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Anatomy of a Civil Trial

Can Memory Be Enhanced by Hypnosis In the mid-1990’s, I had my client, who suffered from

complete amnesia, hypnotized. Te truck/car crash occurred at a traffic signal on the Maryland – Delaware border. Te driver died and my client had no memory. Te possibility that our car stalled in the intersection arose after the ten year old grandson of the driver, a car passenger in the collision, panicked when his mother’s car stalled months later. I elected to have my client hypnotized to “recall” the events. In State v. Hurd, N.J. Supr., 86 N.J. 525, 432 A.2d 86, 96-7 (1981), the court set guidelines for hypnotically enhancing testimony. A medical school professor followed that protocol by making a record of the pre-hypnosis witness recollections, the hypnosis process, and then the recalled or refreshed memories. In Judge Trucking Co., Inc. v. Messick, 1994 Del. Super. LEXIS 546 (1994), the court agreed that the hypnotized enhanced testimony could be considered if it followed a protocol the judge defined. Hypnotically enhanced

testimony often criticized

because of a concept known as “memory hardening.” Te witness becomes convinced that the hypnotically enhanced memories are the truth. Te unshakable conviction makes cross-examination meaningless because the witness had no other recollections that could be cross-examined to explore whether the witness’s perceptions were correct.

Te Messick court held a subsequent hearing on

admissibility, viewed the videotaping, and listened to the testimony of the medical school psychology professor who performed the hypnosis. Te Delaware court accepted the argument that cross-examining the plaintiff on the hypnotically enhanced testimony was no different than any other eyewitness who had a limited memory of the events, but was steadfastly convinced that the remembered facts were unquestionably true. Te court ruled that the enhanced testimony was admissible and the case settled shortly thereafter. Another criticism of hypnosis to enhance testimony is

the concern that the witness may not be able to distinguish memories from imagination or fantasy. Tis concern was expressed in Burral v. State, 352 Md. 707, 724 A.2d 65 (1999). Tere, it did not appear that any protocol with safeguards was followed nor was expert testimony offered. After reviewing the split of authority in other jurisdictions, the Court held that hypnotically enhanced testimony does not satisfy the Frye/ Reed test as being scientifically reliable. Tree judges joined in dissent. In Clark v. State, 140 Md. App. 540, 781 A.2d 913 (2001), however, without citing Burral, the Court held that hypnotically enhanced testimony was admissible if it meets the exception that prior to hypnosis, the witness testifies to the pre-hypnotic recollections. Te Clark court never discussed the reliability issues addressed in Burral. Te essence of Clark appears to be that hypnotically enhanced testimony satisfies the Frye/Reed test if a proper protocol is followed.

Using Memory Issues in Cross-examination Lincoln demonstrated that effective cross-examination

begins with preparation. Science has provided a foundation on which to question witness memories. Studies are addressing trial issues faced by every trial lawyer concerning witness reliability. Tis article addresses some of the scientific studies concerning altered memories. In preparing to cross-examine, the memory studies

suggest questions about whether the witness was influenced to change what is “remembered.” Did the witness talk to anyone, look at documents or statements of others, or hear anyone else speaking about the facts? Were there other people present that may be mistakenly identified as a participant? In a constructive cross-examination, does the witness recall small details which a jury may find more credible? How many times was the witness interviewed and by whom during which memories may have been planted? Or, through the cross-examination, new facts may be suggested to the witness which the witness may suddenly recall.

Does a witness

show memory hardening or invention of facts/confabulation evidencing a reconstruction of the memories?

20 Trial Reporter / Spring 2012

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