Hypnotic Testimony in Court the

Hypnotic Testimony in Court The use of hypnotic testimony in court is an appealing idea mainly because of the layperson's perception about the strengths of hypnosis. However, the research clearly demonstrates that there are several weaknesses associated with hypnotic interviews, which can impair the credibility of a witness who is later asked to testify on the stand.

These weaknesses include decreases in accuracy, vulnerability to hypnotic suggestion, false confidence with regard to incorrect answers, vulnerability to leading questions, and the facts that people can fake hypnotic states and lie even when under hypnosis. Therefore, courts have greatly limited the circumstances under which hypnotic testimony can be introduced. Despite these weaknesses, there is no doubt that interviewers can obtain helpful information when a witness is hypnotized.

Therefore, some of the researchers have suggested using cognitive interviews, which offer many of the same memory-recall benefits as hypnotic interviews, without introducing the same dangers of memory impairment. First, it is important to understand the limitations of hypnosis. "Laymen often think of hypnosis as an infallible and extremely powerful memory aid, but research has shown that this notion is not correct." (R.T.C., p.1208). The scientific community has established that a person cannot access all of his or her own memories, regardless of hypnotic state.

The memory simply does not contain every event that has ever occurred in a person's lifetime. (R.T.C., p.1209). In fact, for certain types of events, memories under hypnosis are no better and no worse than regular memories. (R.T.C., p. 1209). After looking at a substantial amount of research, Kebbell and Wagstaff determined that hypnosis is helpful in getting witnesses to recall information. (p.118). The only problem is that some research shows that hypnosis increases incorrect memories and correct memories. (Kebbell and Wagstaff, p.118).

Furthermore, when placed in a forced-choice scenario, rather than permitted to give free-form responses about what occurred, hypnosis increases incorrect reporting. (Kebbell and Wagstaff, p.118). While the fact that hypnosis increases both incorrect and correct responses leads to a conclusion that it does not impair overall accuracy, it also leads to the conclusion that hypnosis does not increase overall accuracy, either.

Furthermore, since subjects under hypnosis "will not carry out activities which are morally unacceptable or inherently self-destructive...hypnosis should not cause a guilty individual to confess to a crime, since it is rarely if ever advantageous for a defendant to confess." (Orne, p.66). It is important to recall that hypnosis does not change a person's basic nature or motivational structure, which can complicate the determination of the truth or falsity of the facts recalled.

"When hypnosis is used with a defendant or plaintiff who has much to gain by recalling one set of memories rather than another, motivational factors are superimposed upon the basic mechanisms involved in hypnotically aided recall." (Orne, p.68). Furthermore, when asked about specific questions or given specific instructions, while there is a modest increase in memory, there is also a tendency for subjects to fill in those aspects that the subject cannot remember. (Orne, p.74).

In fact, the same process that makes subjects vulnerable to hypnotic suggestion "makes it possible for subjects to accept approximations of memory as accurate." (Orne, p.74). Furthermore, hypnotized subjects frequently display a false confidence in their "remembered" information. "The most consistent confidence effects emerge when misleading information is introduced subtly into a situation well before testing." (Kebbell and Wagstaff, p. 119). Furthermore, while hypnosis does not appear to increase a subject's suspectibility to suggestion by leading questions, it also does not reduce susceptibility. (Kebbell and Wagstaff, p.119-120).

The confidence issue can be very important when one looks at how fact finders judge eyewitness testimony; confidence plays an important role in whether juries believe the witness's testimony. (Kebbell and Wagstaff, p.121). More importantly, one must recall that it is impossible to rule out the idea that people under hypnosis are actually lying about events that they have perceived. "It is asserted frequently that hypnotized people always tell the truth, even though scientific studies do not support this statement.

Scientific data notwithstanding, the popular media have reported these misconceptions." (R.T.C., p.1209). However, to date, courts have recognized that hypnotic testimony does not exclude the possibility of willful falseness. (Orne, p.63). This is a very important distinction, and it builds upon other research indicating that hypnosis does not guarantee the accurate recall of memories. First, even highly experienced hypnosis can be fooled regarding whether or not a subject has actually been hypnotized. (Orne, p.64). Furthermore, even deeply hypnotized subjects are able to willfully life. (Orne, p.64).

Furthermore, hypnotized individuals can be very susceptible to suggestion. First, a hypnotized individual may not be able to critically judge the veracity of his recollections. (R.T.C., p.1212). Furthermore, "because hypnotized persons are highly suggestible, some authorities believe that they can easily be induced to embellish or alter their memories of events." (R.T.C., p.1212). While this may simply produce harmless leads when used in the course of a police investigation, it can have dire consequences as well.

For example, this tendency to suggestible confabulation has led to false confessions when non-suspect witnesses have been interrogated about crimes that they witnessed. (Orne, p.67). Hypnosis can be helpful during the course of an investigation, because in an investigation the risk of introducing incorrect information is permissible, since the investigation should be able to sort out truthful information from incorrect information. However, courts are leery of testifying witnesses who have been hypnotized prior to testifying.

"Indeed, most prosecutors recognize that if they hypnotize a witness who later turns out to be implicated as a defendant, they will significantly complicate his or her ultimate prosecution." (Orne, p.67). The suggestion does not even need to be overt. "The content of pseudo memories when they are wittingly or unwittingly induced during hypnosis is, of course, not random...if a witness is hypnotized and has factual information...many of these bits of knowledge will become incorporated and form the basis of any pseudo memories that develop." (Orne, p. 78).

This can be explained with an understanding of memory theory, which holds that memory is reconstructive, so that the process of remembering "is thought to involve reconstructing events based on fragments of experience." (R.T.C., p. 1213). "The reconstructive theory raises the possibility that an erroneous recollection of an event may alter permanently the memory of the event and destroy the original accurate information." (R.T.C., p. 1213).

When discussing Orne's research, Kebbell and Wagstaff mention that it has led to a view that no one should be hypnotized prior to taking the stand. However, that is an impossibility. First, a defendant could decide to be hypnotized, either to help determine the truth, or to set up a scenario in which he could request a mistrial in the event of a criminal conviction.

Moreover, Kebbell and Wagstaff have noted that laws prohibiting testimony by previously hypnotized individuals have been successfully challenged, because they would permit testimony by defendants but not by other witnesses. (p.120). Currently, there is no one legal position on the admissibility of hypnotic testimony. At least one court absolutely prohibits testimony by any witnesses who have used any type of pretrial hypnosis procedure, while other courts have no problem admitting such evidence. (R.T.C., p. 1205).

"The only matters on which courts apparently have agreed are that out-of-court statements made under hypnosis are not admissible as direct evidence, and that a witness may not be hypnotized in court." (R.T.C., p. 1205). Courts take a variety of approaches to the question of pretrial hypnosis.

Some jurisdictions permit the witness to testify, leaving it to the jury to determine the weight to be given to the fact that the witness was previously hypnotized, despite the fact that this information could alter the jury's opinion and even the witness's demeanor. (R.T.C., p.1216). Other courts allow such testimony only if the proffering party can demonstrate that hypnosis meets the standards established in Frye v. United States. (R.T.C., p. 1217). The third judicial.