Orne, M.T. The use and misuse of hypnosis in court. International Journal of Clinical and Experimental Hypnosis, 1979, 27, 311-341.

The International Journal of Clinical and Experimental Hypnosis, 1979, Vol. XXVII, No. 4, 311-341



The Institute of Pennsylvania Hospital and University of Pennsylvania

Abstract: The various forensic contexts in which hypnosis has been used are reviewed, emphasizing its advantages and pitfalls. The technique may be helpful in the context of criminal investigation and under circumstances involving functional memory loss. Hypnosis has no utility to assure the truthfulness of statements since, particularly in a forensic context, subjects may simulate hypnosis and are able to willfully lie even in deep hypnosis; most troublesome, actual memories cannot be distinguished from confabulations 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 have any preconceptions about who the criminal might be. If such preconceptions do exist--either based on information acquired before the hypnotic procedure or on information subtly communicated during the hypnotic procedure--hypnosis may readily cause the subject to confabulate the person who is suspected into his "hypnotically enhanced memories." These pseudomemories, 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. A number of minimal safeguards are proposed to reduce the likelihood of such an eventuality and other serious potential abuses of hypnosis.

Over the years, much of the forensic interest in hypnosis has dealt with the question of whether an individual can be compelled to carry out

Manuscript submitted June 28, 1979; final revision received August 14, 1979.

1 'The substantive work carried out in our laboratory relevant to this paper and its preparation was supported in part by grant MH 19156 from the National Institute of Mental Health and by a grant from the Institute for Experimental Psychiatry.

2 For their help in clarifying the issues involved, I wish to especially thank my colleagues at the Unit for Experimental Psychiatry: Emily Carota Orne, David F. Dinges, William M. Waid, Alan S. Lert, William H. Putnam. Special appreciation is due to John F. Kihlstrom and Robert A. Karlin for their substantive suggestions. I am particularly grateful to Nancy K. Bauer, Lani Pyles MacAniff, Joanne Rosellini, and Mae C. Weglarski for their assistance in the editing, formatting, and referencing during the preparation of this manuscript.

3 Reprint requests should be addressed to Martin T. Orne, M.D., Ph.D., Unit for Experimental Psychiatry, The Institute of Pennsylvania Hospital, 111 North 49th Street, Philadelphia, Pennsylvania 19139.




antisocial behaviors4 and the implications that such a possibility would have for the concept of legal responsibility. More recently, however, there has been a sudden upsurge of legal cases throughout the country which have involved the use of hypnosis in an entirely different context. These cases employ hypnosis (a) to enhance a defendant's memory in order to bring out new information which might clear him of the accusation against him, or (b) to increase the recall of witnesses or victims who had observed a crime, either to facilitate the pre-trial investigation or to enhance memory sufficiently so that following hypnosis the individuals could serve as eyewitnesses in court. Finally, hypnosis has been used to help in the psychological and psychiatric evaluation of defendants, especially to determine their state of mind (Kline, 1979).

Because of our laboratory's work on the nature of hypnosis, I have become involved in a number of cases where our work was directly relevant to the proposed forensic use of hypnosis. Of particular relevance were our empirical studies dealing with: the nature of hypnotic age regression (O'Connell, Shor, & Orne, 1970; Orne, 1951); the potential use of hypnosis in interrogation (Orne, 1961); the question of whether antisocial behavior can be elicited by the use of hypnosis (Orne, 1962, 1972a; Orne & Evans, 1965); the nature of posthypnotic behavior (Orne, 1969; Orne, Sheehan, & Evans, 1968; Sheehan & Orne, 1968); the simulation of hypnosis (Orne, 1971, 1972b, 1977); and posthypnotically disrupted recall (Evans & Kihlstrom, 1973; Kihlstrom & Evans, 1976, 1977; Nace, Orne, .& Hammer, 1974; Orne, 1966).

The purpose of the present paper is to review the major issues concerning some of the forensic uses of hypnosis, to illustrate the difficulties which may be encountered by examining the relevant scientific evidence as well as some of the relevant legal cases, and finally to propose some general guidelines about the use of hypnosis in a way which should minimize the likelihood of a serious miscarriage of justice--instances of which would otherwise be likely to proliferate.


In the past few years there has been a sharp increase in the use of hypnosis--by prosecutors and defendants, plaintiffs and respondents alike--to enhance memory for events associated with a crime or civil suit. In most cases, the court has ultimately refused to admit hypnotically

4For a detailed discussion of these issues, see Barber (1961), Orne (1960, 1962), Orne and Evans (1965), and volume 20, issue number 2, April 1972, of the International Journal of Clinical and Experimental Hypnosis, a special issue of the journal which includes relevant papers by Coe, Kobayashi, and Howard (1972), Conn (1972), Kline (1972), Orne (1972a), and Watkins (1972).



elicited material as evidence. An examination of some of these cases illustrates most of the problems that can occur in the forensic use of hypnosis if appropriate safeguards are not employed.

To Exonerate a Defendant

At one time, both hypnosis and "truth serum" (sodium amytal and pentothal administered intravenously) were thought of as techniques which could elicit truthful information. Since it is widely believed by laymen that there is a virtual certainty of obtaining truthful information when a subject's critical judgment is diminished by either hypnosis or a drug, it is hardly surprising that efforts have been made to introduce hypnotic testimony in court as a way for the defendant to demonstrate his innocence to a jury. The courts, however, have recognized that hypnotic testimony is not reliable as a means of ascertaining truth and appropriately rejected both of these techniques as means of determining factual information.5

Although these early decisions were usually accompanied by gratuitous deprecatory remarks about hypnosis, the wisdom of the decision itself is supported by scientific data. Thus, experience with the real-simulator design (Orne, 1959, 1971, 1972b) shows that it is possible for an individual to feign hypnosis and deceive even highly experienced hypnotists (see, Hilgard, 1977; Orne, 1977; Sheehan, 1972). Further, it is possible for even deeply hypnotized subjects to willfully lie (Orne, 1961).

While the courts rejected the use of hypnosis as a truth telling device, recognition of hypnosis as a valid therapeutic modality by the American Medical Association and the American Psychological Association has contributed to a new trend in the use of hypnosis in legal cases. Because hypnosis has been widely used in a therapeutic context to help individuals remember material for which they had amnesia and since many defendants claim to be unable to remember the events for which they are being tried, it seemed reasonable to consider that hypnosis might help refresh their memory so that they might better assist in their own defense. In other cases it has been proposed that hypnosis could be useful in ascertaining the defendant's state of mind at the time of the crime. By this back door, then, hypnosis was reintroduced into the courtroom, and efforts were made to introduce hypnotically elicited testimony to juries.

An excellent example of this strategy occurred during the retrial of a convicted murderer in Ohio (State v. Papp, 1978). The defendant claimed to be unable to remember some of the events that transpired at

5 Cf. People v. McNichol (1950), in which the court rejected as hearsay and self-serving declarations which defendant made under the effect of truth drugs and which defendant sought to have admitted as evidence. See generally Wigmore (1974).



the time of the crime, and the court authorized that the defendant be hypnotized to assist in his defense. While apparently age regressed to the time of the crime, the defendant exonerated himself, leading the press throughout the state to proclaim his innocence. After viewing the videotape-recordings of the hypnotic sessions which, according to the prosecution expert, revealed some anomalies in Papp's response to hypnosis, the hypnotist hired by the defense was persuaded to administer specific tests to assess possible simulation. The defendant behaved in a manner which was typical of simulating subjects, and the videotape-recorded result was sufficiently clear that it was not effectively disputed by the defense. Consequently, no attempt was made to introduce the videotape-recording purportedly demonstrating the defendant's innocence in court.

