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American Journal of Clinical

Hypnosis
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Forensic Hypnosis: To Hypnotize,

or Not to Hypnotize, That is the
Question!
a
Neil S. Hibler Ph.D.
a
USAF Office of Special Investigations , Washington, D.C.,
USA
Published online: 21 Sep 2011.

To cite this article: Neil S. Hibler Ph.D. (1984) Forensic Hypnosis: To Hypnotize, or Not to
Hypnotize, That is the Question!, American Journal of Clinical Hypnosis, 27:1, 52-57, DOI:
10.1080/00029157.1984.10402589

To link to this article: http://dx.doi.org/10.1080/00029157.1984.10402589

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 AMERICAN JOURNAL Of' CLINICAL HYPNOSIS
VOLUME 27. NUMIlER I. JULY 1984

Forensic Hypnosis:
To Hypnotize, or Not to Hypnotize,
That is the Question! 1

NEIL S. HIBLER
USAF Office of Special Investigations
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Washington, D.C.

A question often neglected in the literature on forensic hypnosis is: Are there
circumstances that ought to influence the decision to use hypnosis in the first
place? To ensure that forensic hypnosis is used appropriately. federal investiga-
tive agencies have developed guidelines that require careful review of investiga-
tive, forensic, and potential hypnotic considerations. Such considerations include
the merit and priority of the case, prior progress. existing forensic difficulties. the
role of the interviewee in the investigation. other testimony, physical evidence.
and the likelihood that information derived from hypnosis could be independently
corroborated. These guidelines are explained as precautions against using hypno-
sis as a substitute for traditional techniques and to assure the potential of hypnosis
when it is employed.

Few uses of hypnosis have raised the
controversy which has resulted from
hypnotic efforts to enhance memory for
criminal investigations. Despite many
apparent forensic successes, careful analy-
sis of these cases reveals that hypnotic
testimony cannot be the sole basis for pros-
ecution. Appellate decisions have been
reached in California, Nebraska, Mas-
sachusetts, Arizona, Michigan, Minnesota,
Maryland, New York, and Pennsylvania,
I This paper was presented at the 26th
Annual Meeting of the American Society of
Clinical Hypnosis. Dallas. Texas, November.
1983.
Requests for reprints may be sent to Neil S.
Hibler. Ph.D.. Headquarters. USAF Office of
Special Investigations. Washington. D.C.
20332.
that have resulted in severe restrictions of
testimony from witnesses who had been
hypnotized. Thus, strong precedents have
been established which effectively restrict
the use of hypnosis by many law enforce-
ment agencies, even though police general-
ly clamor for its use. How is it possible that
a purported "advancement in law enforce-
ment" has resulted in such a dilemma?
The use of hypnosis as an aid to recall is
not new. The first documented application
of the technique for criminal investigation
in this country occurred well over a hun-
dred years ago (Gravitz, 1983). Today, hyp-
notizing witnesses has become so common-
place that it has become a specialty in its
own right (Arons, 1967; Hibbard & Wor-
ring, 1981; Reiser, 1980). Perhaps the
greatest influence upon the proliferation of
forensic hypnosis has resulted from large-
scale training of police officers as "hyp-

