Journal of Cold Case Review Volume 1, Issue 2, December 2015

Investigative Hypnosis in Texas

By Dan Robb, PhD [1]

Abstract

Investigative hypnosis, also referred to as forensic hypnosis, as presented at the Texas Association of
Licensed Investigators 2015 Annual Private Investigators Conference, is an investigative tool that has
enhanced numerous investigations. The term “forensic” is used to denote application of scientific
methods to criminal investigation. This essay is in no way meant to disparage the presenter at the
conference, John M. Gaspar, MS, MMBA, CFE, CST, of All Florida Investigations & Forensic Ser-
vices, Inc., whose credentials and experience are excellent. However, investigative hypnosis as prac-
ticed in Texas differs somewhat from information provided at the conference.

Keywords: forensic, hypnosis, investigative, Texas

[1] Dr. Robb retired as a senior special agent, Office of Investigations, U.S. Department of Homeland Security, previ-
ously U.S. Customs (Regional Program Manager for the Office of Internal Affairs, and numerous positions within the
Office of Investigations); with prior experience as special agent Naval Investigative Service, now Naval Criminal Inves-
tigative Service; and in enlisted and officer ranks of the U.S. Marine Corps (military police and investigations). He
worked for six years as adjunct professor for the American Public University System at the graduate level. He is currently
a representative of Project ALERT, a program of the National Center for Missing & Exploited Children; and is a
member of the Behavioral Science section of the Consulting Committee and Educational Conference Chair of the Amer-
ican Investigative Society of Cold Cases. He holds a Doctorate in Human Services (specializing in Criminal Justice), a
graduate certificate in Forensic Psychology, was certified by TCOLE as a peace officer (inactive) and was certified as an
investigative hypnotist. He is the owner/manager/ investigator of INSIGHT, Texas Department of Public Safety
Certificate of Licensure Number A15531.

Investigative Hypnosis in Texas there was a discussion of confabulation as a po-

tential problem, there are other potentially neg-

T exas case law has provided precedent for

probative (i.e., providing evidentiary proof
admissible as testimony) use of hypnosis. As an
ative effects.

Hypnosis has been defined as a sustained re-

example, apparently jurisdictions in which Mr. ceptive and intensely focused response to a sig-
Gaspar has practiced (i.e., New York and Flor- nal, while diminishing peripheral awareness
ida) do not sanction hypnosis enhanced foren- (Pinizotto, 1989), “facilitated induction of fo-
sic artist rendition of suspects; which is ac- cused attention” (Gravitz, as cited in Kennedy,
ceptable and commonly practiced in Texas. 2011, n.p.), and, “as an altered state of con-
And, it was indicated that audio or video re- sciousness, characterized by heightened com-
cording of forensic hypnosis should be utilized; pliance with suggestion and extreme focused
whereas, Texas procedures require audio and attention” (Raz & Shapiro, 2002, p. 85). Mod-
video recording of all interactions between the ern use of hypnosis began with Franz Mesmer
hypnotist and the subject. In addition, while in the 18th century, and the next prominent
practitioner was Sigmund Freud in 1880, who
documented use of clinical hypnosis in Studies

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Journal of Cold Case Review Volume 1, Issue 2, December 2015