Because the defendant in a legal case is highly motivated to utilize the hypnotic situation to aid his cause, great care must be taken in the interpretation of hypnotic material. It must also be kept in mind that the hypnotic session, which may involve displays of considerable affect, is extremely arousing and compelling to the naive observer. A classic example of this kind occurred 2 years ago in California (People v. Ritchie, 1977), where an individual was accused of killing a 2 1/2-year-old child. When confronted with an overwhelming amount of circumstantial evidence, the defendant requested that he be hypnotized to enable him to remember details which he could not recall. Under hypnosis he relived the experience in an exceedingly dramatic fashion, remembering material indicating that his wife committed the murder and clearing himself. Through an analysis of the videotape-recording of the hypnosis session, it was possible to document how the defendant had inadvertently been led by the hypnotist and also to demonstrate a number of intrinsic inconsistencies which clearly indicated that the version the defendant relived under hypnosis was, consciously or unconsciously, confabulated to serve the needs of his case. After extensive testimony, the court excluded the hypnotic evidence because of its unreliability.

To Recall Relevant Details in Civil Suits

Similarly, hypnosis has been used to help plaintiffs in accident cases remember details of the incidents. For example, in a Canadian case (Crockett et al. v. Haithwaite et al., 1978), a woman and a male passenger were found in a car which had run off the road and hit a tree; the passenger was dead and the driver seriously injured. British Columbia law is such that if the driver had been careless or distracted, her insurance would be liable to the estate of her dead passenger and she herself would have no substantial claim; however, if another car caused



her to run off the road, her insurance company would not be liable and she herself would be able to recover very substantial damages from a special fund created for the purpose. At the time of the accident, however, the woman reported no recollection of such a car. Some time later her attorney referred her to a psychiatrist for help with emotional difficulties stemming from the accident, and also requested that he might seek to facilitate her memory for the accident. There is little doubt that the driver and her lawyer were clearly aware of the substantial difference it would make whether or not another vehicle had been involved in the accident; thus it is hardly surprising that under hypnosis she remembered a van coming toward her and forcing her off the road. If the driver had simply stated that one day she suddenly remembered that a van had forced her off the road, a jury would be likely to reject such "spontaneous" memories as self-serving and not trustworthy. Memories which are recalled via the use of hypnosis, however, are more apt to be taken at face value. This case was ultimately settled on the courthouse steps. Even so, it represents a use of hypnosis closely analogous to hypnotizing a defendant and open to all the caveats involved in such a use.


When hypnosis is used with a defendant or plaintiff who has much to gain by recalling one set of memories rather than another, motivational factors are superimposed upon the basic mechanisms involved in hypnotically aided recall. While these motivational factors complicate the picture, the basic facts about the phenomenon of hypnosis and its effects on recall apply to all circumstances where hypnosis is employed. The unreliability of hypnotic recall is due both to factors inherent in the nature of hypnosis and properties of the human memory system.

Age Regression

While direct suggestion is sometimes used to facilitate recall in hypnosis, the procedures most widely employed involve some form of hypnotic age regression. This dramatic phenomenon appears to enable individuals to relive some past event which might have occurred many years ago. However, it is a method that can be equally effective in helping an individual to relive recent events, particularly if they involve some trauma leading to motivated forgetting manifested by the inability to recall significant events. Not only are extensive clinical observations available concerning hypnotic age regression, but it has also been studied systematically in the laboratory, providing data which shed much light on the nature of the process, and on the critical issue of the historical accuracy of hypnotically elicited recall.



When a hypnotized individual is told that he is 6 years old and at his birthday party, for example, he will begin to act, talk, and to some degree think like a child. He may play as a child would; address the friends who apparently were at his birthday party; and describe in detail the room where the party is occurring, the people who are in attendance, the presents he is receiving, and so on. The naturalness with which these descriptions are given and the conviction that is communicated by the individual are compelling even to trained observers. The feelings which are expressed appear appropriate to a child more than to an adult, and the entire phenomenon is such that it is generally described as beyond the skills of even a professional actor. In a therapeutic setting, the material that is recovered during hypnotic age regression is often of great importance to a patient's treatment. As Breuer and Freud (1895/1955) discovered at the end of the 19th century, the reliving of traumatic events may result in the cure of troublesome pathological symptoms, lending credence to the historical accuracy of these events. For these reasons, there is a widely held belief among both laymen and practicing clinicians that the events relived during hypnotic age regression are historically accurate.

Typically, age regressed individuals will spontaneously elaborate a myriad of details which apparently could only be brought forth by someone actually observing the events as they transpired. It is these details which sophisticated clinicians find most compelling and occasionally cause them to testify that they know with certainty that the individual was truly regressed. It is rare indeed, however, for the clinician to have the time, energy, or need to be certain that would cause him to verify the accuracy of an individual's description of events that transpired many years ago in childhood. Unfortunately, without objective detailed verification, the clinician's belief in the historical accuracy of the memories brought forth under hypnosis is likely to be erroneous. Freud's early "infantile seduction" theory of hysteria gives dramatic evidence of this.

Freud originally believed that seduction in childhood by an adult, usually the father, was the etiological factor in hysteria (see Ellenberger, 1970) because in hypnosis his patients dramatically relived such an event and typically showed considerable subsequent improvement. It was some years later that Freud realized the seduction scene that the patients relived in treatment accurately reflected the fantasies of the patient but did not accurately portray historical events. Often the relived episodes combined several actual events and many fantasies. This in no way detracted from the usefulness of reliving these events in treatment where the purpose is to help the patient gain relief from his symptoms. Consider, however, the catastrophe which would have resulted if Freud had



acted upon his patient's recollections and had urged the authorities to imprison the fathers for incest!

Experimental work with hypnotic age regression is possible because hypnosis is a phenomenon that can readily be induced in normal individuals. It is sometimes possible to obtain materials that an individual has not seen since he was 6 years old, then to age regress him back to that time, and while he is talking, acting, and writing like a child, to have him produce these same materials--for example, childhood drawings. Characteristically, the productions superficially resemble those of a child. One tends to accept them as "typical" of what a 6-year-old would have done, unless they are compared to what the individual had actually drawn as a child. In an early study (Orne, 1951), however, an expert in children's drawings examining a series of age regressed productions indicated that these were not done by children but showed "sophisticated oversimplification. "

Since that time, other experimental studies have sought to document the historical accuracy of material produced during hypnotic age regression. The best known is an interesting monograph by Reiff and Scheerer (1959) who compared five highly responsive subjects age regressed to ages 10, 7, and 4 with three groups of role playing subjects instructed to act as if they were 10, 7, and 4 respectively. The results seemed to document cognitive processes characteristic of children of the appropriate age in the age regressed subjects, but not in the controls. In our laboratory, this study was extended and replicated with necessary additional controls (O'Connell et al., 1970). With larger samples and controlling for subtle experimenter bias, it became clear that both modest increase in recall as well as increased confabulation occurred within the same subject in the same age regression session. There were many times that subjects provided us with what appeared to be factual material relating to events that occurred many years ago (i.e., their school's name, their teachers' names, schoolmates who sat next to them in the fifth and second grades). The subjects would describe their classmates so vividly and with such conviction that we were surprised indeed to find, when we went to the trouble of checking the actual school records, that some of these individuals had not been members of the subject's class; nor was the factual recall better than that of unhypnotized controls.

The hypnotic suggestion to relive a past event, particularly when accompanied by questions about specific details, puts pressure on the subject to provide information for which few, if any, actual memories are available. This situation may jog the subject's memory and produce some increased recall, but it will also cause him to fill in details that are plausible but consist of memories or fantasies from other times. It is extremely difficult to know which aspects of hypnotically aided recall are



historically accurate and which aspects have been confabulated. The details of material that is confabulated depend upon the subject's total past experience and all available cues relevant to the hypnotic task. Subjects will use prior information and cues in an inconsistent and unpredictable fashion; in some instances such information is incorporated in what is confabulated, while in others the hypnotic recall may be virtually unaffected.

