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Forensic Uses of Hypnosis - An Update

NCJ Number
91617
Journal
Trial Volume: 19 Issue: 10 Dated: (October 1983) Pages: 42-50,105-106
Author(s)
E Margolin; S Coliver
Date Published
1983
Length
9 pages
Annotation
This examination of the legal status of the forensic uses of hypnosis considers the benefits of the Frye test, the argument in support of the forensic use of hypnosis, the Orne safeguards for the use of hypnosis, and some related unsettled legal issues.
Abstract
Only recently have courts begun to take a critical look at the forensic use of hypnosis to refresh the memory of a witness. In 1980, the Minnesota Supreme Court, in the landmark opinion in State v. Mack, excluded hypnotically enhanced testimony on the ground that it does not meet the Frye general acceptance standard of reliability for evidence produced by novel scientific techniques. Proponents of hypnosis contend that the admissibility of hypnotically enhanced testimony should be judged by the same standards applied to other eyewitness testimony on a case-by-case basis. Providing the hypnotic session is not found to have been impermissibly suggestive under the due process rule of Wade-Neil, proponents urge that hypnotically enhanced testimony be judged on its credibility rather than admissibility. Orne has proposed safeguards intended to provide documentation of hypnosis sessions so they may be assessed for suggestibility. Dr. Bernard Diamond, a widely respected authority on forensic hypnosis, contends, however, that Orne's safeguards cannot prevent contamination of either pre- or post-hypnotic recall. Some unsettled legal issues are (1) the admissibility of post-hypnotic testimony where corroborating evidence exists, (2) the admissibility of testimony or statements regarding pre-hypnotic recall, (3) the use of hypnosis by the defense, and (4) the retroactivity of decisions excluding hypnotic evidence. Seventy-three references are provided.

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