The use and misuse of hypnosis in court

Abstract

The various forensic contexts in which hypnosis has been used are reviewed, emphasizing its advantages and pitfalls. The technique may be helpful in the context of criminal investigation and under circumstances involving functional memory loss. Hypnosis has no utility to assure the truthfulness of statements since, particularly in a forensic context, subjects may simulate hypnosis and are able to willfully lie even in deep hypnosis; most troublesome, actual memories cannot be distinguished from confabulations either by the subject or by the hypnotist without full and independent corroboration. While potentially useful to refresh witnesses' and victims' memories to facilitate eyewitness identification, the procedure is relatively safe and appropriate only when neither the subject, nor the authorities, nor the hypnotist have any preconceptions about who the criminal might be. If such preconceptions do exist–-either based on information acquired before the hypnotic procedure or on information subtly communicated during the hypnotic procedure–-hypnosis may readily cause the subject to confabulate the person who is suspected into his “hypnotically enhanced memories.” These pseudomemories, originally developed in hypnosis, may come to be accepted by the subject as his actual recall of the original events; they are then remembered with great subjective certainty and reported with conviction. Such circumstances can create convincing, apparently objective “eyewitnesses” rather than facilitating actual recall. A number of minimal safeguards are proposed to reduce the likelihood of such an eventuality and other serious potential abuses of hypnosis.

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