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CRIMINAL
INVESTIGATION
HANDBOOK:
Strategy, Law and Science
By Thomas P. Mauriello
15.02 Hypnosis.
[1] Defined as Altered State of Consciousness.
In general terms, hypnosis is an altered state of consciousness involving focused attention
and concentration, relaxation, and heightened awareness. 1 Can it be defined with any greater
specificity? Do we know exactly why it works? No, and that is what makes hypnosis so
mysterious.
The word hypnosis was coined by Dr. James Braid from the Greek word hypnos, meaning
sleep. Dr. Braid, in the days when hypnosis was first being developed, believed that being in the
hypnotically induced trance state was similar to being asleep. 2 In fact, the altered state of
consciousness that the subject is in only resembles drowsiness or sleep: The hypnotized person
is aware of his surroundings, though in the deeper states, by suggestion, he may become
detached from his environment and give the impression of being oblivious of things around
him. 3 The subjects awareness of his surroundings is such that if a fire alarm happened to go off
he would probably be the first person out the door.
The subjects awareness extends to the hypnotist and what he is doing and saying. The
subject is aware that he is being hypnotized, and cannot be forced against his will to comply with
the wishes of the hypnotist.
What about the subjects of stage hypnotists who are forced to squeal like pigs, quack like
ducks, or make romantic gestures toward perfect strangers? The answer is simple. A person in a
hypnotic trance may become uninhibited due to the relaxed, suggestible state of hypnosis. The
subject of a stage show hypnotist also has a preconceived notion of what his volunteering would
entail. He anticipates performing the silly acts which the stage hypnotist commands himand the
audience expects himto perform. This combination of predisposition and relaxed inhibitions leads
the subject to act in an unusual manner.
This is very similar to what occurs when a normally sober person attends a social event and
has a little too much to drink. There, too, relaxed inhibitions coupled with a preconceived notion of
what drunks act like may lead the drinker to engage in what for him would be unusual behavior.
1
He is not being forced to do anything against his will and, in fact, is probably perfectly aware that
he is acting under the influence of alcohol.
Because the subject of hypnosis is not controlled by the hypnotist, many of the common
fears regarding hypnosis are completely misplaced. For example, one common fear is that the
hypnotist will become incapacitated while his subject is in the hypnotic state, dooming the subject
to live the rest of his life in a zombie-like state. This fear is premised on a fundamental
misunderstanding of the relationship between the hypnotist and his subject. All hypnosis is
actually self-hypnosis achieved by the subject himself, with the hypnotist acting merely as a guide
or a catalyst. 4 When the subject is ready to come out of the hypnotic state he will, as if
awakening from a sleep. 5
In fact, in the words of one psychologist: Hypnosis is no more dangerous than natural sleep.
There is no evidence that hypnosis in itself weakens the will, damages the nervous system, or in
any other way adversely affects the mental and physical well-being of individuals. 6
Many of the fears concerning hypnosis can be allayed by understanding that hypnosis is a
naturally occurring phenomenon experienced by people every day in a variety of
circumstances. 7 These circumstances range from the concentration experienced while reading
a book to driving home after a long day at work. The driver, who, after a drive home suddenly
finds himself in his driveway, was preoccupied with the events of the day and was not paying
attention to his driving. But the fact remains that he stopped at the traffic lights, stayed in the
driving lanes without hitting anyone, and got home safely. How? It was highway
hypnosis, 8 brought on by long repetition, which guided him home.
Another example is the training pregnant women undergo in preparing for natural childbirth.
The training enables women to relax and channel the pain of contractions away from
consciousness. Concentrating on a clock on the wall of the labor room, for example, or rhythmic
breathing, are nothing but techniques for inducing levels of hypnotic states while avoiding the
word hypnosis. The widespread acceptance of this training bears out a comment made by Patrick
Brady, President of the International Association of Forensic Hypnosis: There would be no
problem if the word hypnosis were replaced by relaxation. All you are doing is directing a person
into a state of concentration. Its a simple, natural thing. 9
Anyone can achieve the hypnotic state if he chooses to, provided that he is of an age at
which he can communicate, and provided that he and the hypnotist share a common language.