As a consequence of these limitations, hypnosis may be useful in some instances to help bring back forgotten memories following an accident or a crime while in others a witness might, with the same conviction, produce information that is totally inaccurate. This means that material produced during hypnosis or immediately after hypnosis, inspired by hypnotic revivification, may or may not be historically accurate. As long as this material is subject to independent verification, its utility is considerable and the risk attached to the procedure minimal. There is no way, however, by which anyone--even a psychologist or psychiatrist with extensive training in the field of hypnosis--can for any particular piece of information determine whether it is an actual memory versus a confabulation unless there is independent verification. Thus, there are instances when subsequently verified accurate license plate numbers were recalled in hypnosis by individuals who previously could not remember them. In the Chowchilla kidnapping case (Kroger & Douce, 1979), the license plate number was helpful in the initial investigation of the case (although ultimately not required in the courtroom because of the abundance of other evidence available). On the other hand, a good many license plate numbers that have been recalled under hypnosis by witnesses in other cases in fact belonged to individuals where it turned out, after investigation, that neither they nor their cars could have been involved.

Hypermnesia by Direct Suggestion

Another approach which has been used to increase memory is direct suggestion. While generally used to enhance recall for recent events, it can also be employed to induce hypermnesia for the distant past.

Stalnaker and Riddle (1932) used direct suggestion to facilitate recall of long forgotten memories, shedding light on the mechanism of hypermnesia. It was suggested to deeply hypnotized subjects that they would recall prose and verse that they had committed to memory in grade school. In hypnosis, these subjects appeared to remember the material far more easily, with far better recall, than in the wake state. Careful analysis, however, showed that, while some additional material was recalled in hypnosis, the amount was far less than it first seemed; in fact, subjects showed a pronounced tendency to confabulate so that



many of the new phrases "recalled" had simply been improvised in a style that superficially resembled the author's. Often these confabulations were sufficiently good so as not to be easily recognized as such on casual examination. This study clearly established two tendencies in hypnotic hypermnesia: (a) a modest increase in the amount of material available to memory, and (b) a tendency to confabulate--to fill in those aspects which the individual cannot remember, in an effort to comply with the suggestions of the hypnotist. More recent studies, such as those of White, Fox, and Harris (1940), Sears (1954), and Dhanens and Lundy (1975), appear to show increased recall of meaningful, though nontraumatic, material in hypnosis. (No such effect has been demonstrated with nonsense syllables.) However, when the effects of hypnosis on increased memory are compared with those of increased motivation (Cooper & London, 1973), and procedures analogous to hypnosis with unhypnotizable subjects (Dhanens & Lundy, 1975), there is no significantly greater increase in recall with hypnosis. Thus, the widely held belief that hypnotic suggestion can not only increase the amount but also the reliability of the material recalled ignores motivational factors on the one hand, and the concurrent dramatic increase in the "recall" of inaccurate information on the other. This is illustrated in the Stalnaker and Riddle study (1932). Depending upon how they scored their material, these investigators could observe a 65 % increase in memory for material learned many years earlier when recalled during hypnosis rather than in the wake state. Such a figure is obtained if one simply looks at the amount of more accurate memories that are brought forth. At the same time, however, subjects in the hypnotic condition vastly increased the amount of inaccurate details that were "remembered."

The apparently increased recall in hypnosis can in large part be understood if one takes into account the deeply hypnotized individual's tendency to manifest a decrease in critical judgment. The same process which increases suggestibility by permitting the subject to accept counterfactual suggestions as real also makes it possible for the subject to accept approximations of memory as accurate. In the wake state he is unwilling to consider approximate or fragmentary memories as acceptable recall; however, in hypnosis he alters his criterion of what is acceptable and brings forth accurately recalled fragments mixed with confabulated material.6 When hypnosis is used in the context of gathering investigative leads, such a change in criterion is desirable since it will cause a witness to bring forth bits of information which he would not

6 This process may well be analogous to a change in subjective criterion of sensory thresholds of the kind which led to the application of signal detection theory to problems of psychophysics.



otherwise have felt confident enough to report--provided, of course, one recognizes that these fragments are made available at the cost of adding other details which are likely to be inaccurate. Further, neither the subject nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. The only way this can be accomplished is on the basis of external corroborative data.

The Confusion of Memories during Hypnosis with Waking Recall and Its Effect on Subjective Conviction

When a subject is hypnotized and told to remember the events of a particular day (and awakened without amnesia suggestions), he may be able subsequently, in the wake state, to describe his recollections in hypnosis and clearly differentiate them from his earlier recollections before being hypnotized. It is another matter, however, if the subject is convinced before being hypnotized that he will have the "true facts" that he is now unable to remember, or if prior to awakening, the subject is given the suggestion that he will wake up and remember everything, including the details of what actually occurred on that particular day, and that he will be able to recall all details as vividly and clearly in the wake state as in hypnosis. Under these circumstances, he will typically awaken and confound the hypnotic memories with his waking memories. Such suggestions, which are now widely used for forensic purposes, result in the individual's tending to accept the events he relived in hypnosis as if they were what actually happened. The previous gaps or uncertainties in his memory are now filled in, and the events as they were relived in hypnosis become his recollection of what actually occurred on the day in question.

The witness who testifies following such a procedure may even fail to be able to distinguish which of his memories occurred in hypnosis and which came about as part of his normal waking recollection. Instead of differentiating between his earlier fragmentary recall and the gaps that have been filled in--perhaps by pseudomemories created during hypnosis--he experiences the totality as his recollection of what had originally transpired. It is this new recollection that is convincingly reported when the individual is asked what happened. Even though prior to hypnosis he had been very uncertain about his memory, had changed his story many times, and had not reported many of the details that emerged only during hypnosis, he will now report his "memories" consistently and with conviction. As a consequence, memories which occurred only during hypnosis may be incorrectly presented in court as though they represented recollections based on original memory traces of the events that actually occurred on the day in question.



Hypnotic Recall as Part of Basic Memory Processes

The idea that one can in hypnosis somehow reactivate original memory traces stems from a widely held view (especially among lay hypnotists) that memory involves a process analogous to a multi-channel videotape-recorder inside the head which records all sensory impressions and stores them in their pristine form. Further, there is a belief that while this material cannot ordinarily be brought to consciousness, it can be accessed through hypnosis; this mechanism is presumed to make possible the phenomenon of age regression or revivification. Suffice it to say that such a view is counter to any currently accepted theory of memory and is not supported by scientific data (for reviews, see for example, Hilgard & Loftus, 1979; Jenkins, 1974; Putnam, 1979; Roediger, 1979). As Bartlett (1932) pointed out many years ago, memory is continuously changing and is reconstructive as well as reproductive. It is possible that highly traumatic, emotional material that is repressed could be less subject to the kind of continuing changes seen with relatively neutral material, but even this is doubtful since, as has been pointed out earlier, many of the memories recovered in psychotherapy include material which is not historically accurate.

Particularly relevant to our consideration here, however, are the observations discussed by Hilgard and Loftus (1979) indicating that free narrative recall will produce the highest percentage of accurate information but also the lowest amount of detail. Conversely, the more an eye-witness is questioned about details, the more details will be obtained--but with a marked decrease in accuracy. This observation, based on research with unhypnotized individuals, is virtually certain to apply to hypnotized subjects as well.

From Hypnotic Enhancement of Recall to the Creation of Memory

While the laws which govern memory inevitably apply to hypnotic recall, it is difficult to disentangle which aspects of hypnotically enhanced memories represent accurate recall and which represent fantasies that are confabulated to approximate what might have occurred. The extent to which the process of confabulation may be stimulated by hypnosis becomes obvious when, instead of being asked to relive a prior event, the subject is given suggestions to experience a future event--about which no memories could possibly exist. For instance, in age progression (Kline & Guze, 1951), a subject is given the suggestion that it is the year 2000 and asked to describe the world around him. Such a suggestion, given to the deeply hypnotized individual, will lead to a vivid and compelling description of all kinds of new, as yet unseen, scientific marvels. Obviously, the plausibility and the precise nature of



the subject's description will depend upon his scientific knowledge, his reading, and his intelligence.

