Police see N.Z. hypnosis use as rare

Press, 9 August 1985, Page 5

Police see N.Z. hypnosis use as rare

Hypnosis, which in the United States has been part of the crime-fighting arsenal for some years, is unlikely to be widely used by the New Zealand police. This is in spite of the Court of Appeal’s saying this week that hypnotism might occasionally be valuable, even essential, as a police investigative technique.

the Court, however, warned that hypnotism should never be used without careful consideration of the evidential risks.

The Court was ruling on the Gloria Kong kidnapping case appeal, which for the first time in New Zealand raised the question of police witnesses being hypnotised. The use of the hypnotism was one of the grounds of appeal raised by Miss Kong’s kidnappers, an Oamaru brother and sister, Paul Francis McFelin, aged 31, and Karen May McFelin, aged 25. Their appeals against

conviction and sentence were dismissed.

Detective Inspector Neville Stokes, who headed the police inquiry into the kidnapping, said in Christchurch yesterday that the decisions did not open the way for more extensive use of hypnotism. It did, however, provide an authoritative clarification of the “ground rules.” It was important to appreciate the differnce between hypnosis on the stage and the way in which it was used as an investigative tool, said Mr Stokes. Its facility to relax a person was of prime interest to the police. A relaxed person found it easier to recall detail than someone who was upset or in a state of shock.

In some parts of the United States, considerable emphasis is put on the use of hypnotism to help solve crimes in which witnesses have trouble recalling details.

For example, in Fresno, California, the driver of a bus carrying 26 children who were kidnapped by three masked men was later hypnotised. Twenty minutes later, the driver recalled all but the last digit of the licence plate number of the kidnappers’ white van. The police later arrested three men.

Sergeant Charles Diggett, of the New York City Police Department, provided the key to a fire at a Bronx social club that took 23 lives. He hypnotised a youth whose two sisters went to a dance at the club. Under hypnosis, the youth said that a man had driven them to the dance. It was the first time that the man’s name came up, and he was one of the persons arrested and convicted.

Hypnosis is used in many other cases and the Los Angeles Police Department, for example, believes that hypnotism is effective in 66 per cent of the cases in

which it is used. A Law Enforcement Hypnosis Institute has even been established and police, judges, prosecutors, and lawyers have taken the course.

Hypnosis, however, has its detractors. They say that it is possible for witnesses to make mistakes under hypnosis. Mr Stokes said that the’ use of hypnosis in investigations would continue to be rare in New Zealand.

“Certainly it is intended that it would only be used in serious cases and certainly only with the prior consent of Police National Headquarters,” he said. In the Kong case the hypnotic sessions were used in the early stages of the inquiry before the identity of the offenders became known, said Mr Stokes. “The use of hypnotism in the case did not elicit any new information,” he said. “In the final analysis, the value of hypnosis in this

case was in providing confirmation of the initial account of events.”

In its judgment, the Court of Appeal said that nothing of any significance was added to Miss Kong’s recollection by the sessions of hypnosis. There were still many details she could not recall.

Hypnosis is intended to be used by the New Zealand police only after a witness had given all available facts and these were recorded, said Mr Stokes. The interviews under hypnosis would continue to be done only by an independent clinical psychologist, or similar, who is experienced in the use of hypnotherapy. Investigators have to beware several pitfalls if using hypnosis. A witness under hypnosis may respond to intended or unintentional cues. It is also possible for a person under hypnosis to make a mistake, although he believes what he has said to be accurate.

He may also have a stronger and artificial confidence in pre-hypnotic memories.

Guidelines have been laid down in the United States and Britain to counteract these problems. In the United States all police hypnotic sessions have to be video taped, while in Britain they must be audio-taped.

Mr Stokes said that Miss Kong was hypnotised in accordance with the British guidelines. In the judgment of the High Court, its acting president, Mr Justice Cooke, said that the defence should be told that a witness was hypnotised. All relevant transcripts and information should be provided on request. If the evidence was objected to, it should be excluded unless the judge was satisfied that it was safe to admit it.

The judge should also have regard to whether the hypnotism was done by a qualified person independent of the police and prosecution, with safeguards against the influencing of the subject. In addition, the judge should have regard to the strength of any confirmatory or supporting evidence to be called by the Crown.

His Honour said that it would be premature at this stage for the Court of Appeal to select any set of guidelines before use by New Zealand courts. “Still less should we try to evolve a new set. We would welcome any move, perhaps on the initiative of the Minister of Justice, to reach a consensus between all the various responsible scientific and medical bodies.

“Any standards so agreed could be used, if approved by the courts, much as the judges’ rules as regards confessions.”

The judgment indicated that some guidance was available, in the meantime, for the police from the overseas guidelines. “Obviously the greater the safeguards, the greater the likelihood that the evidence will be admitted,” Mr Stokes said.

Failure to comply with any of the detailed guidelines, such as the videotaping of the sessions, would not automatically cause the evidence of the witness to be ruled out in New Zealand.