Interested by Max Dessoir's experiments in automatic writing, 1 tried to arrive at results in the same way with a subject whose consent I had previously obtained. I put a pencil into his hand with the point on a sheet of paper, and ordered him to answer certain questions, but not to write purposely* The subject answered every question in writing, and betrayed every secret. In this way he told me many family secrets without knowing it or wishing it.

Another way in which hypnosis might possibly be used in law, would be to decide whether a person were hypnotizable or not, or to obtain a statement which the accused or the witnesses cannot give in the waking state. Such a case may occur, and has already been of practical importance.

Such statements in hypnosis would be valuable because subjects remember in later hypnoses all that has occurred in earlier ones. Now, if it is suspected that the subject has been the victim or the instrument of a crime which he forgets in the waking state, it is evident that hypnotism should be used when there is no other means of clearing up the case.

But according to Lilienthai there is certainly a legal limitation here. He thinks an accused person or witness may be hypnotized if he consents. But hypnotization is only permissible to confirm the fact of hypnotizability, whereas a judicial examination in hypnosis is illegal. Lilienthai thinks that a deposition made in hypnosis is inadmissible, because the testimony of an unsworn witness is only allowed in certain cases, and an oath could not be administered to a hypnotized subject, and it would also be impossible to make him swear to his statement after waking. The statements of an accused person in hypnosis are likewise inadmissible, because he should not be compelled to make statements against his will.

But I certainly think that LilienthaFs view must be essentially modified. In the first place as far as the judicial examination of a hypnotized witness is concerned, the exceptional circumstances in which the testimony of unsworn persons is allowed are mentioned in §56 of the Rules of Criminal Procedure. But as the case of the hypnotized person is not mentioned therein, it would appear that his evidence is actually excluded. But in reality the position is somewhat different. Certainly every witness should be sworn, whether the decision is based on unsworn testimony or not. But as Dalcke has specially pointed out, the High Court has not been invariably consistent in this respect; it has on more than one occasion only granted a fresh trial because the verdict was based on unsworn testimony. It is therefore quite possible for a hypnotic witness to be examined without being sworn, provided the verdict is not made to depend on his statements. But in addition to this-there are other points to be considered. A case may be so thoroughly cleared up by the hypnotization of a witness at the preliminary investigation that no charge is preferred. But at a-preliminary investigation the oath may only be administered under very exceptional circumstances.

Finally, specialists when giving evidence at a trial are oftened questioned on matters which are not the special subject of the trial. It is therefore quite conceivable that a specialist may make hypnotic experiments before the trial and subsequently relate the results-in the witness-box. In the case already mentioned,, in which1 Hirschlaff sent in a written opinion in the same terms he had! used at the preliminary investigation, the question was one of a woman who had made statements to him in hypnosis. There is certainly the possibility of the statements of a hypnotized witness being worked into the evidence in a circuitous way.

As far as the accused is concerned, I certainly think that Lilienthal has overlooked the fact that an accused person cannot be said to testify against his will when he asks to be hypnotized so that he may give evidence that he cannot give in the waking state. At most this would be testimony given without the subject's conscious will, but not against his will* Whether there are any legal objections to this I cannot venture to decide, but I wish to point out that according to § 242 of the Rules of Criminal Procedure the accused ought to be further examined in the manner laid down in § 136, according to which he should be given every opportunity of refuting the evidence against him and of putting forward all the facts that tell in his favour. In a case in which hypnosis is indicated, it would be a contravention of the above paragraphs to omit hypnotizing the accused.

We will now discuss what should be done when the accused person pleads that he has committed the offence through hypnotic or post-hypnotic suggestion, or when he says he has been the victim of a crime in hypnosis. Unless such a plea is made hypnosis will never have to be judicially considered. The point requiring consideration, as Forel points out, is that when the crime is successfully suggested it may also be impressed upon the subject that he shall think he has acted freely. If any regard were paid to it, we should be obliged to take into consideration that every case of crime might be a result of hypnotic suggestion. According to Delbceuf, indeed, this is especially the case when the crime does not in any way benefit the accused. But in reality the question whether the patient was hypnotized or not will only have to be investigated when hypnosis is pleaded. But we must not straightway reject the plea merely because it is, as Riant thinks, of great advantage to the accused.

Let us suppose that the accused asserts that he acted under the influence of hypnotic or post-hypnotic suggestion. He may perhaps add that he felt a subjective constraint, and that he has often been hypnotized, but that he does not remember any criminal suggestion.

It would then have to be judicially decided - (1) whether the accused was really hypnotized; (2) whether the commission of a crime was suggested to him in this state; (3) who was the originator of the suggestion; (4) to what degree he was suggestible (Max Dessoir).