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Hypnotism In Its Relations To Criminal Jurisprudence

( Originally Published 1904 )

HAVE been asked to pass a scientific opinion on the question whether hypnotism can be successfully employed to induce the commission of crime, and a legal opinion concerning the status of hypnotism in criminal jurisprudence. There are perhaps no two questions of more vital interest or intrinsic importance than these. When a confessed murderer is acquitted on the plea that he was hypnotized and compelled to commit the crime, a question is presented which is in some respects cognate to the old problem of emotional insanity. It is, however, of infinitely greater importance than the latter, for the obvious reason that emotional insanity could be made available as a defence only when it could be clearly shown that the victim had so grossly invaded the private rights of the accused as to deserve his punishment; whereas the defence which consists wholly of the allegation that some third person compelled the commission of the crime by means of hypnotism is equally open to the avenger of a grievous wrong and to the coldest-blooded murderer that ever scuttled a ship or cut a throat. It is evident that if such a defence is once admitted as an. element of criminal - jurisprudence, a very wide and hitherto unexplored avenue of escape is opened to the criminal classes. Nevertheless, when a criminal is acquitted on such grounds it may be said in extenuation that the jury entertained a " reasonable doubt," or invoked the old common law maxim that " it were better that ninety-nine guilty men should escape than that one innocent man should be put to death." But when a confessed murderer is not only acquitted of the crime, but the alleged hypnotist is convicted of murder in the first degree on the testimony alone of said murderer, the question assumes a far more serious aspect. If such a thing can happen, no man is safe who incurs the enmity of the criminal class. As the books say of the charge of rape, " it is an accusation easy to make, but difficult to disprove." In the present state of popular opinion on the subject of hypnotism it is a charge impossible of refutation. The popular belief on the subject may be summed up in two sentences:

1. It is believed that a person may be hypnotized at a distance and against his will.

2. It is also believed that in the hypnotic state a person is under the absolute dominion of the will of the hypnotist, and can be compelled to perform any act, however repugnant to his feelings or his conscience.

Obviously, if these two propositions are true, hypnotism has a legitimate place in criminal jurisprudence. The scientists, however, who hold that hypnotism can be employed for criminal purposes do not all agree as to the truth of the first proposition, but they sustain the second with practical unanimity. It is to this second proposition, therefore, that we must first direct our attention; for if that is found to be untrue it is unimportant whether the first is true or false.

It must be premised that the study of hypnotism is yet in its infancy. No man can safely predict its future, as to either its uses or its abuses. That it is useful when legitimately employed, no one who is acquainted with the facts will deny. That it may be employed to the detriment of its votaries, is a proposition equally true of everything that is a power for good. That when its laws are understood they will be found to be promotive of the highest good of the human race, is a proposition sanctioned by every discovery yet made in the domain of nature's laws.

Little as is known of the ultimate possibilities of hypnotism, there are some things about it which have been definitely ascertained and are, broadly speaking, as well known now as they can ever be known. It is not necessary for one to be able to calculate the eclipses to enable him to know that the earth is round or to grasp the fundamental hypothesis of gravitation. Nor is it necessary for us to know the future possibilities of hypnotism to enable us to grasp its fundamental laws, since they have been definitely formulated. Generally speaking, we know what hypnotism is, and we know at least one of its fundamental laws. The researches of the European scientists have definitely settled that much, and for the purposes of our present inquiry it is sufficient.

The word " hypnotism " is derived from the Greek utvos (hypnos), signifying " sleep." Dr. Braid, who was the originator of the term, defined it as " nervous sleep " or induced sleep. This implied the theory, then prevalent, that a subject must be asleep in order to, exhibit the phenomena of hypnotism. Professor Liebault, of Nancy, extended the researches of Braid, and immortalized his own name by the discovery of the law of suggestion. Professor Bernheim, a pupil of Liebault, in conjunction with the latter, discovered that the Braidian definition was too limited in its scope to embrace all the phenomena, inasmuch as it was found that many of the distinctive results could be produced while the subject was in what Bernheim terms the " waking condition." Bernheim, therefore, defines hypnotism as " the induction of a peculiar psychical condition which in-creases the susceptibility to suggestion." 1 This implies the theory that persons are normally susceptible to suggestion. This conclusion, however, does not seem to be warranted, except in the sense that all are subject to the influence of others. There must be some abeyance of the objective faculties in order to produce the phenomena of suggestibility in the hypnotic sense that is, in the sense that a suggestion can produce a hallucination. My definition of hypnotism would, therefore, substitute the word " induces " for " increases " in Bernheim's definition.

