The MacNeil/Lehrer Report; Hypnosis on Trial

[Tease]

ROBERT MacNEIL {voice-over}: Son of Sam. The Boston Strangler. The alleged Atlanta slayer. The Metropolitan Opera murderer. And the Los Angeles Hillside Strangler. All of these cases have one thing in common: they used hypnosis to help solve the crime.

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MacNEIL: Good evening. In 1977 and `78, 10 young women were killed in Southern California and their bodies were dumped on open hillsides. A suspect named Kenneth Bianchi confessed under hypnosis to five of the killings. He also said that his cousin, Angelo Buono, had murdered the other five women. Buono`s trial is now underway in Los Angeles, and his lawyers claim that Bianchi`s testimony is inadmissible because it was obtained under hypnosis. Hypnosis is becoming more and more widely used as a tool in police investigation, but its use is being challenged in many states. In California, six hypnosis cases are presently being tested before the State Supreme Court. Opponents say hypnosis is unreliable and it may produce tainted evidence. Supporters say it`s a valuable tool which often produces evidence unobtainable by other methods. Tonight, should hypnosis be used in the courtroom? Jim?

JIM LEHRER: Robin, hypnosis comes from the Greek word hypnos, meaning sleep, but a hypnotized person is not really asleep, only relaxed. The eyes are closed while the mind remains awake, able to focus in an enhanced way on whatever it is induced to focus on. It began mostly as a carnival trick done by magicians to get people to do funny things. Through the years, it has been adapted to more serious uses -- to help people quit smoking, get through the pain of surgery, or over the fear of flying, among other things, But clearly its most serious application has been in criminal investigations. There have been the famous cases. Under hypnosis, the Boston Strangler revealed details of his crimes. Witnesses in the Son of Sam and the Metropolitan Opera murder cases in New York were able to give more and better details of what they saw. As its use in criminal matters generally has increased, so has the legal argument about it. There have already been two major court decisions on the issue at the state level, one in New Jersey ruling testimony obtained from a witness under hypnosis is admissible if three conditions are met: that a licensed psychiatrist does it, the interview is videotaped, and no third parties are present. The other was in Minnesota, where the court ruled such testimony was inadmissible until the scientific community agrees it`s a reliable and valid procedure. As we`re going to see in a few moments, that agreement has yet to be reached. Robin?

MacNEIL: One of the country`s most experienced users of hypnosis in criminal investigation is Charles Diggitt, a retired New York police detective. It was Mr. Diggitt who used hypnosis in the Son of Sam and Metropolitan Opera murder cases. He currently conducts seminars on hypnosis. Mr. Diggitt, how valuable a tool is hypnosis in solving crimes?

CHARLES DIGGITT: Well, it`s an extremely valuable tool because it gives us an avenue to that information that we can`t seem to elicit in any other way, information that a person may have seen and has now forgotten or information that that person may have picked up on a subconscious level and may not even be aware that he has. And, as you know, we deal in information. If we get good information, we`re going to solve our problem.

MacNEIL: Well, you used it in the Metropolitan Opera murder case. Can you briefly describe what hypnosis got in that case from a witness that couldn`t be got by conventional means?

Mr. DIGGITT: Okay. Apparently, the witness, Laura Cutler, was the last person that we`re aware of that --

MacNEIL: This is a case where a man dragged a woman member of the orchestra up to the roof and murdered her after raping her.

Mr. DIGGITT: That`s right. And as far as we could ascertain, this witness was the last person who saw the victim alive, and at that time she was in the company of a white male. However, when the detectives questioned her about this white male, she was unable to give an accurate description. She also thought that he was about 35 years old, and she didn`t pay much attention to him because he was only directing the victim to the dressing room of the star of the show. Under hypnosis she was able to ascertain that the person was not 35 years old, but was perhaps 20 to 25 years old. Now, when you`re looking for a suspect, this is a tremendous difference, of course. She was also able to give us a description that resembled the suspect, Craig Crimmins. Armed with this information, it only took about three days for the detectives to do their usual capable job and make the arrest.