Imagery is very important in hypnosis. The subject, to be successful, must be able to visualize the
ideas and pictures suggested by the hypnotist. Modern research has documented that individuals
differ in their ability to respond to hypnotic suggestions, and that this difference is a relatively
stable trait. Most individuals, however, are able to experience some degree of hypnosis. 10
[2] Forensic Hypnosis.
[a] History and Use.
Forensic hypnosis, 11 or what is sometimes referred to as investigative hypnosis, is a
scientific method for stimulating the memory of a witness to recall information not readily
retrievable. Although its occasional use in this manner can be traced back over 100 years, it was
2
introduced as a frequently used investigative technique in the early 1970s by Dr. Martin Reiser,
Director of the Behavioral Science Services, Los Angeles Police Department. Previously,
budgetary restraints had discouraged police agents from incurring the high professional fees
charged by hypnotists in the behavioral sciences or the medical profession. Dr. Reiser not only
suggested the use of hypnosis as an investigative technique, he made his suggestion
economically feasible by training police investigators in the Los Angeles Police Department to be
forensic hypnotists. Thus began the practice of considering hypnosis as an investigative method
when a crime witnesss memory was blank and could not be refreshed in more customary ways.
Forensic hypnosis is used in both criminal and civil cases. It deals with the ability to recall
events and information relevant to an investigation while in a hypnotic trance. There are two
general uses for forensic hypnosis. One is to sharpen a witness memory in order to uncover
investigative leads that can corroborate evidence. For example, a witness observes an armed
robbery suspect fleeing the scene. The witness provides a basic description of the suspect and
the getaway vehicle. During a hypnotic interview, he provides a license plate number of the
vehicle. Investigators identify the owner of the vehicle and determine that the witnesss description
of the suspect and the getaway car match the registered owner of the vehicle and the vehicle
itself. Based on this investigative lead, a comparison of the suspects fingerprints with the latent
prints found at the crime scene on the cash register drawer are made and a match is indicated.
The witnesss testimony, hypnotically enhanced, has corroborated the witnesss perception of what
he saw, and the offenders identity could then be conclusively proved by matching his fingerprints
with those found at the scene.
The second use for forensic hypnosis is to refresh memory that has been totally repressed
or blocked from recall. A crime victim, or a witness observing a traumatic event, can sometimes
experience a memory blockage resulting in a loss of information at a conscious level. Hypnosis
can be used to break through that barrier and recover information. The investigator is cautioned
that hypnosis may remove memory blocks, but it isnt foolproof. You cant retrieve what wasnt
stored. Hypnosis many times simply removes the distractions that had caused the subject to
forget information in the first place. 11.1
While there is some danger involved in having the victim of, or the witness to, a violent
crime relive the incident, 12 and this sort of hypnosis should not be undertaken lightly, there is no
known evidence that supports the contention that a willing subject placed under hypnosis
experiences further psychological trauma from the hypnotic interview. In fact, the reverse is
usually the case. Crime victims and witnesses voluntarily agree to the use of forensic hypnosis as
a method of obtaining additional investigative information concerning the traumatic event. The
subject may be motivated to cooperate with the police by a general civic duty or by a desire to
have his attacker apprehended and brought to justice. More often than not, however, the victim or
witness has a memory block brought about by a traumatic event and wants to remember what
happened. Sometimes a victims memory gap leaves him feeling uncertain and guilty, wondering if
there was something he might have done to avoid the situation. These feelings can make it
difficult to cope with memory loss. Recalling the event can, in some cases, relieve that anxiety.
[b] Veracity Under Hypnosis.