As before remarked, Professor Liebault discovered and formulated the law of suggestion. That law is now almost universally recognized by scientists throughout the world as the potent factor in hypnotism. I say " almost," for there are still a few exceptions, consisting of a constantly diminishing number of the followers of the late Professor Charcot, who believed that hypnosis could be induced only in hysterical patients. There is one other French savant who succeeds in astonishing himself and amusing the scientific world by the production of phenomena which demonstrate nothing but his own ignorance of the principle of suggestion. Then there is one English author who produced a universal guffaw among scientific men by publishing an expose of the Frenchman, and succeeded in astonishing all Europe and America by demonstrating the fact that he knew less about the subject than the Frenchman himself. With these unimportant exceptions the law of suggestion is universally recognized among scientists.

Formally stated, the law is this:

Persons in a hypnotic state are constantly amenable to control by suggestion.

Broadly speaking, suggestion, as the term is employed in connection with hypnotism, is a statement, true or false, made to a hypnotic subject. Its potency resides in the fact that the hypnotized subject unhesitatingly accepts the statement or suggestion as true, and acts accordingly. Thus, a hypnotic subject may be made to believe that he is another person, or that he is an animal, or a demon, or an angel; and he will assume the character and act the part to the life, within the limits of his physical or mental capacity. He may be made to get drunk on water by suggesting to him that it is brandy ; and he may then be made sober by giving him brandy accompanied by the suggestion that it is an antidote to the previous " stimulant."

These are the fundamental facts of hypnotism as they are recognized by the public, and it is upon these facts, thus broadly stated and superficially understood, that the conclusion has been based that hypnotism can be employed as an agent of the criminal. It is, perhaps, a natural conclusion for one who has witnessed only the common platform experiments. He sees the subject thrown into a state that is to him mysterious and inexplicable. He sees the subject in that condition become apparently under the absolute control of the operator, and dominated by the most absurd suggestions. His natural conclusion is that if the operator chose to say to the subject that it was necessary for him to perpetrate a crime, he would be compelled to do so in obedience to the law of suggestion. This is the first conclusion at which the European scientists arrived ; but they were not content with mere platform experiments and abstract deductions. So they instituted a series of laboratory experiments in which criminal suggestions constituted the salient feature. Subjects were hypnotized and paper daggers were placed in their hands, and the suggestion was made that it was extremely desirable that some imaginary person, or real one for that matter, should be incontinently slaughtered. It is unnecessary to say that the suggestion was in every instance obeyed with the greatest alacrity. It is almost superfluous to add that the experimenters, who were mostly medical gentlemen, were practically unanimous in the opinion that hypnotism was a very dangerous force in the hands of anybody but doctors.

It is my purpose in this paper to show that this view of the case is to the last degree superficial, and evinces a singular lack of appreciation of the real scope and significance of the law of suggestion. In their view of the question, suggestion would be confined to the oral declaration of the hypnotist to his subject. The truth is that the suggestions of the hypnotist are the least important of those which dominate the mind of the subject.

Suggestions are divided into two classes, namely : i. Suggestions by a second person, as by a hypnotist. 2. Auto-suggestions.

The first class is subdivided into two classes, namely : 1. Oral suggestions. 2. Mental suggestions.

With the latter class we shall have nothing to do, as it belongs to a higher phase of psychic phenomena than we are considering.

Auto-suggestions are divided into four classes, namely : I. Volitional auto-suggestions. 2. Suggestions of moral education and fixed principles. 3. Instinctive auto-suggestions. 4. Suggestions of the environment.

The greater part of the above divisions and subdivisions are explained by their terms. The subdivisions of auto-suggestions, however, require elucidation. Before proceeding to do so I desire to impress a very important fact upon the mind of the reader.

It sometimes happens in the course of experiments in hypnotism that two contrary suggestions are made at the same time. The invariable result is that great distress of mind is inflicted upon the subject, and it often results in bringing him out of the hypnotic state. When this effect does not follow, the stronger suggestion necessarily prevails. The importance of this fact will become obvious as we proceed.

1. A volitional auto-suggestion is one which the subject makes to himself before being hypnotized. For instance, if he anticipates the possibility that the hypnotist will place him in a ridiculous attitude, or one repugnant to his sense of propriety, he will resolve beforehand that he will not obey the suggestion. If, then, the anticipated suggestion is made by the hypnotist, it will be strongly resisted, and the potency of the resistance will be in exact proportion to the subject's innate sense of dignity or propriety. If that is very strong, and the hypnotist insist upon his suggestion, the subject will be restored to his normal condition.