The same process that allows a hypnotized individual to hallucinate the environment of the year 2000 can also be involved when he is urged to recall what happened 6 months ago, especially if he lacks the clear, waking memory to permit him to recall details accurately. Unfortunately, such pseudomemories can and often do become incorporated into the individual's memory store as though they had actually happened. It is worth noting that this can occur even with bizarre memories such as when people "recall" their past lives and become convinced that these events really took place or, in other instances, when individuals under hypnosis remember encounters with flying saucers and become convinced they have actually communicated with beings from another galaxy. In such instances, the sophisticated listener smiles about the individual's assertions since it is obvious that they represent pseudomemories. Unfortunately, if such pseudomemories relate to events which occurred 6 months ago and are eminently plausible, there is no way for either the hypnotist or the subject or a jury to distinguish between them and actual recall of what occurred.

The content of pseudomemories when they are wittingly or unwittingly induced during hypnosis is, of course, not random. If someone has just seen a science fiction film, one can usually recognize elements of that film in his description of what is going on about him in the year 2000; similarly, if a witness is hypnotized and has factual information casually gleaned from newspapers or inadvertent comments made during prior interrogation or in discussion with others who might have knowledge about the facts, many of these bits of knowledge will become incorporated and form the basis of any pseudomemories that develop. Furthermore, if the hypnotist has beliefs about what actually occurred, it is exceedingly difficult for him to prevent himself from inadvertently guiding the subject's recall so that he will eventually "remember" what he, the hypnotist, believes actually happened.

A simple experimental demonstration which I have often carried out is directly relevant to the circumstances of attempts to hypnotically enhance recall. First, I carefully establish and verify that a particular subject had in fact gone to bed at midnight on, say February 17, and had arisen at 8 a.m. the following morning. After inducing deep hypnosis, it is suggested that the subject relive the night of February 17 --getting ready for bed, turning out the light, and going to sleep at midnight. As the subject relives being asleep, he is told that it is now 4 a.m. and then is asked whether he has heard the two loud noises. Following this question (which is in fact a suggestion), a good subject typically responds that the noises had awakened him. Now instructed to look around and check the



time, he may say it is exactly 4:06 a.m. If then asked what he is doing, he may describe some activity such as going to the window to see what happened or wondering about the noises, forgetting about them, and going back to sleep.

Still hypnotized, he may relive waking up at 8 a.m. and describe his subsequent day. If, prior to being awakened, he is told he will be able to remember the events of February 17 as well as all the other things that happened to him in hypnosis, he readily confounds his hypnotic experience with his actual memory on awakening. If asked about the night of February 17, he will describe going to sleep, and being awakened by two loud noises. If one inquires at what time these occurred, he will say, "Oh, yes, I looked at my watch beside my bed. It has a radium dial. It was exactly 4:06 a.m …." The subject will be convinced that his description about February 17 is accurately reflecting his original memories.

The subject's altered memory concerning the night of February 17 will tend to persist (unless suggestions are given to the contrary) particularly because the subject was asleep at the time and there are no competing memories. The more frequently the subject reports the event, the more firmly established the pseudomemory will tend to become. In the experimental demonstration, we are dealing with an essentially trivial memory about which the subject has no strong inherent motivations. Nonetheless, the memory is created by a leading question, which, however, on casual observation, seems innocuous.

In a life situation where hypnosis is used to enhance recall, the same mechanisms which we have purposively employed in the laboratory to create plausible pseudomemories which the subject accepts as his own may easily occur inadvertently. It must be emphasized that one is not usually dealing with a conscious effort on the part of the hypnotist to distort a witness's memories; on the contrary, the process by which the hypnotized subject is affected typically occurs outside of the hypnotist's awareness. Thus, if the hypnotist knows that two shots have been fired at approximately 4 a.m. on the night of February 17, what seems more natural than to inquire of a witness whether he had heard any loud noises? Further, since usually the witness also knows something about the case and the kinds of memories which would be relevant and important, it may be sufficient simply to inquire at critical times, "Did you hear anything?" in order to lead the responsive hypnotized subject to create the desired "memories."

Lifting of Amnesia versus "Refreshing Memory"

Traditionally, hypnosis has been a widely used procedure to treat spontaneous amnesia. Similarly, when hypnosis has been used to treat



traumatic neuroses, previously amnesic material would suddenly become accessible to consciousness, usually accompanied by profound affect as the patient relives the experience. As abreaction proceeds, the patient's sudden awareness of a myriad of details becomes clear from the manner in which he reexperiences the events. The therapist, seeking to help the patient become aware of feelings, encourages the process of reexperiencing and allows the expression of affect to run its course. The therapist is careful to avoid interrupting the largely spontaneous experience of the patient; though he may well want to know more about some important details, questions are postponed in order not to interfere with the process.

It is characteristic of repressed memories that they suddenly come to consciousness as an entire experience rather than emerging detail by detail. In short, the procedure leads to a narrative exposition as the patient relives the experience. While there is no certainty about the historical accuracy of these memories, when they emerge largely spontaneously and without undue pressure, they are more likely to contain important and accurate information.

Since these instances involved pathological conditions, the approach--even if legal issues were at stake--was essentially therapeutic, and hypnosis was carried out by psychologists or psychiatrists in the context of a traditional doctor-patient relationship. In contrast, hypnosis has more recently been used in circumstances where there is no evidence of pathological memory loss. Here, based on the assumption that every memory is somehow recorded, hypnosis is purported to be simply a means of "refreshing memory." As such, it is claimed that there is no issue of therapy involved.

As a consequence, hypnotic technique is typically altered to prevent the subject from expressing intense feelings that would raise therapeutic issues and would tend to be frightening to lay observers. Thus, it is suggested to the subject that he can visualize the events that he seeks to recall on a special television screen; this screen can, as in televised sports events, move forward or backward through time, allowing events to be seen in instant replay, slow motion, or frame by frame. Further it is explained to the subject that he need not experience any discomfort, that he can merely observe the screen and see the events unfold--as if he were a spectator rather than a participant (e.g., Reiser, 1974). Suggestions are given, such as, "It is just like watching a television show except that you not only can see it but you can control and even stop the motion; you can be there, but you need not experience pain or fear." Since hypnotic subjects who have been emotionally affected are wont to take the opportunity to relive the experience, there is often some struggle between the hypnotist attempting to keep the affect bottled up and the subject seeking to express it.



This type of "objective" reliving, rather than the "subjective" reliving generally encouraged by trained therapists, seems to bring forth fragmentary recall based not so much on the subject's reliving the experience as upon the hypnotist's detailed questions about what is occurring. Typically, the subject is repeatedly asked to "stop the film and look at the face carefully," and is then asked further questions about the details of the face. The same is generally done in relation to all potentially important details. Since this type of procedure involves a great many questions about details, it will, of course, elicit many more details than a narrative. By the same token, as the work summarized by Hilgard and Loftus (1979) has indicated, it will result in vastly lowered accuracy of the material that is obtained. Further, such a procedure maximizes the potential input of the hypnotist about what is wanted, making it even more likely that the subject's memories will more closely resemble the hypnotist's prior conceptions than would ordinarily be the case.7

Unfortunately, no meaningful research is available to document the relative merit of facilitating the reliving of a traumatic event versus the attempt to prevent the affect from being relived by using specific suggestions and questions to increase the amount of memory-like material being brought forth. Considerable experience in the clinical and forensic use of age regression and related techniques suggests that the patient has a higher likelihood of producing uncontaminated memories if allowed to initially relive the events without much questioning by the hypnotist. Further details can then be elicited by questioning the second or third time the material is brought forth. It is interesting that the interrogation technique advocated by Loftus (1979), based on an entirely different body of data with waking eyewitnesses, is remarkably similar to that which evolved with hypnotic subjects.