MacNEIL: What is it most useful for? In obtaining new leads like that, or in obtaining confessions, or what?

Mr. DIGGITT: Yes. Very few hypnotists solve cases. Detectives solve cases. Hypnotists can provide a little lead, another number in a license plate, perhaps, or a better description of a vehicle -- something like that. It`s useless as far as confessions are concerned because a person can lie under hypnosis if he so desires. That`s why police hypnotists usually avoid suspects who are defendants.

MacNEIL: I see. What are the weaknesses of hypnosis as a tool in investigation?

Mr. DIGGITT: Well, the alleged weaknesses, by the critics, are that a person can lie under hypnosis; he can confabulate -- which means fill in the spaces; he can make up a whole new story. But experienced investigators are used to this type of thing. You can do this when you`re not under hypnosis also, and every experienced investigator has had experience with people who come in and confess to morbid crimes that they never committed. So we don`t accept as fact something that somebody says just because they`re in hypnosis. We only accept that information that we can corroborate from the separate means.

MacNEIL: As this is a matter of controversy now, how could a court be sure -- a jury or a judge -- be sure that evidence produced through, or with the help of hypnosis, was reliable evidence?

Mr. DIGGITT: Through corroboration. In other words, the difference between confabulation and factual information is corroboration. And that`s really the only way you can tell whether a person is in hypnosis or not.

MacNEIL: Does that mean that a court should not accept evidence which is not otherwise corroborated?

Mr. DIGGITT: There may be certain instances where they have no choice. I don`t mean not a choice to accept it, but at least have no choice but to listen to it because there may only be that one witness involved in the entire case. And then it would be up to the jury to decide on the merits of the case whether to accept it or not.

MacNEIL: Well, thank you. Jim?

LEHRER: Defense attorneys, for the most part, see it much differently than Detective Diggitt. We get that view now from the videotape of recent arguments before the California State Supreme Court. The case involves a rape where the victim was able to identify her alleged assailant after hypnosis. You`ll hear the defense lawyer make reference to the Kelly case; that`s an earlier California ruling which says any new scientific procedure must have the acceptance of the scientific community before it can be used in a criminal trial. This tape comes to us from public station KQED-San Francisco, and marks the first time TV cameras were allowed in any California courtroom.

EPHRAIM MARGOLIN, defense attorney [Sept. 1981]: In the preliminary hearing, the complaining witness says that she was nude when she woke up. At trial, she is fully clothed. This is after hypnosis. She`s suddenly fully clothed. In the preliminary, she woke up in bed. At trial, she woke up on a couch. The bed was in the bedroom during the preliminary, but after hypnosis it was in the living room -- the couch was in the living room. At the preliminary, she was bound and gagged at the very beginning as she woke up. During the trial, she was not bound, but sometime later she was taken by an assailant to the bedroom where she was undressed. Without going to too many, there is another one -- oral copulation is alleged during the preliminary to have taken place while she was gagged, which raised some peculiar questions in my mind because, after hypnosis, at trial, this is no longer so. At this point she appears to have no gag at the time, but she is also in a different room; she is positioned differently -- she`s on her back, not on her knees -- and things of mat sort.

ROSE BIRD, Chief Justice: Counsel, why isn`t it possible that hypnosis merely refreshed her recollection of what actually took place, or made it possible for her to remember the actual details of what took place?

Mr. MARGOLIN: I would not say that this is impossible, Mrs. Chief Justice. I would simply say that, on the basis of what we now know, it is possible, and the opposite is possible as well. What you do have, then, is tampering with the memory of an individual to produce something new and different -- massively new and different -- elaborating a filigree of details which make it more believable. And then the new construct, which takes the place of the old, is presented to a jury as the fact. The individual presenting it is sufficiently well committed to that story under hypnosis so that you never know to what degree this newly implanted story becomes a homogenizing factor from which people don`t deviate.

