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Forensic Hypnosis
Samantha Bellino
Liberty University
CJUS620
Professor Kristin Ford
10/10/2021
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Abstract
Forensic hypnosis is used to enhance memory in eyewitnesses to crimes when they have blocked
the memories due to the trauma that the event caused the eyewitness. A trained hypnotist is
required to conduct the session and they are required to follow strict guidelines and policies in
order for any statement made during or after the hypnosis to be admissible in court. There are
several approaches that are used to determine the admissibility of a statement made due to the
use of forensic hypnosis. The are two main models or methods that law enforcement use when
conducting a forensic hypnosis session that determine how the session is conducted. There are
risks and consequences when using forensic hypnosis that need to be taken into account when
conducting a session with a witness.
Keywords: forensic hypnosis, courts, law enforcement, admissibility, memory
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Forensic Hypnosis
Hypnosis is used by law enforcement as a process that enhances memory (Wester II &
Hammond, 2011). Forensic hypnosis is based upon the idea that while in a hypnotic state a
subject has heightened concentration and is able to recollect particulars of a crime that they were
unable to recall in a conscious state (Linebach & Kovacsiss, 2016). Hypnosis has no legal
definition, it is best described as “an altered state of consciousness characterized by relaxation, a
heightened responsiveness to suggestion, and an increase in concentration” (Paterline, 2016, p.
2).
Trauma can cause memories to be blocked, thusly a victim of a crime blocks out
memories that they believe to be perilous and frightening. The use of forensic hypnosis can help
the victim feel safe and relaxed enough to unblock the memories and can improve their
recollection of the memories. It is especially useful for memories that are emotionally laden or
personally meaningful (Wester II & Hammond, 2011). This is because hypnosis “bypasses a
person’s psychological defenses and taps into repressed memories” and causes them to be more
focused and attentive, and less inclined to use analytical thinking, which can cause the memory
to be blocked through a process called induction (Paterline, 2016, p. 2). Induction procedure is
typically the method used by hypnotist to cause the subject to enter hypnosis. These induction
procedures are focused visualization and relaxation suggestion, an experience that most subjects
found to be pleasant and soothing (Paterline, 2016).
History
The history of hypnosis is a long and twisted road filled with conflicting and
controversial court decisions (Linebach & Kovacsiss, 2016). Hypnosis being used in court was
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first recorded in 1846 when a murder witness was placed under hypnosis by her husband and
recalled new memories that she testified to in court (Wester II & Hammond, 2011). People v.
Ebanks is the first appellate decision in the United States relating to hypnosis. The judge refused
to admit testimony that the defendant was innocent based off statements made while in a
hypnotic trance saying “[t]he law of the United States does not recognize hypnotism. It would be
an illegal defense, and I cannot admit it” (Hibler & Scheflin, 2012, p. 34). The decision was
upheld by the California Supreme Court (Hibler & Scheflin, 2012). The Chowchilla kidnapping
case in 1976 sparked interest in the use of hypnosis in an investigation when the bus driver was
place under hypnosis and able to recall important details about the kidnappers (Paterline, 2016).
The first time that an eyewitness statement gathered while under hypnosis was 1968 in
the Maryland case of Harding v. State. This case opened the door for law enforcement to
embrace the uses of hypnosis to assist in crime solving. The use of hypnosis by police attracted
media interest and officers were trained in hypnosis (Hibler & Scheflin, 2012). In 1978 during
the case of United States v. Adams, the Ninth Circuit court decided the because the use of
hypnosis has potential for abuse, there must be safeguards in place to protect against possible
abuse. (Sies & Wester II, 1985). The case of State v. Mack in 1980 decided that generally the use
of hypnosis was not acceptable and was unreliable. They decided to “bar testimony regarding
both post and pre-hypnotic memories, or to bar hypnotically refreshed testimony while admitting
testimony relating to pre-hypnotic memory”, creating the per se inadmissibility approach (Sies &
Wester II, 1985, p. 96). The first time that a court used a balancing test to determine if testimony
derived from a hypnotic trace is admissible in court was in the Texas appellate court. In 1984
during the case of Walters v. State. The employment of a balancing test to determine the
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admissibility of testimony will later become known as the totality of the circumstance approach
(Sies & Wester II, 1985).
Legal Issues
There are legal issues that need to be taken into consideration when conducting a
hypnotic interview that both the law enforcement officers, prosecutors, and hypnosis
professionals needs to be aware of before a subject is hypnotized (Linebach & Kovacsiss, 2016).
