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VIA FAX ON 570-836-8076 & US MAILS
Corporal Anthony Morelli
Pennsylvania State Police Barracks
915 SR6 West
Tunkhannock, PA 18657
RE: The admissibility of post hypnotic testimony
Dear Corporal Morelli:
Thank you for contacting me regarding the admissibility of post
hypnotic testimony in criminal cases and the merits of using videotaped forensic
hypnotic interviews in criminal investigations. Based upon the current state
of the science on memory, suggestibility and hypnosis, as well as the background
set forth below on the "politics of hypnosis", beyond a doubt, the
continued use of videotaped forensic hypnotic interviews should be used and
promoted where appropriate in criminal investigations. Indeed, in those instances
where a subject experiences post traumatic or dissociative amnesia and insufficient
evidence is available, the use of forensic hypnosis is warranted.
As I understand it, Pennsylvania adheres to a rule of per se inadmissibility
by only admitting prehypnotic testimony and only under the following circumstances:
1) the party must advise the court of the existence of the hypnosis; 2) the
party must show that the testimony to be presented was established and existed
prior to the hypnosis; 3) the party must show the hypnotist was trained in the
process and was neutral; and 4) the court must instruct the jury that the witness
had been hypnotized and that they should receive the testimony with caution.
Commonwealth vs Young (1998); Commonwealth vs Smoyer (1984). Therefore, the
rule in Pennsylvania is essentially one of per se inadmissibility for post hypnotic
testimony, except as constitutionally mandated by Rock vs Arkansas in those
cases where a criminally defendant has been hypnotized. Paradoxically, Pennsylvania,
like other per se jurisdictions has a per se rule of inadmissibility for previously
hypnotized criminal victims and their witnesses, yet a previously hypnotized
criminal defendant can still testify.
The inherent unfairness is obvious. Crime victims and eyewitnesses
risk forfeiture of their legal rights to testify, yet previously hypnotized
criminal defendants can still testify. This is especially disturbing because
the per se rule of inadmissibility was based upon the antiquated Frye rule,
which was abandoned by the U.S. Supreme Court in Daubert vs Merrill Dow Pharmaceuticals,
509 U.S. 579 (1993), as well as later cases. It is unclear how Frye, which established
a test for the admissibility of expert testimony dealing with novel scientific
evidence was first applied to lay witness testimony concerning a mental process
(e.g., thinking and hypnosis). In Borawick vs Shay, 68 F.3d 597 (2nd Cir. 1995),
cert. denied 842 F.Supp. 1501 (D. Conn. 1994) the U.S. Court of Appeals for
the Second Circuit rejected the notion that the Frye rule or Daubert, for that
matter, applied to the admissibility of post hypnotic testimony from a lay witness.
As you know, I was the plaintiff's attorney in Borawick vs Shay,
which established a precedent in the Second Circuit by adopting the "totality
of the circumstances" test for the admissibility of post-hypnotic testimony
following the use of therapeutic hypnosis in civil cases. Although the test
was misapplied in Borawick, the eight elements of the Second Circuit's totality
of the circumstances test are set forth in the enclosed article published in
the March/April 1998 issue of Sexual Assault Report.
Since Borawick, I have given several presentations on the legal
treatment of hypnosis, suggestibility and memory. What has become readily apparent
in recent times is that the legal treatment of post-hypnotic testimony lags
far behind the state of the science on memory, suggestibility and what is know
about hypnosis. Hypnosis has actually been shown to increase the recall of meaningful
material, as opposed to nonsense syllables and nonmeaningful material. The fact
that material remembered may include some pseudo memories as well as accurate
information is also true of prodded memory without hypnosis. In other words,
the fact that a witness has been hypnotized, if performed with nonleading questions
by a forensic hypnotist, makes the memory no less reliable than memory without
hypnosis. Perhaps some of the most informed collective research on this subject
is in the award winning book, Memory, Trauma Treatment and the Law by Brown,
Scheflin and Hammond (My book review is attached with excerpts as Addendum C).
What the legal system fails to recognize is that the contaminating effects on
memory are no more likely to occur from the use of hypnosis than from many nonhypnotic
interviewing procedures. Legal rules that single out hypnosis for restrictive
treatment are unwarranted. Hypnosis should be treated by the law as other forms
of suggestion are treated: through challenge by way of cross-examination, not
by automatically barring testimony. A condensed summary review of more current
studies is also found in Clincial Hypnosis and Memory: Guidelines for Clinicians
and For Forensic Hypnosis, published by the American Society of Clinical Hypnosis
Press, Des Plaines, IL 1995.
