Bath water . . . baby . . . throwin’ it all out . . . New Jersey makes all hypnotic testimony unacceptable except for defendants because one case had problems with disclosure . . . testimony induced by hypnosis rejected . . .

The New Jersey Supreme Court on Thursday barred witness testimony stemming from hypnosis in all criminal trials, except when the so-called refreshed testimony comes from a defendant. With the 6-1 ruling by the state’s highest court, New Jersey joins 26 other states that limit the admissibility of testimony that is extracted under hypnosis. Both concurring in part and dissenting in part, Justice Roberto Rivera-Soto said he agreed that in the case of Clarence McKinley Moore accepted procedures regarding hypnosis were not followed but that evidence as a result should still be allowed. But the court, reversing a position it took 25 years ago, said it now agrees that hypnotically refreshed testimony is not generally accepted science." "This opinion is a vindication of defendants’ rights," said Christopher D. Adams, a lawyer for the Association of Criminal Defense Lawyers of New Jersey, which urged the Supreme Court to end use of such testimony. "We took a position that the refreshed witness testimony of any sort had no place in a criminal courtroom." The ruling stems from a 1986 rape charge against Moore, who served 15 years in prison before a federal appeals court overturned his 1987 conviction in 2001, allowing him to be granted bail. A state judge in 2002 dismissed the indictment, saying it was flawed because prosecutors misled the Atlantic County grand jury by not saying that the victim identified Moore as her attacker only after being hypnotized. The woman initially said she could not identify the man who attacked her in a darkened room. Under hypnosis, she identified Moore from a photograph. Prosecutors appealed the decision, and a state appellate court reinstated the indictment but granted Moore’s request for a hearing on whether proper procedures were followed regarding the hypnosis evidence.

I often blather on this blog about how regression and any form of hypnosis needs to be conducted critically with very careful use of clean language and the like so that subjects are not led but are guided. This is most especially true of forensic hypnosis where the legal system is taken into the equation . . . the laws of evidence demand squeaky clean processes . . . unfortunately, New Jersey is buckling under beliefs about non-scientific processes and hypnosis that are just as outdated as previous beliefs that hypnosis was foolproof . . . it is neither. However, it can be an incredibly valuable tool when done properly and certainly is as valuable – actually moreso – than the polygraph which is often introduced as scientific incontrovertible evidence when it’s accuracy is certainly not as high as often portrayed in media.

It is extremely important that hypnotists performing forensic hypnosis use clean language and clean processes. There are training programs that teach the skills and offer experience but there are also indeed hypnotists who are half-assed and pretty sloppy putting up their shingles for this sort of work. It is important that one have appropriate training and experience. Some hypnotists think that just because they can create a trance they can do this sort of thing. Nope. You need the training and discipline and you need to know the limitations of evidence rules and trance.

New Jersey has made a mistake . . . big time . . . there are reasons for them to have made this error but it’s an error nonetheless. I hope that they realize that they’ve over reacted and that there are other ways to limit problems without losing all the benefits of forensic hypnosis. Perhaps they’ll pick up the baby that’s been thrown out with the bathwater.

All the best,
Brian