N.J. Model Criminal Jury Charge, N.J.S.A. Non 2C

Approved 6/20/96

HYPNOTICALLY REFRESHED TESTIMONY

The State [the defense] has presented the testimony of [witness’s name], whose testimony

it claims has been hypnotically refreshed. 1 Hypnosis is a state of he ightened concentration with

diminished awareness of peripheral events.2 In evaluating this testimony you must consider first

of all the ordinary tests of credibility that I have already explained to you. However, you must

also consider the following four special facts about the effects of hypnosis.

First, people who have been hypnotized are vulner able to intentiona l or unintentional

suggestions made by the interviewers. This means that they have a tendency to remember things

under hypnosis only because the interviewers intentionally or unintentionally suggested them,

and not because they really ha ppened. Second, they tend to lo se critical judgment while under

hypnosis, which means that they have less ability to judge for themselves whether what they

appear to remember is plausible or accurate. Third, they tend to confuse hypnotic recall with

waking memory, which means that hypnotized people tend to confuse their memories with facts

injected during hypnosis, and tend to think that th ey actually remember the injected facts.

Fourth, they tend to have increased confiden ce about the accuracy of their testimony after

hypnosis.

3

Therefore, while the credibility of this tes timony is a question for you as jurors to decide,

you must consider these special features of hypnotically refr eshed testimony along with the

ordinary tests of credibility that I have already explained. At the end of this process, you may as

judges of the facts accept all of the hypnotically refreshed testimony, or a portion of it, or none of

it.

1 If the parties have presented any testimony by the person who conducted the hypnosis session, or any

expert witnesses who challenge or support the testimony’s reliability, give the model charge on expert testimony.

Also, the model charge on credibility of witnesses should be given before this charge.

2 State v. Hurd, 86 N.J. 525, 534 (1981).

3 State v. Fertig, 143 N.J. 115, 127 (1996), citing State v. Hurd, 86 N.J. at 540.