The Effect of the Hypnotic Context on Refreshing of Memory

While the effect of hypnosis is most clear-cut in the realm of memory when one is dealing with circumscribed areas of pathological amnesia, the dramatic lifting of amnesia (with which most laymen are familiar from its portrayal in films, novels, and the media), is the exception rather than the rule. With the increasing use of hypnosis, particularly with individuals without any obvious memory disturbance and without the ability to enter profound hypnosis, the clear demarcation between effects specific to hypnosis and what may occur in everyday interroga-

7 It is, of course, quite useful at times to use metaphors such as "stopping a videotape" and "instant replay" when working with hypnosis. However, no competent hypnotherapist would, in using such a metaphor, confuse it with the manner in which memory is organized. He would also recognize that he is putting great pressure on the subject to produce something, and the greater the pressure, the more likely the development of guided confabulations.



tion with unhypnotized individuals becomes blurred. While there is no doubt that the kind of processes involved in hypnosis can also be shown to occur under many other circumstances and that the basic laws governing human memory are not negated because the individual is hypnotized, it would be quite wrong, however, to assume that the hypnotic procedure brings about no important changes.

Some advocates of the wide use of "forensic hypnosis" have argued that we need not be concerned about the kinds of issues that have been described earlier, because these problems occur even in the wake state and are certainly negligible if the subject is only relaxed and not deeply hypnotized. It is ironic that this kind of disclaimer is made by the very individuals who tout the unique effectiveness of hypnosis as an aid to criminal investigation. One cannot have it both ways! The reason why hypnosis is used as a forensic tool is that it is effective in eliciting more details. This is so even with individuals who are not particularly hypnotizable, but who cooperate in the hypnotic situation. It is being in the hypnotic situation itself that may profoundly alter some aspects of the subjects' behavior and experience (London & Fuhrer, 1961). Thus, there is a strong expectancy that hypnosis will facilitate recall. The subject in the hypnotic situation feels relaxed and less responsible for what he says since he believes that the hypnotist is both an expert and somehow in control. The hypnotist in turn makes certain that the subject cannot "fail." Hypnotic technique involves the extensive use of reinforcers through frequent verbalizations, such as, "Good," "Fine," "You are doing well," and so on, which are novel, satisfying, and reassuring, particularly in a police interrogation situation. Not surprisingly, the subject wants to maintain the level of approbation; consequently, when the hypnotist stops his expressions of approval (simply by omitting to say "Good"), he clearly communicates that something else or something more is wanted. It requires only a modest decrease in the level of support to alter the subject's behavior, after which there is a return to the previous frequent level of reassurance. Similarly, in the relaxed and apparently benign context of hypnosis, an individual may be generally less anxious and less critical--allowing himself to bring forth bits of information about which he is uncertain but that may in fact be accurate and important--information that would not be brought forth in a context where the individual is made to feel responsible for his memories and challenged about their consistency. Thus, one might say that the hypnotic situation itself serves to change the subject's "guessing strategy."

To date, little systematic research has sought to distinguish between different kinds of effects that the hypnotic situation may exert on recall. Some mechanisms may require a profound level of hypnosis and relate primarily to the recall of material which is actively kept out of aware-



ness; other mechanisms may be involved in the recall of meaningful details in emotionally neutral contexts.

Finally, there are aspects of the hypnotic situation that are not related to hypnotic depth, but nonetheless facilitate the increased reporting and acceptance of detailed information. For example, once a series of details are reported and accepted as valid by the hypnotist, that very fact serves to help convince the subject about the veridicality of these memories--memories that might previously have been extremely tentative and about which the individual had little or no subjective conviction. While there has been little systematic exploration of the means by which the hypnotic context itself may alter the experience of individuals who are only lightly hypnotized, from a pragmatic point of view, it is necessary to recognize that these effects exist and may be profound. While careful research will be needed to clarify precisely which kinds of individuals--under what circumstances, relating to what kinds of memories, and in response to which specific techniques--will be more or less likely to yield reliable information, in the absence of such data, it seems best to illustrate these issues in a life context by a selective review of relevant legal cases.


Given the limitations of the hypnotic technique to facilitate recall, it becomes crucial to distinguish between apparently similar applications which in fact are very different and which consequently range from entirely appropriate to completely misleading. The key issue is not only the possible benefits that material obtained under hypnosis might accrue but also the need to assess the potential harm that would be caused by erroneous information. The use of hypnosis in an investigative context, with the sole purpose being to obtain leads, is clearly the area where hypnotic techniques are most appropriately employed. Thus, we will examine separately the situation where hypnosis is used exclusively to provide leads in a context where the facts are not known and contrast it with the use of hypnosis where a suspect has been identified and an effort is made to help a witness recall sufficient details to permit them to testify in court; there is less emphasis here on the uncovering of details unknown to the investigating officers but rather to help the witness remember them. We will then consider yet a third situation where a witness may have given a number of conflicting statements and hypnosis is utilized in an effort to "help the witness remember what really happened;" here the search is not for new facts at all nor is the emphasis on independent verification. Rather there is an effort to use the hypnotic session itself as a means of verifying the witness's statement. The overall effect is to help



the witness become reliable in his statements while reassuring both the authorities and the witness himself about the validity of these statements.

When Facts are Not Known or Presumed

There are many cases involving a victim or a witness to a crime who cannot recall potentially important details and where the enforcement authorities are equally in the dark. In cases of assault, for example, hypnosis has made it possible for the victim to recall the assailant's appearance, enabling police artists to draw a reasonable likeness. To the extent that the victim or witness, police, artist, and hypnotist alike share no preconceived bias about what might have occurred, the situation approaches the ideal case for hypnosis to be most appropriately employed: to develop investigative leads.

Hypnotic suggestions may directly or indirectly enhance memory by providing contextual cues, and the relaxed environment of a sensitively conducted session may help diminish the anxiety which otherwise interferes with attempts to recall. Several cases of this type are described by Kroger and Douce (1979). Many of the limitations of the technique--even under such circumstances--have been emphasized earlier, while other pitfalls are described by Kroger and Douce. Given appropriate care, however, hypnosis has provided important new information to the authorities in many instances. If the sole purpose of the hypnotic session is to provide clues which ultimately lead to incriminating evidence, the fact that hypnosis was originally employed becomes irrelevant. However, if there is even the vaguest possibility that hypnotically enhanced recall is to be used in court, it is essential that the entire contact of the hypnotist with the subject be videotape-recorded in order to allow an independent assessment of the events preceding, during, and following the hypnotic session to determine whether or not the memories might have inadvertently been guided by cues in the situation.

When Significant Facts are Known or Presumed

An increasing number of instances are finding their way into law courts where hypnosis is used to help "refresh" the memory of a witness or victim about aspects of a crime which are known to the authorities, the media, or the hypnotist and may involve presumed facts that in one way or another have been made available to the subject. Of course, the witness or victim cannot testify on this matter unless he is able to remember it personally. Particularly when the interrogation focuses on some relevant detail and involves leading questions, there is the greatest likelihood of mischief. A "memory" can be created in hypnosis where none existed before. While cases of this type were once rare, there has



been a dramatic increase in the number in recent years. Although the source of the factual information may vary widely, all of these cases have the quality that information is somehow introduced into the subject's memory which causes him to testify to the facts as if they were based on prior memories.

