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Hypnosis and the Courts: A Study in Judicial Error

NCJ Number
Journal of Forensic Psychology Practice Volume: 1 Issue: 1 Dated: 2001 Pages: 101-111
Alan W. Scheflin J.D.
Date Published
11 pages
After reviewing the law pertinent to the hypnotic retrieval of memories, this paper discuses judicial objections to this practice that are not supported by scientific conclusions, as well as forensic hypnosis as a legal threat to clinicians.
Legal issues that involve hypnosis and memory lay dormant for two-thirds of the twentieth century. From 1968 to the mid-1980's, however, courts decided hundreds of cases that involved the hypnotic retrieval of memories. Approximately one-third of the States now follow a "totality of the circumstances" test that permits these memories to be introduced into evidence if there is no undue suggestion. A majority of the States follow a per se exclusion rule that prohibits any memories retrieved during or after hypnosis from being introduced into evidence. This paper argues that the per se exclusion test is unwise as a policy matter, is unjust because it prevents victims from having their day in court, and is unscientific because it misreads the prevailing scientific literature on the accuracy of hypnotically assisted recollection. Based on the testimony of a small group of experts, courts have been persuaded that hypnosis contains the following unavoidable dangers: suggestibility, unreliability, and jurors' tendency to believe hypnotically derived testimony is more credible. It is now clear from the science that has emerged in the last decade that these dangers are avoidable, nonexistent, or a function either of the inherent malleability of memory or of the application of social influences and demand characteristics; they are not a function of hypnosis itself. Given the current availability of relevant scientific studies, it is clear that judges were mistaken in believing that hypnosis always contaminates memory or produces memories that are unreliable. 46 references.


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