Cultic Studies Journal, Vol. 13, No. 1, 1996, page 10
a jury or even an expert to judge the credibility of hypnotically-enhanced testimony, see
Hurd, 432 A.2d at 93-94, and makes cross-examination difficult, Rock, 483 U.S. at 60.
Finally, after undergoing hypnosis to refresh memory, individuals may lose the ability to
assess their memory critically and be more prone to speculation than if they had relied only
on normal memory recall. Little, 819 F.2d at 1430-31. The subject becomes less able “to
discriminate between accurate and inaccurate recollections.” Scientific Affairs, supra, at
1921. He or she may also experience “source amnesia,” believing that a statement heard
prior to hypnosis was a product of his or her own memory. Little, 819 F.2d at 1430.
As a result of the foregoing phenomena, the “hypnotically recalled memory is apt to be a
mosaic of (1) appropriate actual events, (2) entirely irrelevant actual events, (3) pure
fantasy, and (4) fantasized details supplied to make a logical whole.” Bernard [*21] L.
Diamond, “Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness,” 68
Cal. L. Rev. 313, 335 (1980) see Scientific Affairs, supra, at 1921. In the worst case,
someone who has undergone hypnosis might “inaccurately reconstruct the memory ...and
...then become convinced of the absolute accuracy of the reconstruction through memory
hardening.” Harker, 800 F.2d at 441. The “constructionist” views, supported as they are in
the scientific community, have considerable force. In our view, they cannot easily be
discounted when the integrity of the judicial fact-finding process is at stake, particularly
when no study has shown that hypnosis used to refresh memory increases only accurate
recall. Scientific Affairs, supra, at 1921.
E. Various Approaches to the Admissibility Question
The state and federal courts that have been faced with the admissibility of hypnotically
refreshed testimony have followed four different approaches. Some courts treat all such
testimony as per se admissible under the theory that hypnosis does not render the witness
incompetent, but goes to the question of credibility. See, e.g., Kline v. Ford Motor Co., 523
[*22] F.2d 1067, 1069 (9th Cir. 1975) (“That [a witness‟s] present memory depends upon
refreshment claimed to have been induced under hypnosis goes to the credibility of her
testimony not to her competence as a witness.”) United States v. Waksal, 539 F. Supp.
834, 838 (S.D. Fla. 1982), rev‟d on other grounds, 709 F.2d 653 (11th Cir. 1983) Pearson,
441 N.E.2d at 473 Federal Practice, supra, § 6011, at 123-24. This position depends in
considerable part on one‟s faith in the jury‟s ability to evaluate the testimony accurately in
light of cross-examination, expert testimony relating to hypnosis, and jury instructions.
Federal Practice, supra, § 6011, at 124. Such an approach was particularly favored when
courts were just beginning to address the admissibility of hypnotically refreshed testimony,
see Tuttle, 780 P.2d at 1208, but it “has sparsely been followed since 1980,” Zayas, 546
N.E.2d at 516.
Courts at the other end of the spectrum have found that post-hypnotic testimony is per se
inadmissible because the witness is incompetent to testify regarding such matters. See,
e.g., Zayas, 546 N.E.2d at 518 Tuttle, 780 P.2d at 1211 People v. Shirley, [*23] 31 Cal.
3d 18, 723 P.2d 1354, 1384, 181 Cal. Rptr. 243 (Cal.), cert. denied, 459 U.S. 860 (l982).
The common thread running through these cases is that the possible distorting effects of
hypnosis on memory are impossible to circumvent and are so substantial that “the game is
not worth the candle.” Shirley, 723 P.2d at 1366. Worse yet, “hypnotism aggravates the
unreliability of normal memory.” Valdez, 722 F.2d at 1200 (referring to finding of California
Supreme Court). Reasoning that no safeguard can adequately ensure reliability, these
courts deem the evidence inadmissible. n3 See Shirley, at 723 P.2d at 1384. A number of
courts apply a modified version of the rule by confirming the witness‟s testimony to matters
recalled before undergoing hypnosis. See, e.g., Tuttle, 780 P.2d at 1211 Hughes, 59
N.Y.2d at 545 466 N.Y.S.2d at 266.
a jury or even an expert to judge the credibility of hypnotically-enhanced testimony, see
Hurd, 432 A.2d at 93-94, and makes cross-examination difficult, Rock, 483 U.S. at 60.