In addition to the lack of judicial awareness of the true state
of the science of hypnosis, the restrictive case law barring post hypnotic testimony
evolved in the 1980's and 1990's largely due to the manipulation of experimental
psychiatrist Martin T. Orne, M.D., Ph.D. In the 1960's and 1970's a rule of
per se admissibility prevailed. The stage for more restrictive rulings was set
by Orne when he chaired the influential panel of the American Medical Association's
Council of Scientific Affairs which studied the scientific status of refreshing
recollection by the use of hypnosis (JAMA, 253, 1918-1923 (1985)). This often
cited, but flawed report, has been relied upon in shaping restrictive legal
rulings barring post hypnotic testimony and coloring the views of judges and
lawyers alike. Today, of the eight member AMA panel, at least half of the original
members have repudiated its findings. When the 1985 AMA report was written,
there was inadequate scientific data to support the panel's negative conclusions
about pseudo memories following hypnosis. In fact, when the AMA report was published
there was only one study available which used a population of only 27 highly
hypnotizable subjects. Imagine, one study was used as the foundation for shaping
the law barring post hypnotic testimony and resulting in the forfeiture of citizen's
constitutional rights to testify in courts of law. Brown, Scheflin and Hammond
conclude in their award winning book, Memory, Trauma Treatment and the Law (1998)
that "given the paucity of research available when the 1985 AMA report
was written, the widespread scholarly criticisms of it, and its repudiation
by at least half of the original members, reliance on the 1985 AMA report is
forensically unacceptable at this point". Unfortunately, however, before
the flaws in the AMA report were exposed it influenced the outcome in hundreds
of legal cases involving the admissibility of post hypnotic testimony.
Even more significant was Orne's influence as an expert witness
in many legal cases. Given his involvement in secret governmental mind control
projects which involved the misuse of hypnosis in conjunction with LSD and in
flagrant violation of the Nuremberg code, Orne's motivation in supplying expert
testimony to bar post hypnotic testimony is suspect. An understanding of how
the law on hypnosis evolved cannot be had without consideration of Orne's past
involvement in MKULTRA.
Orne was a researcher for the Central Intelligence Agency under
its mind control project known as MKULTRA. At least 80 institutions and 195
private researchers participated in mind boggling experiments on human subjects
involving 149 subprojects between 1953 and 1966, and possible as late as 1973.
MKULTRA involved experimental testing on citizens and noncitizens without their
consent. Some of the experiments resulted in fatalities. Not only was this type
of testing on unwitting human subjects prohibited by the Nuremberg code, but
it has since been banned by Executive Order No. 12333, §2:10, 3 C.F.R. 213 (1982).
Many the projects involved testing on unwitting citizens using chemical, biological
and radiological materials capable of employment in clandestine operations to
control human behavior. According to the Kennedy Committee report on MKULTRA,
there were 8 hypnosis subprojects, including 2 involving hypnosis and drugs
in combination. See, Project MKULTRA, The CIA's Program of Research in Behavioral
Modification; Joint Hearing Before the Select Committee on Intelligence and
the Subcommittee on Health and Scientific Research of the Committee on Human
Resources, United States Senate, 95th Congress, 1st Session August 3, 1977.
Most of the records from MKULTRA were illegally destroyed by the CIA in 1973
at the direction of then director Richard Helms. Only some of the financial
records were spared and later reluctantly disclosed under the Freedom of Information
Act and after Congress had conducted its initial "Church Committee"
investigation into the shocking abuses of power by the CIA.
The New York Times proclaimed the book, "The Search for the
‘Manchurian Candidate'" by John Marks as "the definitive book"
on the LSD, hypnosis, electroshock, radiation, chemical, etc., experiments conducted
on unwitting citizens under the CIA's MKULTRA. "Sidney Gottlieb,
80, Dies; Took LSD to CIA" (Obituaries, March 10, 1999). The Search for
the "Manchurian Candidate" (W.W. Norton and Company: New York), describes
Orne as receiving funding for his MKULTRA experiments through the Society for
the Investigation of Human Ecology, a known CIA front organization:
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