This article examines the scientific basis of hypnosis and concludes that previously hypnotized witnesses are incompetent to testify concerning matters discussed under hypnosis. Unbiased examination of scientific literature discloses that persons under hypnosis are highly motivated to please the hypnotist and therefore are likely to fantasize rather than accurately recall lost memories. After hypnosis these false impressions are fixed as true and the witness is unshakable on cross-examination. Therefore, the McCormick relevancy test is inadequate, and hypnosis tainted testimony, like other scientific evidence, must meet the stricter Frye standard before being presented to the finder of fact. Hypnosis presently does not pass the Frye test. However, even if it ever becomes reliable enough in the future to pass that test, serious confrontation clause problems remain. The logical appeal of the California Supreme Court in People v. Shirley is overwhelming. This article argues that a new rule of incompetence should be recognized in the law of evidence.
James E. Beaver, Memory Restored or Confabulated by Hypnosis—Is it Competent?, 6 SEATTLE U. L. REV. 155 (1983).