Finally, after undergoing hypnosis to refresh memory, individuals may lose the ability to
assess their memory critically and be more prone to speculation than if they had relied only
on normal memory recall. Little, 819 F.2d at 1430-31. The subject becomes less able “to
discriminate between accurate and inaccurate recollections.” Scientific Affairs, supra, at
1921. He or she may also experience “source amnesia,” believing that a statement heard
prior to hypnosis was a product of his or her own memory. Little, 819 F.2d at 1430.
As a result of the foregoing phenomena, the “hypnotically recalled memory is apt to be a
mosaic of (1) appropriate actual events, (2) entirely irrelevant actual events, (3) pure
fantasy, and (4) fantasized details supplied to make a logical whole.” Bernard [*21] L.
Diamond, “Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness,” 68
Cal. L. Rev. 313, 335 (1980) see Scientific Affairs, supra, at 1921. In the worst case,
someone who has undergone hypnosis might “inaccurately reconstruct the memory ...and
...then become convinced of the absolute accuracy of the reconstruction through memory
hardening.” Harker, 800 F.2d at 441. The “constructionist” views, supported as they are in
the scientific community, have considerable force. In our view, they cannot easily be
discounted when the integrity of the judicial fact-finding process is at stake, particularly
when no study has shown that hypnosis used to refresh memory increases only accurate
recall. Scientific Affairs, supra, at 1921.
E. Various Approaches to the Admissibility Question
The state and federal courts that have been faced with the admissibility of hypnotically
refreshed testimony have followed four different approaches. Some courts treat all such
testimony as per se admissible under the theory that hypnosis does not render the witness
incompetent, but goes to the question of credibility. See, e.g., Kline v. Ford Motor Co., 523
[*22] F.2d 1067, 1069 (9th Cir. 1975) (“That [a witness‟s] present memory depends upon
refreshment claimed to have been induced under hypnosis goes to the credibility of her
testimony not to her competence as a witness.”) United States v. Waksal, 539 F. Supp.
834, 838 (S.D. Fla. 1982), rev‟d on other grounds, 709 F.2d 653 (11th Cir. 1983) Pearson,
441 N.E.2d at 473 Federal Practice, supra, § 6011, at 123-24. This position depends in
considerable part on one‟s faith in the jury‟s ability to evaluate the testimony accurately in
light of cross-examination, expert testimony relating to hypnosis, and jury instructions.
Federal Practice, supra, § 6011, at 124. Such an approach was particularly favored when
courts were just beginning to address the admissibility of hypnotically refreshed testimony,
see Tuttle, 780 P.2d at 1208, but it “has sparsely been followed since 1980,” Zayas, 546
N.E.2d at 516.
Courts at the other end of the spectrum have found that post-hypnotic testimony is per se
inadmissible because the witness is incompetent to testify regarding such matters. See,
e.g., Zayas, 546 N.E.2d at 518 Tuttle, 780 P.2d at 1211 People v. Shirley, [*23] 31 Cal.
3d 18, 723 P.2d 1354, 1384, 181 Cal. Rptr. 243 (Cal.), cert. denied, 459 U.S. 860 (l982).
The common thread running through these cases is that the possible distorting effects of
hypnosis on memory are impossible to circumvent and are so substantial that “the game is
not worth the candle.” Shirley, 723 P.2d at 1366. Worse yet, “hypnotism aggravates the
unreliability of normal memory.” Valdez, 722 F.2d at 1200 (referring to finding of California
Supreme Court). Reasoning that no safeguard can adequately ensure reliability, these
courts deem the evidence inadmissible. n3 See Shirley, at 723 P.2d at 1384. A number of
courts apply a modified version of the rule by confirming the witness‟s testimony to matters
recalled before undergoing hypnosis. See, e.g., Tuttle, 780 P.2d at 1211 Hughes, 59
N.Y.2d at 545 466 N.Y.S.2d at 266.
