Hidden Depths: The Story of Hypnosis (41 page)

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.

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 may 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.

What is important here, and what interests me, as earlier in this chapter, is that the human mind is capable of these feats of imagination. There is a famous case of an American chaplain who under hypnosis came up with vivid memories of his experiences as a prisoner of war in Vietnam. There was just one snag: he never went to Vietnam. If the Vietnamese War had taken place centuries ago, enthusiasts would have taken this to be a case of past-life recall, but in fact it is recent history, and within the lifetime of the subject in question. As it happens, I have a pseudo-memory. For all my teenage years, I knew for an absolute fact that as a child, some time between the ages of four and seven, I had once been taken to a doctor's office, had electrodes fitted to my head, and been wired up to some machine or other. This was as vivid as any memory – more vivid than most, in fact – and I was completely persuaded of its authenticity. Aged about twenty, I asked my parents what I was being tested for – only to be met with their denial that the event had ever taken place. Now, my mother happens to keep meticulous appointment diaries, and at that time also hung on to them for years. I pored through about six or seven years of diaries, and failed to find any reference to any relevant doctor's appointment. I now accept, without any feeling of loss, that this was a pseudo-memory. The question is: how does one distinguish memory from imagination?

There is plenty of evidence that therapy
creates
a narrative by the technique of free association, despite the fact that patients and therapists alike may mistake this narrative for historical truth. I am not denying that the narrative may have therapeutic value, but that doesn't make it true. In a therapeutic context, meaning is more important than history – but that is not the case in a forensic context. Its therapeutic value comes from the fact that it can provide the patient with emotional release, and the images constructed may point towards significant factors in the subject's psychological make-up.

It is also clear that the therapist's own preconceptions are often dominant in giving meaning to a narrative. For instance, therapists may assume that a symptom (such as low self-esteem) is indicative of a memory of childhood abuse, and then steer the therapy along the lines of this assumption. We all know how unreliable dreams are, and yet in a therapeutic context dreams are frequently taken to be memories. Once the therapist confides her suspicion about these ‘memories' to her client, the two of them work together to fit pieces into place and recreate the situation, now taken to be historical, that these jigsaw pieces make up. The close bond between therapist and client, or the dependence of the latter on the former, only help to make the narrative all the more convincing. They both invest in the belief that it is true. This happens not just in cases of childhood abuse, but also in many cases of MPD: the pattern of therapeutic indoctrination is remarkably similar. Most MPD victims do not display any symptoms before they begin therapy; it is only after therapy has been going a while that they start to flip from babyish behaviour to devilish behaviour, from male to female, from old to young. A therapist committed to the reality of MPD will claim that in actual fact his patient did display the symptoms before therapy, but that, since ‘alters' (alternate personalities) tend not to remember what other alters do, he simply didn't remember the symptoms. An alternative explanation, however, is that therapy actually creates MPD.

As if all this were not enough to cast doubt on the use of hypnosis to recover memories, tests have also shown that it is possible for hypnotized subjects to lie, to tell deliberate falsehoods. A minority view of this, however, is that in all cases where the subject tells lies, he was not properly or fully hypnotized. It is notoriously hard to tell whether someone is fully hypnotized. The 1987 Miranda Downes case in Australia shot to fame when Ernest Knibb, the main suspect (who was later convicted of the murder), appeared on TV and described how, if he had been Downes's killer, he would have gone about it. The TV programme also arranged for him to be hypnotized. Throughout the hypnotic session, Knibb continued to lie, pretending that he saw other possible suspects on the beach where Downes had been run down by a four-wheel-drive car, raped and drowned. Whether or not Knibb was fully hypnotized, the basic
point is that self-defence mechanisms are not necessarily undermined in a hypnotic session.

Hypnosis is often assumed to be a royal road to accurate recovery of memory, an idea which ignores the fact that memory can be enhanced without hypnosis. The assumption is that (as Herbert Lom puts it in the film
The Seventh Veil
) under hypnosis a patient lets down all his guards, including everything that might be hindering one from remembering something. Unfortunately, there is no real reason to assume that accurate recovery of memory is certain even under hypnosis. In fact, pseudo-memories may be created even more effectively under hypnosis, because of the increased suggestibility of the subject. Sensitive to the slightest nuances of the hypnotist's questions, he eagerly responds in a way that will satisfy the implicit demands of the hypnotist. His confidence in his memories increases when he is hypnotized, but confidence does not mean reliability. This is where the whole fallacy of reincarnation recall comes in: a subject's confidence in the images infects the hypnotist, and between them they concoct a reincarnation narrative.

Now, all this must cast doubt on the use of hypnosis as an aid in legal situations, at any rate in the interrogation of suspects rather than victims or witnesses. In fact, these days hypnotism is rarely used to interrogate suspects, for precisely the reasons just outlined. After all, presumably one of the main reasons for the statute of limitations in America is that memories from long ago are recognized to be inaccurate. There may be extreme cases, however, when hypnosis is called for in a legal situation. Suppose a defendant's grasp on reality is so impaired (as a result of mental retardation or emotional disturbance, perhaps) that he is incapable of mounting a defence on his own; perhaps evidence gained from hypnosis should then be taken into consideration. Another kind of situation when hypnosis may legitimately be used to refresh memory is when the benefits outweigh the possible adverse effects of memory distortion, or when human life is threatened, as in a kidnapping case. But even so, it should be taken with a pinch of salt. It should guide the police into a channel of investigation, rather than being taken to be gospel; the ‘facts' need double checking. And in order to avoid confabulation, the hypnotist should know as little as possible about the alleged crime –
just enough for him to be able to conduct a meaningful session.

Perhaps some readers will have read one of the several books on the case of George Franklin, or seen the TV movie. As we will see, hypnosis may or may not have been involved, but it is still a case that well illustrates the dangers of memory in a forensic situation.

In September 1969 eight-year-old Susan Nason vanished while running a domestic errand in Foster City, California. Three months later her decomposed body was discovered by accident. The police investigation was enormous and thorough, but no suspects were ever found or charged.

Twenty years later, in November 1989, Eileen Franklin Lipster walked into a police station and said that she had suddenly remembered, after all this time, that her father, George Franklin, had murdered her friend Susan Nason. She said that she remembered being in his Volkswagen minibus with Susan and her father, that her father performed a sex act with Susan, and then beat her to death with a rock. Police soon found that her father did have violent and paedophiliac tendencies, which had been indulged with his family and, for instance, with babysitters. He had an extensive collection of child pornography. Indeed, family members had often wondered aloud whether he might not be the killer.

George Franklin was brought to trial, and the case received huge media attention. It was an astonishing trial, in that the evidence of psychologists and psychiatrists played as big a part in it as the evidence of the supposed witnesses (as in the Gouffé case in nineteenth-century France). The main psychological issue was whether it is possible to forget such an event. It is easy to forget things for twenty years, and then suddenly to recall them, but they tend to be trivial things, like the colour of the curtains in a childhood
bedroom. But in cases of extreme dissociation, it is possible to forget major traumatic events. Perhaps this is what happened in Eileen's case.