A Pennsylvania case (United States v. Andrews, 1975) illustrates the kind of problem that may occur. Two seamen recuperating from illness were working in an office when a sailor appeared in the doorway, aimed a pistol at one of the sailors, shot at his head, and fled the scene. Fortunately, the intended victim moved quickly and suffered only a grazing wound to the ear. When the seamen were shown pictures of individuals who might fit the description and could have been in the area, the victim was unable to identify anyone. The witness, however, identified one of the pictures as the assailant. Subsequently, at a preliminary hearing, the victim was present when the witness identified the defendant as the assailant. The victim, however, indicated that the accused looked like but was not the assailant. The victim was then hypnotized on two occasions by an experienced Navy psychiatrist to facilitate his recall. During the first session, he was still unable to make an identification; however, during the second session he claimed to recognize the defendant who had previously been identified by the witness as the assailant.

At the General Court Martial, the issue of the role of hypnosis was raised by the defense and I was asked to testify as an expert. My testimony pointed out that the victim's reaction to hypnosis would probably have been the same whether or not he could actually remember the assailant. Thus, if he continued to be unable to remember him--which was highly likely considering the difficulties encountered in eliciting the recollection--he would have been prone to confabulate an individual who appeared to be the most likely candidate. He had seen the defendant accused during the preliminary hearing and was aware that the witness had identified him with certainty; further, that it was the general belief of the prosecution that the defendant was guilty. The hypnotic session altered the victim's memory and, while he would now testify to what he erroneously believed his original memory to have been, he was in fact testifying on the basis of what he had been led to recall during hypnosis, which was quite different from his actual earlier memories.

In this instance, the military judge ruled as a matter of law that the victim could testify to those things that he had previously testified to but that since his memory was altered by hypnosis he was not permitted to identify the defendant. In the weeks following this event, two individuals who had left for overseas the evening of the incident returned from Germany and independently corroborated the defendant's alibi,



making it extremely unlikely that he was the actual assailant. In this case, it is interesting that the effect of hypnosis on the victim's memory persisted, and well over a year after the event he still asserted his conviction that the defendant had in fact fired the shot which nearly killed him.

Another example is a recent capital case in Milwaukee, Wisconsin (State v. White, 1979). A 20-year-old Indian girl nicknamed "Sweetie Pie" had been found strangled several years before. The case had not been solved but had raised considerable attention and concern and had not been closed. Sometime later, another girl contacted the police because her boyfriend had beaten her several times and she wanted him to seek psychiatric help. When questioned, she admitted that on occasion he had choked her, presumably in an attempt to frighten her. The authorities became more interested at that point, particularly when it turned out that the boyfriend, also an Indian, had known "Sweetie Pie." At that point, the girlfriend became uncooperative because she had wanted only to induce the boyfriend to seek treatment and had no wish to have him become involved with the police. On further investigation, however, it was found that the boyfriend did not have an alibi for the time in question, and the authorities talked at length with his former wife from whom he had been separated about a year, and her sister. Both women had lived with the defendant and had children by him.

The wife, who maintained some relationship with the defendant, was not particularly helpful to the authorities, but the sister, who was felt to be more willing to discuss matters, was interviewed on several occasions by police officers. She was asked whether she had been beaten up and indicated that there were times when this had occurred but claimed that she could not remember much else. When it was suggested that she and the former wife participate in a hypnotic session, they agreed to do so. The hypnotic session was carried out by a well trained psychologist. Prior to hypnosis, he showed a gruesome picture of the dead body to the sister who had also been a close friend of the murdered girl. He then induced hypnosis, and shortly thereafter said,

For the moment I want you to think about just you and me and Sweetie Pie, who got strangled, thrown out on the road, taken to the morgue, put in a box, and buried in the ground. Now somebody did that. I don't know who, and you may not know who, but you know that Joe White is a suspect in this case, don't you? Do you think that there is any reason why Joe White should or should not be a suspect in this case? [N. T. p. 8]

At the end of the session, which included an age regression-like procedure that did not work very well despite the subject's otherwise good response to hypnosis, there was a posthypnotic suggestion given that she



would be thinking about telling the truth, how good it would feel to tell the truth, and that she was going to tell the truth. Within a week after the session, the sister called the police and told them how the defendant had often choked her, that he seemed to enjoy it, and that one time shortly after the murder he was choking her and said something to the effect, "If you don't behave, the same thing can happen to you that happened to Sweetie Pie." When she asked whether he had killed "Sweetie Pie," he allegedly broke down crying and said that he had not intended to but admitted that he did.

The case against the defendant was primarily based upon the sister's hearsay testimony which became available shortly after the hypnotic session. After a lengthy hearing, the court ruled that as a matter of law she could not testify before a jury because, thanks to the hypnotic session, the presumed memory was likely to have been created rather than remembered. It is unlikely that anyone will ever know for certain whether the defendant was or was not responsible for the murder. There was no doubt in the sister's mind, however, as to the kind of memory which was wanted, and the sister was amply motivated to testify against the defendant. She had continued to live with the defendant, supposedly knowing that he was a murderer, for many months until he rejected her. Consequently, her testimony would have been totally discounted if it had not come after the hypnotic session. The court recognized the danger of permitting hypnosis to be used in a context where it is more likely to create a memory than to refresh it.

Whereas in the first case the identity of the defendant became known to the victim during a pretrial hearing, and in the second case the nature of the memory was shaped by conversations with the police officers, with the sister, and particularly by the way the hypnotic session was conducted, it is equally possible for the suggestion about what to recall to come from entirely different sources unrelated to and long before hypnosis. For example, in the Minnesota case of State v. Mack (1979), a physician insisting that a laceration must have been made by a knife led to a total reorganization of an apparent victim's memory about how she had acquired an internal wound. In other cases, the media have provided the critical information, while in still others, the manner in which a lineup was conducted facilitated the creation of "memories" at hypnotic sessions conducted at a later date (e.g., State v. Peterson, 1979).

In addition to criminal cases, it is not uncommon to find something of this kind in civil cases where an individual is helped by hypnosis to remember details of an accident he had been unable to recall previously. By the time hypnosis is carried out, it is generally clear to the subject which of the possible events that could have occurred would be most



helpful to his case. Though it is possible that accurate information is recovered, the important effects that motivation can exert on memory--hypnotically enhanced or otherwise--must be taken into account in assessing the "memories" that are obtained.

To Affirm the Reliability of the Witness's Statement or to Create an Apparently Reliable Witness

Many witnesses are unreliable in the sense that they tell somewhat different stories each time they are asked to tell what had occurred. These differences may relate to important details of the crime. The adversary system upon which Anglo-Saxon justice is based is particularly effective in unmasking the unreliability of witnesses by means of cross-examination before a jury.

The effect of hypnotizing witnesses of this kind, presumably to help refresh their memories, is generally dramatic. Even if the subject is not particularly responsive to hypnosis, reviewing the events in the hypnotic context and having the memories legitimized by the hypnotist generally fixes one particular version of the testimony in the witness's mind which is then faithfully and reliably reproduced every time. In these cases, hypnosis does not serve to produce any new information, but the procedure can bolster a witness whose credibility would easily have been destroyed by cross-examination but who now becomes quite impervious to such efforts, repeating one particular version of his story with great conviction.

To appreciate the effect of hypnosis in these kinds of cases, it is important to view the use of the technique in its broader perspectives. Often it will involve a witness about whom the prosecution has considerable doubts. In one California case (In re Milligan, 1978) for example, the prosecution's star witness was a 14-year-old girl who had told many different stories to the police at different times and readily changed her story during early depositions. Indeed, she repeatedly stated that it was impossible for her to say whether her recollections were a dream or represented actual events. The case involved the murder of the witness's aunt, sister, grandmother, and cousin, and there was some serious question as to the degree of possible criminal involvement of the witness herself.

The witness was hypnotized and again told her story to the district attorney and the police. However, now it was during hypnosis which everyone agreed would reliably help her recall and she would know whether her memories related to real events or to her dreams. Simply carrying out the hypnotic session committed the prosecution to the view that the witness was not criminally involved since it would not be permissible for the state to hypnotize a defendant--especially a minor. Somehow the witness became reassured that she would be safe and her story became remarkably stable, virtually unshakable on cross-examination.