in Histeria with Joseph Breuer. “Common false with decreasing susceptibility to hypnosis be-
theories continue to associate hypnosis with yond age 21 (Boulch, n.d.). Positive motivation
mysticism, loss of autonomy, and mind control” is essential for optimal results; and, a negative
(p. 86). A definition offered by the Society of attitude, illness, or post trauma circumstances
Psychological Hypnosis of the American Psy- will generally lead to poor hypnotic outcomes
chological Association, (2014, p. 4) indicates (Raz & Shapiro). And, a common adage in hyp-
that: nosis is that all hypnosis is self- hypnosis, with
the hypnotist acting as a guide. Raz and Shapiro
“Hypnosis is a procedure involving cognitive also indicated that neuroimaging has revealed
processes [like imagination] in which a subject that the volume and structure of the nerve fi-
is guided by a hypnotist to respond to sugges- bers that carry motor, sensory, and cognitive
tions for changes in sensations, perceptions, information between the left and right brain
thoughts, feelings, and behaviors.” hemispheres can be correlated to attention and
inhibitory processing, as well as hypnotizability.
Brain imaging studies have shown hypnosis
consists of neurophysiological mechanisms in Dr. David Eagleman (2011), who directs the
the prefrontal cortex and in other areas con- Laboratory for Perception and Action and the
trolling executive attention (Raz & Shapiro). Initiative on Neuroscience and Law, Baylor
Responsive subjects show brain activation in- College of Medicine has stated that “implicit
dicating that hypnosis is more than social com- memory systems are fundamentally separate
pliance or role playing with regard to auditory from explicit memory systems: even when the
perceptions, visual perceptions, and posthyp- second one has lost the data the former one has
notic suggestions. a lock on it” (p.64). Moreover, implicit associ-
ations (subconscious thoughts) are generally
Raz and Shapiro (2002) indicated that psycho- not accessible to conscious thought.
therapists may engage in hypnosis- like activi-
ties in counseling sessions. There is also evi- Forensic hypnosis is primarily concerned with
dence from brain imaging to indicate similari- hypermnesia, the ability to recover lost memo-
ties between hypnosis, meditation, prayer, and ries (Boulch). The reliability of hypnotically re-
attentive play or study. Analogously, the Cog- called information is directly related to the evi-
nitive Interview (CI) was developed for use dence that the hypnotist has not influenced the
with cooperative adults when a crime has been person being hypnotized. In spite of the Rock
documented (Poole & Lamb, 1998). The CI in- v. Arkansas (1987) decision, in which the Su-
terview incorporates contextual re-creation, re- preme Court held that states may not exclude
call of all senses (sight, sound, and smell, etc.), all testimony of a defendant aided or refreshed
and varied temporal sequencing (first to last by hypnosis, as doing so would be a violation
and last to first), guided imagery, and repetition. of a defendant’s constitutional rights, many ju-
A deficiency of CI is that it is of little value in risdictions prohibit testimony on memories
cases of false reporting. obtained during or following hypnosis. And, a
few states and some federal circuits deal with
Hypnosis is not universally effective, although hypnosis on a case-by-case basis (Webert,
even lower levels of hypnotic trance can lead to 2003). Where potentially allowed in court, pro-
beneficial results clinically. In the U.S., 10 per- bative or prejudicial determinations are made
cent of the population is considered to be non- based on the totality of the circumstances to
hypnotizable, with those amenable to hypnosis include procedural safe-guards in place during
varying in depth of hypnotic trance be-tween the hypnotic session (Martin, 2003).
mild and deep (Gafner & Benson, 2003). The
best subjects are generally children from age 5,

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Journal of Cold Case Review Volume 1, Issue 2, December 2015

Four potentially negative outcomes from hyp- • Before-the-fact judgments bias percep-
nosis have been identified (Webert, 2003; tions and interpretations;
Howell, 2013). First, there is an increased sus-
ceptibility to suggestion while hypnotized. Sec- • After-the-fact judgments bias recall;
ond, there may be a loss of critical judgment
and/or desire to please the hypnotist, or the • Belief perseverance, clinging to reasons
perception that the hypnosis process will pro- a faulty belief may be true, even if dis-
vide the proper answer. This can be intentional credited;
or un-intentional on the part of the hypnotist;
and is the result of the common human cogni- • Counterfactual thinking, imagining
tive error involving conformity and compli- false scenarios and outcomes;
ance proclivities originating from the pressures
• Confirmation bias, confirming infor-
exerted by the authority figures in influencing
mation is over-weighted and discon-
memory (Sauer, Brewer, & Weber, 2008)
firming information under-weighted or
The third is confabulation, the filling of ignored; and,
memory gaps, a concept somewhat analogous
• Illusory thinking, consisting of percep-
to the first outcome, except that confabulation
tion of a relationship where none ex-
occurs subconsciously within the subject. Our
ists, or perceiving a stronger relation-
perceptions are often wrong due to the manner
ship than is true (Myers, 2012).
of operation of the central and peripheral nerv-
ous systems, in that substance is subject to loss In addition, training requirements for Texas in-
or gain of detail during transition and disam- vestigative hypnotists include the necessity for
biguation in all sensory perceptions. This pro- incorporation of therapy principles, including
cess is labeled amodal perception, the inference how to deal with abreaction. Abreaction con-
of the presence of an object or fact situation sists of an emotional release of repressed
based on partial sensory perception of some memory induced by reliving trauma through
fraction of the whole, including faulty recall of techniques such as hypnosis (Howell, 2011).
information (Eagleman, 2011; Nanay, 2009). Potentially traumatic circumstances can be
foreseen by recognizing the emotional impact
The fourth potentially negative outcome is
of the event in question; which can be dealt
memory hardening, wherein confidence of the
with through establishing a quick departure sig-
hypnotically recalled information is enhanced,
nal early in the session and suggesting that the
possibly in error (Webert; Howell). These im-
subject use a viewer perspective or disassocia-
proper outcomes detract from accurate testi-
tion technique, such as not re-experiencing the
mony and accurate evaluation of testimony by
event, but viewing it as on a television or in a
a jury.
movie theater. The use of a double-dissociation
These four considerations are consistent with technique may also be considered, wherein the
social psychological conceptualizations of subject is viewing a subject viewing the event.
common cognitive errors:
The Texas Commission on Law Enforcement
• Mood influences judgment; (TCOLE) investigative hypnosis proficiency
certification requires successful completion of
• Memories and perception are incom- the basic investigative hypnosis course, pas-
plete and are subject to being fleshed sage of the proficiency examination, and reval-
out in the subconscious mind (confab- idation training every two years. Howell (2013)
ulation);

