title: The admissibility of hypnotic evidence in U.S. Courts.
abstract: For the past two decades, the American judiciary has confronted the admissibility of hypnotic evidence in criminal prosecutions. These courts have uniformly rejected the admissibility of out-of-court statements made while an individual is in hypnosis. In contrast, the courts divided sharply over the admissibility of hypnotically refreshed testimony. Some courts adopted a per se rule of exclusion; these courts, however, also carved out exceptions for testimony based on prehypnotic memory and testimony of the accused. Courts admitting hypnotically refreshed testimony adopted three different positions: (a) a "credibility" approach, which left the reliability issue to the jury; (b) a "discretionary admission" approach, which left the reliability issue to the trial judge; and (c) a "procedural safeguards" approach. In addition, constitutional concerns played an influential role in some of these cases. This diversity in the case law often resulted from a judicial failure to understand the scientific research on hypnosis. Courts have also considered the use of hypnosis as a basis for expert testimony about an accused's mental state. Unless the advantages of hypnotically refreshed testimony are significant, why add more problems?
authors.affiliation: Case Western Reserve University School of Law, Cleveland, OH 44106-7148, USA.
authors.forename: P C
authors.initials: PC
authors.lastname: Giannelli
mesh_terms: D003416:Criminal Law / Q000331:legislation & jurisprudence*; D005104:Expert Testimony / Q000331:legislation & jurisprudence; D006801:Humans; D006990:Hypnosis; D011939:Mental Recall; D014481:United States