Wetterling investigators used hypnosis to prod memories, but some experts fear the process can cause people to remember things that didn't happen. So while it may help investigations, courts have been wary to accept it as evidence.
Dan Rassier, who lives on the farm at the end of the driveway where Jacob Wetterling was abducted in 1989, remembers being driven by detectives from his home near St. Joseph, Minn., to the Twin Cities to be hypnotized.
It was about a month after the abduction, he said, and the person conducting the hypnosis tried to help him recall details of a car he'd seen drive up to his house and turn around that night near the time of the abduction. "They wanted the license number," Rassier said. "They wanted a better description of the car."
Whether the police hypnotist was pressuring Rassier or he was pressuring himself, the experience was powerful and highly fraught. "I remember crying and being very emotional and I did not want to come out of hypnosis because I knew that I did not give them what they needed," he said. "I was gripped in that chair and I was in a different world and I didn't want to leave until I had the answer and I couldn't come out with it."
During what he described as a "high state of concentration," Rassier remembered seeing a person in the passenger seat of the car, a woman or child. Today, he doesn't know if that memory is real or concocted while under hypnosis. "I'm not sure whether somebody was looking out the window," he said. "In my memory, I see someone looking out the window, but I don't know if I really saw that."
That's one problem with the use of hypnosis in criminal investigations, known as forensic hypnosis. Especially if done poorly, the process - basically a means of trying to induce a more focused state of mind — can plant memories or skew existing memories. It can also make witnesses or victims more certain of what they saw, even if the recollections turn out to be false. Today, hypnosis is a rare feature in police work and even rarer in the courtroom, partly because so many courts have ruled "hypnotically induced" testimony inadmissible. The process is viewed as roughly on par with another quasi-scientific investigative tool, the polygraph test.
Minnesota was one of the first to restrict such testimony when the state Supreme Court ruled in State v. Mack, in 1980, to bar testimony recalled for the first time under hypnosis. In the case, the Minneapolis police had hired a hypnotist to question a woman who believed she had been raped, but was intoxicated at the time and could not recall it. Many of the details she retrieved under hypnosis turned out to be false. In its ruling, the court said, "The crux of the problem is that hypnosis can create a memory of perceptions which neither were nor could have been made, and, therefore, can bring forth a 'memory' from someone who cannot establish that she perceived the events she asserts to remember."
"Most significantly," the court wrote, "there is no way to determine from the content of the 'memory' itself which parts of it are historically accurate, which are entirely fanciful, and which are lies." Today, most states restrict, to varying degrees, the use in court of hypnotically induced or hypnotically refreshed testimony.
But investigators used the technique in the Wetterling case, on Rassier and others, including a man who saw a boy who resembled Jacob soon after the abduction. The boy was standing along a road near the town of Hector, urinating, and accompanied by a skittish man, who hurried the boy back into a white car and sped away. Under hypnosis, the witness was unable to recall additional details.
Court decisions restricting the use of forensic hypnosis "had a chilling effect and it is rarely done now, whereas for a while, during the time period (of the Wetterling case), it was pretty common for the police to do it," said Dr. David Spiegel, associate chairman of psychiatry and behavioral sciences at the Stanford University School of Medicine. In 1978, Spiegel co-wrote with his father, Herbert, a classic text on the topic, "Trance and Treatment: Clinical Uses of Hypnosis." His father, in fact, helped popularize hypnosis in the 1960s and 1970s and even treated Minnesota-native Shirley Mason, the famous psychiatric patient known as Sybil. During that era, many police departments kept hypnotists on staff. The Los Angeles Police Department had an entire unit known as the "Svengali Squad."
But there were missteps and abuses. A wave of prosecutions related to claims of recovered childhood sex abuse memories, led to the formation, in 1992, of the False Memory Syndrome Foundation. Forensic hypnosis came to be viewed with suspicion and even disdain. "The problem was also that it was shortcutting good police work," Spiegel said. "Why bother digging for evidence when you can just hypnotize the guy and get the story you want?"
Memories, Spiegel said, are "reconstructive" and affected by "context and expectation," rather than resembling video recordings waiting to be viewed. They can be distorted in all kinds of ways by police work, including viewing photo lineups and returning to the crime scene. "What I'm sure about is that it's no more dangerous as a memory contaminant than a lot of other things that we routinely do," he said. "Clearly, if a witness or victim is hypnotized, the court should know it, and there should be controls over how it's done. Can you make a sort of honest liar out of someone who was hypnotized? Maybe. But, you can in other ways, too. Eyewitness testimony is anything but perfect, as we well know."
One expert on eyewitnesses flatly objects to the practice. "Hypnosis really shouldn't be used in investigations," said Karen Newirth, a senior staff attorney for the New York-based Innocence Project, a nonprofit legal organization. "I think if you put all of these tools — these inadmissible investigatory tools — on a spectrum, there are some that are so dangerous because they can contaminate or even destroy evidence on their own just through their use ... Certainly, I don't think hypnosis is a good technique."
And yet there have been high-profile instances in which accurate and crime-solving information was obtained through hypnosis. One such case was a mass kidnapping in Chowchilla, Calif., in 1976. In that case, armed men blocked a highway and kidnapped a bus driver and 26 children, forcing them into a moving van buried in a quarry in Livermore. They escaped, and under hypnosis, the driver was able to remember most of the license plate number from the kidnappers' van. They were subsequently found and convicted.
Spiegel, who has assisted in 30 to 40 criminal cases, thinks that the backlash against hypnosis has gone too far and that police, judges, and juries are missing out on potentially useful information. The process isn't as mystical as it sounds, he said. "Hypnosis is just a form of highly-focused attention. It's the equivalent to consciousness that looking through a telephoto lens is to a camera. What you see, you see with great detail, but you're less aware of the context. We go into hypnotic-like states (all the time). Have you ever gotten so caught up in a good movie that you forgot you were watching a movie?"
Some people aren't susceptible to hypnosis, but for those who are, "It's very easy," Spiegel said. It doesn't take much. "You can basically just ask someone to look up, close their eyes, and imagine their body floating. And if they're hypnotizable, they can go into a hypnotic state."
But there is always a risk of corrupting a person's memory, introducing a tidbit that wasn't there or pushing the hypnotized person to make things up just to satisfy the hypnotist. To mitigate that the risk, Spiegel said, hypnosis should be conducted in a neutral setting by a licensed psychiatrist or psychologist. "In my experience, about one out of three times that I use hypnosis in a legal case, new information emerges," he said. "So the majority of times, it doesn't. But sometimes it does."
In the 1990s, the U.S. Supreme Court set a new standard governing the admission of expert witness testimony, which also governs hypnotically induced witness accounts. The ruling was supposed to make it easier to get expert witness testimony into the courtroom. About 35 states have adopted the ostensibly more liberal standard, but Minnesota is having none of it.
Ted Sampsell-Jones, a professor at the Mitchell Hamline School of Law and chairman of the Minnesota Rules of Evidence Committee, which advises the state Supreme Court, said the committee has been looking at switching to the new standard. But the effort has met staunch opposition from civil plaintiffs' attorneys. "Personally, I would support the change," he said. "(But) if we can't get a strong consensus on this one, we may not do anything."
A new standard could potentially allow hypnotically induced testimony in Minnesota courtrooms. "It's possible," Sampsell-Jones said. "I think it would give people a chance to say, 'We have a new legal test and therefore, we can start over from scratch and try to get it in.' Realistically, in order to get it in, what you would have to do is say, 'The science is different now, and we actually know what we are doing with hypnosis in a way we didn't in 1980.'"