Justice MATTHEW TOBRINER: Mr. Margolin, what about the theory that in memory that each little fact is recorded, so on a tape all you do under hypnosis is to reverse that tendency, and then you just get the facts as they occurred before the memory was made?

Mr. MARGOLIN: Justice Tobriner, in this very case, the psychiatrist testified that human memory is not like tape recorder. He stated that human memory is extremely selective and manipulable. Going to my second point as to strict safeguards -- and, as I said before, this is endorsed by every court known to me -- of modern tendency. According to the materials you have in my brief, on pages 19 through 22, Dr. Orne has a list of sine qua nan requirements such as: the hypnotist should not be involved with the investigation or prosecution of the case; he should be independent. Well, here it is the district attorney who does the hypnosis.

The next: the hypnotist should be a medical doctor or a psychologist licensed to perform the test. I assume that, as capable as the district attorney was, he was neither of those. No third party can be present during hypnotic induction. On that I believe there is unanimity of opinion. Here, you had two policemen present. The danger of suggestiveness and confabulation is simply so large that, on the basis of insufficient safeguards, the case ought to be reversed. I will suggest that my position is this: regardless of how you accept my other arguments, if you do not have compliance with requisite safeguards, evidence does not come in. However, if all those safeguards are met, then and only then do I come analytically to the basis question, and this is whether, even in the presence of all safeguards of that nature, the evidence should be admitted. And to this I wish to address myself now.

This is my point number three: people who should know most about hypnosis passed resolutions -- and they are reprinted in my brief -- stating that at the present state of the art, they cannot agree that such evidence be submitted in a judicial proceeding. The Society of Clinical and Experimental Hypnosis and the International Society of Hypnosis joined in the statement that hypnosis is simply not acceptable as evidence at this time. I will submit that, like in the Kelly case and similar cases, until brethren of the hypnotists are ready to tell this court that they have now reached that point at which this evidence is reliable, we have no business permitting it. This issue -- the issue of hypnosis -- is much more pernicious than the issue of lie detector tests. Lie detector test is simply unreliable and therefore not admissible, but it does not change the witness. The witness who was submitted to a lie detector test is still unchanged. In this situation, it is almost akin to a surgery on an individual to find out the physical evidence of a bullet inside the body, or something like that. As a result of which the witness himself is incapacitated and can no longer testify.

MacNEIL: Now the scientific argument on whether hypnosis is reliable or not. Dr. Herbert Spiegel is a psychiatrist who has used hypnosis for 20 years and teaches it at Columbia University. Dr. Spiegel has developed a test to measure how hypnotizable a person is. He has been a consultant to the FBI and a number of police departments around the country. You heard what that defense attorney just said. Dr. Spiegel, arguing against the admissibility of evidence obtained by hypnosis. Is it reliable, in your view, enough to be used in court?

Dr. HERBERT SPIEGEL: Well, hypnosis is reliable in direct proportion to the reliability of memory and concentration and motivation. It adds an extra feature to it, and that is, it magnifies the effect, that there is a leverage and magnification effect for memory recall and the ability to concentrate under given circumstances. So the question isn`t so much whether hypnosis is reliable, but rather, is the person who has the memory and ability to concentrate reliable? And then in turn, if they are hypnotizable, you get that extra effect. So in that way there is a Janus- like quality to it: it can go either way. If somebody is lying and unreliable, under hypnosis they`ll probably lie more. But if they tend to be honest, and their memory is accurate, under hypnosis they tend to enhance their ability to retrieve events that took place in the past.

MacNEIL: So you think if courts evaluated the reliability of the witness, as they do in any case, they would be safe in accepting evidence produced from that witness under hypnosis?

Dr. SPIEGEL: Yes. Not only the witness, but the person who is engaged in giving the signals and information and die questions as well, because it`s an interaction that goes on between the two, and it`s an issue of integrity between both the interrogator and the person who is in trance.

MacNEIL: What do you say to the argument we`ve just heard that hypnosis changes the witness whereas, for instance, the use of the He detector does not?

