In the past twenty years a growing number of courts, both state and federal, have addressed the problem of the admissibility in a criminal trial of testimony by a witness whose memory has been "refreshed" by the use of pre-trial hypnosis. Some courts are of the opinion that hypnosis is nothing more than a memory aid, to be treated like any other device to refresh recollection. Other courts believe hypnosis is more of a "science," and as such should be treated consistently with the rules for the admission of other scientific evidence. While the reliability of using hypnosis to refresh a witness' memory and hence his testimony to be used in a criminal proceeding is not an entirely unfamiliar issue to the Ohio criminal justice system, it has never been directly addressed by the Ohio Supreme Court. This Note seeks to analyze the legal framework of hypnosis as it has been dealt with in Ohio and in other jurisdictions, and to recommend an approach to deciding the issue. To accomplish this, the author has divided this Note into four sections. The first section will deal with the controversy surrounding the applicability of hypnosis and the hypnotic process to a legal proceeding. The second section focuses on the legal tests currently in use by other jurisdictions. In the third section, the existing legal tests will be evaluated as to their strengths and weaknesses. Finally, the fourth section will recommend the approach most consistent with the applicable law in Ohio.
Note, Hypnotically Refreshed Testimony: Is It Legally Relevant to a Criminal Proceeding in Ohio, 34 Clev. St. L. Rev. 665 (1985-1986)