Memory refers specifically to the content or storehouse of past feelings, images, thoughts,
and experiences within ones mind, as well as to the process of bringing to mind, recalling, or
reviving those past feelings, images, thoughts, and experiences. 13 Minninger, in her book Total
Recall, goes one step further to say,
3
Memory is complicated by how we perceive the sights, sounds, and sensation that surround
us. The possibilities for variations in encoding are almost infinite. Some things that may affect
how we evaluate information are our age, sex, intelligence, education, disposition, our nationality
and social status, our political and religious beliefs, our physical appearance, income, the
weather, the people around us, where we are, and the time of the day, month, and year. 13.1
What this means is that memory is, in many ways, a subjective experience. In a sense, what
we remember is not necessarily reality but our perception of reality, the input of our five senses
filtered through our experiences, our prejudicesall the things that make each of us an individual.
Yes, it is possible for someone under hypnosis to remember something which never happened.
But this possibility is not unique toor even more pronouncedin the hypnotic state. The recall of a
witness in a non-hypnotic state has never been proven to be any more accurate. The difference is
that when an inaccuracy occurs under hypnosis there is a special word for it: confabulationthe
psychiatric term for filling in gaps with memory that is false but which the subject accepts as
correct. 14
While it must be admitted that a subject can lieor confabulateunder hypnosis, what must
also be understood is that the difference between confabulation and factual information is
corroboration. If hypnotically refreshed memory is corroborated with other evidence, the veracity
of the memory can be established as truthful and accurate.
[c] The Hypnotic Interview.
Before deciding whether the forensic hypnotist should be called into the case, the
investigator contemplating the use of hypnosis should consider the following questions:
1)Does the department or local prosecutors office allow the use of hypnosis?
2)Do you understand what hypnosis is and how it is used forensically?
3)Are you well versed enough in forensic hypnosis to explain the procedure to a prospective victim or
witness?
4)What is it that you hope to obtain from a hypnotic interview?
5)Do you have reason to believe that the subject witnessed something which he may be able to recall
under hypnosis?
6)Is the victim or witness willing to be a subject of a hypnotic interview?
4
When these questions have been satisfactorily answered, preparation for the hypnotic
interview can begin. The hypnotic interview is divided into three phases: 1) pre-induction, 2)
induction, and 3) post-induction interview.
The pre-induction phase begins when the hypnotist confers with the case investigator and
obtains basic case and subject data. 15 The hypnotist will not ask for detailed information about
the case so that he can counter charges, at trial, of being suggestive or of subtly directing the
subject to a specific end result. The following background information is usually recorded before
the subject is introduced to the pre-induction phase:
Case Data
1)Type of Offense
2)Date and Time of Occurrence
3)Offense Summary (should include: suspects arrested, injuries, property loss, etc.)
4)Names of assigned investigators
Subject Data
1)Name and biographical information
2)Status of subject (victim or witness)
3)Nature of Involvement
4)Motivation for volunteering to be hypnotized
The entire hypnotic interview should be videotaped, from the beginning of the pre-induction
phase through the end of the post-induction interview. 16 The subject should be informed, at the
outset, that the interview will be taped. The hypnotist explains the purpose of the hypnosis to the
subject and obtains his verbal consent, which is recorded on tape. 17
The second stage of the induction phase is the actual hypnotic interview. The hypnotist will
induce hypnosis using a pre-determined technique agreed to by the subject. This phase could
last for hours, depending on the subject, the significance of the case, and the hypnotist. It should
5
be understood, however, that the subject controls the interview. He may choose at any time to
break the hypnotic trance and terminate the interview.
There are numerous methods of retrieving information once a subject is hypnotized. The
simulated television and memory room techniques are the methods most often used by forensic
hypnotists:
Simulated Television: After a state of hypnosis is achieved, the hypno-investigator indicates
to the subject that, in this relaxed state, he will be watching a special documentary film on
television from a safe, secure, and comfortable place. The documentary film is unique in that it
can be speeded up, slowed down, stopped, reversed, and utilize zoom-in lenses that can achieve
close-ups of any person or thing in the film. Also, the sound can be turned up so high that even a
whisper can be heard. The hypnotist then relates that the documentary unraveling on the screen
is a re-run of the incident the subject experienced, with reassurances that the subject is really not
involved but is merely watching a re-run. What do you see?, the hypno-investigator may ask.
