R v Trochym and the Use of Forensic Hypnosis (Part 1/2) - Samantha Harvey

I. Introduction

The Society of Psychological Hypnosis defines hypnosis as a “state of consciousness involving focused attention and reduced peripheral awareness characterized by an enhanced capacity for response to suggestion.”[1] There are many theories as to how hypnosis works and the effect that the technique has on the human body and mind. Len Milling, a clinical psychologist and a professor of psychology at the University of Hartford, stated that “if you asked ten hypnosis experts how hypnosis works, you would probably get ten different explanations.”[2] This uncertainty in the technique establishes the foundation for the criticism pitted against the use of hypnosis in a judicial setting.

Prior to 2007, post-hypnosis evidence—evidence that is obtained from a person after they have undergone hypnosis—was admissible so long as certain guidelines were followed, and the probative value of such evidence outweighed its prejudicial effect. However, in the landmark case of R v Trochym, 2007 SCC 6, the long-established rule was overturned at the Supreme Court of Canada. The majority ruled that post-hypnosis evidence is presumptively inadmissible for evidentiary purposes. However, in order to truly appreciate the significance of this decision, it is important to understand what hypnosis is and how post-hypnosis evidence was used prior to this decision. After exploring the basic aspects of post-hypnosis evidence, this paper will consider the dangers in admitting this type of evidence and its role in wrongful convictions. This discussion, as well as an analysis of the case of R v Trochym (“Trochym”), will help illustrate why judicial change was necessary in regard to the admissibility of post-hypnosis evidence. Lastly, this paper will comment on the open-ended nature of the Trochym decision and the potential for the continued use of hypnosis for criminal matters.

II. What is Hypnosis?

Hypnosis is a technique that is familiar to many Canadians, but few are aware of the historical roots of the science. The technique dates back to the 18th century when a German physician named Franz Mesmer began using hypnosis to treat his patients. Mesmer claimed that the science used an occult force, which supposedly flowed through the hypnotist into the subject. However, this characterization of the science ruined the reputation of Mesmer and the technique—then called mesmerism—was condemned. Yet, the technique continued to be studied. Later, in the 19th century, James Braid began to study the phenomenon of mesmerism, which he later termed as hypnotism after the Greek god of sleep, Hypno.[3]

The public is not often exposed to this structured and scientific approach to hypnotism. Instead, people are more familiar with what is termed as “stage hypnosis.” Stage hypnosis is essentially a performance that is done in front of an audience for the purpose of entertainment.[4] Albert Nerenberg, a hypnotist and filmmaker, provided an example of such hypnosis at his Ted Talk on hypnosis. In the session, Nerenberg started by asking the crowd to put their feet flat on the floor, focus on the center of a moving spiral that was displayed on a large screen, take a deep breath in, and slowly blink their eyes. Once the audience had complied, he then suggested that their eyes would start to feel quite heavy; as if their “eyelids were melting into their cheeks.”[5] Nerenberg suggested that the more they tried to open their eyes, the more their eyes would stay shut. He then gently asked the crowd to try to open their eyes. At this point, some members of the crowd were said to be unable to comply. Nerenberg then stated that everyone would be able to open their eyes. Those who were unable to open their eyes at first were invited to join him on stage for further hypnosis inductions. Nerenberg used this process to find those in the crowd he deemed to be “hypnotizable.”[6] This type of theatrical performance, stage hypnosis, has worked to discredit the reliability of hypnosis as a science and has tainted the public’s perception of the technique.

There are many different uses for hypnosis aside from stage hypnosis. Most commonly, hypnosis is used as a form of therapy called hypnotherapy. Hypnotherapy is used to treat many medical issues such as depression, gastrointestinal disorders, chronic pain, and nausea.[7] However, experts agree that different people may exhibit different responses to the treatment. Similar to how Nerenberg attempted to find the individuals in his crowd whom he deemed as hypnotizable, medical practitioners echo the importance that an individual is willing to focus their attention and follow the suggestions of the therapist.[8] Where subjects have been willing participants of hypnotherapy, there have been promising results. One study found that, after 12 weekly hypnotherapy sessions, 71% of the participants reported significant improvements in irritable bowel syndrome symptoms after finishing the treatment. In 81% of those who reported initial relief, the improvements persisted for up to six years.[9] The American Psychologist Association notes that, although hypnosis has historically been quite a controversial area of study, most clinicians now agree that the technique can be a powerful and effective therapeutic technique.[10]

However, hypnosis is not used for its therapeutic benefits in judicial contexts. Hypnotherapy focuses on a patient’s physical pain or sensations, whereas forensic hypnosis is used by police officers in their search for information about a case or to clarify and recover further details about an incident. Forensic hypnosis focuses on memory and is therefore plagued by the many issues related to the frailties of human memory.

