BILL ANALYSIS

Senate Research Center	S.B. 338
88R6450 AJZ-D	By: Hinojosa
	Criminal Justice
	4/6/2023
	As Filed

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

Hypnosis has been used as a forensic tool in Texas since the 1980's. In 1987, the legislature
charged the Texas Commission on Law Enforcement (TCOLE) with implementing forensic
hypnosis training and testing for law enforcement. The course's handbook has not been updated
since the training was established in the 1980s. Witnesses are often told that memory works like a videotape and that during hypnosis, they will be able to recall certain events and suspect
descriptions that their normal memory would not be able to access.

However, scientific studies have found the use of hypnosis to produce an alarming amount of
unreliable eyewitness identification testimony. Rather than increase the accuracy of eyewitness
recall and recognition, Johns Hopkins Medicine has warned that hypnosis does not work as a
memory-recovery method and leads witnesses to be more confident in their memories, even when they are false. While hypnotherapy can be useful when treating addiction and mental illness, experts resist its use as a forensic tool to enhance eyewitness memory and this concern is
heightened when executed by non-professionals.

In 2021, the Department of Public Safety announced the suspension of their hypnosis program
stating that they have developed more advanced interview and interrogation techniques that yield
better results.

As of today, at least 27 states have banned testimony retrieved during hypnosis from being
introduced as evidence. With so much uncertainty in investigative hypnosis, it is vital to protect
the public by requiring that forensic evidence is supported by science, research, and data so as not to wrongfully convict an innocent person.

BILL DETAILS

� S.B. 338 amends the Code of Criminal Procedure to prohibit statements made during or after a hypnotic session as admissible evidence in a criminal trial.

� It provides that any physical evidence identified that independently corroborates the commission of a crime is admissible.

As proposed, S.B. 338 amends current law relating to the use of hypnotically induced statements in a criminal trial.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 38, Code of Criminal Procedure, by adding Article 38.24, as follows:

Art. 38.24. STATEMENTS OBTAINED BY INVESTIGATIVE HYPNOSIS. (a) Defines "investigative hypnosis."

(b) Provides that this article applies to all statements made during or after a hypnotic session by a person who has undergone investigative hypnosis for the purpose of enhancing the person's recollection of an event at issue in a criminal investigation or case, including courtroom testimony regarding those statements and including statements identifying an accused that are made pursuant to pretrial identification procedures.

(c) Provides that a statement described by Subsection (b) is not admissible against a defendant in a criminal trial, whether offered in the guilt or innocence phase or the punishment phase of the trial. Provides that, notwithstanding Article 38.23 (Evidence Not to Be Used), this article does not affect the admissibility of any physical evidence, or the testimony of any witness identified, that independently corroborates the commission of the offense.

SECTION 2. Makes application of this Act prospective.

SECTION 3. Effective date: September 1, 2023.