Truth enhanced comes not from a trance

SOMETIMES court proceedings tend to become hypnotic, literally. Calculated use of hypnotism to enhance the legal process, however, is sparking a major controversy within the judicial community. Take the case of Rock v. Arkansas, heard this spring by the United States Supreme Court and due for ruling in the near future.

Vicki Rock got into a domestic squabble with her husband on a hot summer evening in l983 and he ended up dead on the kitchen floor.

Did Mrs. Rock willfully kill her husband?

Well, at first she was a bit confused about it. She told police she had picked up his loaded gun from the table. She said, however, she really couldn't remember what happened after that.

When Rock was charged with manslaughter, her lawyer decided to refresh her memory through hypnosis.

It then came back to her that her husband grappled her from behind. They wrestled. And the gun went off. She also remembered that her finger was outside the trigger guard.

A jury, however, never had an opportunity to weigh the credibility of this hypnosis-enhanced testimony.

Arkansas authorities, citing a state statute banning use of hypnosis in the legal process, succeeded in getting the trial judge only to admit into evidence that which Rock remembered before going into a trance. With the potentially vindicating evidence excluded, the defendant was found guilty of manslaughter and sentenced to 10 years in prison. This conviction was upheld by the state's highest court

In an appeal to the Supreme Court, Rock's lawyer insisted that his client was denied her constitutional right of ``due process'' when the trial judge refused to allow her to present facts that tended to prove her innocence.

James F. Luffman argued before the justices that ``there is little difference between hypnosis and a lawyer going over a story with a witness to prepare for cross-examination.''

Arkansas Attorney General Steve Clark countered that his state's rule banning all hypnosis-induced testimony is valid because this type of memory refreshing ``is not generally accepted by the scientific community as reliable.''

The high court now must decide the validity of the Arkansas anti-hypnosis rule in the light of the defendant's rights. Inherent in this dispute, however, are the broader questions of reliability and credibility of hypnotically induced court testimony, how it should be used (if at all), and what procedural safegards should be built into the process.

States are divided over the process. Ira Mickenberg, associate professor of law at the University of Dayton, Ohio, reports that more than half the states have adopted rules for admitting such testimony. But the overwhelming majority, he says, have held that such evidence is too unreliable to be used in a criminal case.

About 15 states, including Arkansas, ban it outright. Up to now, almost all hypnosis-related litigation has involved prosecution witnesses who were hypnotized to help them recall details of a crime.

One such case, according to the National Law Journal, is wending its way towards the Supreme Court.

Involved are six prosecution witnesses, who, when hypnotized by the police, remembered information that led directly to the arrest, and subsequent conviction, of the so-called ``Speedway Bomber,'' accused of a series of bombings in the Indianapolis area in l978.

A federal trial court admitted the testimony. And the US Court of Appeals for the Seventh Circuit upheld the conviction, stating that even if the evidence was improperly admitted, it was harmless error.

The defendant was sentenced to 50 years in federal prison. An appeal to the Supreme Court, however, asks for reversal on the grounds of violation of constitutional rights of confrontation and due process.

Regardless of the outcome of these two cases, the debate over use of hypnosis in the legal process will doubtless continue to expand.

Proponents of the practice insist that it is a legimate tool to get at the truth - specifically by helping the memory of a witness under pressure by relaxing the mind. They also say it should be up to a jury to decide the truthfulness of the testimony.

Opponents question both the validity of responses under hypnosis and the ethics of the practice. They point out that the subject is often extremely vulnerable to the suggestions of the hypnotist. He or she may fantasize information to fill in memory gaps. And hypnotized individuals tend to believe that which emerges from a trance whether or not it squares with other information.

All in all, it's hard to believe that justice is served on either side by ``going under.'' Truth enhanced comes not from a trance.

A Thursday column