III. Forensic Hypnosis Prior to R v Trochym

Contrary to popular belief, human memory does not work like a videotape recorder. Our mind does not capture events perfectly as they unfold and the mind does not allow us to rewind, play back and recall every detail accurately.[11] In fact, eyewitness testimony in its basic form is often subject to mistakes. Eyewitness testimony has been identified as a leading cause in wrongful convictions.[12] As we will see later, the majority in Trochym found that hypnosis only exacerbates the issues inherent with human memory.

Forensic hypnosis is the use of hypnosis for improving eyewitness recall.[13] During a forensic hypnosis session, there are typically three ways in which a hypnotist may conduct the questioning period. First, a hypnotist may ask the eyewitness for a complete narrative account of their observations from the incident. This technique is called “free recall.” Second, “cued recall” involves asking the subject specific and open-ended questions. Lastly, “recognition” is a technique that involves asking the witness questions and providing a series of possible answers, similar to multiple-choice questions.[14]

For many years, individuals praised the use of forensic hypnosis for its ability to allow subjects to recall more details of an event. In many cases, courts must rely primarily on eyewitness testimony. Thus, the possibility to gain further insight and more details from a person who witnessed an incident firsthand is ideal. However, our criminal system is not premised on seeking convictions, but on pursuing justice for harm done. Therefore, it is important that the details that are recovered from hypnosis are accurate and reliable. Regrettably, the studies of hypermnesia—the phenomenon of enhanced recall resulting from hypnosis—vary drastically in their results. Although many academics have studied hypnosis and its effects, the results of these studies are inconsistent.[15] Some academics blame the methodology of the studies, as opposed to the technique of hypnosis itself.[16] However, regardless of the cause of the inconsistencies, rising public and judicial awareness that hypnosis is fraught with flaws has led to the current rule that post-hypnosis evidence is presumptively inadmissible for evidentiary purposes.[17]

Yet, for many decades the public viewed hypnosis much more positively. An article from 1968, in the Canadian Psychiatric Association Journal, highlights some of the perceived benefits of hypnosis from the time. Dr. F.W. Hanley begins the article by stating that hypnosis can be used as a memory aid to help witnesses stimulate recall.[18] Hanley assumes that witnesses are able to register and retain memories related to an incident, like a videotape recorder. However, these retained memories are not readily accessible by the conscious mind. Hanley argues that if post-hypnosis evidence is inadmissible, courts will deprive themselves and the trier of fact of relevant and crucial testimony.[19]

The article supports an argument raised in the case of The Queen v Pitt, Supreme Court of British Columbia. The case follows a married couple, Mrs. P and her husband, and her husband’s friend, Irvine. Mrs. P was charged with the attempted murder of her husband. On the night of the incident, the accused remembered that her husband was barbecuing on the back porch when Irvine arrived for a visit. Mrs. P remembered noticing that her husband had disappeared and the next thing she remembered was standing over top of her bleeding husband. The accused did not remember where the weapon came from; nor did she remember the movements of Irvine throughout the incident.[20] However, under hypnosis, the accused recalled more details from the night of the incident.[21] After the session, Mrs. P’s amnesia returned, and she was once again unable to recall the details of the night.