Ideally, the subject will describe the scene before him, stopping at the request of the hypnotist to
zoom in on specific details, such as a face, an item of clothing, a weapon, or an automobile
license number. When it appears that the subject is getting too involved with what he is
experiencing in the re-run, the hypno-investigator might touch the subject on the shoulder and
say, Its all right, there is nothing you have to worry about, switching the thought pattern back to a
pleasant scene or something that is peaceful and quiet. Once the subject is quiet and relaxed, he
is again reassured that the re-run does not involve him and he can skip over the unpleasant parts
although he will be able to focus in on the description of the suspect, automobile tag number, etc.
Victims of sex crimes are told that even though what occurred was very traumatic, while
watching the television documentary they will be able to remain calm and relaxed, feeling
detached from what is happening on the screen. The victim is advised that she will be observing
the documentary as if she were a reporter covering an event to be accurately reported in a
newspaper.
Memory Room: The hypnotist may use another retrieval technique called Memory Room
Retrieval. The subject is instructed to go down to the basement of a large office building on an
elevator, escalator, or merely to walk down several flights of stairs. Once the subject arrives in the
basement, he is told to walk down a long corridor until he comes to a large door. This door is
described to the subject as a time door which will allow access to any event in the past. All of
these memories are inside the memory room on the other side of this time door. The hypnoinvestigator describes opening the door to gain access to the many memories which will become
accessible. The subject then approaches file cabinets filled with memories. Each cabinet can
represent a certain year and each file folder may contain the exact memories of a certain month
of that particular year. The subject can then be instructed to go to a certain filing cabinet with the
date of the event to be recalled and then can look into the folder to recover the exact memories
as recorded on the transcripts made from memory tapes within the folder. 18
The television technique, although favored by many police hypnotists, is open to the
criticism that it can lead to false memories by suggesting to subjects that they can recall
information even though it was beyond their physical senses during the time in question.
6
In general, the hypnotist may direct the subject to the date and time in question but should
never suggest that the subject is seeing, hearing or recalling anything that was not an original
memory of the subject. He should confine himself to non-leading, innocuous remarks and
questions e.g., go on, and then whatin order not to suggest that he is looking for any specific
answers or information. For example, asking the subject What are the numbers and letters you
see on the license plate? would be inappropriate because it assumes that the subject sees the
license plate. Any response would be subject to attack on the ground that the question was overly
suggestive at a time when the subject was most vulnerable to suggestion.
The hypnotist will terminate the induction phase when he believes that the subject can no
longer provide any further information.
The third and final phase of the interview is the post-induction phase. Information obtained
as a result of the hypnotic interview is discussed as to its accuracy; the additional information is
now at a conscious level and can be placed in proper perspective by the subject. The case
investigator may be able to corroborate the hypnotically-enhanced information by previously
obtained information. If not, the investigator will attempt to do so.
Safeguards to be followed before and after each hypnotic interview:
1)Approval from the prosecutors office should always be obtained before hypnotizing a witness.
2)The entire interview should be videotaped, including the post-hypnotic interview between the
hypnotist and the subject. 19
3)As much of the testimony of hypnotized subjects as possible should be corroborated after the
hypnosis session.
4)Hypnotically obtained testimony must not be allowed to stand alone to establish probable cause for
arrest.
5)The subject must provide a detailed, written statement of his recollection of the event in question
prior to being hypnotized.
[d] Admissibility of Hypnotically-Induced Testimony.
