Orne, M.T. The use and misuse of hypnosis in court. International ...

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Orne 1979 IJCEHhttp://www.sas.upenn.edu/psych/history/orne/orneijceh19794311341.html18 de 23 19/03/2012 17:24vastly different, and we must guard against being coopted--wittingly or unwittingly--by prosecution ordefense. In the long run, the only expert who can help the administration of justice is one who is able tomaintain an independent perspective rather than see himself as working for either the defense or theprosecution.Safeguards for the Forensic Use of HypnosisThe use of hypnosis and related techniques to facilitate memory raises profound, complex questions, andit is likely that the individual will be protected only if these issues are dealt with at the highest level of ourcourt system. There are instances when hypnosis can be used appropriately provided that the nature of thephenomenon is understood by all parties concerned. It must be recognized, however, that the use ofhypnosis by either the prosecution or the defense can profoundly affect the individual's subsequenttestimony. Since these changes are not reversible, if individuals are to be allowed to testify after havingundergone hypnosis to aid their memory, a minimum number of safeguards are absolutely essential. Basedupon extensive review of the field and my own experiences in a considerable number of circumstances, Ihave 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.91. Hypnosis should be carried out by a psychiatrist or psychologist with special training in its use. He should not be informedabout 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).336 MARTIN T. ORNEdum outlining whatever facts he is to know, carefully avoiding any other communication which might affect his opinion. Thus, hisbeliefs and possible bias can be evaluated. It is extremely undesirable to have the individual conducting the hypnotic sessions tohave any involvement in the investigation of the case. Further, he should be an independent professional not responsible to theprosecution or the investigators.2. All contact of the psychiatrist or psychologist with the individual to be hypnotized should be videotaped from the moment theymeet until the entire interaction is completed. The casual comments which are passed before or after hypnosis are every bit asimportant to get on tape as the hypnotic session itself. (It is possible to give suggestions prior to the induction of hypnosis whichwill act as posthypnotic suggestions.)Prior to the induction of hypnosis, a brief evaluation of the patient should be carried out and the psychiatrist or psychologistshould then elicit a detailed description of the facts as the witness or victim remembers them. This is important becauseindividuals often are able to recall a good deal more while talking to a psychiatrist or psychologist than when they are with aninvestigator, and it is important to have a record of what the witness's beliefs are before hypnosis. Only after this has beencompleted should the hypnotic session be initiated. The psychiatrist or psychologist should strive to avoid adding any newelements to the witness's description of his experience, including those which he had discussed in his wake state, lest heinadvertently 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 andduring the hypnotic session. This is important because it is all too easy for observers to inadvertently communicate to the subjectwhat they expect, what they are startled by, or what they are disappointed by. If either the prosecution or the defense wish toobserve the hypnotic session, they may do so without jeopardizing the integrity of the session through a one-way screen or on atelevision monitor.4. Because the interactions which have preceded the hypnotic session may well have a profound effect on the sessionsthemselves, tape recordings of prior interrogations are important to document that a witness had not been implicitly or explicitlycued 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 theforensic use of hypnosis, and particularly if hypnotically enhanced recall is to be used in court. It ispossible to document, as has been done here, some of the circumstances where hypnosis has worked
Orne 1979 IJCEHhttp://www.sas.upenn.edu/psych/history/orne/orneijceh19794311341.html19 de 23 19/03/2012 17:24against the judicial process. Much of what has been said about memory and hypnosis in this paper hasalready been documented empirically; however, further rigorous research is needed. Future work willneed to direct itself to the task of spelling out the circumstances under which the likelihood ofconfabulation is maximized,337 USE AND MISUSE OF HYPNOSIS IN COURTthe specific effects which result from the hypnotist's preconceptions, the consequences of allowing thereexperiencing of relevant affect as opposed to suppressing it during the process of recall, the differenteffects which hypnosis may have on the recall of different kinds of material on the one hand and on theother to assess whether hypnosis has different effects in facilitating recall of material that was purposivelylearned as opposed to that incidentally noted. At the present state of knowledge, it is relatively easy topoint to some clear-cut abuses and try to identify some relatively safe and appropriate applications ofhypnosis. As serious research addresses the question of the effect of hypnosis and the hypnotic context onmemory, it will become possible to be increasingly specific about other circumstances where hypnosismay playa legitimate role as opposed to those where its use will serve only to further confuse an alreadyblind justice.REFERENCESBARBER, T. X. Antisocial and criminal acts induced by "hypnosis": A review of experimental andclinical findings. Arch. gen. Psychiat., 1961, 5, 301-312.BARBER, T. X., & CALVERLY, D. S. Empirical evidence for a theory of hypnotic behavior: Effects onsuggestibility of five variables typically induced in hypnotic induction procedures. J. consult. Psychol.,1965, 29, 98-107.BARTLETT, F. C. Remembering. Cambridge: Cambridge Univer. Press, 1932.BREUER, J., & FREUD, S. Studies on hysteria. Vol. II. J. Strachey (Ed. and trans.), The standard editionof the complete psychological works of Sigmund Freud. London: Hogarth, 1955. (Orig. publ. 1895.)COE, W. C., KOBAYASHI, K., & HOWARD, M. L. An approach toward isolating factors that influenceantisocial conduct in hypnosis. Int. J. clin. exp. Hypnosis, 1972, 20, 118-131.CONN, J. H. Is hypnosis really dangerous? Int. J. clin. exp. Hypnosis, 1972, 20, 61-79.COOPER, L. M., & LONDON, P. Reactivation of memory by hypnosis and suggestion. Int. J. clin. exp.Hypnosis, 1973, 21, 312-323.Crockett et al. v. Haithwaite et al., No. 297/73, (Sup. Ct., B.C. Can. February 10,1978; unrep.).DHANENS, T. P., & LUNDY, R. M. Hypnotic and waking suggestions and recall. Int. J. clin. exp.Hypnosis, 1975, 23, 68-79.ELLENBERGER, H. F. The discovery of the unconscious. New York: Basic Books, 1970.EVANS, F. J., & KIHLSTROM, J. F. Posthypnotic amnesia as disrupted retrieval. J. abnorm. Psychol.,1973, 82, 317-323.HILGARD, E. R. Divided consciousness: Multiple controls in human thought and action. New York:Wiley, 1977.HILGARD, E. R., & LOFTUS, E. F. Effective interrogation of the eyewitness. Int. J. clin. exp. Hypnosis,1979, 27, 342-357.
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