10.7Confabulation

Confabulation is the process of filling gaps in memory with fantasy, a danger of obtaining information through hypnosis. People v Gonzales (Gonzales I), 415 Mich 615, 624 (1982), mod on other grounds 417 Mich 1129 (1983).¹ The Gonzales I Court explained:

“The hypnotic state is a condition of altered consciousness marked by heightened suggestibility. A subject in a hypnotic state may not have accurate recall. A hypnotized subject is highly susceptible to suggestion, even that which is subtle and unintended. Such suggestion may be transmitted either during the hypnotic session or before it by such persons as, in this case, the policemen investigating the killing. The person under hypnosis experiences a compelling desire to please either the hypnotist or others who have asked the person hypnotized to remember or who have urged that it is important that he or she remember certain events. The subject may produce the particular responses he believes are expected of him. In this state of hypersuggestibility and hypercompliance the subject will unconsciously create answers to the questions which the hypnotist asks if he cannot recount the details being sought. This process of filling the gaps of memory with fantasy is called confabulation. Neither the person hypnotized nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. Finally, a witness who is uncertain of his recollections before being hypnotized will become convinced through the process that the story he told under hypnosis is true and correct in every respect. This effect not only persists, but the witness’s conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story.” Gonzales I, 415 Mich at 623-624.

As a general rule, a witness’s posthypnotic testimony is inadmissible at trial. In Gonzales I, 415 Mich at 626-627, the Court stated:

“The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory, and to permit posthypnotic testimony would unfairly denigrate the defendant’s right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.”

A witness may testify to facts recalled before he or she was hypnotized if the party proffering the testimony demonstrates that the facts were known to the witness before hypnosis. People v Nixon, 421 Mich 79, 90 (1984). “In order to ensure that the witness’ trial testimony is based solely on facts recalled and related prior to hypnosis, . . . the party offering the testimony must establish its reliability by clear and convincing evidence.” Id.

“The use of statements obtained prior to hypnosis for substantive, impeachment, and other purposes is governed by the same rules applicable to other prior recorded statements.” Nixon, 421 Mich at 91 n 3.