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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