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Criminal Resource Manual

290. Hypnosis of a Defendant

In Rock v. Arkansas, 483 U.S. 44 (1987), the U.S. Supreme Court found unconstitutional as violative of the Fifth, Sixth, and Fourteenth Amendments Arkansas's per se rule excluding a criminal defendant's hypnotically refreshed testimony. While the Court was not prepared to endorse the use of hypnosis as an investigative tool, it did conclude that a State's legitimate interest in excluding unreliable evidence did not justify a mandatory rule barring a defendant's hypnotically refreshed testimony "in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections."

The Court continued, "Despite the unreliability that hypnosis concededly may introduce," procedural safeguards (e.g., required levels of training for the hypnotist, questioning in a neutral setting, and the tape or video recording of the interrogations [before, during, and after hypnosis]), "reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist." 483 U.S. at 60-61.