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Hypnosis and the Law
Hypnosis is not normally associated with the law or court rooms. Hypnosis can however help witnesses to recall
evidence. Is such evidence gathered through hypnosis admissible as evidence and
allowed to be presented in court?
Hypnosis has been used by lawyers in courts around the world in a range of cases.
Different jurisdictions however have put in place different rules regarding the
admissibility or not of evidence gathered through hypnosis.
In UK criminal proceedings, evidence gathered through hypnosis is normally
inadmissible. This is due to the concern that the witness who was under hypnosis
may be subject to cueing, caused by such things as explicit or implicit suggestion by
the hypnotist or a fantasy of the witness that then becomes fixed as a fact in that
person’s mind.
In UK criminal proceedings, if the prosecution is relying on a witness who has been hypnotised, they should ensure that
the hypnosis session was recorded on audio or videotape. Such a recording will be disclosable to the defence. The
defence should be informed of the fact the witness has been hypnotised and provided with details of the session. The
hypnotist themselves may be called to give evidence.
Relevant UK Caselaw
R v C [2006] EWCA Crim 231 – In this case the prosecution served as
unused material, a statement from a hypnotherapist. The complainant
had disclosed during hypnosis that she had been sexually abused by the
defendant. The defence called a witness who sought to admit evidence
challenging the hypnotherapist’s methods. The trial judge ruled that the
defence expert’s evidence was inadmissible. On appeal however the
Court of Appeal ruled that the defence expert’s evidence was admissible.
R v Browning [1995] Crim LR 227 CA – In this case the Court of Appeal
stated that the use of hypnosis should be exceptional.
In Australia the position is that where a prosecution is relying on
evidence gathered during hypnosis that fact must be disclosed to the defence and all information such as video
recordings should be disclosed.
In the case of R v Jekyns in New South Wales, the court directed that in order for
evidence from hypnosis to be admissible, the evidence must be limited to
matters that the witness can recall before the hypnosis procedure. Evidence that
is first brought to attention during or after hypnosis will not be admissible.
In addition the court set out the further following requirements:
•
There is documentary evidence of the original recollection from the witness
•
The witness consented to the hypnosis and it was performed by an
experienced and independent hypnotist
•
The hypnosis was performed without the presence of all relevant parties and
was recorded.
We have set out today how the use of hypnosis in court is treated in different jurisdictions. Each differ to the extent of
the admissibility of evidence gathered through hypnosis and it is likely that courtroom rules in relation to hypnosis will
continue to evolve.
Author:
Shane McCann
Shane is a leading Northern Ireland solicitor with over 12 years experience in
Personal Injury, Business Law and Conveyancing. He focuses on achieving results
and providing a high level of satisfaction for his clients. For more details on what
Shane and SG Murphy can help you with please click on this link
murphysolicitors.co.uk
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