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The Use and Misuse of Hypnosis in Court

Hypnosis may be helpful in the context of criminal investigation and under circumstances involving functional memory loss. Hypnosis is not useful in assuring truthfulness since, particularly in a forensic context, subjects may simulate hypnosis and are able to lie wilfully even in deep hypnosis; most troublesome, actual memories cannot be distinguished from confabulations-pseudo-memories where plausible fantasy has replaced gaps in recall-either by the subject or by the hypnotist without full and independent corroboration. While potentially useful to refresh witnesses' and victims' memories to facilitate eyewitness identification, the procedure is relatively safe and appropriate only when neither the subject nor the authorities nor the hypnotist has any preconceptions about the events under investigation. If such preconceptions do exist, hypnosis may readily cause the subject to confabulate the person who is suspected into his "hypnotically enhanced memories." These pseudo memories, originally developed in hypnosis, may come to be accepted by the subject as his actual recall of the original events; they are then remembered with great subjective certainty and reported with conviction. Such circumstances can create convincing, apparently objective "eyewitnesses" rather than facilitating actual recall. Minimal safeguards are proposed to reduce the likelihood of such an eventuality and other serious potential abuses of hypnosis.