NCJ Number
79497
Journal
Virginia Law Review Volume: 67 Issue: 6 Dated: (September 1981) Pages: 1203-1233
Date Published
1981
Length
31 pages
Annotation
The admissibility of court testimony influenced by hypnosis is examined, and a procedure for admissibility analysis is proposed.
Abstract
The scientific literature on hypnotic recall indicates that the technique can stimulate the recollection of information. At the same time, however, studies show that there are dangers associated with hypnosis. Memory alteration resulting from suggestive hypnotic procedures is a particular concern, as is the risk that the jury will assign undue weight to hypnotically influenced testimony because of the popular misconception that hypnosis is infallible. Since courts that have been faced with the dilemma about whether to admit hypnotically influenced testimony have resolved the issue in different ways, the case law has not produced a uniform rule of admissibility. A standard analysis for deciding whether to admit such testimony is possible, however. Because virtually all evidence has the potential for being probative in part and prejudicial in part, traditional evidentiary analysis calls for a balancing approach. A similar analysis should be applied in the case of hypnotically influenced testimony. Such evidence should be admitted unless its potential for prejudice substantially outweighs its probative value. In undertaking this inquiry, a court should determine the kind of hypnotic testimony that is at issue, because the problems associated with the technique vary according to the circumstances in which it is used. Where possible, the hypnosis should be conducted under court supervision to avoid the possibility of suggestiveness. A total of 158 footnotes are provided. (Author summary modified)