Thursday, May 7, 2020

Question of the day: What is perhaps the junkiest of junk science? Read on for Scott Henson's response in his outstanding Blog 'Grits for Breakfast. - one of the finest criminal justice Blogs in cyberspace. (Read this one - and delve into his links - and you will understand why. (HL);

POST: "Texas: The 'epicenter' of forensic hypnosis, perhaps the junkiest  of junk science," published by 'Grits for Breakfast' on April 9, 2020. (A top notch site - if not one of the finest criminal justice blogs in cyberspace. HL.  Former professional opposition researcher and political consultant Scott Henson leads a team of writers who discuss law enforcement and criminal justice issues in Texas.)

GIST: Most Americans got their first sense of "hypnosis" from watching cartoons, where the mind-control trope has been a staple for decades. But it's no laughing matter when the practice enters the courtroom and people are sent to prison for decades, or even executed, based on such pseudoscientific foolishness.

Texas is the "epicenter" of forensic-hypnosis use in the United States, according to  a pair of investigative stories published this week at the Dallas Morning News by Lauren McGaughy and Dave Boucher. The feature was two years in the making. Check them out here:
The title of the series comes from jargon used by forensic hypnotists at Texas DPS who tell witnesses to enter a "Memory Room" where they supposedly can review their memories as though watching a TV, hitting rewind, pausing, and generally treating one's memory as though watching a recorded video.
According to videos and documents The News obtained, police hypnotists use methods crafted at least as early as the 1970s and ’80s. Texas Rangers, among the most prolific hypnotists in the state, are still telling subjects to close their eyes, enter an imaginary “Memory Room” and watch their recollections on a television, as though they were a movie. It is an effort to find supposedly lost or buried clues, but experts refute this technique as dangerous and misleading.
Here's a little more detail:
This approach is still popular with the Rangers. In videos of some sessions The News obtained, hypnotists used the same method before instructing witnesses to imagine standing atop a staircase. As they walk down the steps in their minds, they are supposed to go deeper and deeper into a trance. 
At the bottom, they are told they see a door. A sign on or above that door reads “Memory Room.”  Upon entering, they are told to sit in front of a television. The hypnotist directs them to watch their memories on the screen.
In real life, scientists now understand that memories are recreated each time they are recalled and change substantially over time. The idea that a secret videotape is stored somewhere in the "subconscious" which may be reviewed during hypnosis has zero scientific credibility and, outside of law enforcement, has been relegated in the modern era to the realm of two-bit stage magicians. Even so, a Texas Ranger told the Morning News, "It's a very precise science."

These disproven misconceptions about memory are central both to the Texas court cases that approved this junk-science technique, as well as the state-approved training materials still used to this day training forensic hypnotists in Texas.

The Texas Court of Criminal Appeals has for a couple of years now had a death-penalty case before it which will revisit whether forensic hypnosis remains a valid technique in this state. With the Government Always Wins faction presently in firm control of that body, Grits fears the worst from this ruling. The fact that the case has taken so long to decide tells you there's a likely intense, behind-the-scenes disagreement among judges over how to proceed.

There's little scientific justification remaining behind the central tenets of Zani v. Texas, the 1988 decision in which the CCA first approved the technique's use, so it's possible that even the GAW faction of the CCA can't find enough meat left on that bone to continue the practice. The most detailed academic analysis I've seen of the pros and cons of admitting such testimony in court concluded, "Admitting hypnotically enhanced testimony into evidence creates grave dangers that miscarriages of justice will occur. The problems that arise from this practice are so great that hypnotically enhanced testimony should never be admissible."

Part one of the Morning News package includes an excellent graphic presenting data on every case they could document at DPS using forensic hypnosis going back to 1980 (a total of 1,789 cases). While not used as frequently as other forensic methods, it's often used in high-profile cases where little other evidence exists. Eleven people have been executed based at least in part on hypnotically-induced testimony.

The central example case, fleshed out in detail in Part 2, involved a black security guard convicted of assaulting a white woman in the 1980s. No physical or other evidence linked him to the case and the victim did not identify him in a photo array after the incident. But following a hypnosis session that experts say included leading questions from the hypnotist, she declared the security guard did it. He served 31 years of a 60 year sentence and to this day insists he was wrongfully convicted.

Here's hoping the Court of Criminal Appeals disallows this junk science going forward. The Texas Forensic Science Commission cannot study the question under its enabling statute because it relates to testimonial, not "physical" evidence. And though State Sen. Juan "Chuy" Hinojosa filed legislation last year to ban the technique from Texas courtrooms, Senate Criminal Justice Committee Chairman John Whitmire wouldn't give the bill a hearing. So if the CCA doesn't disallow such testimony, there appear to be no near-term options available for challenging the practice.

Read both the Morning News stories, they're easily the best thing I've seen from the MSM on these topics.

For more background, see:
The entire post can be read at:

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: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to:  Harold Levy: Publisher: The Charles Smith Blog;
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;