Saturday, May 19, 2018

You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases

Before reading the rest of this post, relax, breathe, and follow the swinging pocket watch.

Feeling suggestible? Great, now we can begin!

Junkiest of junk science
While Grits was out of pocket this last week, Lauren McGaughy of the Dallas News had a feature on forensic hypnosis in light of the looming execution of "Charles Don Flores, 48, [who] was convicted in the 1998 slaying of Elizabeth “Betty” Black after a neighbor was hypnotized to recall the features of two men she’d seen going into the victim’s Farmers Branch home the morning of the murder."

A Farmer's Branch police officer who'd never hypnotized anyone before failed to follow a number of mandatory requirements under Texas Court of Criminal Appeals jurisprudence in Zani v. Texas, and even those today seem absurdly outdated.

For more background, Mandy Marzullo and I discussed the case in the November episode of Just Liberty's Reasonably Suspicious podcast, and the Dallas Observer published a feature heavy on adumbration of the relevant court cases earlier this year. Those cases so far have all approved of forensic hypnosis. And Texas has the most robust regulatory structure in the country for a practice that to most informed people ranks on the level of psychics or palm readers when it comes  to sources of good evidence.

As Grits recounted in December, the Zani case allowed forensic hypnosis to go forward based on an understanding of human memory that science now considers rudimentary and false. From the majority opinion:
Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory.
As it turns out, the "videotape recorder" theory of human memory is hoakum. Junk. A.k.a., bullshit.

That's why, reported McGaughy, "According to a 2012 study, half of U.S. states now have "per se inadmissibility rules" barring hypnotically induced evidence in criminal cases."

Scientists now believe memories are recreated anew each time the brain retrieves them, Grits learned during debates over eyewitness identification practices. Moreover, memories are malleable, and Elizabeth Loftus has shown that they can be altered or even created through hypnosis.

Texas' new junk-science writ provides a new vehicle with which to test this antiquated junk science, which hasn't been considered by the Court of Criminal Appeals since 2004, the year before the creation of Texas' Forensic Science Commission.

Today, the practice has fallen out of favor at most agencies. "There are about two dozen forensic hypnotists in Texas at this time, the majority of whom serve in the Harris County Sheriff’s Office and Texas Rangers." That's down from 152 statewide in 1999, McGaughy reported.

There's been a lot of water under the bridge since 2004 regarding Texas' statutory and jurisprudential posture toward junk science. So Grits believes there's a decent chance the CCA could reverse their past position on this, perhaps (tea-leaf reading from afar) by as much as a 6-3 margin.

OTOH, the state just executed Juan Castillo without ever hearing arguments regarding whether recanted jailhouse informant testimony was significant enough to warrant a new trial. So it's always possible they'll do the same thing here, finding excuses to look past the issue in order to allow the machinery of death to lurch forward unimpeded.

A conundrum: Why capital cases are the best/worst vehicles for reforming bad practices
This brings up an odd conundrum with capital cases: The Texas public overwhelmingly supports the death penalty and has little sympathy for capital defendants. At the same time, death-penalty defendants frequently are the only indigent clients who get anything like a zealous defense throughout the appellate process, not to mention two experienced attorneys at trial.

So death-penalty cases often raise issues with broader implications for the justice system - e.g., the implications of allowing forensic hypnosis as evidence - just because enough lawyers focus on the case as time goes by to more thoroughly vet issues and raise problems. But they often feature unpopular defendants about whom the media may have been beating the drums for many years by the time problems in their case are examined. When I was with the state Innocence Project, even actually innocent defendants were typically unpopular in their home jurisdiction until the day of their exoneration, and sometimes even after that (ask Anthony Graves).

That's why Grits is sanguine, but not overly optimistic, that Texas' 19th-century conceptions of forensic hypnosis might be overthrown in the face of 21st century science. I believe if the issue were to come squarely before the CCA on the merits, forensic hypnosis would likely be dumped. But there are many ways the issue could avoid serious consideration and Mr. Flores still be executed, and unfortunately, that's not an unlikely outcome, either, if one were setting odds on where all this might lead.


Gadfly said...

That said, Loftus is herself not an expert on memory, nor on theories of how memory works.

Fitzgerald did judo on her in the Scooter Libby trial, as one good counterexample.

Gadfly said...

More on how Loftus is not so expert herself, and also on how she's probably made a bunch of money in her life through expert witness testimony.

Anonymous said...