Dr. SPIEGEL: Well, that can be true. That can happen, but not necessarily. If the hypnotist happens to be a manipulative, maneuvering person and, in this subtle way. wants to mold the person, he can probably succeed and do it if the person is hypnotizable. But on the other hand a lot of people are not hypnotizable, and all those machinations will not work when the person is not hypnotizable.

MacNEIL: Is it possible that hypnosis will replace the real memory with, as he put it, new facts which form a new construct?

Dr. SPIEGEL: I guess that can happen under very specialized circumstances, especially under people who are highly hypnotizable. And this is why these general statements that are made about hypnosis, I think, are almost amateurish because they assume that everybody who is in a trance state is at the same level of transconcentration. Clinically, we know that there is a variety of hypnotizability capacity in any population, and the highly hypnotizable person does not occur in a population more than about 10%. So to take these general dramatic phenomena that may occur with a highly hypnotizable person, and assume that they occur with the mid-range and the low, is doing an injustice to the phenomenon and our knowledge of it.

MacNEIL: Do you agree with Mr. Diggitt that hypnosis is a valuable tool in criminal investigation and produces evidence that can`t be obtained by other means?

Dr. SPIEGEL: I agree that it is a valuable tool that can make interrogation more efficient, provided the necessary safeguards are made to see to it that we point toward what is recalled without contaminating the memory. The technique for doing that is fairly well established, and it can be done.

MacNEIL: Well, thank you. Jim?

LEHRER: A different view from a different psychiatrist experienced in the use of hypnosis. He is Dr. Bernard Diamond who has taught criminal psychiatry at the University of Cali-fornia at Berkeley since 1964. He is with us tonight from KQED-San Francisco. Doctor, what is your opinion of using hypnosis on witnesses involved in criminal cases?

Dr. BERNARD DIAMOND: Well, I tend to agree almost entirely with Mr. Margolin, f think that regardless of its use in investigative purposes by the police, once you hypnotize a witness, the possibilities of contamination of the evidence are so great that the courts should not permit such a person to take the witness stand again.

LEHRER: Under any circumstances?

Dr. DIAMOND: Under no circumstances should they be permitted to testify; simply because it`s impossible for anybody, including the jury, to determine how much contamination there has been.

LEHRER: Could a professional psychiatrist -- a professional like you who is experienced in hypnosis -- interview a witness who has been hypnotized and determine whether or not that person has been contaminated?

Dr. DIAMOND: No, it`s really impossible to do so. There are no accurate, objective standards. One of the most important sources of contamination are the confabulations which arise out of the subject`s own expectations, and even if we have a full videotape of exactly what the hypnotist said and didn`t say, we really don`t know what went on in the subject`s mind. And the possibilities of confabulation -- of mixing fantasy and reality -- are so great in so many cases that I think the safest and most sensible procedure is for the court to exclude hypnotized witnesses from the witness chair.

LEHRER: You mean, it could happen even accidentally? You mean, a real professional of a psychiatrist with no evil intent could accomplish the same thing you mean?

Dr. DIAMOND: Absolutely. As a matter of fact, the unintentional, inadvertent contamina-tions are the real hazards. If a hypnotist is so crude and clumsy as to ask very badly leading questions and to plant direct suggestions, then these can be detected. But it`s the inadvertent, unintentional contaminations that cause all of the trouble.

LEHRER: So the safeguards that have been suggested -- videotape it, always have it done by a professional psychiatrist or psychologist, and never allow a third person present -- as far as you`re concerned, that wouldn`t help a bit, right?

Dr. DIAMOND: No, I think the safeguards really don`t alter the possibilities for contamina-tion. I think often times psychiatrists and psychologists are more clumsy and ask more leading questions than does a skilled police interrogator and, even with a videotape, a videotape does not record the very unconscious signaling that goes on; it doesn`t record what is the context of the situation, the expectations of the witness, and things like that.

LEHRER: What about using it the way Detective Diggitt described it, as a way to get leads or to firm up particular evidence in a criminal case? Does that bother you?