The initial reaction of the courts to testimony based on memory refreshed during hypnosis
was one of guarded acceptance. In 1968, in Harding v. State, 20 the Maryland Court of Special
Appeals held that refreshing memory with hypnosis was no different from refreshing memory by
referring to notes and memoranda made contemporaneously with the event. In the subsequent
decade a number of other state courts followed suit, and there are several states where the
Harding rule, or a modification thereof, remains the law today. 21
7
Despite the dangers of distortion of memory that hypnosisespecially inexpertly conducted
hypnosispresents, the Harding rule represents a reasonable approach to the admissibility of
hypnotically-induced testimony. Instead of imposing restrictions, as a matter of law, on the
admissibility of such testimony, the court simply left to the jury the decision as to how much
weight the testimony merits. In making its decision, the jury has the benefit of expert testimony,
other evidence in the case, and common sense.
In the 1980s, the tide began to turn against the admissibility of such evidence. During the
1970s, several prominent research psychologists and psychiatrists had begun criticizing the
admission of hypnotically-induced testimony. They claimed 1) that witnesses under hypnosis are
susceptible to intentional and unintentional suggestions made by the hypnotist-interrogator during
questioning; 2) that witnesses under hypnosis may confabulate or intentionally fabricate
memories in order to please the hypnotist; and 3) that witnessesespecially those told by the
hypnotist that they will remember everything exactly as it occurredtend to believe passionately in
what they recall under hypnosis, such is the vividness of their memory, that their false
recollections harden (concretize) and infect all their previous, pre-hypnotic memories, thereby
making them honest but unreliable witnesses and difficult subjects for cross-examination. Some
critics went so far as to recommend the total exclusion of hypnotized witnesses from the witness
stand on the ground that their memories are irredeemably tainted. 22
In State v. Mack, 23 Minnesota became the first state to adopt this extreme position, ruling
that testimony of a previously hypnotized witness concerning matters adduced at the pretrial
hypnotic interview was inadmissible in a criminal proceeding. This per se rule swiftly gained
popularity, and has now been adopted by a majority of the states which have considered the
question. 24 Under this rule, if a witnesss recollections prior to the hypnotic session have been
recorded, the witness generally may testify as to those pre-hypnotic recollections, but not as to
anything recalled for the first time during the hypnotic state or thereafter. It ordinarily will make no
difference that the witness post-hypnotic recall of events is corroborated by other evidence
presented at trial. 25 Nor will it make any difference that numerous safeguards have been taken
to prevent the witness from manufacturing memories to comply with the suggestions embodied in
the questions of the hypnotist-interrogator. 26 Hypnosis as a technique of refreshing memory or
unblocking repressed memories is simply inadmissible because the procedure is not yet
sufficiently established in the scientific community to have gained general
acceptance. 27 Moreover, a subject who is hypnotized, for either forensic or therapeutic reasons,
may thereby be rendered incompetent to testify about any matter related to the incident, whether
or not that matter was covered during the hypnosis. 28
In State v. Hurd, 29 New Jersey became the first state to adopt an intermediate position
with respect to the admissibility of hypnotically enhanced testimony. In Hurd, the New Jersey
Supreme Court ruled such testimony admissible provided the following guidelines are met:
1)the proponent of the witness must inform his adversary in advance of his intention to hypnotize the
witness;
2)the proponent must demonstrate the need and appropriateness of hypnotically-induced memory
recall for the condition from which the witness is suffering;
8
3)a licensed psychologist or psychiatrist must carry out the procedure;
4)the hypnotist must be independent, with no interest in the outcome of the case;
5)any information provided to the hypnotist by the police prior to the session must be in written form;
6)a videotape should be made of all meetings and communications between the subject and the
hypnotist; and
7)no one but the hypnotist may be present during the hypnotic session. 30
A number of states have chosen to follow the lead of New Jersey, with some variations in
the lists of guidelines adopted. 31
In those jurisdictions which apply a per se rule of inadmissibility, there is one exception:
hypnotically enhanced testimony of the defendant. In Rock v. Arkansas, 32 the United States
Supreme Court ruled that Arkansas per se rule excluding all hypnotically refreshed testimony was
an unconstitutional infringement on the defendants right to testify in her own behalf.
