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safeguards suggested by McConkey and Sheehan (1995) were employed. AP seemingly
experienced an abreaction during hypnosis. Several weeks later, on the basis of her
abreaction, she reported being abducted and sexually assaulted by her former employers.
Hypnosis seemed to have led to an increased ability to remember and recount important
information about the incident. About 2 years later, on the morning that the trial of AP‟s
former employers was to begin, the prosecutor discovered that AP had reported dreaming of
being abducted and sexually assaulted by her employers as part of a sexual harassment
claim made 2 weeks before she was found in the park. The account of the abduction and
assault experienced in a dream was essentially identical to the crime alleged to have
occurred 2 weeks later, the crime she reported “remembering” during hypnosis. Because it
seemed unlikely that a crime identical to a previously reported dream had actually occurred,
the judge dismissed the charges just as the trial was scheduled to begin. If the prosecutor
had not accidentally discovered the dream and reported it to the judge and the defense, the
defendants might well have been convicted. In that case, hypnotically influenced and
legitimized testimony, elicited by experts on hypnosis and memory using intricate
safeguards, might have played a part in a major miscarriage of justice.
In the second sexual assault case, CK awoke in her bed to find evidence she had been
involved in sexual intercourse after allowing a taxi driver (LG) into her home. The taxi
driver, a man more than 30 years CK‟s senior, was reportedly a skilled lay hypnotist.
Hypnosis helped CK recall the hypnotic seduction and her sense of helplessness and
muscular inhibition --responses quite similar to those reported in an earlier Australian case,
that of Mr. Magic (Perry, 1979). During the subsequent investigation, a policewoman posed
as a potential victim LG attempted to use hypnotic procedures to seduce her. Although
ruled inadmissible at trial, the results of this investigation corroborated CK‟s hypnotically
aided recall. However, LG was subsequently acquitted. Interestingly, this case involved
alleged abuse during hypnosis, one of the two widely accepted exceptions to the per se rule
(see n. 2).
In the last of the nine cases, the authors were able to show that a murder suspect, who had
made exculpatory statements while seemingly under hypnosis, was simulating hypnosis.
McConkey and Sheehan (1996) saw their testimony as an important factor in his
subsequent conviction.
In summary, when extensive safeguards were employed, and forensic hypnosis was induced
by internationally known experts, hypnosis had a confusing, misleading, or time-wasting
effect in four of the five cases. One of the four cases avoided becoming a major miscarriage
of justice only through a fortuitous accident that occurred after 2 years of pretrial effort by
both the prosecution and the defense. The fifth case was one in which sexual abuse
seemingly occurred during hypnosis, in circumstances where most authorities would urge
the admission of hypnotically influenced testimony (but whose admission did no good in this
case). As McConkey and Sheehan note in their own summary, “It is dispiriting to realize that
the most conclusive instance in our analyses of investigative hypnosis was a case in which
the court accepted expert testimony that hypnosis was not involved” (1995, p. 216). We
add that the case of AP shows that even the most extensive safeguards will not protect the
fact finding process from hypnotically based fantasies, nor can experts detect the
occurrence of such events.
Why Hypnotically Influenced Testimony Should Be Excluded When Unreliable
Testimony --Such As That Given by the
Accused and His Accomplice’s Admissible
One of Scheflin‟s (1996) arguments for admission of hypnotically influenced testimony is
that other forms of testimony are admissible despite their questionable nature (e.g.,

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 11
accomplice testimony). Over the past 15 years or so, the trend clearly has been to admit
more marginal testimony and let the trier of fact --the jury --decide what weight to give it.
As Scheflin argues, all eyewitness testimony may be seen as questionable to some degree.
For example, in Rock v. Arkansas (1987), the U.S. Supreme Court reviewed the evolution of
the right to testify in one‟s own defense. Originally, our judicial system excluded such
testimony per se, on the basis of self-interest. Later, defendants were not allowed to give
exculpatory evidence under oath. Obviously, the temptations to give false testimony in
one‟s own defense may be overwhelming. How can we exclude hypnotically influenced
testimony while leaving the testimony of the accused and his accomplice?
The answer lies in the jury‟s ability to weigh testimony appropriately. Self-interest in its
various forms is part of each adult‟s everyday experience. On the basis of this experience,
juries may be expected to appraise realistically the testimony of someone accused of a
crime or of an accomplice who has been given immunity or a plea bargain in return for his
testimony. On the other hand, the change in certainty and the creation of memory in
forensic hypnosis or hypnotically facilitated psychotherapy lie outside the range of
experience of most jurors. Nor do juries know of the demand characteristics inherent in
forensic hypnosis (cf. Orne, 1959, 1979). This is why expert testimony on the probative
value of such evidence is required, if there is any question of admitting the testimony.
However, the issues are so complex that psychiatrists, psychologists, and law professors are
sincerely troubled by them. Do we want to depend on the most convincing expert to carry
the day? As noted above, supposed experts in this area often fail to distinguish between
knowledge based on correlational research and that based on experimentation. As
McConkey and Sheehan (1995) and Southwick et al. (1997, see n. 5) have shown, both
correlation and hypnosis will fool.
Moreover, unlike the case in accomplice or defendant testimony, jurors‟ everyday
experience leads them away from giving appropriate weight to hypnotically influenced
testimony, not toward it. While the jury is aware of human fallibility, testimony is now being
given by victims of or witnesses to crimes, not accomplices who have made plea bargains or
defendants facing prison and/or disgrace. Note that previously hypnotized witnesses‟ or
victims‟ manner will convey that they are telling the truth as they know it. When such
testimony is presented in court in vivid detail, with heightened certainty (as hypnotically
influenced or created memory often is), juries tend to believe it. Jurors‟ everyday
experience tells them that detailed, vivid memories, conveyed by someone without a strong
interest in deception, are likely to be true. And they usually are. But in this case, the effects
of hypnosis lend only the patina of fact rather than clear, accurate memories of historical
events.
Experts can argue about the effects of hypnosis in a specific case, but their differences are
easily obscured by a witness whose memory has been “refreshed” by hypnosis. The problem
in civil cases is similar hypnosis legitimizes memory changes and results in believable
testimony when memory has been created, rather than simply refreshed (cf. Karlin, 1997
Karlin &Orne, 1996).
In fact, hypnotically influenced testimony is not similar to accomplice or defendant
testimony. It is analogous to testimony based on an Amytal (“truth serum”) interview.
Amytal does not always result in historically inaccurate testimony. But, like hypnosis, it
provides legitimacy, certainty, and vividness disconnected from accuracy. As a result very
few scholars would argue (as Scheflin, 1996, does for hypnosis) that since Amytal
interviews do not always result in error, they should be considered on a case-by-case basis.
Instead, the limitations of the technique and per se exclusion are generally accepted.