In a real sense, the hypnotic procedure also helped change the prosecution's attitude toward the witness. She was accepted as having no part in the crime, and instead of being considered as an unreliable juvenile, became an exceedingly effective witness whose testimony led to the conviction of the other individuals involved. This was so despite the fact that the story she brought forth under hypnosis and on subsequent occasions contained a number of incorrect statements recognized as such by the hypnotist but ignored. Hypnosis had not resulted in accurate memories, but rather had served to produce consistent memories. Further, the technique served to reassure the law enforcement officials that the witness was in fact telling the truth, an aspect which was perhaps as important as the effect the hypnotic session had in stabilizing the witness's recollections.

In the case of State v. White (1979), a senior law enforcement official was asked under oath about his views of hypnotically aided testimony and he succinctly expressed widely held beliefs when he testified that hypnosis lends "credibility and strength to your investigation." [N. T. p. 13] Perhaps the most interesting, as well as the most frightening, consequence of this belief is illustrated by a New Jersey case (State v. Douglas, 1978). A woman was stopped at a light and two black men entered the car and forced her at gunpoint to drive to a deserted place on the outskirts of town. When they arrived there, the man in the front seat attempted to rape the woman. When she protested that she was pregnant, the man on the back seat with the gun told the attacker to stop. They took the woman's purse, made her leave the car, and threatened her that if she contacted the police, terrible things would happen to her family. On getting back to her home, the woman immediately reported the attempted rape, as well as the theft of her car and valuables. At the police station, she was shown mug shots and identified one man and picked out another as a look-alike. Subsequently, she received several threatening notes which were turned over to the police. She continued to be unable to identify the second individual involved in the crime, and finally the police persuaded her to undergo hypnosis. Although the police had videotape- as well as audiotape-recording equipment available, it was claimed that the equipment would not work, and hypnosis was carried out without any objective record of what occurred. During the hypnotic session, however, the victim identified the look-alike as the individual who was involved in the crime.

It turned out that the district attorney had been quite skeptical about the case but was finally convinced to prosecute by the hypnotic session. However, when it was learned that the use of hypnosis would be vigorously challenged and that the public defender's office was prepared to use this case as a vehicle to prevent the abuse of hypnosis by the police, the district attorney decided to have another look at the facts of the case.



She was struck by the peculiarity of the handwriting in the threatening notes, and for the first time submitted these to a handwriting expert who identified the writing as that of the woman who had filed the charges. When the alleged victim was confronted with this fact, she confessed that there had never been an attempted assault, that she had never met the two men whom she had accused, and that she had generated the complaint and the threatening notes in an effort to reawaken the interest of her husband who was in the process of filing divorce proceedings against her.

The appalling aspect of this case is that it was the hypnotic session which initially prompted the district attorney to cast doubt aside and proceed with the prosecution. The hypnotically enhanced memories would have been the basis for the victim's testimony and might well have led to the conviction of two innocent individuals who happened to have been in the collection of photographs available to the police and did not happen to have excellent alibis. It was only when the district attorney became aware that the defense would have appropriate expert help to challenge the totally inappropriate way in which hypnosis was employed in this case that a more careful review of the evidence uncovered the true state of affairs. Far from being helpful to the prosecution, the manner in which hypnosis was employed actually served to confuse the authorities.


It is not possible in the context of a single article to more than touch upon the complex issues involved in the forensic use of hypnosis. However, it behooves those of us experienced in the clinical use of hypnosis to use extreme care when we use our skills in a forensic context. We should keep in mind that psychologists and psychiatrists are not particularly adept at recognizing deception. We generally arrange the social context of treatment so that it is not in the patient's interest to lie to us, and we appropriately do not concern ourselves with this issue since in most therapeutic contexts it is helpful for the therapist to see the world through the patient's eyes in order to ultimately help him to view it more realistically.8

As a rule, the average hotel credit manager is considerably more adept at recognizing deception than we are. Not only does his livelihood depend upon limiting errors of judgment, but he is in a position to obtain feedback concerning those errors of judgment, whereas in most treatment contexts the therapist is neither affected by being deceived nor even likely to learn about the fact that he had been deceived at a later

8 See Lindner (1955) for a superb description of the kind of countertransference which leads to the uncritical acceptance of the patient's views that, on the one hand, makes treatment possible, but on the other can be a source of serious difficulties.



date. While military psychiatrists and other health professionals who are required to make dispositional judgments on a daily basis do become adept at recognizing manipulation and deception, only a few colleagues who are experienced in the use of hypnosis have had this type of background. Consequently, they have little experience or concern about being deceived or used. On the other hand, a defendant in a murder trial or, for that matter, a witness or a victim in a crime of violence may well have an axe to grind, and it is essential that we recognize that in a forensic context the unwary expert witness may become a pawn either for the prosecution or for the defense. With the increasing popularity of hypnosis in the courts, it is essential that those of us who have an interest in these matters develop the necessary sophistication and judgment in the forensic context, much as we have had to acquire it in the therapeutic context. It would be foolhardy indeed to assume that familiarity with one context is sufficient to allow us to function effectively in the other. On the contrary, the ground rules governing the two situations are vastly different, and we must guard against being coopted--wittingly or unwittingly--by prosecution or defense. In the long run, the only expert who can help the administration of justice is one who is able to maintain an independent perspective rather than see himself as working for either the defense or the prosecution.

Safeguards for the Forensic Use of Hypnosis

The use of hypnosis and related techniques to facilitate memory raises profound, complex questions, and it is likely that the individual will be protected only if these issues are dealt with at the highest level of our court system. There are instances when hypnosis can be used appropriately provided that the nature of the phenomenon is understood by all parties concerned. It must be recognized, however, that the use of hypnosis by either the prosecution or the defense can profoundly affect the individual's subsequent testimony. Since these changes are not reversible, if individuals are to be allowed to testify after having undergone hypnosis to aid their memory, a minimum number of safeguards are absolutely essential. Based upon extensive review of the field and my own experiences in a considerable number of circumstances, I have proposed the following minimal safeguards in an affidavit (Orne, 1978) in the case of Quaglino v. California (1978) which was filed with the Supreme Court of the United States.9

1. Hypnosis should be carried out by a psychiatrist or psychologist with special training in its use. He should not be informed about the facts of the case verbally; rather, he should receive a written memoran-

9 A recent Wisconsin Circuit Court opinion by Judge Wedemeyer in the case of State v. White (1979) explicates and expands upon these safeguards (Slip opinion, Pp. 11-13).



dum outlining whatever facts he is to know, carefully avoiding any other communication which might affect his opinion. Thus, his beliefs and possible bias can be evaluated. It is extremely undesirable to have the individual conducting the hypnotic sessions to have any involvement in the investigation of the case. Further, he should be an independent professional not responsible to the prosecution or the investigators.

2. All contact of the psychiatrist or psychologist with the individual to be hypnotized should be videotaped from the moment they meet until the entire interaction is completed. The casual comments which are passed before or after hypnosis are every bit as important to get on tape as the hypnotic session itself. (It is possible to give suggestions prior to the induction of hypnosis which will act as posthypnotic suggestions.)

Prior to the induction of hypnosis, a brief evaluation of the patient should be carried out and the psychiatrist or psychologist should then elicit a detailed description of the facts as the witness or victim remembers them. This is important because individuals often are able to recall a good deal more while talking to a psychiatrist or psychologist than when they are with an investigator, and it is important to have a record of what the witness's beliefs are before hypnosis. Only after this has been completed should the hypnotic session be initiated. The psychiatrist or psychologist should strive to avoid adding any new elements to the witness's description of his experience, including those which he had discussed in his wake state, lest he inadvertently alter the nature of the witness's memories--or constrain them by reminding him of his waking memories.

