Cultic Studies Journal, Vol. 13, No. 1, 1996, page 12
Id. at 96-97 (footnote omitted).
The presence of these safeguards, however, was not sufficient in Hurd for the admissibility
of post-hypnotic testimony. The trial court was also directed to assess the reliability and the
admissibility of the testimony in light of the following non-exclusive list of considerations, id.
at 96: “the kind of memory loss that hypnosis was used to restore and the specific
technique employed,” id. at 95, whether the memory loss in question is “likely to yield
normal recall if hypnosis is properly administered,” and [*27] “whether the witness has any
discernible motivation for not remembering or for „recalling‟ a particular version of the
events,” id. at 96. Finally, the court held that the party attempting to admit the
hypnotically-enhanced testimony bears the burden of demonstrating that the testimony is
reliable based on the standards described. Id. at 97.
Several courts have followed the Hurd guidelines or adopted similar ones. See State v.
Weston, 16 Ohio App.3d 279, 475 N.E.2d 805, 813 (Ohio App. 1984) House v. State, 445
So. 2d 815, 826-27 (Miss. 1984) see also Federal Practice, supra, § 6011, at 168.
Finally, the approach most frequently taken by the federal courts, Federal Practice, supra, §
6011, at 173, is a so-called case-by-case or totality-of-the-circumstances approach, see,
e.g., McQueen v. Garrison, 814 F.2d 951, 958 (4th Cir.), cert. denied, 484 US. 944, 98 L.
Ed. 2d 359, 108 S. Ct. 332 (1987) Wicker v. McCotter, 783 F.2d 487, 492-93 (5th Cir.),
cert. denied, 478 U.S. 1010, 92 L. Ed. 2d 723, 106 S. Cl. 3310 (l986) Sprynczynatyk v.
General Motors Corp., 771 F.2d 1112, 1123 (8th Cir. 1985), cert. denied, 475 U.S. 1046, 89
L.. Ed. 2d 572, 106 S. Ct. 1263 (1986). While recognizing the benefits of the Hurd
guidelines, these courts conclude [*28] that the district court should be given discretion to
balance all of the factors to determine the reliability of the evidence and the probative
versus prejudicial effect of the testimony. They note that even though the safeguards
required by other courts
represent the type of general reliability inquiry that must be made[,] ...a court
cannot necessarily rest solely on the reliability vel non of the hypnosis procedures
in ruling on the admissibility of the proffered testimony. Even though all of the
Hurd safeguards might be employed, the defendant may still be able to
demonstrate by expert testimony that a witness‟s memory has been irreparably
distorted by hypnosis. On the other hand, even if the hypnosis procedures are
flawed, a trial or appellate court might discern that a witness‟s testimony was
nonetheless independent of the dangers associated with hypnosis.
McQueen, 8I4 F.2d at 958 (citations omitted). As the foregoing summary indicates, the law
continues to be in a state of flux regarding the reception of hypnotically-enhanced
testimony. See Federal Practice, supra, § 6011, at 123.
F. Hypnosis as a Therapeutic Tool
The existing [*29] case law concerning the admissibility of post-hypnotic testimony, while
helpful to our analysis, is grounded in fact situations where the hypnosis is specifically
directed to the witness‟s recollections of known events, rather than where repressed
memories of past traumas previously unknown simply emerge following hypnosis. Borawick,
relying heavily on a law review article, Kanovitz, supra, at 1213, argues that hypnosis
functions differently and more reliably when it results in the retrieval of repressed memories
of traumatic events than when it is used to refresh one‟s memory of eye-witnessed events
and therefore testimony relating to the former should be admitted on a per se basis.
The research on hypnosis only uses subjects with normal memory function who are exposed
to simulations of real-life events to “replicate eyewitness situations,” id. at 1212, 1223,
since for practical and ethical reasons, it is impossible to design effective controlled studies
to test the ability of hypnosis to retrieve accurate, suppressed memories of childhood
Id. at 96-97 (footnote omitted).