Admissibility
There are four legal approaches to determine the admissibility of hypnotic testimony in
court: per se admissibility, per se inadmissibility, safeguard approach, and totality of the
circumstances approach (Paterline, 2016). The per se admission policy is established upon the
idea that memory can be refreshed in a multitude of manners, hypnosis being one of them and
thusly post-hypnosis memory can be used in court and cross-examined by the defense (Eimer,
2012). Some experts in hypnosis mistakenly believe that People v. Ebanks established a rule of
per se inadmissibility, meaning that any testimony that results from hypnosis is not admissible in
court. In People v. Ebanks the legal issue was concentrated on the admissibility of expert
testimony from the hypnotist about Ebanks, not that the use of hypnotism. Today courts still
uphold the decision by the California Supreme Court in People v. Ebanks (Hibler & Scheflin,
2012). The safeguard approach allows post-hypnotic testimony if particular procedural
safeguards were employed to guarantee the reliability of the testimony (United States
Department of Justice, 2020). The policies are:
[w]itness must use a psychiatrist or psychologist trained and experienced in the use of
hypnosis. The hypnotist should be independent of, and not regularly employed by, the
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prosecution, police, or defense. Information given by any party to the action to the
hypnotist should be written or recorded and made available to all parties. The hypnosis
session(s) should be video- or audio-taped, including pre- and post-interviews. Only the
expert and the witness should be present during all phases of the hypnosis. The subject’s
pre-hypnosis memories for the events in question should be carefully recorded and
preserved. (Paterline, 2016, p. 4)
The totality of the circumstances approach allows post-hypnotic testimony if specific guidelines
were followed. These guidelines are meant to inhibit cueing whether it be inadvertent or
intentional and the coaching of the subject. The hypnotist cannot supply content during the
recollection by suggesting new information or even use nonverbal signals in response to the
subject’s answers. The session must be videotaped to determine if these suggestions transpired
(Scheflin, 2012).
Methods and Models
The model or approach for the case is decided by the prosecutor. The model is
determined by the jurisdiction of the law enforcement and attorneys involved, whether it be
military, state for federal (Hibler & Scheflin, 2012).
Federal Model
The federal model was developed by the Federal Bureau of Investigations (FBI) to
“maximize investigative capabilities without jeopardizing the prosecutability of cases” (Hibler &
Scheflin, 2012, p. 36). A team of hypnosis experts and investigators manage the hypnosis
session. There is a camera operator, the lead investigator on the case, and a hypnosis coordinator;
there might be others involved that safeguard the success of the session or the wellbeing of the
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subject such as a language interpreter or police artist (Barrett, 2010; Hibler & Scheflin, 2012).
The recordings of the session are maintained in the chain of custody as evidence for the
investigation (Barrett, 2010). The investigator that also serves as the hypnosis coordinator
decides if the information recollected is to be used later in court or if it will be used to further the
investigation by proving new leads (Hibler & Scheflin, 2012).
Totality of the Circumstances Model
The totality of the circumstances model is an approach devised to increase “controls over
potential sources of inadvertent influence during the hypnosis interview” (Hibler & Scheflin,
2012, p. 36). The hypnotist is the only one present in the room during the session and has a
limited knowledge of the case. The recording of the session and probative merit of the
questioning is the sole responsibility of the hypnotist (Paterline, 2016). Though the model
ensures the welfare and privacy of the subject, the hypnotist can be at a disadvantage if they are
not knowledgeable in interviewing, interrogation, and investigation procedures as the model
presumes that the hypnotist has investigative expertise. This can negatively affect the session as
“as the probative value of the inquiry reflects only their own individual appreciation and
understanding of the potential investigative value of information sought to be discovered”
(Hibler & Scheflin, 2012, p. 37). This model focuses more on the individual and is not as
interactive as the federal model (Paterline, 2016).
Ethics
The ethical guidelines for forensic hypnosis are set forth in the Ethical Code of Conduct
of the American Society of Clinical Hypnosis. Hypnotic sessions that occur in situations other
than “clearly defined clinical, educational (training), forensic, and research settings with the
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hypnotic subject’s documented informed consent” are unethical and inappropriate (Eimer, 2012,
p. 12). There are times when the use of hypnosis is unethical because the subject’s recall
potential has been contaminated through the transposing of information. The transposing of
information can be caused by the subject being aware that a specific individual is a suspect in the
crime or is alleged to be involved in the crime, is exposed to a police lineup of suspects without
proper cautions in place or sees a suspect handcuffed and asked if they committed the crime, the
new information could confuse the hypnosis subject (Hibler & Scheflin, 2012).
Hypnosis cannot be used in cases where the witness knows the suspect, in flawed cases
where there are issues with the investigation itself, the subject was exposed to the suspect outside
of a control police lineup, if the witness collaborate and discuss their perceptions of the crime, if
the witness is placed under pressure to provide information that will close the case, if the
participation is not voluntary, or if the witness has credibility issues (Hibler & Scheflin, 2012).
Informed Consent
One ethical issue with hypnosis is that the subject must give informed consent before the
hypnosis takes place. The process should be explained to the subject and misconception of
hypnosis be clarified (Barrett, 2010). Blocks such as “fear of losing control, lack of trust,
paranoia, religious beliefs, previous bad experiences, things they have been told by others, or the
desire to simply talk with the therapist” must be worked through and addressed before the
session begins in order for informed consent to be ethically given (Eimer, 2012, p. 19). Hypnosis
cannot be used to force confessions from a suspect by law enforcement, as one under hypnosis
will not say anything that they do not want to, and it is even possible to lie while under a
hypnotic trance (Paterline, 2012). Because of this, the subject of the hypnosis must be asked to
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sign a waiver prior to the procedure that confirms the subject has given informed consent
(Barrett, 2010).
