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

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 13
trauma, id. at 1221-22. The Kanovitz article sets forth some arguments in support of the
view that hypnosis may be better able to retrieve [*30] memories “kept out of conscious
awareness by ego-defenses that protect the psyche from trauma,” id. at 1194, than
hypnosis used for normal memory recall. In the clinical setting, hypnosis may overcome the
psychological barriers to remembering past traumas because it induces profound relaxation
and calmness, intensifies concentration, and focuses the subject‟s attention inward. Id. at
1213. In addition, the clinical literature “abounds with case histories of spectacular memory
successes.” Id. at 1225. Finally, repressed memories of events that have a traumatic impact
upon the witness may, even if unconscious, tend to remain fixed and survive longer than
memories of events witnessed quickly, in the context of a great deal of other sensory
information. Id. at 1231-32.
Based on those reasons, the article concludes that courts should be more willing to accept
testimony based on retrieval of repressed memories than when hypnosis is used to enhance
eyewitness accounts, particularly since failure to admit post-hypnotic testimony in cases like
this one might discourage the use of hypnosis in therapy. Therapists might fear that
patients who discover they were victimized as [*31] children could lose the opportunity for
legal redress if their testimony was based on post-hypnotic recall. See id. at 1255-56.
Noting, however, that clinical hypnosis is not without some risk of memory distortion --for
example, clinicians may “overstep the boundaries of interviewing neutrality” and may be
especially interested in their patients‟ “subjective impressions” of their pasts, rather than
accurate recollections, id. at 1218Cthe Kanovitz article suggests that courts should ask
“whether hypnosis can create sexual abuse memories in subjects who have never
experienced abuse.” Id. at 1220. Because the “only evidence that hypnosis can implant
false autobiographical memories comes from experiments with subjects who are hand-
picked for their high hypnotizability,” id. at 1235, a characteristic that can be measured, id.
at 1238, the article suggests that “high hypnotizability [may be] a factor bearing on
admissibility.” Id. at 1239.
While we appreciate the force of many of these arguments, the fact remains that the
literature has not yet conclusively demonstrated that hypnosis is a consistently effective
means to retrieve repressed memories of traumatic, [*32] past experiences accurately. For
example, the Council on Scientific Affairs has pointed out that the case histories of
“spectacular memory successes” are anecdotal and difficult to verify independently and
there are no controlled studies confirming these reports. Scientific Affairs, supra, at 1919.
In addition, some in the clinical community express reservations concerning the theory of
memory repression, or at least the phenomenon‟s prevalence. See Julie M. Murray,
“Repression, Memory, and Suggestibility,” 66 U. Colo. L. Rev. 477, 505-08 (1995).
Furthermore, we are highly skeptical of the belief in the clinician‟s ability to “weed out most
patently groundless claims” because childhood sexual abuse often “fits like a tailor-made
glove” to certain psychiatric disorders. Kanovitz, supra, at 1242. Some therapists may be
too eager to find patterns of behavior demonstrative of childhood sexual abuse. See Murray,
66 U. Colo. L. Rev. at 507B08. But cf. Colette M. Smith, “Recovered Memories of Alleged
Sexual Abuse,” 18 Seattle Univ. L. Rev. 51, 61 (1994) (noting that Harvard Medical School
psychiatrist Judith Herman “believes that therapists rarely wield enough power over [*33]
patients to impose false memories on them”). Therefore, even though there may be
important distinctions between the use of hypnosis to enhance memories of witnessed
events and the use of hypnosis to retrieve repressed memories, given the lack of empirical
studies as to the latter and the complicated nature of hypnotically-induced recall, we are not
willing to assume that the risks of suggestibility, confabulation, and memory hardening are
significantly reduced when the hypnosis that triggers the testimony is used for therapeutic
purposes.