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Journal of Cold Case Review Volume 1, Issue 2, December 2015

identified ten procedural safeguards the hypno- to the above requirements, and that the officer
tist must comply with in order to adhere to could only name one of the four potentially
court admissibility requirements, as dictated by nega-tive effects.
Texas case law as derived from Zani v. State,
758 S.W.2d 233, 243 (Tex. Crim. App. 1988): “With the knowledge of memory and hypnosis
that is available, the cautious use of hypnosis
1. An acceptable level of training in clini- may be of great importance to the field of fo-
cal and forensic hypnosis; rensic investigation,” according to Pinizotto, a
forensic psychologist formerly with the Federal
2. Independence from assigned investiga- Bureau of Investigation’s Behavioral Science
tors, prosecutors, and defense attor- Unit (FBI BSU) (1989, p. 327). This sentiment
neys; has been repeated elsewhere (Martin, 2003;
Webert, 2003). Hypnotically enhanced
3. Records indicating case information memory is assured to be acceptable to the ex-
known prior to the session; tent that information so obtained can be cor-
roborated, thereby negating the need for testi-
4. Records of written or recorded ac- mony at trial (Webert, 2003).
counts of case information known by
the subject prior to the session; Federal investigative agencies have recognized
the potential investigative benefits of hypnosis,
5. Recordings (video and audio) of all and efforts began in 1979 to develop a “Federal
contacts between the hypnotist and the Model” for forensic hypnosis, as indicated by
subject; Kennedy, a psychologist at the FBI's BSU
(2011). Recognizing that there is no inherent
6. Records of all those present at any time validity in hypnotically enhanced memory, in-
during the session and where con- dependent corroboration is necessary. There-
ducted; fore, careful administrative approval proce-
dures are required in advance (including Attor-
7. Appropriate induction and memory re-
ney General approval for Department of Jus-
trieval techniques;
tice agencies), as are specific interview proce-
8. Appropriate application in the type of dures.
memory being retrieved;
Kennedy provided a list of indicated uses for
9. Records of evidence corroborating investigative hypnosis:
hypnotically retrieved testimony; and,
• IF there is potential for enhanced recall
10. Evidence of presence or absence of of useful information
suggestive or leading questions,
• IF the interviewee’s participation is
whether overt or subtle.
voluntary; neither coerced nor com-
In Soliz v. Texas (1997), a conviction for armed pelled
robbery was overturned based on an appeal ar-
• IF it is likely that the information can
guing that the trial court failed to suppress hyp-
be independently corroborated
notically enhanced testimony obtained by a
peace officer, who, although a trained hypno- • IF the stakes are high; a “serious” case,
tist, was not certified by the state as an investi- i.e., a felony offense
gative hypnotist. Also considered by the court
in overturning the verdict was failure to adhere

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Journal of Cold Case Review Volume 1, Issue 2, December 2015

• IF all other investigative leads have to the witness, and informed consent obtained,
been exhausted—a last resort; a cold in addition to other requirements detailed in
case the federal protocol (Kennedy).

