Challenging the Use of Hypnotically Induced Evidence

JurisdictionColorado,United States
CitationVol. 9 No. 6 Pg. 1142
Pages1142
Publication year1980
9 Colo.Law. 1142
Colorado Lawyer
1980.

1980, June, Pg. 1142. Challenging the Use of Hypnotically Induced Evidence




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Vol. 9, No. 6, Pg. 1142

Challenging the Use of Hypnotically Induced Evidence

by Michael A. Warren and Arthur C. Roberts

[Please see hardcopy for image]

Michael A. Warren, Colorado Springs, is a 1979 graduate of the D. U. College of Law and currently a law clerk for Judge John Gallagher, District Judge. Arthur C. Roberts, M.D., F. R. C. P. (C), Colorado Springs, is a forensic psychiatrist in private practice.




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Throughout the past several years, Colorado law enforcement personnel have begun to utilize hypnosis as an investigative tool, most commonly in attempts to refresh a witness' recollection of events surrounding a crime.(fn1) In the authors' opinion, such use of hypnosis without stringent safeguards poses a grave threat to the integrity of the judicial process. It is the goal of this article to outline briefly the nature of hypnosis; highlight the dangers posed by its use in the criminal justice system; and review the law that has attempted to regulate its use therein, which may suggest methods by which attorneys might challenge testimony elicited under its influence.(fn2)

THE NATURE OF HYPNOSIS

An individual under hypnosis enters an altered state of consciousness, characterized by a number of physiological and psychological changes. These changes may be so slight that the hypnotized subject is unaware of them. In deeper trance states, the subject may experience profound relaxation, an increased ability to retrieve repressed or suppressed memories, or even such a profound alteration of consciousness that he can undergo surgical procedures without experiencing any pain.

Two major fallacies concerning the hypnotic trance state have obtained currency over the years. It is widely believed that a person under hypnosis "cannot lie," and that he "cannot be led to say or do anything against his will."

The fundamental elements of hypnosis are the suggestibility of the subject and the perceived status of the operator. A subject in hypnotic trance is quite likely to tell the operator what he thinks the operator wants to hear. "Almost every subject tries to cooperate and to please the operator."(fn3) Whether or not this process of shaping responses to suit the operator should be called "lying" is a question of semantics. However, it is true that inaccurate and false information may very well emerge from it.

As stated, advocates for an extended use of hypnosis frequently maintain that a person in the hypnotic state cannot be "forced" to do anything against his will. This is patently untrue, as can be demonstrated by the actions of persons under the influence of post-hypnotic suggestion. They will frequently engage in bizarre and potentially embarrassing behavior which, if suggested to them in a normal state of consciousness, they would reject.

HAZARDS OF "INVESTIGATIVE HYPNOSIS"

The increasing use of hypnosis by agents of the justice system presents potential dangers




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to the subject of such hypnosis, and to justice itself.

Hypnosis is an altered state of consciousness wherein the relationship between operator and patient is intense and extremely sensitive. The subject, in effect, abandons executive control over his own ego. In the clinical situation, the hypnotic process is governed by an implied contract between hypnotherapist and subject that insures that the interest of the subject, and not that of the operator, is paramount.

No such contract exists in the relationship between an officer of the state and a person who submits to hypnotic investigation by such an officer. The operator may assure the subject that the subject can "say nothing that he does not want to say and do nothing that he does not want to do." This assurance is belied by the facts. If the subject gives credibility to such an assurance (as he is likely to do, given the widespread nature of the fallacy upon which it is based), he renders himself defenseless.

Lawyers and police officers may justifiably protest that they are bound by a body of ethical considerations. It is evident, however, that their injunction and their mandate are not necessarily to promote the emotional and physical well-being of their subjects.

The use of hypnosis by officers of the justice system thus presents a potential danger to its subjects. Because the subject in trance can "confabulate material readily ... in the desire either to please or displease the experimenter,"(fn4) the potential danger extends further---it extends to the very justice system which seeks to employ hypnosis.

The tendency of any hypnotic subject to tell the operator what he thinks the operator wants to hear may produce false testimony. The widely held belief that hypnotic subjects "cannot tell a lie" is likely to give heightened credence to testimony produced under hypnosis, making such testimony doubly dangerous.

Hypnosis is not an innocuous process. A variety of subtle pressures may be exerted upon the subject by the operator's tone of voice and line of questioning, and by the nature of the inquiry and the environment in which the hypnotic interview is carried out. Even the disinterested operator must be alert to avoid "leading" his subject.

Public prosecutors and police officers are human beings, subject as the rest of us to pressure from their constituents and superiors to perform efficiently and successfully. It is not improbable that some officials might employ the techniques of hypnosis in ways which could raise very grave questions of justice. In addition to inadvertently or intentionally leading witnesses, the operator could use post-hypnotic suggestion to confirm the subject's confidence in his own hypnotically induced testimony, to induce desired behavior on the witness stand, or even to induce a return to trance at a prearranged signal.

Therefore, in the authors' opinion, attorneys and police officers ought to have no role whatsoever in questioning witnesses who are in hypnotic trance, since these officers are not bound by the same considerations which bind therapists. If hypnosis is to be used as an adjunct to legal investigation, it should be carried out by a person skilled in hypnotic techniques and bound by the moral and ethical considerations of a professional healer.(fn5)

HYPNOSIS IN THE COURTS

Courts in the United States have been slow to recognize or regulate the use of hypnosis in the judicial process. Colorado appellate courts, as those of most other states, have never considered issues raised by the introduction at trial of hypnotically adduced testimony.(fn6)

Nevertheless, a fairly well-developed line of cases from the Federal circuit courts (notably the Ninth Circuit), as well as from several state courts (such as those of California), provides a starting point for analysis. These cases generally concern the following:




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1) The admissibility at trial of hypnotically elicited testimony;

2) Sixth Amendment "confrontation" issues raised...

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