INHERENT PROBLEMS IN THE USE OF PRETRIAL HYPNOSIS ON A PROSPECTIVE WITNESS

• NCJ Number: 66035
• Journal: California Law Review Volume: 68 Issue: 2 Dated: (MARCH 1980) Pages: 313-349
• Author(s): B L DIAMOND
• Date Published: 1980
• Length: 37 pages
• Corporate Author: University of California
• Sale Source: Fred B Rothman & Co; Institute for Scientific Information
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America
• Note: THIS ARTICLE, IN PART, WAS PRESENTED AS THE DISTINGUISHED LECTURE FOR THE AMERICAN ACADEMY OF PSYCHIATRY AND LAW ON MAY 13, 1979 PRICE QUOTED IS FOR ENTIRE ISSUE

Annotation

BY REVIEWING THE NATURE OF HYPNOSIS, LEGAL PRECEDENT, LITERATURE, AND EVIDENTIARY AND ADMISSIBILITY PROBLEMS WITH HYPNOTICALLY MANIPULATED RECALL, THIS ARTICLE ARGUES AGAINST THE USE OF TESTIMONY ENHANCED BY HYPNOSIS.

Abstract

THE PRINCIPAL ARGUMENT AGAINST HYPNOTISM AS A TRUTH REVEALING TECHNIQUE ADMISSIBLE IN LEGAL EVIDENCE CONTENDS THAT ONCE A POTENTIAL WITNESS HAS BEEN HYPNOTIZED FOR THE PURPOSE OF ENHANCING MEMORY, HIS RECOLLECTIONS HAVE BEEN SO CONTAMINATED THAT HE IS RENDERED EFFECTIVELY INCOMPETENT TO TESTIFY. HYPNOTIZED PERSONS, BEING EXTREMELY SUGGESTIBLE, GRAFT ONTO THEIR MEMORIES FANTASIES OR SUGGESTIONS DELIBERATELY OR UNWITTINGLY COMMUNICATED BY THE HYPNOTIST, SO THAT THE SUBJECT NO LONGER DIFFERENTIATES BETWEEN TRUE RECOLLECTION AND FANTASY OR SUGGESTED DETAIL. A REVIEW OF CASE PRECEDENT AND LITERATURE ON THE SUBJECT SHOWS THAT WHILE SOME SCHOLARS HAVE RECOGNIZED THE RISKS OF ABUSING HYNOTICALLY INDUCED RECALL, MOST COURTS RELY ON PROCEDURAL SAFEQUARDS TO MINIMIZE THESE RISKS. HOWEVER, EVIDENTIARY PROBLEMS WITH HYPNOTICALLY MANIPULATED RECALL HAS BEEN ILLUSTRATED THROUGH CAREFUL ANALYSIS OF THE BASIC NATURE OF HYPNOSIS AND ITS EFFECTS; I.E., A HYPNOTIZED PERSON CANNOT AVOID IMPLANTING SUGGESTIONS IN THE MIND OF HIS SUBJECT, SIMULATIONS OF HYPNOSIS CANNOT BE DETECTED, AND FACT AND FANTASY OF RECALL CANNOT BE DISTINGUISHED AFTER HYPNOSIS. FURTHER, THREE CALIFORNIA HEARINGS ARE EXAMPLES OF CASES WHERE THE COURT REJECTED EXPERT TESTIMONY WHICH RECOMMENDED DISQUALIFYING PROPOSED WITNESSES BECAUSE OF PRETRIAL HYPNOSIS. OVERALL, IT IS IMPERATIVE THAT TESTIMONY FROM PREVIOUSLY HYPNOTIZED WITNESSES BE EXCLUDED AS A MATTER OF LAW, AS SUCH WITNESSES HAVE BEEN RENDERED INCOMPETENT TO TESTIFY. FOOTNOTES ARE INCLUDED. (MRK)