Noticeboard
| DOI | http://doi.org/10.1350/ijep.2006.10.3.221 |
| Published date | 01 July 2006 |
| Date | 01 July 2006 |
| Subject Matter | Noticeboard |
NOTICEBOARD
NOTICEBOARD
NOTICEBOARD
Expert evidence concerning hypnosis, false confessions and childhood
memory—United Kingdom and United States
The reliability of the evidence of any witness who has undergone hypnotherapy is
open to doubt because of the risk of confabulation and suggestive questioning.
These dangers are explained on the Crown Prosecution Service website at
www.cps.gov.uk/legal/section13/chapter_p.html. The witness is likely to be
unaware of the dangers and therefore over-confident (G. Gudjonsson, The
Psychology of Interrogations, Confessions and Testimony (1993) 169). Their ignorance
may be shared by jurors. In RvBrowning [1995] Crim LR 227, Lord Taylor CJ
endorsed Home Office guidelines on the proper use of hypnosis by police but said
nothing about what judges should do when presented with evidence from a
witness who before coming to court underwent hypnosis. A possible safeguard, if
the evidence is admitted, is to require corroboration (see M. Redmayne, ‘A Corrob-
oration Approach to Recovered Memories of Sexual Abuse: A Note of Caution’
(2000) 116 LQR 147). Another is to permit the jury to hear expert evidence about
the possible effect of hypnotherapy on recollection.
against his daughter (K) when she was aged 10 to 15 and her school friend (A) when
aged 10 to 12. At the time of the trial, K was 34 years old and A was 33 years old.
Early in the proceedings, the prosecution disclosed to the defence that in 2004,
while undergoing counselling, A had alleged sexual abuse by the defendant to S, a
hypnotherapist. S’s notes were disclosed to the defence and considered by their
expert Dr N. Dr N was critical of S’s methods and techniques. At the trial, S was not
a witness. The defence submitted (1) that A’s evidence should be excluded under
PACE, s. 78 and (2) if her evidence was admitted, the defence should be allowed to
call Dr N to testify about the dangers of evidence produced through hypnotherapy.
The judge rejected both applications. In cross-examination, A admitted that the
first time she had spoken of the abuse (of which she had always known) was during
a hypnotherapy session with S. She said that this was because her subconscious
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2006) 10 E&P 221–240 221
had not previously allowed her to speak of the matter. There was supporting
evidence from K on two of the counts involving A. On appeal, the Court of Appeal
held that the trial judge was correct to admit A’s evidence: ‘The police were not
responsible for the counselling sessions and ultimately it was for the jury to assess
her credibility in the light of all the evidence that it had heard’ ([2006] EWCA Crim
Dr N’s report which were solely concerned with whether or not A could be
described as truthful were inadmissible. However, other parts of the report
expressed opinions that were outside the knowledge of and experience of jurors,
namely, his criticisms of S’s techniques and his opinion about the danger that if
A’s recollection was falsely engendered during the course of counselling, A would
thereafter have regarded it as a genuine memory. The guilty verdicts based on A’s
evidence were unsafe. If the jury had felt it could not rely on A’s evidence, this
might have affected the verdicts in relation to the counts involving K. Therefore,
all the convictions were quashed and a retrial ordered.
* * *
In United States vBelyea 159 Fed Appx 525 (2005) the defendant, a drug addict, was
convicted of possession of a firearm by an illegal drug user contrary to 18 USC §
922(g)(3). The only direct evidence was a confession which the defendant had made
at a time when he was in prison and suffering from clinical depression. Moreover,
he had been lied to by an ATF agent who had falsely stated that one of the stolen
guns had been used in a murder and bore the defendant’s fingerprint and he had
been warned that if he did not talk he could be held in a DC jail where ‘a skinny
white boy like him wouldn’t last long’. The district judge denied a defence appli-
cation to adduce expert testimony on factors that correlate with false confessions
giving as his reason that whether a confession is false is ‘something juries [already]
decide all the time’. The United States Court of Appeals for the Fourth Circuit said
that the admissibility of scientific, technical or specialised knowledge is governed
by Federal Rules of Evidence, rule 702. Following Daubert vMerrell Dow Pharma-
ceuticals, Inc. 509 US 579 (1993), the trial court should have inquired whether jurors
commonly know about false confessions as a particular form of lying and about
specific factors that may correlate to false confessions. In the Court of Appeals’
opinion, the phenomenon of false confessions is counterintuitive to lay people.
The case was remanded for a more complete evaluation of the admissibility of the
expert testimony.
* * *
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