Interestingly, the judge allowed Mrs. P to be hypnotized on the stand to remove her amnesia. The hypnotist gave the subject a post-hypnotic suggestion afterwards to remember the missing information. On the stand, Mrs. P claimed that Irvine had followed her down the hall to her bedroom and stood by the door, blocking her in the room with her husband. She testified that Irvine and her husband had sexually assaulted her in the past. Mrs. P remembered thinking that her husband and Irvine were going to assault her again, so she took the hammer from the bookcase beside the bed and struck her husband.[22]

Thus, Mrs. P went from not remembering a single detail of the brutal interaction to remembering where the weapon came from and why she had struck her husband. Hanley notes that these details were crucial to the case as it established that the attack was not premeditated. Although Hanley recognizes that it is true that subtle distortions, both conscious and unconscious, may affect eyewitness testimony, he argues that hypnosis promotes the recovery of these forgotten details and bypasses at least the conscious distortions that a subject may make. The justice in the case rhetorically questioned whether it would “be a denial of justice to refuse to allow [post-hypnosis] evidence to be admitted.”[23] Yet, Hanley’s article does not reflect the concerns that are appropriately raised with this technique. In fact, many would argue that it is a denial of justice to admit post-hypnosis evidence; the use of such evidence has been linked to several wrongful convictions.

IV. Hypnosis and Wrongful Convictions

Thomas Sophonow spent forty-five months in prison at one of the worst facilities in Canada. Sophonow was kept in segregation for a long period of time and during his stay, he saw the body of a fellow prisoner who committed suicide. Innocence Canada remarked that these wounds and the resulting post-traumatic stress disorder (PTSD) could not be healed simply by overturning his wrongful conviction.[24] Sophonow’s case serves as an unfortunate reminder of the issues with post-hypnosis evidence.

On December 23, 1981, Barbara Stoppel was brutally strangled at her workplace and eventually succumbed to her injuries. Thomas Sophonow was later identified as a suspect. However, there were several issues with the investigation and trial especially in relation to the eyewitness testimony and the use of hypnosis.

One of the witnesses, Doerksen, was present at the crime scene and observed the killer flee the scene. Doerksen provided a description of the man he saw running away from the scene to the police, but after undergoing a hypnotic session, he changed several aspects of his description.[25] This was problematic because, although there were some guidelines in place at the time that were meant to limit the exertion of influence over hypnotic sessions, it was still impossible to have completely avoided influential contamination of the subject’s recollection of the incident. The possibility for influence increases when the witness has contact with other witnesses, the media, police or the public. Unfortunately, the Sophonow case was a high-profile case; Doerksen was likely exposed to influence that affected the description which was later clarified under hypnosis—a description that fit that of Sophonow.[26] Not only did Doerksen see Sophonow when they were in the same building together, but he had also read a newspaper that had Sophonow’s picture plastered on it. It is also important to note that Doerksen initially failed to identify Sophonow in a line-up, but later came to believe that Sophonow was the person he saw fleeing the crime scene.[27]

In this case, there is little room to argue for the benefits of using hypnosis. Not only is it clear that outside influence may have affected the hypnosis session, but Doerksen was completely discredited as a witness during the Sophonow inquiry. Doerksen told the commissioner that the police had told him who their suspect was during the line-up. Doerksen also admitted that he had made up an elaborate story related to him chasing down the killer because Doerksen enjoyed the media attention he gained from his involvement in the matter.[28] In this case, it is clear that hypnosis did not help Doerksen recall accurate details of the accused and the use of hypnosis was identified as one cause of Thomas Sophonow’s wrongful conviction.[29]

Unfortunately, the Sophonow case is not the only example of a wrongful conviction arising from a case that admitted post-hypnosis evidence. In 1990, Robert Baltovich’s girlfriend, Elizabeth Bain, went missing at the University of Toronto. Bain’s car was recovered, and blood was discovered on the back seats. Bain’s mother testified that Bain and Baltovich were madly in love. Yet still, Baltovich became the prime suspect and was eventually convicted for Bain's murder.[30]

The case against Baltovich rested on the testimony of two witnesses, Marianne Perz and David Dibben. Perz testified that, close to the time of the disappearance, she had witnessed Baltovich and Bain sitting together at a picnic table on campus. Dibben testified that he had seen Baltovich driving Bain’s vehicle three days after the disappearance.[31] If the testimonies of the two witnesses were to be believed, then Baltovich surely would have been the killer. However, Perz initially had an unclear recollection of the man she saw with Bain. Perz then read an article containing a photo of Baltovich that suggested he was a suspect in the disappearance. She also spoke to family members of Bain who thought Baltovich had harmed Bain. Afterwards, Perz underwent hypnosis and was then able to remember more details that clearly implicated Baltovich in the murder; Perz went on to identify the accused in a line-up.[32] Perz was one of four witnesses in this case that underwent hypnosis. This case demonstrates once again that it is incredibly difficult to avoid influential contamination of witnesses when eliciting evidence using hypnosis. With no solution, the use of hypnosis will always be subject to questions regarding the reliability of post-hypnosis evidence.

