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.

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 11
n3 Many courts have taken this position on the basis that the testimony does not
meet the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
since there is no general acceptance in the scientific community that hypnosis can
reliably enhance memory. See Tuttle, 780 P.2d at 1209-10 Hughes, 59 N.Y:2d at
543, 466 N.Y.S.2d at 265 Federal Practice, supra, § 6011, at 132-33. This
rationale is now called into question with the Supreme Court‟s decision in Daubert
v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2793 (1993),
holding that the Federal Rules of Evidence supersede Frye. See Federal Practice,
supra, § 6011, at 8 (Supp. 1995).
[*24]
In Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987), the Supreme
Court reviewed Arkansas‟s rule that a criminal defendant‟s hypnotically refreshed testimony
was per se inadmissible. While the Court recognized the problems with hypnosis, it
concluded that certain procedural safeguards could reduce the potential inaccuracies of
post-hypnotic testimony. Id. at 59-60. Focusing on the due process right of criminal
defendants to testify in their own defense, id. at 51, the Sixth Amendment right to call
witnesses in the defendant‟s favor, id. at 52, and the Fifth Amendment guarantee against
compelled testimony, id. at 52-53, the Court concluded that the rule of per se
inadmissibility was an “arbitrary restriction on the [criminal defendant‟s] right to testify in
the absence of clear evidence by the State repudiating the validity of all post-hypnosis
recollections,” id. at 61. Consequently, the Court deemed Arkansas‟s prohibition
unconstitutional. The Court, however, explicitly limited the reach of its holding by refusing
to express an opinion as to the appropriate rule of admissibility “of testimony of previously
hypnotized witnesses other than criminal defendants.” Id. [*25] at 58 n. 15.
The third and fourth approaches occupy a middle ground. These attempt to balance the
competing concerns that animate the per se positions. The third approach, articulated by
the New Jersey Supreme Court in the oft-cited State v. Hurd, 86 N. J. 525, 432 A.2d 86
(N.J. 1981), requires adherence to a list of prescribed safeguards intended to ensure the
reliability of hypnotically refreshed testimony. The court concluded that Aa rule of per se
inadmissibility is unnecessarily broad and will result in the exclusion of evidence that is as
trustworthy as other eyewitness testimony.” 432 A .2d at 94.
In light of recommendations offered by a frequent expert witness, Dr. Martin Orne, the
court adopted the following procedural requirements:
First, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the
session. This professional should also be able to qualify as an expert in order to aid the
court in evaluating the procedures followed.
Second, the professional conducting the hypnotic session should be independent of and not
regularly employed by the prosecutor, investigator or defense.
Third, any information given to the hypnotist [*26] by law enforcement personnel or the
defense prior to the hypnotic session must be recorded, either in writing or another suitable
form.
Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed
description of the facts as the subject remembers them [without] ...asking structured
questions or adding new details.
Fifth, all contacts between the hypnotist and the subject must be recorded.
Sixth, only the hypnotist and the subject should be present during any phase of the
hypnotic session, including the pre-hypnotic testing and the post-hypnotic interview.