Admissibility of Hypnotically
Refreshed Testimony
The problems associated with hypnotically refreshed
testimony have been recognized in hundreds of deci-
sions by American courts. In 1987, the U.S. Supreme
Court considered the admissibility of hypnotically
refreshed testimony in Rock v. Arkansas.Following the
per se exclusionary rule, the trial judge in this case
determined that the hypnotically refreshed memories of
the defendant were inadmissible. There was a growing
trend in state courts at the time toward total exclusion of
hypnotically refreshed testimony. In Rock v. Arkansas,
the Supreme Court acknowledged that the possibility for
contamination of the witness’s memory increases signif-
icantly when attempts are made to hypnotically refresh
the witness’s memory; however, the court determined
that the per se exclusionary rule cannot be applied if in
doing so a defendant is denied his or her constitutional
right to testify. State courts that have to deal with this
kind of testimony generally recognize the problems
associated with it and often apply the per se exclusion-
ary rule to the hypnotically refreshed testimony of wit-
nesses other than the defendant. Those courts that do not
follow the per se exclusionary rule are usually willing to
allow hypnotically refreshed testimony only if certain
safeguards have been adhered to in the conduct of the
hypnotic interview.Theories of Hypnosis
A number of different theories have been proposed
regarding the nature of the hypnotic experience and its
relation to the behavior of the hypnotized subject. There
are several characteristics of the hypnotic state that dis-
tinguish it from the normal waking state. Ernest Hilgard
has proposed the following list: increased suggestibility,
enhanced imagery and imagination, subsidence of the
planning function, and reduction in reality testing.
Hilgard contends that hypnotic phenomena often reflect
a split in consciousness. It appears that the experience of
the hypnotized subject is dissociated from the subsys-
tems of control that are regulating the subject’s percep-
tions and behavior. The major alternative to this point
of view is sociocognitive theory. The emphasis in
sociocognitive theory is on the social psychological
relationship between the hypnotist and the subject.
According to this theory, there is no need to propose that
the subject has entered into some kind of trance state or
that some kind of split in consciousness has occurred;the hypnotized subject is engaged in the performance of
a role in a social situation that is largely under the con-
trol of the hypnotist. Hilgard acknowledges the funda-
mental importance of the social psychological aspect of
hypnotic phenomena, but he contends that changes in
consciousness occur when a subject is hypnotized that
cannot be accounted for by efforts on the part of a com-
pliant subject to please the hypnotist. In their theory of
dissociated control, Erik Woody and Kenneth Bowers
propose that hypnotized subjects are in a state temporar-
ily like that of patients with frontal lobe damage.
According to their theory, the perceptions and behavior
of the hypnotized subject are under the regulation of
lower-level subconscious systems that are not being
monitored by the frontal lobe executive.
If hypnotized subjects process information primarily
at a subconscious level, then the kinds of rules that are
applied in the evaluation of information by hypnotized
subjects are likely to be very different from those applied
in the conscious rational analysis of information.
Seymour Epstein has provided considerable support for
the idea that much of the information processing that
occurs in our everyday lives consists of rapid evaluations
of environmental stimuli that depend largely on subcon-
scious schemata associated with emotionally significant
past events. What we might have with hypnosis is an
exaggeration of this aspect of normal experience. If the
subconscious experiential system dominates information
processing during hypnosis, then what may occur is not
that missing material gets dragged up from the uncon-
scious to fill in the gaps in memory but that the gaps in
memory are filled in with plausible information that is
suggested either directly or indirectly during the hyp-
notic interview. It turns out that hypnosis tends to pro-
duce this kind of effect whenever the subject is required
to produce a narrative reconstruction of a highly emo-
tional event. In studies that employ stimuli of low emo-
tional impact, hypnosis does not produce an increase in
the amount of information recalled. Furthermore, it is
with free recall that we see the effect of hypnosis on the
amount of information recalled; when specific questions
are asked or when the subject is asked to decide between
various alternatives, responses are restricted so that the
tendency to produce more is not revealed.Research Findings
Some individuals are more susceptible to hypnosis than
others, and there has been a good deal of research
devoted to the investigation of the individual differencesHypnosis and Eyewitness Memory——— 361H-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 361