For decades, witness statements made to law enforcement under hypnosis have been accepted as evidence in Texas courts, but a new state law will soon bring that practice to an end.
According to a 2020 report from The Dallas Morning News, police in Texas have elicited statements given by individuals under hypnosis roughly 1,800 times over 40 years. Based on such evidence, judges have sent dozens of people to prison and some to death row.
Such instances involved a witness or victim being placed in a trance, which supposedly helped uncover suppressed memories related to a crime. However, SB 338 will soon prohibit testimony obtained using hypnosis from being admitted as evidence.
SB 338 will take effect on September 1, prohibiting “the use of hypnotically induced statements in a criminal trial.”
“With the passage of SB 338, any statements made during or after an investigative hypnosis session are inadmissible as evidence against a defendant, whether in the guilt or innocence phase or the punishment phase of a criminal trial,” said the bill’s author, Sen. Juan Hinojosa (D-McAllen), in a statement to The Dallas Express.
“I am pleased to see that SB 338 … will finally become law in Texas,” he said.
Rep. Jeff Leach (R-Allen) authored its companion bill in the House.
The bipartisan legislation was signed in both chambers of the Texas Legislature at the end of May before being sent to Gov. Greg Abbott. In 2021, Abbott vetoed a similar bill passed by state lawmakers, claiming it was written too broadly.
SB 338 was written with Abbott’s concerns in mind, Hinojosa claimed. While Abbott is allowing the legislation to become law by not vetoing it, he did not sign it either. The Dallas Express reached out to Abbott’s office for comment but received no response by press time.
Hinojosa told The Dallas Express the legislation “has been several years in the making and was crafted with input from multiple stakeholders like law enforcement, prosecutors, and criminal justice reform advocates.”
“Most importantly, the bill addresses the disturbing amount of inaccurate eyewitness identifications by specifically banning the use of these statements to identify an accused individual,” he claimed.
While the idea of hypnosis has been influenced by decades of pop culture stereotypes, the term as it pertains to the new law refers to a “state of hypersuggestability accompanied by complete physical and mental relaxation,” which supposedly “can be used to aid witnesses in recalling important events.”
Even the U.S. Department of Justice (DOJ) claims it can assist the investigative process “in certain limited cases.”
“Witnesses to crimes have been able to recall certain facets of the crime while in a hypnotic state that they had not remembered without hypnosis,” according to the DOJ.
However, even the department notes that “information obtained from a person while in a hypnotic trance cannot be assumed to be accurate. Therefore, any information obtained by the use of hypnosis must be thoroughly checked as to its ultimate accuracy and corroborated.”
Hinojosa told The Dallas Express that since the 1980s, studies have “increasingly found the use of investigative hypnosis to produce an alarming amount of unreliable testimony.”
“Experts in the field of forensic psychology have made it clear that hypnosis does not work as a memory-recovery method and it does not increase the accuracy of eyewitness recall and recognition,” he claimed, thanking both Rep. Leach and Gov. Abbott for their contributions in making the bill become law.