In Rock, the defendant was convicted of manslaughter for killing her husband during an
argument. Her defense was that the gun she was holding discharged accidentally when he struck
hera version of events for which there was some corroborating physical evidence. The defendant,
however, was unable to remember the precise details of the shooting. At her attorneys
suggestion she submitted to hypnosis by a licensed neuropsychologist in an effort to revive her
memory. Precautions were taken to avoid suggestions and the sessions was recorded on tape.
After one of the sessions the defendant was able to recall that at the time of the incident she had
her hand on the hammer of the gun but that her finger was not on the trigger. This information
was consistent with the other evidence in the case that the gun was capable of firing accidentally
if jarred. Without the defendants post-hypnotic testimony, 33 however, this evidence was
insufficient to refute the more likely inference that she pulled the trigger. Thus, it was damaging
and detrimental to her defense to have this testimony barred from the jury. As Justice Blackmun,
the author of the opinion, observed,
The Arkansas rule enunciated by the state courts does not allow a trial court to consider
whether posthypnosis testimony may be admissible in a particular case; it is a per se rule
prohibiting the admission at trial of any defendants hypnotically refreshed testimony on the
ground that such testimony is always unreliable. Thus in Arkansas, an accuseds testimony is
limited to matters that he or she can prove were remembered before hypnosis. This rule operates
to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it,
the circumstances under which it took place, or any independent verification of the information it
has produced. 34
9
The Court held that any such rule, at least in the context of the facts of this case, was
arbitrary and a denial of due process. The rule ignored the significance of corroborating evidence,
and it ignored the effect of procedural safeguards, such as those provided by the Hurd guidelines
and cross-examination. 35 Although the Court stated that it was not now prepared to endorse
without qualifications the use of hypnosis as an investigative tool, 36 the fact remains that five
justices of the United States Supreme Court believe that a per se exclusionary rule disallowing
post-hypnotic testimony in all cases may, in particular cases and circumstances, be arbitrary,
irrational, and, in the case of criminal defendants and, perhaps, other defense witnesses,
unconstitutional.
Although neither crime victims nor state witnesses enjoy the same constitutional right to be
heard as do criminal defendants, it is difficult to see how, analytically, a per se exclusionary rule is
any less arbitrary merely because the hypnotic subject is someone other than the defendant.
So far, Rock has been given a very narrow interpretation and limited application. 37 It has
been construed as making no statement of constitutional law with respect to the admissibility of
post-hypnotic testimony in situations involving witnesses for the state. That may be a permissible
construction of the decision from a constitutional perspective, but the remarks of the Courts
majority with regard to the arbitrary operation of the per se exclusionary rule certainly has
application to state witnesses who have been hypnotized, from the perspective of the law of
evidence. Justice Blackmun and his colleagues have pointed out the intellectual weakness of this
rule as well as the gross unfairness it inflicts on many crime victims.
There are a few tentative indications that some states are reconsidering the question of the
admissibility of post-hypnotic testimony. 38
Restrictive evidentiary rules seem premature at a time when scientific research on memory
and how it reacts to hypnosis is still in its formative stage. Moreover, it is difficult to justify the
actions many state courts have taken in adopting the most severe, procrustean remedy that the
law of evidence allows that of disqualifying witnesses as incompetent to testify or certain
testimony as inadmissible, rather than permitting the evidence to go to the jury under cautionary
instructions, after the evidence has been tested on the battleground of the adversary trial
process. This approach, based upon the empirically groundless fear that hypnotically-induced
testimony will have a kind of mesmerizing impact on the jury, 39 suggests a lack of confidence in
the ability of jurors to give evidence the weight it is due.
Footnotes for 15.02[1]
1Goldenson, Longman Dictionary of Psychology and Psychiatry 358 (1984); Scheflin &
Shapiro, Trance on Trial 121 (1989) (hereinafter Scheflin & Shapiro).
2Segall, The Questions They Ask about Hypnosis 2 (1973).
3Arons, Hypnosis in Criminal Investigation 11 (1977).
