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Abstract

"The experience of the last three centuries of judicial trials has demonstrated that in disputed issues one cannot depend upon the mere assertion of anybody, however plausible, without scrutiny into its basis." The recent increase in the use of hypnotic memory enhancement on the victims and witnesses of crimes, as well as on defendants' and plaintiffs' witnesses, necessitates an in-depth examination of the reliability of hypnosis as a basis for testimony or statements of persons who are speaking from a hypno-enhanced recollection. Such an examination of hypnosis reveals that hypnotically enhanced memories are likely to be fraught with fantasized and falsely suggested information as a result of the hypnotic process. Even where stringent procedural safeguards are followed, it may be impossible to detect the memory distorting effects of hypnosis. Thus the reliability of the hypnotically refreshed memory is to a significant degree, a matter of speculation. As a result, the probative value of statements and testimony from the hypno-enhanced recollection is marginal at best and rarely outweighs its potential to mislead the trier of fact. Although many courts freely admit such evidence, the better practice would be to admit it only in exceptional circumstances and under the strictest procedural guidelines.

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