The presence of these safeguards, however, was not sufficient in Hurd for the admissibility
of post-hypnotic testimony. The trial court was also directed to assess the reliability and the
admissibility of the testimony in light of the following non-exclusive list of considerations, id.
at 96: “the kind of memory loss that hypnosis was used to restore and the specific
technique employed,” id. at 95, whether the memory loss in question is “likely to yield
normal recall if hypnosis is properly administered,” and [*27] “whether the witness has any
discernible motivation for not remembering or for „recalling‟ a particular version of the
events,” id. at 96. Finally, the court held that the party attempting to admit the
hypnotically-enhanced testimony bears the burden of demonstrating that the testimony is
reliable based on the standards described. Id. at 97.
Several courts have followed the Hurd guidelines or adopted similar ones. See State v.
Weston, 16 Ohio App.3d 279, 475 N.E.2d 805, 813 (Ohio App. 1984) House v. State, 445
So. 2d 815, 826-27 (Miss. 1984) see also Federal Practice, supra, § 6011, at 168.
Finally, the approach most frequently taken by the federal courts, Federal Practice, supra, §
6011, at 173, is a so-called case-by-case or totality-of-the-circumstances approach, see,
e.g., McQueen v. Garrison, 814 F.2d 951, 958 (4th Cir.), cert. denied, 484 US. 944, 98 L.
Ed. 2d 359, 108 S. Ct. 332 (1987) Wicker v. McCotter, 783 F.2d 487, 492-93 (5th Cir.),
cert. denied, 478 U.S. 1010, 92 L. Ed. 2d 723, 106 S. Cl. 3310 (l986) Sprynczynatyk v.
General Motors Corp., 771 F.2d 1112, 1123 (8th Cir. 1985), cert. denied, 475 U.S. 1046, 89
L.. Ed. 2d 572, 106 S. Ct. 1263 (1986). While recognizing the benefits of the Hurd
guidelines, these courts conclude [*28] that the district court should be given discretion to
balance all of the factors to determine the reliability of the evidence and the probative
versus prejudicial effect of the testimony. They note that even though the safeguards
required by other courts
represent the type of general reliability inquiry that must be made[,] ...a court
cannot necessarily rest solely on the reliability vel non of the hypnosis procedures
in ruling on the admissibility of the proffered testimony. Even though all of the
Hurd safeguards might be employed, the defendant may still be able to
demonstrate by expert testimony that a witness‟s memory has been irreparably
distorted by hypnosis. On the other hand, even if the hypnosis procedures are
flawed, a trial or appellate court might discern that a witness‟s testimony was
nonetheless independent of the dangers associated with hypnosis.
McQueen, 8I4 F.2d at 958 (citations omitted). As the foregoing summary indicates, the law
continues to be in a state of flux regarding the reception of hypnotically-enhanced
testimony. See Federal Practice, supra, § 6011, at 123.
F. Hypnosis as a Therapeutic Tool
The existing [*29] case law concerning the admissibility of post-hypnotic testimony, while
helpful to our analysis, is grounded in fact situations where the hypnosis is specifically
directed to the witness‟s recollections of known events, rather than where repressed
memories of past traumas previously unknown simply emerge following hypnosis. Borawick,
relying heavily on a law review article, Kanovitz, supra, at 1213, argues that hypnosis
functions differently and more reliably when it results in the retrieval of repressed memories
of traumatic events than when it is used to refresh one‟s memory of eye-witnessed events
and therefore testimony relating to the former should be admitted on a per se basis.
The research on hypnosis only uses subjects with normal memory function who are exposed
to simulations of real-life events to “replicate eyewitness situations,” id. at 1212, 1223,
since for practical and ethical reasons, it is impossible to design effective controlled studies
to test the ability of hypnosis to retrieve accurate, suppressed memories of childhood
