altogether, because that would restrict the right, under the 14th amendment, to due process, and the right, under the 6th amendment, to call witnesses.
The landmark case in the States was State of New Jersey v. Hurd in 1981, which outlined conditions for the use of hypnosis on a witness. The most important of these conditions are that a trained medical doctor should be used, not an amateur hypnotist; that the witness should have given his or her testimony in the first place before being hypnotized, so that there is a point of comparison in case the hypnotized version of the story differs; and that the witness should be hypnotized by the expert with no one else present, to prevent any undue pressure.
Before these sensible guidelines were in place, there were some extraordinary cases. Perhaps the most outrageous happened entirely within the court, in Columbus, Ohio, in 1962. The defendant was Arthur Nebb, who, in front of witnesses, had broken into the home of his estranged wife and shot both her and her lover, the latter fatally. It seemed an open-and-shut case, with only the quirk that Nebb had or claimed to have no memory of the events. At the defence lawyer's request, the judge allowed Nebb to be hypnotized in court to enable him to recall the fatal evening's events. Although members of the public were allowed to stay, the jury was temporarily removed from the court while induction went on, and were then brought back in to hear the hypnotized man's testimony. His account of the events differed crucially from that of the witnesses; he claimed, for instance, that it was during a struggle with his wife that the gun had first gone off, as opposed to the prosecution's claim that he had calmly walked into the room and opened up. Nebb's account of the events obviously won the day, because he was found guilty only of second-degree murder, and imprisoned for a term of one to twenty years, which would make him liable for parole in a mere eight months.
A similarly bizarre scene was enacted a few years later in a court in Canada, so that hypnosis in court entered the British system too. In 1967 Gladys Pitt was charged with the attempted murder of her husband. She had battered him around the head with a hammer because of his insistence that she have sex with a friend of his, who was there in the bedroom with them. She had no memory of what happened, but under hypnosis recalled that the hammer had been lying on a bookcase in the bedroom, so that she did not have to leave the room and fetch it, which would have been a premeditated act. She was eventually found guilty only of assault, and sentenced to a year in prison.
At the other extreme US courts have more than once thrown a case out because when the defendant confessed to the crime he was deemed to have been hypnotized by the questioner, and such a confession was held to have been not freely extracted. In one such case a man, Camilo Leyra, was released after several years on death row in Sing Sing prison; another, involving a teenage boy, was made into a TV movie called Murder or Memory?. These kinds of cases have led the relevant agencies, such as the FBI and the LAPD, to tighten up their procedures, and so some courts have become more open to evidence gained by pre-trial hypnosis. However, it is still a ploy for the opposing lawyers to cast doubt on the testimony by challenging the scientific credibility of hypnotism, and the validity of such refreshed memories: ‘Did you remember this on your own, or only when hypnotized?’ This may lead to an expert witness being called in to give complex evidence as to what hypnotism can and cannot achieve, and to citing a raft of precedents from prior trials, and so the whole case becomes less straightforward.
In the States, the admissibility of scientific evidence in court has traditionally been based on a criterion of ‘general acceptability within the relevant scientific community’ (Frye v. United States, 1923). In my opinion (and in the opinion of a lot of people more qualified than me), this should still be the guideline. Provided proper safeguards are in place, as outlined above, there is no good reason to exclude hypnotically induced testimony. The ‘relevant scientific community’, psychotherapists and psychologists, are aware of the limitations and can allow for them.
Are Recovered Memories Accurate?
The assumption in the Nebb and Pitt cases was that memories recovered under hypnosis are accurate, and writers on forensic hypnosis have sometimes claimed that this is the whole justification for eliciting testimony under hypnosis. But there are serious grounds for doubt. First, there is the general question whether our memories are ever as accurate as they seem to us to be; second, there is the question whether faculties such as self-protection and self-deceit are so thoroughly bypassed by hypnosis that it is, in effect, a truth serum; third, there is the possibility of confabulation.
Repeated tests have shown that, however much we like to think that our memories are reliable, they simply are not. American university students who filled in a questionnaire on 29 January 1986, the day after the Challenger space shuttle exploded, on the circumstances of their hearing the news, were given the same questionnaire just three years later. Only three out of the forty-four students involved gave the same answers, while as many as eleven – fully 25 per cent – scored zero, in the sense that their answers in 1989 were in all details different from what they had said in 1986. But many of the students also reported that they were confident in the accuracy of their memories. It is this confidence that makes hypnotically refreshed testimony in court dangerous, because the witness's very confidence can make what he says carry conviction. There is good experimental evidence to show that under hypnosis, as in sleep and other ASCs, we are strongly inclined to accept the reality of subjective experience, without critically evaluating it. In other words, in trusting a recovered memory, we ma
y make an honest mistake. In the stage show Gigi the well-known song ‘I Remember It Well’ cleverly shows how two people can have completely different memories of the same event.
Children's memories are even more malleable. Some schoolchildren were questioned a few weeks after a sniper attack on their school, and most of their accounts of what happened had been infected by fantasy and wish-fulfilment. Although many of us like to believe that every event we have ever experienced is lodged somewhere in our minds, capable of recall, there is actually little or no evidence for this. The vast majority of researchers nowadays would claim that memory is inaccurate and selective, and that it is reconstructive, not merely reproductive, especially where autobiographical memories are concerned. Memories are not imprinted, as it were on some wax-block within the mind, once and for all; we play with them, embellish them, alter them. We may have camcorders in our minds, but they are not switched on all the time, and we edit the material. Moreover, memory is not an isolated mental phenomenon: it is affected above all by mood and imagination.
In short, contemporary researchers and thinkers on memory maintain that the accuracy of a memory is not guaranteed by the amount of detail recalled, nor by the richness of the detail, nor by the vividness of the memory, nor by the emotional involvement of the rememberer, nor by the consistency of the memory over time, nor by the confidence of the rememberer, nor by the honesty of the person, nor by the fact that on the whole he has a good memory. There is no way to test the accuracy of a memory except by independent physical corroboration.
Hidden Depths: The Story of Hypnosis Page 33