The subject of this blog article was not about Loftus's theories on memory recollection or malleability of memory, but on the discrediting of hypnosis as a reliable scientific methodology for revealing accurate recollection of past events and the legal ramifications thereof. If you don't like her work or theories specifically, then look at the work of those she's credited (Katherine Ketcham, Saul M. Kassin, Katherine L. Kiechel, etc.) Grits could have named any number of scientific authors regarding memory and recollection.

And, by legal definition, she is an expert witness for the field. By negating her work because she gets paid to testify as an expert is to provide credibility towards those experts that claim accurate hypnotic recollection actually exists. Expert witnesses get paid for their time (including those that work at state crime labs). She can provide a greater explanation on the creation of false memories to a lay audience, a jury. She may not be the greatest on cross-examination (from your one example), but her body of work extends beyond the courtroom. (Moreover, cross-examinations are not indicative of an expert's knowledge given the bias one-sidedness of the adversarial prosecutor.) She's presented TED Talks and a number of other academic videos available on Youtube.

Please try to keep to the subject matter.

Buttmud Brooks said...

Why would a Judge who believes that hypnosis is real allow for an expert hypnotist to enter into a courtroom knowing that the hypnotist could easily hypnotize the jury or judge (or the stenographer who is supposed to be recording a true and accurate record but may be hypnotized to record something that did not happen)? Everyone's opinion (or memory) in the courtroom could be altered at the behest of the hypnotist.

Gritsforbreakfast said...

As to Loftus, ditto to what 6:32 said. Her work on eyewitness testimony stands on its own as pioneering. That others have taken her work farther and perhaps added to it in areas where she has exhibited blind spots (and btw, that blog post certainly doesn't demonstrate that), certainly that doesn't discredit the importance of her overall oeuvre or provide cause to dismiss her as a hack. She's forgotten more than you or I will ever know about how memory works.

@11:22/Buttmud, that's not how any of this works.

john said...

but aren't fingerprints even known to be bogus??
An whatever the punishing police group that does the testing, can they be trusted to do it right and actually report the truth?? Certainly not the (un-Constitutional federal police) FBI & DoJ, those traitors.

(do you really need this much craptcha?)

Chris Halkides said...

Hypnosis performed by someone who has never done it before? That's not even junk science; it's voodoo.

Chris Halkides said...

@gadfly, The prosecution's forensic witnesses are paid. Does that automatically discredit them?

Anonymous said...

For the noob or truly interested, the link is a short video called "Daubert in 12 minutes (or less)." That is, this is the layman's version on legal admissibility of Expert Testimony. Watch it, then read GFB's blog post again. Does hypnosis past the Daubert criteria?


Gritsforbreakfast said...

@ john, fingerprints aren't "bogus," but claims about their ability to identify defendants have not been scientifically verified.

Also, you should see the amount of comment spam prevented when Google put in that captcha. May annoy you, but it's well worth it to me. I spend MUCH less time deleting comment spam, and it doesn't seem to prevent too many people from participating.

Chris Halkides said...

IIRC the witness had seen the photograph of the accused twice, prior to being hypnotized. My understanding is that repeatedly showing a witness (in multiple photo line-ups) the same person is wrong, because they might remember seeing the photo, not the actual event.

Anonymous said...

What do we as Texans expect when our Lt Gov wants to prevent more school shootings via Door Control and our Gov wants to do the same by banning Trench-coats?

Or we could remember our former governor, Rick Perry, who disbanded the commission that debunked the Junk Science that was used to convict Todd Willingham rather than allow them to present their finding [Frontline: Did Texas execute an innocent man?]

Ain't no cure for Stupid.

[Not too] Sorry for going off topic.

Gadfly said...

Anon, I know how expert witnesses work.

Anon and Scott, I'm far from alone in my take on problems with Loftus. I think my links show more than you think.

We'll agree to disagree on some of this, or else we'll simply disagree.

Anonymous said...

@ gadfly-

Since you keep harping on the problems of Loftus, are you of the opinion that Loftus is wrong and that hypnosis is a credible forensic science and should be admitted into the courtroom, or are you of the opinion that there are more credible experts who are anti-hypnosis and that you have some personal conflicts with her body of work as it relates to her testimonies?

You know what, never mind.

Anonymous said...


The FSC did complete an investigation on the Willingham case. But it was messy and cluttered with politics as the bureaucratic red tape took hold. They have since gone rogue, disregarding the law that defines their purview. The main stream media doesn't really follow them anymore because of their haphazard decisions and schizophrenic actions. They have little oversight and have become nothing more than a repository of submitted allegations against Texas crime labs. Yet another black hole.

Heather said...

Wow, I cannot believe they use hypnosis!