52
 FORENSIC HYPNOSIS 53

notechnicians.' These hypnotechnicians notically derived. Thus, courts have in-

generally emphasize the investigation (to creasingly recognized the limitations hyp-
which hypnosis is applied), which at times nosis has in evolving accurate information,
has led to indiscriminate and ill-considered but have restricted this interest to the tech-
uses of the technique. Interestingly, placing niques involved in hypnotically enhancing
the primary emphasis on hypnotic issues recall.
does not always resolve the dilemma either. There is, of course, ample support in the
The major appellate decisions that have re- scientific and forensic literature for caution
nounced forensic hypnosis are drawn from in the use of hypnosis for memory enhance-
cases in which hypnosis was conducted by ment. To those familiar with research re-
police and doctors alike. Yet, in their criti- garding hypnotic recall, it is no surprise to
cism of how hypnosis is used, the courts learn that hypnotically induced memory is
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have most frequently referred only to qual- easily flawed. Moreover, in hypnotic trance
ifications for personnel conducting inter- willful deceit is not only possible, it is unde-
views, and how sessions should be con- tectable. It is, therefore, important to note
ducted (Cohen, 1983). that the guidelines recognized by the courts
Noticeably absent is any discussion of are not the only guidelines which may be
the interaction of hypnosis with specific in- suitable, particularly since by using other
vestigative indications and contradictions. safeguards hypnosis has been helpful in
For example, guidelines resulting from creditably resolving many important inves-
New Jersey v. Hurd (1981) have been refer- tigations.
red to in an increasing number of appellate
There have been many cases in which the
decisions. These safeguards, known as the
accuracy of hypnotic recollections was
"Hurd rules," require that hypnosis be
confirmed by overwhelming evidence, for
enacted only by well-trained and experi-
example, the Chowchilla kidnapping (Kro-
enced mental health professionals (Orne,
ger & Douce, 1979) and New Jersey v.
1979). Included in the Hurd Rules are the
Alexander (Hibler, 1982). Although these
following precautions:
examples support the role of forensic hyp-
"Hypnosis should be carried out by a psychiatrist nosis in modern police work, they do not
or psychologist with special training in its use. He constitute a blanket endorsement. It is im-
should not be informed about the facts of the case portant to expand the concept of procedur-
verbally: rather. he should receive a written al safeguards beyond the hypnotic inter-
memorandum outlining whatever facts he is to
view to the more basic consideration of cir-
know. carefully avoiding any other communica-
tion which might affect his opinion. Thus. his be- cumstances for which such interviews are
liefs and possible bias can be evaluated. It is ex- warranted.
tremely undesirable to have the individual con- The investigative departments of the
ducting the hypnotic sessions to have any involve-
Armed Forces, the Secret Service, the
ment in the investigation of the case. Further. he
should be an independent professional not re- Treasury Department, and the Federal
sponsible to the prosecution or to the investiga- Bureau of Investigation have established a
tors" (Orne. p. 335-336). single standard for the use of hypnosis.
These guidelines, known as the "Federal
Other stipulations in these guidelines Model," (Ault, 1979; Hibler, 1984) have
concern the conduct of the interview itself, benefited from a number of other models,
but notably do not address the prerequisites binding hypnotic and investigative issues
for forensic hypnosis, or the need to meas- by assuring the appropriateness of the
ure the validity of information that is hyp- hypnotic interview in the context of the
 54
ongoing investigation. The Federal Model
has evolved due to the shortcomings recog-
nized by the courts. In particular, existing
models leave a significant gap between
what the police believe they need and what
the doctor or hypnotherapist believes can
be offered. For example, it is entirely possi-
ble that a well-intended law enforcement
agency or defense counsel could request an
hypnotic interview by an equally well-
intended hypnotherapist, only for each to
eventually find that hypnosis was not
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necessary, or worse, was damaging to the
course of justice.
Federal guidelines impose specific condi-
tions for determining when the technique
may have potential, as well as circum-
stances when it must not be used.
WHEN TO USE HYPNOSIS
Last Resort: Except for intense priority
concerns, such as the potential for the im-
minent loss of life, hypnosis should be con-
sidered only after all traditional investiga-
tive methods of law enforcement have been
used. This is to ensure that hypnosis is not
used prematurely. Hypnosisis not a short
cut; it is an attempt to provide information
obtainable by no other means.
Serious Crimes: Only felony offenses
warrant the use of this technique. Just as
with other expensive, procedurally intri-
cate methods, it is not cost effective nor is
it the appropriate management of resources
to involve the time, effort, and issues that
are inherent in this process unless the mat-
ter is of sufficient seriousness.
