Memory Restored or Confabulated by Hypnosis-is it Competent?

• Publication year: 1983
• Citation: Vol. 6 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No. 2SPRING 1983

Memory Restored or Confabulated by Hypnosis-Is it Competent?(fn*)

by James E. Beaver(fn**)

Courts have established that when an eyewitness to an event under litigation, who has suffered loss of memory as the result of a physical blow, thereafter recovers his memory following yet another physical blow, the witness is competent to testify to the event.(fn1) Moreover, courts generally hold that an eyewitness's memory can be refreshed-in or out of court-by use of any device which will get the job done.(fn2) As expressed by Judge Kalodner: "Anything may in fact revive a memory: a song, a scent, a photograph, an allusion, even a past statement known to be false."(fn3) Yet now, within the past months, at least four state supreme courts have decided that when the refreshment is accomplished by hypnosis, the hypnotized subject is an incompetent witness as to the areas explored under hypnosis.(fn4)

Eyewitness testimony is not especially reliable in the best of circumstances. More than fifty years ago, Hutchins and Sles-inger pointed out that excited utterances-generally admitted under an exception to the hearsay rule-are specially fallible.(fn5) As one example, in a classroom experiment it appeared that the testimony of the most excited student was almost worthless, while those who were only slightly stimulated emotionally scored better than those left cold by their observations.(fn6) Indeed, there are few if any sources of evidence so unreliable as human testimony. Witnesses sometimes wilfully lie. Honest witnesses may frequently err in observing events, in remembering their observations, and in communicating those memories to the trier of fact. Trial judges and juries also are fallible in determining (guessing) which, if any, of the several disagreeing witnesses has reliably reported objective facts. These fallibilities are what prompted Learned Hand, our wisest judge, to remark: "I must say that, as a litigant I should dread a law suit beyond almost anything short of sickness and death."(fn7) Authorities agree that there is nothing more uncertain than human testimony.(fn8) This writer agrees with Edmund Burke:In this enlightened age I am bold enough to confess, that we are generally men of untaught feeling; that instead of casting away all our old prejudices, we cherish them to a very considerable degree,. . . and the longer they have lasted, and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would be better to avail themselves of the general bank and capital of nations, and of ages. Many of our men of speculation, instead of exploding general prejudices employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved, than to cast away the coat of prejudice, and to leave nothing but the naked reason; because prejudice, with its reason, has a motive to give action to that reason, and an affection which will give it permanence.(fn9) Thus, whether out of habit or prejudice, courts often admit testimony of previously hypnotized witnesses.

Yet something extraordinary is occurring. Appellate courts in five states in the last sixteen months have overturned or ignored earlier precedent in holding a witness whose memory has been refreshed by hypnosis to be incompetent. These courts are the California Supreme Court,(fn10) the Minnesota Supreme Court,(fn11) the Arizona Supreme Court,(fn12) the Pennsylvania Supreme Court,(fn13) and the Michigan Court of Appeals.(fn14)

These courts uniformly consider that the deficiencies in previously hypnotized witnesses are hypersuggestibility and hypercompliance.(fn15) They perceive enormous danger that the prospective witness may under hypnosis intercept and internalize any suggestions about the desired answer.(fn16) Prehypnotic uncertainty, the thought continues, develops, in light of the hypnotic experience, into certitude, with the subject unaware of any interjected suggestions or resulting confabulations. The honestly held belief of the prospective witness cannot be undermined by the most effective cross-examination. Several courts also have noted that juries probably would attach undue weight to such testimony.(fn17) Justice Stanley Mosk for the California Supreme Court concludes: "[T]he hypnotic process does more than permit the witness to retrieve real but repressed memories. . . . [I]t actively contributes to the formation of pseudomemories, to the witness' abiding belief in their veracity, and to the inability of the witness (or anyone else) to distinguish between the two."(fn18)

On the other hand, in the last twenty years, at least seven states approved the admission of hypnotically induced testimony, ascribing to the trier of fact the duty of weighing the credit which should be attached to such testimony.(fn19) The first task for a court or for a scholar is to find out the facts. The second, and far the more difficult task, is to face the facts and exclude hypnotically refreshed testimony.

This article, after examining the scientific basis of hypnosis, concludes that previously hypnotized witnesses are incompetent to testify concerning matters discussed under hypnosis. Unbiased examination of scientific literature discloses that persons under hypnosis are highly motivated to please the hypnotist and therefore are likely to fantasize rather than accurately recall lost memories. After hypnosis these false impressions are fixed as true and the witness is unshakable on cross-examination. Therefore, the McCormick relevancy test(fn20) is inadequate, and hypnosis tainted testimony, like other scientific evidence, must meet the stricter Frye standard before being presented to the finder of fact. Hypnosis presently does not pass the Frye test. However, even if it ever becomes reliable enough in the future to pass that test, serious confrontation clause problems remain. The logical appeal of the California Supreme Court in People v. Shirley(fn21) is overwhelming. A new rule of incompetence should be recognized in the law of evidence.

I. The Scientific Literature

Hypnotism has been the subject of much interest and speculation for well over two centuries,(fn22) though only recently among trained scientists.(fn23) In the past fifty years, scientists, psychiatrists, psychologists, and researchers have lifted hypnosis from the depths of superstition(fn24) to the fields of experimental psychology where they have applied "the manners of the laboratory"(fn25) and "the language of the polite science."(fn26) Hypnosis is now a recognized branch of psychology,(fn27) and is utilized extensively by psychiatrists and others in the treatment of mental problems.(fn28) Generally it has been used to uncover the suppressed emotions and mental disturbances surrounding facts brought forth from the subject during treatment.(fn29) Traditionally, the hypnotist has not been concerned with historical accuracy of information unearthed during hypnosis.(fn30) The value of hypnosis has been therapeutic and only recently has it been viewed as a forensic aid.

No one is sure exactly what hypnosis is.(fn31) Some researchers define hypnosis in terms of the procedures the therapist uses to induce the subject into a trancelike state.(fn32) Others have theorized in terms of behavioral characteristics and view hypnosis as effect oriented. A subject "behaves without the experience of will or intention, without self-consciousness, and without the subsequent memory which under the circumstances one would expect," and "these changes in his behavior occur merely because the hypnotist says so."(fn33) Professor Orne, a respected expert, defines hypnosis as a "state or condition in which subjects are able to respond to appropriate suggestions with distortions of perceptions or memory."(fn34) The diverse explanations for the phenomenon exact one point: there is not as yet one universally accepted definition or theory as to its nature.

Professor Hilgard observed(fn35) several characteristics of subjects within the hypnotic state: lack of initiative, selective attention, heightened fantasy production, distortions of reality, role behavior, and amnesia concerning events ocurring during the hypnotic trance.(fn36) Hypnotists can employ a variety of procedures to induce the hypnotic state. The hypnotist may relax the subject through a series of suggestions designed progressively to induce hypnosis.(fn37) The success or failure of the various inducing techniques(fn38) is usually dependent upon the subject's hypno-tizability and the rapport between the hypnotist and the subject.(fn39)

Whether hypnosis is a reliable method for accurately restoring memories initially depends on whether there is any recall to improve. The answer to this question depends upon the hypnotist's theory of how memory works and how memories are stored and recalled.

Some experts believe the human brain operates as a "vide-orecorder," permanently recording and storing our perceptions.(fn40) This "exact copy"(fn41) theory is premised upon Wilder Penfield's surgical work on epileptics during the 1940's.(fn42) Penfield removed damaged...