juridical concept. There is no civil wrong (tort)
of brainwashing, no crime of brainwashing, and
brainwashing is not recognized in any
jurisdiction as a defense to civil or criminal
misconduct. According to Lunde and Wilson
(1977), “No reported case in Anglo-American
law has accepted brainwashing as a defense to
criminal liability” (pp. 354–355).4
I also had another concern in mind at that time.
Brainwashing, mind control, thought reform,
and similar labels, while initially used to
describe real events involving real victims and
real manipulators in places such as Hungary, the
Soviet Union, Korea, and China, had long since
stopped being publicly recognizable historical
references. Most people today know little or
nothing about the social events in those
countries that gave rise to the fears that the mind
was more malleable than we ever imagined. The
1950s were a long time ago. Brainwashing and
similar terms had passed into the realm of
rhetoric, science fiction, and Hollywood horror
movies. Talk about brainwashing, and people
were less likely to take you seriously. Even
when used in reference to cultic groups, these
words had acquired a derisive meaning that
undercut any serious discussion of the important
topic they raised—freedom of the mind from
external malevolent manipulation. These terms
had passed from fact into fiction. Indeed, they
mostly dwelt in the realm of cultural insult—if
you didn’t like someone’s opinion, you would
say that person had been brainwashed. Most
importantly, however, these terms had lost any
scientific significance, which made expert
testimony virtually impossible.
The Scientific Objection
In the landmark decision Daubert v. Merrell
Dow Pharmaceuticals, Inc. (1993), the United
States Supreme Court provided a four-prong
test, now referred to as the Daubert test, to
determine the admissibility of expert testimony:
4 Interestingly, when attorney F. Lee Bailey agreed to represent
heiress Patty Hearst after she had been kidnapped and
indoctrinated by a militant organization that involved her in a bank
robbery, he did not mention brainwashing as his defense rather, he
said it would be “induced insanity” (Footlick, Howard, &Monroe,
1975).
(a) Whether the expert’s theory or technique
can be tested
(b) Whether the expert’s theory or technique has
been subjected to publication or peer review
(c) Whether the expert’s theory or technique has
a known error rate and
(d) Whether the expert’s theory or technique is
generally accepted in the relevant scientific
community.
The Daubert test applies in all federal and most
state courts.
Courts have been disinclined to give scientific
credence to what they consider to be political
concepts. In United States v. Fishman (1990),
federal judge Jensen concluded that
brainwashing/thought-reform theory did not
meet the criteria of general acceptance in the
relevant scientific community, and therefore
could not be the basis for expert testimony.
Other judges since have relied on his opinion to
reach similar conclusions.
The Prejudice Objection
Expert testimony that might otherwise be
admissible may be excluded if its probative
(evidentiary) value is substantially outweighed
by the danger of unfair prejudice. Prejudice
occurs where the testimony is likely to cause the
jurors to make their decision based upon their
confusion, passion, or emotion, and not on the
evidence presented. As an example, extremely
gory pictures that accurately depict the crime
scene might be excluded from consideration by
the jurors because the photos will so inflame
them that they will be distracted from engaging
in a careful consideration of the evidence.
Even if judges were to accept the scientific
validity of brainwashing by recognizing that it is
merely a colorful label for extreme social
processes that are studied in courses on social
psychology, they are still reluctant to have these
issues raised. As a federal appellate court
recently noted, “Cult-brainwashing arguments
rarely succeed” (Robidoux v. O’Brien, 2011).
Judges often look at such arguments as at best a
Hail-Mary pass or as an admission that no other
recognized theory will help the client.
International Journal of Cultic Studies ■ Vol. 6, 2015 71
of brainwashing, no crime of brainwashing, and
brainwashing is not recognized in any
jurisdiction as a defense to civil or criminal
misconduct. According to Lunde and Wilson
(1977), “No reported case in Anglo-American
law has accepted brainwashing as a defense to
criminal liability” (pp. 354–355).4
I also had another concern in mind at that time.
Brainwashing, mind control, thought reform,
and similar labels, while initially used to
describe real events involving real victims and
real manipulators in places such as Hungary, the
Soviet Union, Korea, and China, had long since
stopped being publicly recognizable historical
references. Most people today know little or
nothing about the social events in those
countries that gave rise to the fears that the mind
was more malleable than we ever imagined. The
1950s were a long time ago. Brainwashing and
similar terms had passed into the realm of
rhetoric, science fiction, and Hollywood horror
movies. Talk about brainwashing, and people
were less likely to take you seriously. Even
when used in reference to cultic groups, these
words had acquired a derisive meaning that
undercut any serious discussion of the important
topic they raised—freedom of the mind from
external malevolent manipulation. These terms
had passed from fact into fiction. Indeed, they
mostly dwelt in the realm of cultural insult—if
you didn’t like someone’s opinion, you would
say that person had been brainwashed. Most
importantly, however, these terms had lost any
scientific significance, which made expert
testimony virtually impossible.
The Scientific Objection
In the landmark decision Daubert v. Merrell
Dow Pharmaceuticals, Inc. (1993), the United
States Supreme Court provided a four-prong
test, now referred to as the Daubert test, to
determine the admissibility of expert testimony:
4 Interestingly, when attorney F. Lee Bailey agreed to represent
heiress Patty Hearst after she had been kidnapped and
indoctrinated by a militant organization that involved her in a bank
robbery, he did not mention brainwashing as his defense rather, he
said it would be “induced insanity” (Footlick, Howard, &Monroe,
1975).
(a) Whether the expert’s theory or technique
can be tested
(b) Whether the expert’s theory or technique has
been subjected to publication or peer review
(c) Whether the expert’s theory or technique has
a known error rate and
(d) Whether the expert’s theory or technique is
generally accepted in the relevant scientific
community.
The Daubert test applies in all federal and most
state courts.
Courts have been disinclined to give scientific
credence to what they consider to be political
concepts. In United States v. Fishman (1990),
federal judge Jensen concluded that
brainwashing/thought-reform theory did not
meet the criteria of general acceptance in the
relevant scientific community, and therefore
could not be the basis for expert testimony.
Other judges since have relied on his opinion to
reach similar conclusions.
The Prejudice Objection
Expert testimony that might otherwise be
admissible may be excluded if its probative
(evidentiary) value is substantially outweighed
by the danger of unfair prejudice. Prejudice
occurs where the testimony is likely to cause the
jurors to make their decision based upon their
confusion, passion, or emotion, and not on the
evidence presented. As an example, extremely
gory pictures that accurately depict the crime
scene might be excluded from consideration by
the jurors because the photos will so inflame
them that they will be distracted from engaging
in a careful consideration of the evidence.
Even if judges were to accept the scientific
validity of brainwashing by recognizing that it is
merely a colorful label for extreme social
processes that are studied in courses on social
psychology, they are still reluctant to have these
issues raised. As a federal appellate court
recently noted, “Cult-brainwashing arguments
rarely succeed” (Robidoux v. O’Brien, 2011).
Judges often look at such arguments as at best a
Hail-Mary pass or as an admission that no other
recognized theory will help the client.
International Journal of Cultic Studies ■ Vol. 6, 2015 71
