PASSAGE ONE OF THE DAY: "Hypnosis has been used as a forensic tool by US law enforcement and intelligence agencies since the second world war. Proponents argue that it allows victims and witnesses to recall traumatic events with greater clarity by detaching them from emotions that muddy the memory. In the case that led police departments across the country to begin using forensic hypnosis, a school bus driver in California, who had been abducted and buried alive with 26 students in an underground trailer, later accurately recalled most of the licence plate of his abductors while under hypnosis. (All 27 captives survived the ordeal, after they dug themselves out of the trailer with a piece of wood.) That was in 1976. In recent decades, the scientific validity of forensic hypnosis has been called into question by experts who study how memory operates, especially in police interviews and courtrooms. It is one example of a growing number of forensic practices – including the analysis of blood spatter patterns and the study of what distinguishes arson from accidental fires – that prosecutors once relied on to secure convictions, but which are now considered to be unreliable. “The breadth of scientific error in forensic disciplines is breathtaking,” Ben Wolff, an attorney for Flores, told me."
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PASSAGE TWO OF THE DAY: "Many practitioners of forensic hypnosis know that it can create false memories, but it is a risk they willingly take. “More memory, how could that be a bad thing?” said Carol Denicker, a hypnotist in New York state. Bob Erdody, a hypnosis consultant and retired NYPD officer, told me most of the information obtained in interviews can be corroborated, so false memories get weeded out. His most successful use of hypnosis was with a young man who was able to remember a decal on the window of a car involved in a shooting, which resulted in an arrest. But he also acknowledged that forensic hypnosis could be unreliable: he had consulted on a case in which hypnosis led to a wrongful charge of sexual assault. There is a deeper problem, though, which is that inaccurate memories are common even in non-hypnotic police interviews. An accumulating body of research shows that the thing almost every investigation relies on to some extent – witness memory – is not good forensic evidence. The Innocence Project has used DNA testing to uncover 367 wrongful convictions; almost 70% of these involved a witness misidentifying the perpetrator. “There’s still a common lay belief that memory works as a recording device,” said Elizabeth Loftus, an expert in eyewitness identifications at the University of California at Irvine.
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PASSAGE THREE OF THE DAY: "One of the key figures challenging the practice is Juan Hinojosa, a Texas state senator who has been involved in fighting the use of forensic junk science since the early 2000s, when he was deeply upset by the execution of Todd Willingham, the man wrongfully convicted and then executed for burning his children to death. “I think quite frankly, we convicted wrongfully an innocent man,” Hinojosa told me. In the wake of Willingham’s execution, he worked to establish the Forensic Science Commission. The goal, he said, was to have forensics “based on some actual research and data, and not just on somebody’s intuition or bias within the criminal justice system”. He also began to read widely about other potentially dubious forms of forensic science, including hypnosis. He has been trying to pass a bill that would make hypnotically induced testimony automatically inadmissible in Texas courts. In another high-profile case involving forensic hypnosis, Kosoul Chanthakoummane, a friend of Flores’s on death row, is also awaiting a decision from the criminal court of appeals."
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QUOTE OF THE DAY: "As lawyers from the Innocence Project put it in a brief in Flores’s case, “memory can be easily contaminated” – just like a crime scene."
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STORY: "The long read: False witness: Why is the US still using hypnosis to convict criminals?" by Ariel Ramchandani, published by The Guardian on October 4, 2019.
SUB-HEADING: "For decades, US law enforcement has used ‘forensic hypnosis’ to help solve crimes – yet despite growing evidence that it is junk science, this method is still being used to send people to death row. "
PHOTO CAPTION: "Charles Flores was convicted of murder after a witness under hypnosis gave evidence against him. He remains on death row in Texas."
GIST: (This is a portion of a very lengthy article which deserves to be read from start to finish. HL).
"In January 2016, Charles Flores, a Texas prisoner, was moved to death watch, where inmates awaiting execution spend their final months. Seventeen years earlier, Flores had been convicted of murdering a woman in a Dallas suburb in the course of a robbery, a crime he says he did not commit. All of his appeals had been denied and his lethal injection was scheduled for 2 June.
Flores’s new neighbour on death watch, who was due to die in two weeks, gave him the name of his attorney, Gregory Gardner. Gardner specialised in fighting capital punishment convictions and had helped this man take his case to the US supreme court. Flores wrote to Gardner, telling him about the troubling course his trial had taken. No physical evidence had been presented to tie him to the murder, his defence had failed him in multiple ways and, perhaps most troublingly, the only eye witness who claimed to have seen him at the scene of the crime had been hypnotised by police during questioning. Hypnosis has been used as a forensic tool by US law enforcement and intelligence agencies since the second world war. Proponents argue that it allows victims and witnesses to recall traumatic events with greater clarity by detaching them from emotions that muddy the memory. In the case that led police departments across the country to begin using forensic hypnosis, a school bus driver in California, who had been abducted and buried alive with 26 students in an underground trailer, later accurately recalled most of the licence plate of his abductors while under hypnosis. (All 27 captives survived the ordeal, after they dug themselves out of the trailer with a piece of wood.)
"In January 2016, Charles Flores, a Texas prisoner, was moved to death watch, where inmates awaiting execution spend their final months. Seventeen years earlier, Flores had been convicted of murdering a woman in a Dallas suburb in the course of a robbery, a crime he says he did not commit. All of his appeals had been denied and his lethal injection was scheduled for 2 June.
