Cultic Studies Journal, Vol. 13, No. 1, 1996, page 48
and research, the second author has encountered two clearly, other cases exist (cf.
Raginsky, 1969). However, the possibility of created memory is so high that the rare cases
should not be allowed to justify the admission of highly unreliable testimony produced by
the combination of hypnosis and psychotherapy. Hypnosis is an excellent tool for obtaining
useful clinical data, but we have known for more than 100 years that the data are largely
historically inaccurate. They pertain to a subjective universe, not an objective, historical
one.
Like correlation, hypnosis will fool. Hypnotic phenomena represent a complex interface of
cognitive variables, social-psychological factors, genetic propensities, psychopathology,
stable individual differences, and cultural artifacts. Understanding the role of these factors is
a lifetime work for numerous behavioral scientists. However, we do know something about
when not to use hypnosis. In the forensic context, it should not be used to influence the
memory of anyone called upon to testify about information recalled during hypnosis (AMA,
1985, 1994).
There are exceptions to this rule. As the Supreme Court ruled in Rock v. Arkansas, the
defendant in a criminal trial has the constitutional right to testify in her own behalf whether
or not she has been hypnotized. Similarly, if patients believe that they were abused during
hypnosis, the fact that they were hypnotized should not prevent them from testifying about
the alleged abuse (cf. McConkey &Sheehan, 1995). However, these are exceptions to a
general rule. Per se exclusion of testimony influenced by the use of hypnosis in
psychotherapy seems the best response to this situation, with specific provision being made
for the obvious exceptions just noted. Per se exclusion has costs, but they would seem
lower than those attendant to any other solution.
Conclusion
Hypnotically influenced testimony constitutes an unusual threat to the fact-finding process:
memory is often irreversibly altered without awareness by either subject or hypnotist that
anything untoward has occurred. The resulting testimony is less reliable but more certain,
vivid, and detailed than that resulting from ordinary recall. The admission of hypnotically
influenced testimony has led to potential and actual miscarriages of justice in the criminal
arena. In civil cases, where the burden of proof is lower, the prejudicial effects of hypnosis
may be even more extreme.
So far, we know of two kinds of civil cases: those involving automobile accidents and those
involving memories of child sexual abuse. In the automobile cases, memories retrieved
during hypnosis have been universally self-serving. Since simulation and lying, as well as
honest fantasy and confabulation, are possible, we can expect further examples of such
memories to be far more prejudicial than probative. Unfortunately, given its effects on the
resolution of auto accident cases, extension of hypnosis into areas such as child custody
suits is both foreseeable and potentially tragic.
In cases involving recovered memories of ICA, testimony based on psychopathology and the
demand characteristics of the clinical setting will be routine. Our computation of the range
of false positives in the diagnosis of ICA errs, if anything, on the side of underestimating the
incidence of misdiagnosis, and we have estimated that well over half the cases will be false
positives.
Admitting hypnotically based recall will encourage an enormous waste of judicial resources
and professional time. Also, it will inevitably result in what Laurence and Perry (1988) have
called “trial by fantasy.” Excluding hypnotically influenced recall per se (with rare and easily
specifiable exceptions) will have some costs. Compared to the costs attendant on other
alternatives, however, these costs are minimal. While a totality-of-the-circumstances test is
and research, the second author has encountered two clearly, other cases exist (cf.
Raginsky, 1969). However, the possibility of created memory is so high that the rare cases
should not be allowed to justify the admission of highly unreliable testimony produced by
the combination of hypnosis and psychotherapy. Hypnosis is an excellent tool for obtaining
useful clinical data, but we have known for more than 100 years that the data are largely
historically inaccurate. They pertain to a subjective universe, not an objective, historical
one.
Like correlation, hypnosis will fool. Hypnotic phenomena represent a complex interface of
cognitive variables, social-psychological factors, genetic propensities, psychopathology,
stable individual differences, and cultural artifacts. Understanding the role of these factors is
a lifetime work for numerous behavioral scientists. However, we do know something about
when not to use hypnosis. In the forensic context, it should not be used to influence the
memory of anyone called upon to testify about information recalled during hypnosis (AMA,
1985, 1994).
There are exceptions to this rule. As the Supreme Court ruled in Rock v. Arkansas, the
defendant in a criminal trial has the constitutional right to testify in her own behalf whether
or not she has been hypnotized. Similarly, if patients believe that they were abused during
hypnosis, the fact that they were hypnotized should not prevent them from testifying about
the alleged abuse (cf. McConkey &Sheehan, 1995). However, these are exceptions to a
general rule. Per se exclusion of testimony influenced by the use of hypnosis in
psychotherapy seems the best response to this situation, with specific provision being made
for the obvious exceptions just noted. Per se exclusion has costs, but they would seem
lower than those attendant to any other solution.
Conclusion
Hypnotically influenced testimony constitutes an unusual threat to the fact-finding process:
memory is often irreversibly altered without awareness by either subject or hypnotist that
anything untoward has occurred. The resulting testimony is less reliable but more certain,
vivid, and detailed than that resulting from ordinary recall. The admission of hypnotically
influenced testimony has led to potential and actual miscarriages of justice in the criminal
arena. In civil cases, where the burden of proof is lower, the prejudicial effects of hypnosis
may be even more extreme.
So far, we know of two kinds of civil cases: those involving automobile accidents and those
involving memories of child sexual abuse. In the automobile cases, memories retrieved
during hypnosis have been universally self-serving. Since simulation and lying, as well as
honest fantasy and confabulation, are possible, we can expect further examples of such
memories to be far more prejudicial than probative. Unfortunately, given its effects on the
resolution of auto accident cases, extension of hypnosis into areas such as child custody
suits is both foreseeable and potentially tragic.
In cases involving recovered memories of ICA, testimony based on psychopathology and the
demand characteristics of the clinical setting will be routine. Our computation of the range
of false positives in the diagnosis of ICA errs, if anything, on the side of underestimating the
incidence of misdiagnosis, and we have estimated that well over half the cases will be false
positives.
Admitting hypnotically based recall will encourage an enormous waste of judicial resources
and professional time. Also, it will inevitably result in what Laurence and Perry (1988) have
called “trial by fantasy.” Excluding hypnotically influenced recall per se (with rare and easily
specifiable exceptions) will have some costs. Compared to the costs attendant on other
alternatives, however, these costs are minimal. While a totality-of-the-circumstances test is