3. No one other than the psychiatrist or psychologist and the individual to be hypnotized should be present in the room before and during the hypnotic session. This is important because it is all too easy for observers to inadvertently communicate to the subject what they expect, what they are startled by, or what they are disappointed by. If either the prosecution or the defense wish to observe the hypnotic session, they may do so without jeopardizing the integrity of the session through a one-way screen or on a television monitor.

4. Because the interactions which have preceded the hypnotic session may well have a profound effect on the sessions themselves, tape recordings of prior interrogations are important to document that a witness had not been implicitly or explicitly cued pertaining to certain information which might then be reported for apparently the first time by the witness during hypnosis. [Orne, 1978, Pp. 853-855]

In sum, an effort has been made to outline some of the major issues that must be considered for the forensic use of hypnosis, and particularly if hypnotically enhanced recall is to be used in court. It is possible to document, as has been done here, some of the circumstances where hypnosis has worked against the judicial process. Much of what has been said about memory and hypnosis in this paper has already been documented empirically; however, further rigorous research is needed. Future work will need to direct itself to the task of spelling out the circumstances under which the likelihood of confabulation is maximized,



the specific effects which result from the hypnotist's preconceptions, the consequences of allowing the reexperiencing of relevant affect as opposed to suppressing it during the process of recall, the different effects which hypnosis may have on the recall of different kinds of material on the one hand and on the other to assess whether hypnosis has different effects in facilitating recall of material that was purposively learned as opposed to that incidentally noted. At the present state of knowledge, it is relatively easy to point to some clear-cut abuses and try to identify some relatively safe and appropriate applications of hypnosis. As serious research addresses the question of the effect of hypnosis and the hypnotic context on memory, it will become possible to be increasingly specific about other circumstances where hypnosis may playa legitimate role as opposed to those where its use will serve only to further confuse an already blind justice.


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Gebrauch und Missbrauch der Hypnose im Gerichtssaal

Martin T. Orne

Abstrakt: Die verschiedenen, forensischen Kontexte der Hypnoseanwendung werden hier rividiert, mit besonderm Akzent auf ihre Vorzuge und ihre verborgenen Gefahren. Die Technik mag im Rahmen der kriminellen Untersuchung und bei Umstanden eines funktionellen Gedachtnisverlusts hilfreich sein. Doch hat Hypnose keinen Nutzen fur die Sicherung der Wahrheit der Aussagen, da Subjekte, besonders im forensischen Kontext, Hypnose simulieren konnen und sogar unter tiefer Hypnose fahig sind, absichtlich zu lugen; am storendsten ist es, dass weder das Subjekt noch der Hypnotiseur ohne volle und



unabhangige Bestatigung ein wahres Erinnern nicht von Konfabulation unterscheiden kOnnen. Obwohl dies Verfahren von denkbarem Nutzen ist, das Gedachtnis del Zeugen und Opfer aufzufrischen und das Identifizieren durch die Augenzeugen zu erleichtern, ist es doch nur verhaltnismassig sichel und angemessen, wenn weder das Subjekt noch die Autoritaten und der Hypnotiseur so gut wie keine vorgefasste Meinung haben, wer del Tater sei. Sollte solch ein Vorurteil bestehen--entweder in der Ansicht des Subjekts oder dass es ihm oder ihr eingeflosst worden sei--dann kann Hypnose leicht dazu fuhren, dass das Subjekt die verdachtige Person in sein "hypnotisch verstarktes Gedachtnis" hineinfabuliert. Diese scheinbaren, ursprunglich durch Hypnose erzeugten, Erinnerungen konnen dann verursachen, dass das Subjekt sie als tatsAchlichen Ruckruf des ursprunglichen Geschehens akzeptiert; danach werden sie dann mit grosser, subjektiver Gewissheit erinnert und mit Uberzeugung geschildert. Solche Umstande konnen eher uberzeugende, scheinbar objektive "Augenzeugen" schaffen, als den wahren Ruckruf zu bewirken. Eine Anzahl von geringen Vorsichtsmassnahmen wird hier vorgeschlagen, um solche Eventualitaten und andern, ernsten und moglichen Missbrauch der Hypnose zu vermindern.

Usage et abus de l'hypnose en Cour

Martin T. Orne

Resume: L'auteur examine les divers contextes legaux ou l'hypnose rut utilisee, mettant en lumiere tant ses avantages que ses pieges. La technique peut etre utile dans le cadre de l'enquete criminelle et dans certaines circonstances ou il y a perte fonctionnelle de la memoire. L 'hypnose ne peut servir a garantir la veracite d'un compte rendu, puisque, particulierement dans un contexte legal, les sujets peuvent simuler l'hypnose et sont capables de mentir volontairement meme dans un etat hypnotique profond; plus encore, la majorite des souvenirs reels ne peuvent etre distingues de confabulations ni par le sujet, ni par l'hypnotiseur sans une corroboration complete et independante. Bien que la procedure hypnotique soit virtuellement utile pour rafraichir la memoire des victimes et des temoins afin de faciliter l'identification par temoignage oculaire, elle n'est relativement sure et appropriee que lorsque ni le sujet, ni les autorites, ni l'hypnotiseur n'ont d'idees preconcues sur l'identite du criminel, Si de telles idees preconcues existent—qu’elles soient deja dans l'esprit du sujet ou qu'elles lui soient communiquees--l'hypnose peut facilement entrainer le sujet a une fabulation integrant le suspect a ses "souvenirs retrouves sous hypnose." Ces pseudo-souvenirs developpes a l'origine sous hypnose peuvent etre finalement acceptes par le sujet comme d'authentiques souvenirs des evenements reels; le sujet se souvient alors avec une grande certitude subjective et il les raconte avec conviction. De telles situations peuvent creer des "temoins oculaires" convaincants et apparemment objectifs, plutot que de faciliter le rappel de faits reels. L'auteur propose un certain nombre de precautions elementaires pour reduire l'occurence de telles eventualites et d'autres abus possibles de l'hypnose.

Utilizacion y Abusos de la hipnosis en tribunal

Martin T. Orne

Resumen: El autor analiza diversos contextos legales donde se ha utilizado la hipnosis, tratando de aclarar sus vantajes y sus faltas. La tecnica puede ser util en el cuadra de la encuesta criminal, y en circonstancias donde hay perdida de memoria. La hipnosis no puede garantir la veracidad de una rendicion por que, particularmente en un contexto legal, los testigos pueden simular el estado hipnotico y ser capables de mentir volontaraimente. Ademas, la mayoria de los recuerdos no pueden ser distinguidos de varias confabulaciones



ni por el sujeto, ni por el hipnotizador sin una corraboracion completa e independiente. Aunque la hipnosis sea util para refrescar la memoria de las victimas y de los testigos a identificar el imputado, no es relativamente valida que cuando y el testigo y las autoridades y el hipnotizador no tengan ningun prejuicio sobre la identidad del imputado. Si existieran algunos prejuicios--sean esos ya en el testigo o que le sean comunicados--la hipnosis podria, con mucha facilidad, llevar el testigo a imaginarse la identidad del imputado con "recuerdos descubiertos bajo hipnosis." Estos pseudo-recuerdos descubiertos originalmente bajo hipnosis pueden ser aceptados por los testigos como recuerdos autenticos de verdaderos eventos. El testigo se recuerda ahora con gran certitud sujectiva y da una rendicion muy convencida y convencible. El autor propone un cierto numero de precauciones para reducir la ocurrencia de tales eventualidades y de otros posibles abusos.

The preceding paper is a reproduction of the following article (Orne, M.T. The use and misuse of hypnosis in court. International Journal of Clinical and Experimental Hypnosis, 1979, 27, 311-341.). It is reproduced here with the kind permission of the Editor-in-Chief of The International Journal of Clinical and Experimental Hypnosis.