Flores’s new neighbour on death watch, who was due to die in two weeks, gave him the name of his attorney, Gregory Gardner. Gardner specialised in fighting capital punishment convictions and had helped this man take his case to the US supreme court. Flores wrote to Gardner, telling him about the troubling course his trial had taken. No physical evidence had been presented to tie him to the murder, his defence had failed him in multiple ways and, perhaps most troublingly, the only eye witness who claimed to have seen him at the scene of the crime had been hypnotised by police during questioning. Hypnosis has been used as a forensic tool by US law enforcement and intelligence agencies since the second world war. Proponents argue that it allows victims and witnesses to recall traumatic events with greater clarity by detaching them from emotions that muddy the memory. In the case that led police departments across the country to begin using forensic hypnosis, a school bus driver in California, who had been abducted and buried alive with 26 students in an underground trailer, later accurately recalled most of the licence plate of his abductors while under hypnosis. (All 27 captives survived the ordeal, after they dug themselves out of the trailer with a piece of wood.)
That was in 1976. In recent decades, the scientific validity of forensic hypnosis has been called into question by experts who study how memory operates, especially in police interviews and courtrooms. It is one example of a growing number of forensic practices – including the analysis of blood spatter patterns and the study of what distinguishes arson from accidental fires – that prosecutors once relied on to secure convictions, but which are now considered to be unreliable. “The breadth of scientific error in forensic disciplines is breathtaking,” Ben Wolff, an attorney for Flores, told me. After reading about Flores’s case, Gardner got in touch with a hypnosis expert named Dr Steven Lynn. As a young psychologist in the 1970s, Lynn was a “true believer” in the power of hypnosis to retrieve memories, he later testified in a hearing in Flores’s case. But when Lynn began to test this assumption, he found that in study after study, hypnosis actually harmed subjects’ recall. It led them to “recover” at least as many false memories as accurate ones, while increasing their confidence in the memories’ accuracy. “Maybe they’re having a very vivid experience during hypnosis, but that experience is not necessarily a truthful experience,” Lynn told the court. After contacting Lynn, Gardner filed an appeal before the highest criminal court in Texas. He based the appeal on a law passed in Texas three years earlier, in May 2013, known as the junk science statute. Among other things, the statute held that convictions could be thrown out if it was shown that they relied on discredited or misused scientific evidence. It was the first law of its kind in the US and a major step forward for fighting wrongful convictions – but it had not yet been tested in a forensic hypnosis case. “It felt like we were at the casino and pushing all the chips in,” Flores said. In an affidavit included with Flores’s appeal, Lynn wrote that “a significant development in the study of psychology over the past two decades or so has been the decline and fall of the idea that memory is a vast, permanent and potentially accessible storehouse of information.” In a subsequent hearing, Lynn testified that the hypnosis in the Flores case had relied on this faulty concept of memory and that it may have contributed to the witness’s confidence in her testimony. At trial, the witness had said she was “over 100% positive” that she saw Flores at the crime scene. On 27 May 2016, six days before he was supposed to be put to death, the court granted Flores a stay of execution and sent the case back to a lower court for review. In October 2018, that court affirmed the original conviction, which means Flores is still on death row. He is now waiting for his final appeal to be heard by Texas’s highest criminal court. His case, along with another, similar case from Texas, could determine the future of forensic hypnosis in the state and across the country. Since 1987, the supreme court has held that information and testimony from hypnotised witnesses cannot automatically be thrown out of court. Texas is one of 13 states that allow hypnotically induced testimony, as long as the hypnosis is carried out according to certain guidelines; a further four states permit it unconditionally. Of these 17 states, 10 also have active capital punishment laws, which means they can put potentially innocent people to death on the basis of what Alexis Agathocleous, a lawyer for the Innocence Project, which works to exonerate wrongly convicted prisoners, calls “deeply unreliable” evidence. Nationally, DNA evidence has been used to exonerate at least six people who were convicted of crimes partially on the basis of hypnotically induced testimony, according to data from the Innocence Project, which is now briefing the court against the use of forensic hypnosis in Flores’s case. If Flores’s appeal is successful and his conviction is overturned, Texas is highly likely to join the 27 states that have already banned the use of forensic hypnosis as a result of the growing expert consensus that it is junk science. (Another six states have no forensic hypnosis case law, leaving its legal status there highly ambiguous.) This would add the momentum of the US’s second most populous state to a nationwide push to scrap the practice. If the appeal fails, Flores’s case could still go to the US supreme court, which could decide to ban forensic hypnosis across the country. But Flores could also lose all his appeals, which might lead to his execution, and entrench the use of forensic hypnosis in states such as Texas.
The entire article can be read at:
https://www.theguardian.com/science/2019/oct/04/false-witness-us-using-hypnosis-convict-criminal
(Read cautionary Grits for Breakfast commentary at the link below: Last chance to get rid of 'forensic hypnosis':This Guardian story on forensic hypnosis correctly hones in a case pending before the Texas Court of Criminal Appeals as the best chance for the state to be rid of the practice. But it incorrectly suggested the Forensic Science Commission could deal with the issue (they say they don't have jurisdiction because the practice doesn't deal with physical evidence), and a bill filed to end the practice at the Texas Legislature last session couldn't even get a hearing in the Senate Criminal Justice Committee. As such, the author was a bit too sanguine the practice might be abolished here. If the CCA doesn't get rid of this junk science, in Grits' estimation it will remain with us in Texas courts for a long, long time.
https://gritsforbreakfast.blogspot.com/2019/10/roundup-oversight-overlooked-i-35-fine.html)
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