Dr. DIAMOND: Well, that troubles me some because if they do this and they contaminate the witness, then it becomes very difficult if not impossible to use that witness as evidence in the prosecution. In some cases, the use of hypnosis for investigative purposes is the equiva-lent of destroying the evidence, and it greatly interferes with the prosecution. I think the police sometimes are very naive and very gullible as to what it is that they elicit from hypnosis, and don`t seem to be acutely aware of the great difficulty that it causes in terms of the validity of the evidence which has to be given in court. It`s one thing to get clues. A clue can be based on trivia; it can be dead wrong and no harm results other than wasting the investigator`s time. But if evidence is contaminated, an innocent person may be sent to prison.

LEHRER: So, when in doubt, and you`re in doubt, just forget the whole thing, yes, sir? Is that right?

Dr. DIAMOND: I think that the proper thing to do is to exclude the use of hypnosis from the entire criminal justice system. I think it really has no place, whatever its value for investiga-tive purposes might be, it`s so limited -- I think it`s so exaggerated -- I listened to all the tape recordings of a great many cases this past year, including the cases of the ballerina [sic] in the Metropolitan Opera case, and I think the kind of information which is elicited could easily have been gotten through other means without the hazards of contamination. Furthermore, I think it does affect the demeanor of the witness. It changes an uncertain, doubtful witness into a self-confident witness, even when their self-confidence is not justified by the reality of their memory.

LEHRER: Thank you, Doctor. Robin?

MacNEIL: Mr. Diggitt, what do you say to that?

Mr. DIGGITT: Well, I feel as though a lot of psychologists and psychiatrists are also naive and confused about how hypnosis is used in criminal investigations. And if you are a witness in a crime, Robert, and you see a plate number you can`t recall it, and then we hypnotize you and you do recall it -- that plate number is verified, a lineup is formed, the owner of that vehicle is pointed out by 18 of 20 of the people who were there -- then it doesn`t really matter how much you contaminate the rest of the evidence; the hypnosis now becomes incidental in this case.

MacNEIL: What`s wrong with that, Dr. Diamond?

Dr. DIAMOND: Well, there`s plenty wrong with that because that witness has been con-taminated, and if you`re going to put that witness on the stand in the criminal trial, you`re going to contaminate all of the evidence that that witness can give. And, for example, in the well-known Chowchilla case, the witnesses came up with an incorrect license plate. That`s all right for purposes of investigation, but you don`t want to send a person to prison on the basis of a license plate that is incorrect, even if it`s only one digit off.

MacNEIL: I think Dr. Spiegel disagrees with you, too, Dr. Diamond.

Dr. SPIEGEL: I sure do. I disagree with you so much I was relieved to learn that I agree with you on one point, and that is the so-called safeguards are inadequate. They`re not adequate at all, and they put the emphasis more on the gimmickry rather than the substance of the separating out a ceremony from a phenomenon. But what is underneath all this is something that we have yet to come to grips with, and that is, anybody who knows the field of hypnosis knows that an induction is not necessary to elicit a trance phenomenon. Many people under stress who are concentrating will spontaneously go into a trance state, especially under the duress of interrogation or when a crime is committed.

MacNEIL: Hypnotize themselves, in effect?

Dr. SPIEGEL: Yes. This is our way of dealing with stress, and if these allegations of confabulation that you talk about apply with the formal ceremony of using hypnosis, they most certainly apply in the everyday court and interrogation procedures where people are spontaneously slipping into trance states. For that reason I think it`s almost mandatory that we share our knowledge with the police officers so that they can learn to identify who is in a spontaneous trance state so we can now make the necessary corrections to help them get back to a more accurate recall.

MacNEIL: Well, I think we have a pretty good illustration there of how diverse the opinion in the scientific community still is, to say nothing in the criminal justice community, and we`ll have to see what the courts eventually decide. Dr. Diamond, thank you very much for joining us in San Francisco; Dr. Spiegel and Mr. Diggitt, here. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That`s all for tonight. We will be back tomorrow night. I`m Robert MacNeil. Good night.