Thursday, April 09, 2020

Texas the 'epicenter' of forensic hypnosis, perhaps the junkiest of junk science

From "Zipping Along," Loony Tunes, 1953
Most Americans got their first sense of "hypnosis" from watching cartoons, where the mind-control trope has been a staple for decades. But it's no laughing matter when the practice enters the courtroom and people are sent to prison for decades, or even executed, based on such pseudoscientific foolishness.

Texas is the "epicenter" of forensic-hypnosis use in the United States, according to  a pair of investigative stories published this week at the Dallas Morning News by Lauren McGaughy and Dave Boucher. The feature was two years in the making. Check them out here:
The title of the series comes from jargon used by forensic hypnotists at Texas DPS who tell witnesses to enter a "Memory Room" where they supposedly can review their memories as though watching a TV, hitting rewind, pausing, and generally treating one's memory as though watching a recorded video.
According to videos and documents The News obtained, police hypnotists use methods crafted at least as early as the 1970s and ’80s. Texas Rangers, among the most prolific hypnotists in the state, are still telling subjects to close their eyes, enter an imaginary “Memory Room” and watch their recollections on a television, as though they were a movie. It is an effort to find supposedly lost or buried clues, but experts refute this technique as dangerous and misleading.
Here's a little more detail:
This approach is still popular with the Rangers. In videos of some sessions The News obtained, hypnotists used the same method before instructing witnesses to imagine standing atop a staircase. As they walk down the steps in their minds, they are supposed to go deeper and deeper into a trance. 
At the bottom, they are told they see a door. A sign on or above that door reads “Memory Room.”  Upon entering, they are told to sit in front of a television. The hypnotist directs them to watch their memories on the screen.
In real life, scientists now understand that memories are recreated each time they are recalled and change substantially over time. The idea that a secret videotape is stored somewhere in the "subconscious" which may be reviewed during hypnosis has zero scientific credibility and, outside of law enforcement, has been relegated in the modern era to the realm of two-bit stage magicians. Even so, a Texas Ranger told the Morning News, "It's a very precise science."

These disproven misconceptions about memory are central both to the Texas court cases that approved this junk-science technique, as well as the state-approved training materials still used to this day training forensic hypnotists in Texas.

The Texas Court of Criminal Appeals has for a couple of years now had a death-penalty case before it which will revisit whether forensic hypnosis remains a valid technique in this state. With the Government Always Wins faction presently in firm control of that body, Grits fears the worst from this ruling. The fact that the case has taken so long to decide tells you there's a likely intense, behind-the-scenes disagreement among judges over how to proceed.

There's little scientific justification remaining behind the central tenets of Zani v. Texas, the 1988 decision in which the CCA first approved the technique's use, so it's possible that even the GAW faction of the CCA can't find enough meat left on that bone to continue the practice. The most detailed academic analysis I've seen of the pros and cons of admitting such testimony in court concluded, "Admitting hypnotically enhanced testimony into evidence creates grave dangers that miscarriages of justice will occur. The problems that arise from this practice are so great that hypnotically enhanced testimony should never be admissible."

Part one of the Morning News package includes an excellent graphic presenting data on every case they could document at DPS using forensic hypnosis going back to 1980 (a total of 1,789 cases). While not used as frequently as other forensic methods, it's often used in high-profile cases where little other evidence exists. Eleven people have been executed based at least in part on hypnotically-induced testimony.

The central example case, fleshed out in detail in Part 2, involved a black security guard convicted of assaulting a white woman in the 1980s. No physical or other evidence linked him to the case and the victim did not identify him in a photo array after the incident. But following a hypnosis session that experts say included leading questions from the hypnotist, she declared the security guard did it. He served 31 years of a 60 year sentence and to this day insists he was wrongfully convicted.

Here's hoping the Court of Criminal Appeals disallows this junk science going forward. The Texas Forensic Science Commission cannot study the question under its enabling statute because it relates to testimonial, not "physical" evidence. And though State Sen. Juan "Chuy" Hinojosa filed legislation last year to ban the technique from Texas courtrooms, Senate Criminal Justice Committee Chairman John Whitmire wouldn't give the bill a hearing. So if the CCA doesn't disallow such testimony, there appear to be no near-term options available for challenging the practice.

Read both the Morning News stories, they're easily the best thing I've seen from the MSM on these topics.

For more background, see:


George said...

I agree 100% that this is junk science. Perhaps just as equally junk is the use of polygraphs. Texas still uses polygraphs to "monitor" certain caseloads, primarily those convicted of sex offenses. Most educated people recognize that polygraphs can only detect changes in breathing, sweating and blood pressure.

The use of these techniques are most likely linked to special interest groups who have a financial stake in seeing their continued use.

Anonymous said...

It's amazing that this garbage is still allowed in. So why is it getting in? Because trial judges are too lazy to fulfill the role they should in acting as "gatekeepers" who exclude unreliable evidence, as required by the relevant Daubert/Kelly case law. And because trial counsel are too lazy to put together the necessary systematic attacks in the trial court or to create a clear record for the appellate courts. Same with blood spatter, polygraph and all the other pseudo-scientific junk that prosecutors love because they can use it to get convictions. It would be refreshing if the CCA's GAW faction would do the right thing, but I'm not holding my breath.

Gritsforbreakfast said...

@12:55, polygraph isn't admissible in TX courts, but agreed on all other points.