2. Suggestions of moral education and fixed principles are of a cognate character to the foregoing. These reach the very heart of the matter under consideration. Thus, if a subject be told to do anything that is contrary to the settled principles of his life, he will resist the suggestion with all the force of his moral nature. Consequently, when an immoral or a criminal suggestion is made by a hypnotist, whether it will be obeyed or not is purely a question of moral character. If the subject is strongly intrenched in moral rectitude he will resist ; and, if the hypnotist persist, he will be restored to normal consciousness. " Strength of mind " is not a factor in the case. Strength of " will," in the ordinary acceptation of the term, has nothing to do with the result. " Will," in the psychic sense, is nothing more nor less than desire. Consequently, if the subject's desire to obey the dictates of conscience is stronger than his desire to obey the suggestions of the hypnotist, the auto-suggestion must prevail. In other words, there is no such thing in real life as a hypnotist having absolute control of a subject against the will of the latter.

3. Instinctive auto-suggestions are those which arise from the natural desire to protect one's own life or that of his wife or children. They are by far the strongest auto-suggestions that a criminal hypnotist would have to encounter in an effort to procure the commission of a crime by means of suggestion. It has often been said that a criminal hypnotist would have the power to induce a subject to commit suicide, or to procure an abortion, by means of suggestion. But such a use of that power is obviously out of the question when we consider the inherent strength of the instinct of self-preservation, and the potency of the subjective clinging to the life of the foetus which is the inherent attribute of every mother. Besides, the same instinct of self-preservation would be a powerful factor in case of an attempt to instigate the commission of a murder. The subject would instinctively reason up to the consequences to himself in case of detection ; and, even though his moral principles might not constitute an auto-suggestion of sufficient strength to enable him to withstand the suggestion of a criminal hypnotist, the consideration of his own safety would be more than likely to have that effect.

4. Suggestions of the environment are those which arise spontaneously in the mind of the subject from his knowledge of the nature of the experiments about to be made, of the character of the persons present, the objects of the experiments, and the desires of the experimenters.

In the whole range of experimental hypnotism there are no auto-suggestions that are more apt to modify results than are the suggestions of the environment. And. there are none that are disregarded by a certain class of experimenters with such persistent, aggressive fatuity. Indeed, it is somewhat difficult at all times to eliminate, intelligently, these suggestions ; and in a certain class of experiments it is practically impossible. The experiments which we are now considering belong to that category ; and it may be set down as an axiom in _experimental hypnotism that no laboratory experiment conducted for the purpose of ascertaining whether suggestion can be successfully employed to induce a hypnotic subject to perpetrate a crime is of any evidential value whatever.

When a subject is hypnotized for that purpose, he knows that he is among friends. He knows that they are law-abiding citizens who will take care that no harm shall result from the experiments about to be made. He generally knows that he is expected to carry out all suggestions made to him. He is very probably aware that he is expected to demonstrate the truth of the proposition that a criminal hypnotist can compel his subject to commit crime. Like all hypnotic subjects, he is anxious to win applause - to create astonishment. In short, he knows that he is the central figure in a comedy or farce which is about to be played in the interests of " science," and he feels that he is the " scientist." The inevitable consequence is that he resolves to carry out every suggestion of the hypnotist, knowing that no harm can possibly result. A paper dagger is placed in his hands, and he is told that a certain gentleman present is an enemy who " needs killing." This he is ready to do, and he proceeds to thrust his paper dagger into the heart of his " enemy," amid the applause of the assembled wisdom.

It is manifest that the moral character of the subject cannot enter as a factor in an experimental case of this kind. He is simply a player in a farce in which he assumes the role of the heavy villain. Moreover, the result could easily be reversed by merely suggesting to the subject that he was expected to disobey the criminal suggestions of the hypnotist. In short, the subject in such experiments will do just what he believes to he expected of him, and the suggestions of the environment will always afford some hint as to that, even if they amount to nothing more than an assurance that it is perfectly safe for him to obey the suggestions made by the hypnotist. It is plain that a laboratory experiment can go no farther than the enactment of a farce.

Space forbids the citation of authorities to sustain the foregoing propositions, although they are numerous.'

It must be apparent to the intelligent reader that laboratory and platform experiments in this line have no possible evidential value ; and when we remember that all the hue and cry that has been raised on the subject of " hypnotism and crime " is based upon these same laboratory experiments, it will be seen that the public have been led into an error of enormous pro-portions and of infinite moment in the administration of criminal justice. This, however, only pertains to the value of laboratory experiments as evidence. It must not be forgotten that while they do not prove that hypnotism can be employed for criminal purposes, neither do they disprove that proposition ; they simply demonstrate the necessity for eliminating the results of experimental investigation from consideration.