The cases of Thomas Sophonow and Robert Baltovich highlight the necessity that evidence admitted into court should be reliable. These men suffered incredibly due to their wrongful convictions; this is a reason why the case of R v Trochym is so important, since the majority took the time to evaluate the reliability of post-hypnosis evidence.

Continued in Part 2.

[1] American Society of Clinical Hypnosis, “About Hypnosis”, online: <www.asch.net/aws/ASCH/pt/sp/about-hypnosis> [perma.cc/8ET2-54KE]. [2] Markham Heid, “Is Hypnosis Real? Here’s What Science Says” (4 September 2018), online: Time <time.com/5380312/is-hypnosis-real-science/> [perma.cc/SRL4-H3HH]. [3] Martin T. Orne, “Hypnosis” (15 August 2021), online: Britannica <www.britannica.com/science/hypnosis> [perma.cc/W8H5-P2QX]. [4] Lennis G. Echterling & Jonathon Whalen, “Stage Hypnosis and Public Lecture Effects on Attitudes and Beliefs regarding Hypnosis” (21 September 2011), online: American Journal of Clinical Hypnosis <www.tandfonline.com/doi/abs/10.1080/00029157.1995.10403173> [perma.cc/X5ZU-SUPY]. [5] Albert Nerenberg, “Is Hypnosis Fake? Hypnotist Stuns TEDX Crowd” (5 May 2016), online (video): Youtube <www.youtube.com/watch?v=1RA2Zy_IZfQ> [perma.cc/4UTY-EUXW]. [6] Ibid. [7] American Psychological Association, “Hypnosis Today: Looking Beyond the Media Portrayal”, online: <www.apa.org/topics/psychotherapy/hypnosis> [perma.cc/NK8U-FN39] [Hypnosis Today]. [8] HealthLink B, “Hypnosis”, online: <www.healthlinkbc.ca/health-topics/aa119292spec> [perma.cc/TT9N-62VW]. [9] Hypnosis Today, supra note 7. [10] American Psychological Association, “Hypnosis”, online: <www.apa.org/topics/hypnosis> [perma.cc/V9KZ-NEF6]. [11] “Testimony of Elizabeth Loftus Sophonow Inquiry” (12 May 2001), Alan D. Gold Collection of Criminal Law Articles. [12] Sarah Harland-Logan, “Thomas Sophonow”, online: Innocence Canada <www.innocencecanada.com/exonerations/thomas-sophonow/#ftn19> [perma.cc/7DZF-5NXV] [Sophonow]. [13] David Jackson, “The Effect of Stimulus Medium on Forensic Hypnotic Hypermnesia” (November 1990), online at 4: <mspace.lib.umanitoba.ca/bitstream/handle/1993/18375/Jackson_The_effect.pdf?sequence=1ape> [perma.cc/HP7D-5MV6]. [14] Ibid at 5. [15] Ibid at 24. [16] Ibid at 25. [17] R v Trochym, 2007 SCC 6 [Trochym]. [18] Dr. F.W. Hanley, “Hypnosis in the Court Room” (Canadian Psychiatric Association Meeting, Regina, 1968), (1969) 15 Can Psychiatric Assoc J at 351. [19] Ibid at 351. [20] Ibid at 352. [21] Ibid at 351. [22] Ibid at 352. [23] Ibid. [24] Sophonow, supra note 12. [25]Manitoba, Government of Manitoba, The Inquiry Regarding Thomas Sophonow (Winnipeg: The Commissioner, 2001). [26] Trochym, supra note 17 at para 58. [27] Sophonow, supra note 12. [28] “Doerksen Cross-examination at Sophonow Inquiry” (22 March 2001), online: CBC News <www.cbc.ca/news/canada/doerksen-cross-examination-at-sophonow-inquiry-1.261912> [perma.cc/X4SL-B73B]. [29] Sophonow, supra note 12. [30] Sarah Harland-Logan, “Robert Baltovich”, online: Innocence Canada <www.innocencecanada.com/exonerations/robert-baltovich/> [perma.cc/WA3S-3JQR]. [31] Ibid. [32] Ibid.