NCJ Number
99434
Journal
Journal of Criminal Law and Criminology Volume: 75 Issue: 3 Dated: (Fall 1984) Pages: 995-1019
Date Published
1984
Length
25 pages
Annotation
After a brief overview of scientific opinion on the nature of hypnosis and guidelines for the forensic use of hypnosis, the commentary shows that suspects and defendants have constitutional rights to use hypnosis and suggests standards for the admissibility of hypnotically obtained evidence.
Abstract
Both case law and the scientific literature agree that hypnosis may produce memory distortions and that it cannot guarantee the truthfulness of statements made under hypnosis. However, adherence to Orne's procedural guidelines increase the likelihood that information produced under hypnosis will be reliable enough to be admitted in court. These guidelines specify that an independent, licensed psychologist or psychiatrist, trained in hypnosis, perform the induction; the hypnotist have written data on only those aspects of the crime that are needed to perform the hypnosis; the suspect give a prehypnotic statement of the facts he recalls; contacts between hypnotist and subject be recorded; and only the hypnotist and the subject be present during the session. Because defendants have rights to be free from self-incrimination and to aid in the preparation of their own defenses, the prosecution must ensure that these guidelines are followed and that prior voluntary consent to the procedure be obtained in the presence of counsel. Because hypnosis merely aids memory recall, the prosecution also must verify independently a confession to comply with burden of proof requirements. In cases where the obtained evidence is exculpatory, independent verification of the evidence is unnecessary, since the defense need only raise a reasonable doubt as to the defendant's guilt. Included are 116 footnotes.