Potential for Recall: There must be some
situation which suggests that further recall
may be possible. In other words, hypnosis
should never be used as a "fishing expedi-
tion." The witness or victim must have
been able to see or otherwise perceive de-
tails which may have the potential for fur-
ther enhancement. One way in which the
likelihood of further recall is explorable, is
to reenact the event, noting carefully what
would be reasonable to expect to have been
in the field of vision, etc.
Likelihood of Independent Corrobora-
tion: There must be some means by which
information that may be forthcoming in
hypnosis can be validated. That is, there
must be other witness testimony or physi-
cal evidence, such as fingerprints, hair and
fibers, serological residue or other iden-
tifiers which can be used to confirm hypnot-
ic recollection. The actual purpose of hyp-
nosis is to generate investigative leads,
which in their own right would identify a
suspect. Furthermore, posthypnotic
eyewitness identification by the inter-
viewee is not sufficient corroboration, as
such recognition is not independent of hyp-
nosis. There must be separate, indisputable
elements with which to confirm the accura-
cy of hypnotic data. Without these ele-
ments for independent corroboration, there
can be no hypnosis; otherwise, hypnosis is
all too likely to be relied upon as a trier of
fact.
These guidelines have effectively taken
hypnosis out of the courtroom and placed it
in its more appropriate role as a tool in the
investigative process to produce leads for
later corroboration. However, there are
also instances in which hypnosis must not
be used at all.
WHEN NOT TO USE HYPNOSIS
Flawed Cases: An investigation in which
there are forensic errors is not easily prose-
cuted, and hypnosis cannot offer resurrec-
tion from potentially damaging mistakes.
For example, if a witness sees authorities
arrest someone who acts suspiciously at the
scene of the crime, his identification could
easily be based on supposition rather than
recall. Likewise, several witnesses who
have actively discussed their recollections
with each other may have tainted their
knowledge of the incident.
 FORENSIC HYPNOSIS
Known Subjects Cases: When an inves-
tigation results in the identification of a sus-
pect, it is most likely too late to consider
hypnosis. For example, a priori knowledge
that a suspect has been identified may in-
fluence an opinion or conclusion, and pre-
judice the witness without the witness even
realizing it. It is, however, conceivable that
a situation might exist in which hypnosis
could add to understanding the alleged act
of a known suspect, but this involves spe-
cial precaution. In such an interview, only
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those elements of the event which were
known to the witness through the event it-
self may be explored. For instance, if a sub-
ject escaped from the scene of the crime in
a stolen car, the automobile could be de-
scribed in hypnosis so that eventually it
might be connected to the crime (and sus-
pect) by serological, hair and fiber, finger-
print or other evidence.
Credibility of Interviewee in Question:
The prospective interviewee's role in the
case is scrutinized to determine the poten-
tial for ulterior motives for their participa-
tion. Where doubt exists, polygraph ex-
amination is recommended.
Involuntary Participation: Interviews
must not be coercive. The threat of punish-
ment, or promise of reward only magnifies
potential distortion, not to mention the un-
ethical violation of consent.
Certainly, these precautions make it
clear that hypnosis cannot be a "short cut"
in the investigative process. Not only are
traditional investigative methods superior
because of their validity and acceptance in
trial proceedings, they are stilI necessary to
corroborate hypnotic information. Unless
the communication between police agen-
cies and their consulting hypnotherapists is
active, and unless these precautions are
carefully considered, there will be the best
of intentions, but potentially the worst of
consequences. The investigative commu-
nity needs to recognize that hypnosis can
55
make no promises other than to confuse,
mislead, and misdirect resources if it is not
carefully applied. Likewise, practitioners
who offer their services without regard for
the specifics of the case in which they are to
intervene are potentially jeopardizing their
contribution, if not the case itself.
The Federal Model for forensic hypnosis
establishes careful supervision of cases and
review for all requests to use the technique.
The aforementioned sufficiency of the case
and merit of circumstances are self-
explanatory. Final approval for actually us-
ing the techrlique is outside the influence of
the case investigator. Approval authority is
the responsibility of a senior agency official
who is distant from the emotional demands
of the investigation and the victims of the
crime. The final decision therefore, is
administrative: based on investigative, leg-
al, and hypnotic concerns which are by
definition, always interrelated.
There is one important element of the
Federal Model that has not often been con-
sidered by state courts. Recognizing that
hypnosis is used in forensic settings for the
purpose of investigation, it would seem to
make sense that it be utilized by personnel
who are best prepared to hypnotize and to
investigate. To this end, the Federal gov-