The question of fact still remains: Can hypnotism be successfully employed for the perpetration of crime?

My remarks relating to auto-suggestions arising from the moral education and the fixed principles of the subject will have prepared the reader's mind for the only rational answer, namely, it is purely a question of moral character. A criminal hypnotist in control of a criminal subject could undoubtedly procure the commission of a crime under exceptionally favorable circumstances. But a criminal hypnotist would simply waste his energies in hypnotizing a criminal subject; for a man of that character could, without doubt, be just as easily influenced in his normal condition. However that may be, when a man sets up hypnotism as a defence in a criminal trial, he proclaims himself a criminal character.

Beyond what has already been said of the worthlessness of experimental investigation, this is the only general proposition that can be predicated with certainty from a knowledge of the fundamental laws of hypnotism. But it practically covers the whole ground.

The first legal question that arises is, How far ought hypnotism to be admitted as a defence when it is pleaded? My answer is that it should never, under any circumstances, be admitted as a defence for the one who is clearly proved to have committed the crime. Drunkenness cannot be urged as a defence, and there is in-finitely less reason for admitting hypnotism. In the one case a good man may be so far crazed by liquor as to become, in fact, utterly irresponsible. Yet the fact is rejected as a defence, on the ground that he voluntarily rendered himself irresponsible by getting intoxicated. The hypnotic subject should be held to the same rule and for the same reason ; for no man can be hypnotized against his will. This is the practically universal testimony of all the scientific writers on the subject. He voluntarily places himself in the power of a hypnotist whom he more than probably knows to be a criminal character, and he should be held to the same accountability for the results as if he had, voluntarily " placed an enemy in his mouth to steal away his brains." More-over, as I have previously shown, the hypnotized subject will never commit a crime in that state which he would not commit in his normal condition.

The next legal question is as to the admissibility of the testimony of the alleged hypnotic subject in a criminal prosecution of the alleged hypnotist as an accessory before the fact. It is difficult to imagine any legal grounds for the admission of his testimony at all; for if it is true that he was so deeply hypnotized as to be an irresponsible agent in the hands of the hypnotist, he was necessarily in a state that would preclude the possibility of his having any definite recollection of what happened. Indeed, his whole testimony would be open to the suspicion that he was merely reciting the details of a subjective hallucination. In that case his testimony would be literally " of such stuff as dreams are made of " - the " baseless fabric of a vision." Obviously, it should have no more standing in a court of justice than an alleged dream. Consequently, if it is clearly proven that he was hypnotized, his own testimony should be excluded as against the other party concerning what happened during the period of his irresponsibility.

This brings up the question, so often mooted, of the propriety of hypnotizing a person in court for the purpose of questioning him concerning what happened to him during a previous hypnotization. From a legal standpoint this is a most intensely absurd proposition. Not one of the conditions which give value to human testimony would be present. In the first place, he could not be punished for perjury if he swore falsely; and the instinct of self-preservation would cause him to swear falsely if the truth would militate against him. Moreover, being in a hypnotic state, he would be amen-able to control by suggestion, and a cross-examination would utterly confuse him. A cross-examination by a competent lawyer consists largely of artful suggestions in the form of leading questions ; and a hypnotized witness would necessarily either be controlled by them, or restored to normal consciousness by a conflict of suggestions. Clearly, a hypnotized subject can have no legitimate standing as a witness in a court of justice.

I have now briefly examined the salient features of the problem from both the psychological and the legal standpoint, and I hope that I have made it as clear to others as it is to me that its psychological features are less repulsive and dangerous to the public than many interested writers have pictured them, and that the few legal problems involved are easy of solution without a resort to legislation. Hypnotism has no legitimate place in criminal jurisprudepce. The attempt to thrust it into that field is the result of a determination on the part of interested parties to confine the uses of hypnotism to a select few. This effort has been aided by popular ignorance and criminal instinct, until our courts of justice are now threatened with an inundation of cases involving questions that are new and strange to lawyers and judges, and threaten jurors with paralysis. It is humiliating, but it is true, that in the last quarter of the nineteenth century we are threatened with a repetition of the insanity of the seventeenth. The ghost of Cotton Mather stalks abroad at noonday and gibbers from the forum.

For further information about hypnotism:
Hypnosis @ Wikipedia
The Nature Of Hypnotism
Is Hypnotism Humbug?
Hypnotism And Suggestion
The Therapeutic Value Of Hypnotism

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