Forensic Hypnosis Could Soon Be Only a Memory in Texas Criminal Cases

Last week the Texas Senate advanced a bill that would prevent the use of witness statements made while under hypnosis in criminal cases. Senate Bill 338, authored by Sen. Juan “Chuy” Hinojosa, a Democrat from McAllen, is the latest effort to make forensic hypnosis a thing of the past in Texas courts. A similar bill, also authored by Hinojosa, made it to Gov. Greg Abbott’s desk last session, but was one of the several vetoes the governor issued in 2021.

“I am pleased to see that SB 338 has passed the Senate once again,” Sen. Hinojosa said in a statement provided to the Observer. “This legislation has been a work in process over the years, and after discussions with multiple stakeholders, adjustments have been made to address concerns that were raised without losing the intent of the bill.”

Hinojosa has for years wanted to rid the Texas criminal justice system of the use of hypnotically induced witness statements. In 2005 he helped establish the Texas Forensic Science Commission, an entity designed to “investigate allegations of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory,” according to the commission’s website.

Forensic hypnosis as a method for interviewing witnesses began to gain prominence with the 1974 Chowchilla kidnapping case in California, where 26 children were kidnapped while riding a school bus. The kids and the bus driver were placed in a semi trailer and buried alive in a quarry by their captors, yet managed to escape 16 hours later.

The bus driver had a hard time remembering certain details of the ordeal. With the help of hypnosis, however, he recalled the license plate number of the kidnappers’ vehicle, enabling police to track the perpetrators down. A few years later, in 1980, the Texas Department of Public Safety implemented a program for forensic hypnosis to help solve crimes.

But following its rise in the 1980s, forensic hypnosis hasn’t exactly thrived to become an adopted-across-the-board method. In a 2020 Dallas Morning News report on the case of convicted murderer Charles Don Flores, Hinojosa called the practice “junk science,” a moniker many have given it – increasingly so in recent years. Hypnotically induced witness testimony played a key role against Flores during the trial, and the case has been a lightning rod in the forensic hypnosis debate.

Marx Howell has made a career out of forensic hypnosis. He was key in the startup of the Texas forensic hypnosis program decades ago, and he has since been an active trainer and lecturer on the matter. He’s incredulous when it comes to others lumping hypnosis in with widely recognized junk science methods such as bite mark analysis and outdated arson investigation practices.

“When the term ‘junk science’ is used, I don’t really know what that means in this case,” Howell told the Observer. “I think they’re saying something is invalid. One thing we need to clear up is that the Texas Forensic Science Commission that Juan Hinojosa helped get started and funded is primarily for trace evidence, DNA and hard science. Forensic hypnosis is an interview technique, period. It is an interview technique, it isn’t a scientific exploration of a person’s brain.”

Even as a staunch advocate for the practice, Howell admitted hypnosis has its limitations when used to collect witness memories and it isn’t right for every case. “Sometimes it works, sometimes it doesn’t work. Sometimes you get accurate information, sometimes you get inaccurate information. Sometimes you get a combination of both,” he said.

A majority of states have outlawed forensic hypnosis in criminal witness statements. An article entitled Pros and Cons of Investigative Hypnosis, on the U.S. Dept. of Justice website, states that “Problems with hypnosis include the possibility of introducing artifacts during the session, the often jumbled nature of what is recalled, and the possibility that the conscious mind will override the unconscious mind even under hypnosis.”

To conduct forensic hypnosis interviews, officers must receive training and complete continuing education classes each year. A number of hypnosis guidelines are required to be followed, including one that prevents an officer who is active in an investigation from conducting the hypnosis witness interview.

Howell says that the states that have outlawed the use of forensic hypnosis have done so because of cases he says likely fall into one of four categories: the defense provided expert testimony related to hypnosis while the prosecution did not; the person who conducted the hypnosis session was not qualified to do so; hypnosis was conducted incorrectly by asking leading questions; or hypnosis wasn’t a viable technique to use in that case to begin with.

Forensic hypnosis is not an exact science, and for many of its critics, that’s enough to warrant it jettisoning. Sen. Hinojosa suggests that leaving life-and-death decisions to something that even Howell admits is effective only some of the time isn’t worth the risk.

“If passed, SB 338 will prohibit the admission of hypnotically-induced testimony from being used in identifying a defendant and determining guilt, especially in a case where their life might be at stake,” Hinojosa’s statement reads. “I look forward to working with Representative Jeff Leach and getting this bill passed the finish line.”