WHEREAS, the process of hypnosis is being used to enhance recall and reconstruct memory of witnesses to and victims of crime and persons accused of participating in criminal activity, and
WHEREAS, according to the leading experts in the field of hypnosis as it relates to its forensic uses, such hypnosis should only be conducted by professional psychologists and psychiatrists trained in clinical and applied uses of hypnosis under rigorous and controlled circumstances, and with an understanding as to the purpose sought to be achieved by any such hypnosis, and
WHEREAS, the potential for contaminating, creating or destroying a witness's memory by such use of hypnosis is uniformly recognized as an extreme one by such leading experts, and
WHEREAS, short-term courses are being used to train police hypno-investigators, and
WHEREAS, others are conducting such hypnosis without sufficient experience or understanding of the ramifications of hypnosis in a forensic setting, and
WHEREAS, hypnosis may, under all of the proper circumstances, be a valuable technique solely for the purpose of gathering information for investigation when properly used, and
WHEREAS, in light of the foregoing, it is important, to ensure the protection of both the subject and the possible object of the hypnosis session, that a record is made of the application and use of hypnosis and to ensure that proper notice is given to all parties affected by such use,
LET IT THEREFORE BE RESOLVED that the National Legal Aid and Defender Association supports the enactment of legislation and court rules which would control the use and application of hypnosis in the prosecution and defense of criminal cases by imposing the following minimum conditions for its use:
1. The police agency or party desiring to use hypnosis for any purpose relating to the incident of an alleged crime shall have the prosecutor, or other proponent of the hypnosis, obtain a court order allowing the use of hypnosis, which order shall be based upon a showing of the need for its use and must prescribe the time, place, and manner in which the hypnosis shall be administered, which shall be consistent with the absence of any contaminating factor by incorporating the following:
a. That the subject of the hypnosis session must be informed that he/she does not have to submit to the use of hypnosis, and the subject must knowingly and voluntarily execute a written waiver to that effect.
b. That an independent, qualified psychologist, psychiatrist or other medical expert be used to conduct the hypnosis session in an independent setting, and that such expert shall be informed in writing of only such facts as are necessary to conduct the hypnosis session, and a notice of such written facts shall become part of the application for such hypnosis and filed with the court.
c. That all contact with the hypnosis subject by the hypnosis expert be videotaped from the very inception of said contact to the very end, and that the opposing party be provided with a copy of such videotape and a transcript of the contents of such videotape.
d. That the hypnosis expert have no other contact with the case whatsoever.
e. That only the independent hypnosis expert should be allowed to interrogate the hypnosis subject, and that no post-hypnotic suggestion shall be given to said subject to allow others to engage in interrogation of that subject.
f. That prosecution and defense representatives, witnesses or others associated with the incident shall not be present in the room during interrogation, but may monitor the session by way of electronics or one-way mirrors. That both parties shall submit any questions each has to the hypnosis expert, in writing, prior to the hypnosis session, subject to court approval should a dispute arise concerning any such question.
g. That a full psychiatric inventory (emotional and mental state) and existing memory examination shall be taken of the hypnosis subject prior to the hypnotic session, either by the hypnosis expert or another independent qualified expert, and the same shall be videotaped as if it were a hypnosis session.
h. That all interviews of the hypnosis subject, regardless of how preserved, shall be made available to the opposing party at the time of pre-trial motions.
i. That the proponent of the hypnosis must disclose to the opposing party that hypnosis was used in any stage of the case, whether or not the subject or fruits of hypnosis are intended to be used in any way as a witness or evidence at the trial.
2. The court order allowing the use of hypnosis shall require the appointment of counsel to be present at such hypnosis if the investigation has focused on a potential suspect, or shall require notice to the defense counsel if one has been appointed or retained to represent a potential suspect.
3. That suppression of statements or evidence obtained as a result of the hypnosis session shall occur at a pre-trial hearing, and if at such hearing it is determined by the court that contamination of the witness has occurred or that there existed any other conduct or result associated with the hypnosis which renders it unreliable pursuant to the guidelines set forth by United States v. Wade, 338 U.S. 218 (1967), then all statements made by the witness as a result of the hypnosis session, and all evidence obtained thereon or the fruits of such statements, must be suppressed.