NCJ Number
93087
Journal
Washington University Law Quarterly Volume: 60 Issue: 3 Dated: (1982) Pages: 1059-1085
Date Published
1982
Length
27 pages
Annotation
This note examines case law and scientific and psychological literature on the use of hypnosis concluding that the courts should allow testimony of witnesses with hypnosis-enhanced memories only if the hypnosis occurred using the strictest of safeguards.
Abstract
Most experimenters in hypnosis on recall believe results are inconclusive. Experts have not had the chance to examine a previously hypnotized witness and distinguish accurate memories from false ones. Until this is possible, the courts should only allow the testimony of witnesses with hypnotically refreshed memories when there has been strict compliance with specific safeguards, such as those set forth by Dr. Martin Orne. These safeguards provide for supervision hypnosis by psychiatrist, and for extensive videotaping and tape recording of all interrogation. States should enact statues prohibiting the admission of hypnotically enhanced testimony when a proponent cannot demonstrate compliance with the procedural safeguards. Even when compliance occurs, the statutes should require a pretrial hearing on the admissibility of the testimony, and the court should admit only uncontaminated evidence. In the trial itself, the parties should introduce expert testimony to explain to the jury that the use of hypnosis can distort memories. While some commentators do not believe that any safeguards can provide sufficient protection, presentation of evidence obtained using stringent safeguards is preferable to excluding what may be reliable and relevant evidence. Footnotes accompany the text. (Author summary modified)