ernment has endorsed the use of a "team
approach" (Ault, 1981). Accordingly, men-
tal health practitioners are responsible for
all elements of trance induction and man-
agement, and specially trained investiga-
tors collaborate by developing information
in the interviews. In so doing, there is con-
fidence that the well-being of the inter-
viewee, the stipulated use of hypnosis, and
the proper forensic exploration of the event
in question are maintained. Thus, investiga-
tors do not function as doctors, and doctors
do not function as investigators.
Additionally, interviews are video re-
corded and follow an outline or script to
define roles and the sequence of the pro-
 56
cess. The structure that is created capital-
izes on administrative details, such as iden-
tifying all persons present, confirming that
the interview is voluntary and obtaining
written consent. In the interview, the hyp-
notherapist determines the suitability of the
interviewee to experience hypnosis in the
context of revivifying the event, and a de-
tailed debriefing of the interviewee is con-
ducted prior to enacting trance. This pre-
hypnotic questioning both informs the team
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as to current recollections and provides an
opportunity for exploring the incident in de-
tail without hypnosis. The video tape ofthis
debriefing provides a transcript of the inter-
viewee's recollections in case a dispute
were to arise concerning potential tainting
which could develop from the hypnotic ex-
perience. During the inquiry portion of the
interview, information is developed by age
regression and spontaneous recall of the
event. Then, successive repetitions are elic-
ited with increasing development of those
elements which hold investigative poten-
tial. Finally, after the conclusion of the
hypnotic portion of the interview, the inter-
viewee is asked to discuss the hypnotic ex-
perience and its similarities or differences
with prior memories of the incident. Artist
sketches, mug books or other identification
material are presented after hypnosis.
Active communication between practi-
tioners who wish to employ forensic hypno-
sis and the agencies or attorneys they serve
would seem essential. However, this posi-
tion contradicts the communication bar-
riers that are stipulated by forensic models
which infer that knowing anything about a
case will prejudice an interviewer. Certain-
Iy, it would seem prudent that certain spe-
cific details which are hoped to be explored
in hypnosis ought not to be known to inter-
viewers in order to prevent inadvertent
leading of the interviewee. Yet, knowledge
of the circumstances of a case must be
known in detail to someone in the consult-
ing relationship who can responsibly deter-
mine if hypnosis is appropriate at all.
In light of the intense controversy which
forensic hypnosis has created in the
hypnotic, investigative, and judicial com-
munities, it would seem prudent to careful-
ly reexamine the logic and standards which
have led to the questionable status hypno-
sis holds in our courts. There is no one best
way to employ the technique. Yet, we can
certainly learn from each other's mistakes
and successes. Until we have a more com-
plete understanding of human perception,
memory, and hypnosis itself, it is clear that
the real issues in forensic hypnosis may
well not be resolved in the near future. In
the meantime, the record is clear: some
approaches to forensic hypnosis have failed
to produce reliable results, and according-
Iy, the courts have established their own
mandates.
Although there is, as yet, no universally
accepted framework for employing hypno-
sis forensically, all who would request its
use or apply it themselves ought to consider
whether investigations are better resolved
by traditional, established investigative
techniques. Hypnosis ought to be reserved
for those limited but well-defined circum-
stances in which little is left to chance.
Otherwise, it may be more noble not to
hypnotize at all.
REFERENCES
ARONS, H. (\967) Hypnosis in criminal investigation.
Springfield: Thomas.
AULT, R. (\979) FBI guidelines for use of hypnosis.
International Journal of Clinical and Experimental
Hypnosis. 27, 449451.
AULT, R. (1981) Hypnosis - The FBI's team
approach. FBI Bulletin, 49, 5-8.
COHEN, A. (1983) Hypnosis under attack, Police
Magazine. 6, 38-42.
GRAVITZ, M. (\ 983) An early case of investigative hyp-
nosis: A brief communication. International Journal
ofClinical and Experimental Hypnosis, 3/, 224-226.
HIBBARD, W. & WORRING, (\98\) Forensic hypnosis:
 FORENSIC HYPNOSIS
The practical application ofhypnosis in criminal in-
vestigations. Springfield: Thomas.
HIBLER, N. (1982) Hypnosis in the Air Force. Pre-
sented at the 25th Annual Meeting of the American
Society of Clinical Hypnosis. Denver, CO. October.
HIBLER, N. (1984) Investigative aspects of forensic
hypnosis. In W. Smith & W. Wester, III (Ed.), Mul-
tidisciplinary approaches to clinical hypnosis.
KROGER, W. & DOUCE, R. (1979) Hypnosis in criminal
Downloaded by [Central Michigan University] at 18:18 03 January 2015
57
investigation. International Journal of Clinical and
Experimental Hypnosis, 27, 4, 358-374.
ORNE, M. T. (1979) The use and misuse of hypnosis in
court. International Journal of Clinical and Ex-
perimental Hypnosis, 27, 311-341.
REISER, M. (1980) Handbookfor investigative hypno-
sis, Los Angeles: LEHI Publishing.
State v. Hurd (1981) 86 N.J. 525. A. 2d86.