Society has developed several uses for the psychological phenomenon known as hypnosis.' These uses, mostly medical in nature, include substituting for anesthesia and treating pain, anxiety, phobias, and allergies. Not surprisingly, some professional athletes have turned to hypnosis for better success on the playing field. While the scientific and medical communities generally have accepted these uses, controversy has arisen over the use of hypnosis in legal proceedings to refresh the memory of a witness who testifies later in court. The use of hypnosis for investigating crimes began in the early 1970s when law enforcement agencies and police departments formed the first "Svengali Squads" comprised of specially trained units for hypno-investigative purposes. Despite the early success' of this special investigative technique and its increased use in recent years, state and federal courts are increasingly excluding the hypnotically refreshed testimony of witnesses other than criminal defendants who take the stand. Rather than following the per se admissible approach, once espoused by the Maryland Supreme Court in Harding v. State, or the procedural safeguards approach, first articulated by the New Jersey Supreme Court in State v. Hurd," state courts are beginning to adopt a rule of per se inadmissibility. Federal courts as well are slowly leaning towards outright inadmissibility of hypnotically refreshed testimony.The leaders of this general shift are the Minnesota and California supreme courts, in State v. Mack and People v. Shirley respectively,together with the Fifth Circuit in United States v. Valdez.' Significant indicators of this trend are the exchange by two state supreme courts of their past rules of per se admissibility for per se inadmissible stances. The overall trend is unmistakable. As more courts grapple with whether to admit hypnotically enhanced testimony, the body of decisions reflects a growing consensus that the potential value of this testimony is outweighed by the risks inherent in its admission.This Recent Development considers whether the trend toward in-admissibility of hypnotically enhanced testimony is a welcome development.
Part II reviews the major state and federal cases that have laid the foundation for the current debate. Part III analyzes several recent opinions that reflect a sustained shift away from liberal admission toward per se inadmissibility. Part IV argues that this shift is a positive development for the American legal system. Finally, Part V outlines a proper analytical framework for state and federal courts to follow in deciding this important evidentiary issue.
Michael J. Beaudine,
Growing Disenchantment with Hypnotic Means of Refreshing Witness Recall,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss2/7