10
4Arons, Hypnosis in Criminal Investigation 13 (1977).
5Scheflin & Shapiro, Trance on Trial 140 (1989).
6Weitzenhoffer, General Techniques of Hypnotism 4, 354355 (1957).
7Reiser, Handbook on Investigative Hypnosis, 31 (1980).
8Williams, Highway Hypnosis: An Hypothesis, Shor and Orne (eds.), The Nature of Hypnosis
482490 (1965).
9M. Knox, Investigative Hypnosis on Trial, The Boston Globe Magazine 15 (April 1982).
10Orne, Dinges, & Orne, The Forensic uses of Hypnosis, Research Bulletin: National Institute
of Justice Research in Brief 2 (December 1984).
Footnotes for 15.02[2][a]
11For a definition of the word forensic and an explanation of how the term is associated with
scientific disciplines, see 14.01, above.
11.1Minninger, Total Recall: How to Maximize Your Memory Power 145 (Simon & Schuster
1984).
12There are ways in which the trained forensic hypnotist minimizes that danger. For example,
during the forensic interview the hypnotist will encourage the subject to recall the past event as
having happened to someone else.
Footnotes for 15.02[2][b]
13Hibbard & Worring, Forensic Hypnosis: The Practical Application of Hypnosis in Criminal
Investigations, 261 (1981).
13.1Minninger, Total Recall: How to Maximize Your Memory Power 19 (Simon & Schuster
1984).
14The author of this book actually experienced confabulation while under hypnosis. While out
jogging in his neighborhood, he had been shot at for no apparent reason. The bullet missed,
striking the glass window of a parked truck, and a suspect was subsequently arrested. Several
11
months later, while conducting a lecture on hypnosis, the author allowed himself to be hypnotized
by a guest hypnotist who regressed him back to the day of the shooting in an effort to have him
recall the registration number of the truck that was struck by the bullet. He could not recall the
number, but in his mind believed that he saw a Maryland State Registration plate. It was later
determined that the vehicle in question had a registration plate from a state other than Maryland.
In that situation, his desire to be successful for the student audience overshadowed his ability to
provide accurate information.
Footnotes for 15.02[2][c]
15It is vital to ensure that the subject (witness) has been intensively interviewed and a detailed
written statement obtained before the subject is placed under hypnosis. Many states that refuse
to admit post-hypnotic testimony may permit the witness to testify about those events and things
that were remembered before the hypnotic session (pre-hypnotic testimony).
16See 11.06, above. The procedures listed in this section establish standard operational
procedures for using an audio tape recording. The same standards should be used for video tape
recording.
17A written waiver may be required in some jurisdictions. The following sample form may be
used for this purpose:
RELEASE OF LIABILITY
(by hypnotic interviewer prior to hypnosis)
I hereby agree, voluntarily and freely, to undergo hypnosis in order to assist the
___________________ Police with an investigation in progress.
In consideration of my being hypnotized without cost to me, I, for myself, my heirs, personal
representatives and assigns, hereby agree to hold harmless from any liability for any damage to
me as a result of said examination, the above ___________________ Police, its officers,
employees, agents, and I hereby remise, release, and waive and forever discharge and
exonerate said ___________________ Police, its officers, employees, agents from any and all
action or cause of action, claim or demand which I have now or may ever have resulting directly,
indirectly or remotely from said examination or from making known, as above, such reactions and
incidental opinions.
It has also been explained to me and I fully understand that furnishing this information under
hypnosis may prejudice my ability to testify later in any legal proceeding (civil or criminal) relating
to the incident in question.
In witness whereof I have hereunto set my hand and seal the day and date set forth below.
12
NAME (printed) ___________________
SIGNATURE ___________________
DATE ___________________
ADDRESS ___________________
WITNESS ___________________
18Training Key 307, Investigative Hypnosis: Its Operation 23 (Bureau of Operations of Chiefs
of Police, Inc. 1980).