• Remember, hypnosis is not a short-cut; In summation, investigative hypnosis is an ac-

it is an attempt to provide information cessible and viable tool, but it is neither infalli-
that cannot be obtained by other ble nor universally applicable. For effective use,
means. proper advance consideration is needed re-
garding specific case circumstances, subject,
The federal process requires that the entire hypnotist, setting, and legal requirements, as
hypnotic session is videotaped, and the hypno- well as after the fact corroboration of infor-
sis is to be conducted by a mental health pro- mation obtained.
fessional in the presence the case agent or
agency coordinator. The process and potential
problems (e.g., abreaction) are to be explained

References

American Psychological Association, Society of Psychological Hypnosis, Division 30. (2014). Hypno-
sis PowerPoint Presentation: An introduction to hypnosis. Retrieved from: http://psychologicalhyp-
nosis.com/info/hypnosis-powerpoint- presentation.
Boulch, J. M. (n.d.). Advanced hypnosis. Criminal Justice Center, University of Houston-Down-town.
Houston, TX: University of Houston-Downtown.
Eagleman, D., (2011). Incognito: The secret lives of the brain. New York, NY: Pantheon Books
Gafner, G., & Benson, S. (2003). Hypnotic techniques. New York, NY: Norton.
Green, J. P., Barabasz, A. F., Barrett, D., & Montgomery, G. H. (2005). Forging ahead: The 2003
APA Division 30 definition of hypnosis. International Journal of Clinical and Experimental Hypno-
sis, 53(3), 259-264. DOI: 10.1080/00029157.2005.10401500
Howell, M. (2011, November 13). Handling abreaction during forensic hypnosis interview. Presented at the
TAIH 2012 Annual Training Conference. Sam Houston State University, Huntsville, TX.
Howell, M. (2013, September 3). Investigative hypnosis in-service-mandated training (draft). Submitted to
the Texas Commission on Law Enforcement.
Kennedy, K. (2011, November). FBI’s Forensic Hypnosis Program. Presented at the Training Confer-
ence of the Texas Association for Investigative Hypnosis, Sam Houston State University,
Huntsville, Texas.
Martin, E. F. (2003, Summer). A Daubert test of hypnotically refreshed testimony in the criminal
courts. Texas Wesleyan Law Review, 9, 151.
Myers, D. G. (2012). Social psychology (11th ed.). New York, NY: McGraw-Hill.
Nanay, B. (2009). Four theories of amodal perception. In Proceedings of the 29th Annual Conference of
the Cognitive Science Society (CogSci 2007) (pp. 1331- 1336).
Pinizzotto, A. J. (1989). Memory and hypnosis: Implications for the use of forensic hypnosis. Profes-
sional Psychology: Research and Practice, 20(5), 322-328. DOI: 10.1037/0735-7028.20.5.322

An Official Publication of The American Investigative Society of Cold Cases 91

Journal of Cold Case Review Volume 1, Issue 2, December 2015

Poole, D. A., & Lamb, M. E. (1998). Investigative interview of children: A guide for helping professionals.
Washington, DC: American Psychological Association.
Raz, A., & Shapiro, T. (2002, January). Hypnosis and neuroscience: A cross talk between clinical and
cognitive research. Archives of General Psychiatry, 59(1), 85-90. DOI: 10.1001/archpsyc.59.1.85
Reiser, M. (1980). Handbook of investigative hypnosis. Los Angeles: Lehi Publications.
Rock v. Arkansas, 483 U.S. 44 (1987).
Sauer, J. D., Brewer, N., & Weber, N. (2008). Multiple confidence estimates as indices of eye-witness
memory. Journal of Experimental Psychology: General, 137(3), 528- 547. DOI: 10.1037/a0012712.
Soliz v. The State of Texas, Court of Appeals of Texas. (1997). No.04-97-00058-CR.
Speigel, H. (1972). An eye-roll test for hypnotizability. The American Journal of Clinical Hypnosis, 15(1),
25-28.
Webert, D. R. (2003). Are the courts in a trance? Approaches to the admissibility of hypnotically en-
hanced witness testimony in light of empirical evidence. American Criminal Law Review, 40,
1301-1327.

Correspondence concerning this article should be addressed to:

Dan Robb, 1820 Palm Street, Houston, TX 77004, Email: [email protected]

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