If informed consent is not given and the suspect is hypnotized without their knowledge,
Constitutional rights could be violated (United States Department of Justice, 2020). If the subject
under hypnosis makes a self-incriminating statement, the interview must be ended and the
concern brough to prosecutorial authorities (Hibler & Scheflin, 2012). If informed consent is not
obtained the results of the hypnosis could consist of unpleasant surprises for all parties involved
and formal complaints may be filed with the regulatory board against the hypnotist (Eimer,
2012).
Risks and Consequences
The risks of adverse unintentional consequences are lowered when properly trained,
ethical, and competent hypnotists take specific precautions. If the hypnotist:
Employs hypnosis in a suitable and appropriate setting, employs hypnosis with people
who are appropriate to hypnotize as determined by an appropriate intake evaluation,
employs hypnosis with patients he or she is competent to treat, […] obtains adequate
informed consent from the patient or subject, gives a good hypnosis pre-talk before
employing hypnosis, […] employs appropriate safeguards when hypnosis is used to
refresh memory, […] carefully selects his or her words, […] adequately de-hypnotizes
and re-alerts the patient/subject. (Eimer, 2012, pp. 27-28)
The chances of undesirable outcomes are decreased. Negative outcomes are more likely to occur
in a forensic setting when the hypnotic session is conducted by an insufficiently trained
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individual that does not employ appropriate precautions, common sense, or judgement (Eimer,
2012).
Memory is not always accurate, and hypnosis does not change this fact. Memories
recalled during hypnosis or afterwards are no more or less likely to be factual than other
memories. Due to the skepticism surrounding the use of hypnosis, law enforcement should find a
way to corroborate the memory, this will give the results a probative significance or may
eliminate the need for the hypnotic subject’s testimony in court (Hibler & Scheflin, 2012). False
memory can be caused by “creating unrealistic expectations of hypnosis as a memory refresher,
along with the danger of the subject’s desire to please the hypnosis practitioner that may
encourage pseudomemory production; and the misapplication of hypnosis (e.g., poor technique
and undue suggestion)” (Wester II & Hammond, 2011, p. 251). Confabulation is “the process
whereby one fills in the gaps based on one’s needs” and it can occur when asking the suspect to
repeat what they remember multiple times while under hypnosis. The subject then incorporates
the confabulated memories into their testimony (Barrett, 2010, p. 56).
Because of the possibility of false memory and confabulation, strict guidelines have been
established for the use of hypnosis when recovering memories in a clinical setting and more
stringent parameters are used in forensic hypnosis (Wester II & Hammond, 2011; Barrett, 2010).
Leading comments can create false memories if “the patient acquires beliefs that something
happened, that he or she felt a certain way, or that something happened for a particular reason,
when in fact, such beliefs are not factually grounded” (Eimer, 2012, p. 16-17). Contrary,
questions that are poorly worded could quell or obscure memories of what transpired resulting in
selective reconstruction. The result of poor questioning could be the testimony of the witness
being ruled inadmissible in court on ground that the memory was contaminated (Eimer, 2012).
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Biblical Worldview of Hypnosis
There is no verse in the Bible that mentions the use of hypnosis, but hypnosis can be
problematic for Christians. The use of hypnosis leads to an altered state of consciousness where
the mind is suspectable to suggestion, this can cause an issue as the Bible says, “1 Peter 5:8”
(Bible Gateway, 2021). 1 Peter 5:8 cautions people to have self-control and think critically to
protect against outside influences or lies which one cannot do while under hypnosis. On the other
hand, hypnosis can be compared to “trances” and “visionary states” found in Numbers 24:4;
Daniel 2:19; Acts 10:10, 11:5, 22:17; and Revelation 1:10 (Bible Gateway, 2021). The use of
hypnosis can be helpful or harmful and because of this Christians must be careful and cautious
when making the decision to use forensic hypnosis.
Conclusion
Since the mid-1800s, forensic hypnosis has been a useful tool to aid in criminal
investigations and in court, when used in the proper way (Linebach & Kovacsiss, 2016). Once
the subject is inducted, they are highly susceptible to suggestion, as such precautions and
guidelines have been put into place in order to allow memories recollected to be admissible in
court. Memory is malleable and because of this, guidelines have been put in place to lower the
risks of confabulation, partial recall, and false memories (Eimer, 2012). Forensic hypnosis
lowers mental defenses, which unblocks the memory which is then used in the witness’s
testimony (Paterline, 2016).
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References
Barrett, D. (2010). Hypnosis and hypnotherapy. Santa Barbara, CA: ABC-CLIO.
Bible Gateway. (2021). Retrieved from Bible Gateway passage: New International Version:
https://www.biblegateway.com/
Eimer, B. (2012). Inadvertent adverse consequences of clinical and forensic hypnosis:
Minimizing the risks. American Journal of Clinical Hypnosis, 55(1), 8-31.
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investigative settings. American Journal of Clinical Hypnosis, 55(1), 32-55.
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& Lea M. Kovacsiss.
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testimony: A history and analysis. DePaul Law Review, 35(1).
The United States Department of Justice. (2020, January 23). Criminal Resource Manual. The
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