19Scheflin and Shapiro, above n.1, at 16:
When the hypnosis session ends, any posthypnotic interactions between the therapist and the
patient should avoid statements or suggestions that might have the effect of concretizing the
information revealed during the hypnosis or that might encourage the patient to believe that
hypnotically refreshed recollection is likely to be more accurate.
Footnotes for 15.02[2][d]
205 Md. App. 230, 246 A.2d 302 (Md. App. 1968), cert. denied, 395 U.S. 949, 89 S. Ct. 2030,
23 L. Ed. 2d 468 (1969).
21Those states are: Colorado, Georgia, Idaho, North Dakota, Oregon, Texas, and Wyoming.
22See, e.g., Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective
Witness, 68 Calif. L. Rev. 313, 31449 (1980):
I believe that once a potential witness has been hypnotized for the purpose of enhancing
memory, his recollections have been so contaminated that he is rendered effectively incompetent
to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or
suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject
cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can
any expert or trier of fact.
23292 N.W.2d 764 (1980).
24The states which have a per se inadmissibility rule are: Alaska, Arkansas, California,
Delaware, Florida, Hawaii, Illinois, Indiana (with several exceptions), Kansas, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New York, North Carolina, Oklahoma,
and Washington.
25See, e.g., Rock v. State, 288 Ark. 566, 708 S.W. 2d 78 (Ark. 1986); People v. Zayas, 131
Ill. 2d 284, 137 Ill. Dec. 568, 546 N.E.2d 513 (Ill. 1989).
13
26See, e.g., Rock v. State, 288 Ark. 566, 708 S.W. 2d 78 (Ark. 1986); People v. Zayas, 131
Ill. 2d 284, 137 Ill. Dec. 568, 546 N.E.2d 513 (Ill. 1989).
27See Frye v. United States, 293 F. 1013, 54 App. D.C. 46 (D.C. Cir. 1923).
28This seems to be the law in Alaska. See Contreras v. State, 718 P.2d 129 (Alaska 1986).
California courts have in the past also taken this position. See People v. Shirley, 31 Cal. 3d 18,
181 Cal. Rptr. 243, 723 P.2d 1354 (Cal. 1982).
2986 N.J. 525, 432 A.2d 86 (N.J. 1981).
30These guidelines were suggested to the court by Dr. Martin Orne, who testified as an expert
for the defense. Since then, Dr. Orne has amplified his guidelines to include other matters, e.g: 1)
pre-hypnosis procedures (psychological evaluation of the subject; obtaining subjects informed
consent; etc.); 2) appropriate questioning techniques (no leading questions, no encouragement
given to the subject to imagine himself doing or seeing things which are physically impossible in
reality); 3) communications with observers (should always be done outside the presence of the
hypnotized subject); and 4) post-hypnosis discussions with subject (no suggestions should be
made as to subjects ability to recall events accurately under hypnosis). Orne, Dinges, & Orne,
The Forensic Use of Hypnosis, Research Bulletin: National Institute of Justice Research in Brief 5
(December 1984).
31These states are: Mississippi, New Mexico, Ohio, Pennsylvania, South Dakota, Tennessee,
and Wisconsin.
32483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).
33The trial court issued an order limiting Mrs. Rocks trial testimony to matters remembered
and stated to the examiner prior to being placed under hypnosis. 107 S. Ct. at 2707.
34Id. at 271112.
35Id. at 2714.
36Id.
37See, e.g., People v. Zayas, 131 Ill. 2d 284, 137 Ill. Dec. 568, 546 N.E.2d 513 (Ill. 1989).
14
38The Michigan Supreme Court, for example, has granted an order for an appeal on the issue
of the admissibility of hypnotically refreshed memory. People v. Lee, 416 N.W.2d 312 (Mich.
1987).
39See Greene, Wilson, & Loftus, Impact of Hypnotic Testimony on the Jury, 13 Law and
Human Behavior 6177 (No. 1, 1989) (reporting that jurors view hypnotic testimony with a certain
amount of skepticism).
15