In favor of a per se exclusion of hypnotically influenced testimony: A reply to Hoover
Hoover (1998) begins his comments by saying, "Karlin and Ornes position supporting the per se exclusion of hypnotically refreshed testimony is plainly shaped by their experience of the use of hypnosis in therapeutic settings." In this, he is simply incorrect. Our opposition to admitting the testimony of a previously hypnotized witness was shaped by the results of scientific studies and by our experience with hypnosis in forensic settings (not in therapeutic ones). This evolution can be seen in a change of positions from Orne (1979), which suggested safeguards for forensic hypnosis to Orne, Soskis, Dinges, & Carota-Orne (1984), which advocated a per se exclusion.
Although it was obvious early on that there were problems with the use of hypnosis with witnesses who might testify, Orne had wanted to develop safeguards in order to preserve the use of hypnosis, especially in the context of law enforcement, for the rare case in which hypnosis might have more probative than prejudicial effect. But by 1982, it had become apparent to Orne, Diamond, Levitt, Karlin and a variety of others, that they were seeing no cases in which hypnosis had served the cause of justice, and any number in which hypnosis either produced, or could well have produced, a serious miscarriage of justice (cf. Karlin, 1983).
There were and are reasons for this. The person who agrees to be hypnotized and undergoes a formal induction must, to fulfill his role, alter his expectancies, behavior, and view of the world. Inherent in this altered role is a decrease in critical judgment. One cannot participate in even the simplest hypnotic suggestion (e.g., as you begin to feel a force pulling your hands together, they will move together by themselves) without such a decrease. Otherwise one would simply respond to such suggestions by saying "that is absurd. Taken together, the demands of a hypnotic role and the inherent decreased critical judgment allow a blurring of the boundary between fantasy and memory, an increase in certainty unrelated to accuracy, a tendency to misattribute whether information was learned during hypnosis or before it, and a willingness to accept even a major change in memory as credible.
Further, if a subject is relatively highly hypnotizable, the suggestions to relive events that routinely follow hypnotic induction in the forensic context may have additional effects. First, the frequent inclusion of confabulated, vivid detail in the new material makes hypnotically influenced memories more credible (Dywan, 1995). Also, fantasies entirely unrelated to what actually occurred may also be suggested during hypnosis and remembered as veridical (Laurence, Nadon, Nogrady, & Perry, 1986). This is especially the case when there are no clear original memories to overlay (cf. Orne, 1979; see also Karlin, 1983) or when, as in civil cases, the hypnotized party has a strong interest in "remembering" one version of events (cf. Karlin, 1997; Sprynczynatyk v. General Motors, 1985). Finally, more highly hypnotizable subjects may subjectively relive events and vividly experience a version of the past. Unfortunately, vividness has no relation to historical accuracy, but again increases confidence inappropriately (cf. Frankel, 1994). In summary, we find a formidable basis for automatically keeping hypnotically influenced testimony out of court.
As Mr. Hoover says, the problem in presenting this point of view at this time is both that it 1) seems rigid and 2) stands against the legal tide represented by the changes in the Federal Evidence Code and the move from the general acceptance standard in Frye (1923) to Justice Blackmuns dicta in Daubert (1993). But the last few years have seen thousands deluded by hypnotically elicited "memories" of events before birth or of sexual abuse at the hands of aliens on spaceships or, as in Borawick, at the hands of nonexistent satanic cults. While such absurd "memories" are easily ignored by the judicial system, hypnosis heightens the risk that persuasive, but nevertheless entirely inaccurate memories will be elicited by well-meaning people from well-meaning people.
Even more problematic, "refreshing" the memory of a bystander via hypnosis results in creating an eyewitness who is either different from the one who existed before hypnosis or, in some cases, has been created out of hypnotic whole cloth. We have seen too many cases in which, after hypnosis, the person sincerely believes that he or she has mentally returned to the scene, now has viewed the crime or traumatic event (often fantasized) clearly, and can confidently testify as to the facts of the case (e.g., People v. Kempinski, 1980; State v. Mack, 1980). Moreover, cross examination depends on the ability to elicit and contest the persons original perception of the event and original confidence in what he or she saw. Thus, in our view there is no question; hypnotizing a prospective witness tampers with the evidence.
Though ordinary eyewitness testimony has problems, our system of justice could not function without it.. But note that the law requires the exclusion of other testimony that has been tampered with or is the product of an unduly suggestive procedure that irretrievably alters memory (e.g., a "show up" where one suspect is presented for identification as opposed to a line up where the suspect must be chosen from a physically similar group). Why should the law allow hypnosis to be an exception when it inherently involves undue suggestion, irretrievable memory change, and a pervasive lowering of the relationship between certainty and accuracy, a relationship critical to cross examination? Creating a detailed, vivid, certain, honest liar who is allowed to testify can not help the trier of fact determine truth.
Thus, our position favors per se exclusion of the testimony of any witness whose recall has been "refreshed" by hypnosis or hypnotic like techniques. If a per se rule is not enforced, we will be encouraging the use of hypnosis with potential witnesses by sometimes allowing admission. The chance of aiding the cause of justice with hypnosis is too low and that of creating a serious miscarriage of justice too high for that to be acceptable.
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). 125 L.Ed. 2d 469.
Dywan, J. (1995). The illusion of familiarity: An alternative to the report-criterion account of hypnotic recall. International Journal of Clinical and Experimental Hypnosis, 43, 194-211.
Frankel, F. (1994). The concept of flashbacks in historical perspective. International Journal of Clinical and Experimental Hypnosis, 4, 321-336.
Frye v. United States (1923). 293 F.1013 (D.C. Cir.)
Hoover, G. (1998). A Comment Upon the Debate Between Scheflin and Karlin and Orne on the Admissibility of Hypnotically Refreshed Testimony. Cultic Studies Journal, 15,1, 77-82.
Karlin, R. (1983). Forensic hypnosis: Two brief case reports. International Journal of Clinical and Experimental Hypnosis, 31, 227-234
Karlin, R. (1997). Illusory safeguards: Legitimizing distortion in recall with guidelines for forensic hypnosisΎTwo case reports. International Journal of Clinical and Experimental Hypnosis, 45, 18-40.
Laurence, J., Nadon, R., Nogrady, H., & Perry, C. (1986). Duality, dissociation, and memory creation in highly hypnotizable subjects. International Journal of Clinical and Experimental Hypnosis, 34, 295-310.
Orne, M. (1979). Use and misuse of hypnosis in court. International Journal of Clinical and Experimental Hypnosis, 27, 311-341.
Orne, M., Soskis, D., Dinges, D., & Carota Orne, E. (1984). Hypnotically induced testimony. In G. Wells & E. Loftus (Eds.), Eyewitness testimony: Psychological perspectives. New York: Cambridge University Press, 171-213.
People v. Kempinski (1980). No. W8OCF 352 (Cir. Ct., 12th Dist. Will County, October 21, 1980, unreported).
Sprynczynatyk v. General Motors, 771 F.2d 1112 (8th Cir. 1985).
State v. Mack (1980). 292 N.W.2d 764 (Minn.).
Cultic Studies Journal, Vol. 15, No. 1, 1998