Cultic Studies Journal, Vol. 13, No. 1, 1996, page 14
G. Totality-of-the-Circumstances Approach
Based on our review of the literature and the case law, we conclude that the district court
was correct to reject a per se rule of admissibility or inadmissibility. A per se rule of
exclusion or inclusion is too blunt a tool with which to address the concerns regarding the
reliability of post-hypnotic testimony or the concerns that people who have been sexually
abused may lose an opportunity to bring suit against their abusers.
To be sure, the exclusion of such testimony in every case avoids the problems of
unreliability, but it ignores Federal Rule of Evidence 601, which “abolished almost all
grounds [*34] for witness disqualification based on new assumptions that took a more
optimistic view of witness reliability and jury perceptiveness.” Federal Practice, supra, §
6011, at 124, 129. In addition. we believe that it risks the elimination of reliable testimony.
See State v. Iwakiri, 106 Idaho 618, 682 P.2d 571, 577 (Idaho 1984).
On the other hand, to admit all such testimony without pause, even if the jury is informed
of the risks of the potential problems of hypnotically-enhanced testimony, creates the
danger of having a lay jury speculate as to the effects of the hypnosis in the case before it.
As a result, such an approach seems to us inadequate to protect defendants from
unfounded charges in either criminal or civil suits. See Federal Practice, supra, § 6011, at
127-28. While we appreciate the care and sensitivity with which the district court chose its
methodology, we nevertheless find its approach too rigid and restrictive and prefer a
“totality-of-the-circumstances” approach. First, we believe that to treat the presence or
absence of safeguards as the sole criteria of admissibility may not always mitigate the
problems associated with hypnotically refreshed memory, and it may [*35] “give hypnosis
an aura of reliability which misleads the jury into disregarding the remaining dangers.”
Federal Practice, supra, § 6011, at 169-70. Second, like the Fourth Circuit, we are reluctant
to treat the presence of safeguards as a litmus test for determining the reliability of pre-trial
hypnosis, since even though the safeguards are relevant to the inquiry, “a court cannot
necessarily rest solely on the reliability vel non of the hypnosis procedures in ruling on the
admissibility of the proffered testimony.” McQueen, 814 F.2d at 958. Conversely, the
absence of safeguards does not compel the conclusion in every case that post-hypnotic
testimony is unreliable: “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.” Id. see also Iwakiri, 682 P.2d at 578 (“Merely because one of
the safeguards was not followed should not result in the automatic exclusion of the entire
testimony.”).
Thus, we believe that the rule of admissibility should be more flexible than the one
suggested by the district court and we therefore find preferable the [*36] approaches taken
by the Eighth Circuit in Sprynczynatyk, 771 F.2d at 1112, and the Fourth Circuit in
McQueen, 814 P.2d at 951. In Sprynczynatyk, the Eighth Circuit required pretrial hearings
to assess the procedures used in hypnosis to determine “in view of all the circumstances,”
whether the testimony was sufficiently reliable and whether its probative value outweighed
any prejudicial effect. 771 F.2d at 1122.
In McQueen, the Fourth Circuit required the trial court to
conduct a balanced inquiry to determine if the testimony had a basis that was
independent of the dangers associated with hypnosis --in other words, a balanced
inquiry to determine whether a witness‟s memory and ability to testify from it was
distorted by the earlier hypnosis. The balanced inquiry...cannot be circumscribed
by narrow considerations, and...must be determined by a detailed factual analysis
on a case-by-case basis.

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 15
814 F.2d at 958. Despite flawed hypnosis procedures, the Fourth Circuit concluded
that the hypnotically-enhanced testimony of a witness to a murder was admissible
because “considerable circumstantial evidence corroborated [the] testimony,” id.
[*37] at 959, her testimony “exhibited the characteristics normally expected from
a witness recalling details of facts five years after their occurrence,” and there was
“no indication of a memory unshakably frozen by hypnosis,” id. at 961.
In conducting a case-by-case analysis, the district court should consider the following non-
exclusive list of factors. First, it should evaluate the purpose of the hypnosis: whether it was
to refresh a witness‟s memory of an accident or crime or whether it was conducted as part
of therapy. In the former instance, the subject may feel pressured to remember details, to
aid the criminal investigation, whereas when the subject has undergone therapy to explore
the sources of her psychological ailments, she may be less inclined to confabulate or
describe a complete coherent story. In the latter case, however, the court should be mindful
of the possibility that the subject may have received subtle suggestions from her therapist
that abuse or other traumas could be at the root of her problems. Thus, a second important
consideration is whether the witness received any suggestions from the hypnotist or others
prior to or during hypnosis such as a theory of [*38] the cause of the subject‟s ailments or
key information relevant to the investigation for which she underwent hypnosis. A third and
related factor is the presence or absence of a permanent record, which can help the court
ascertain whether suggestive procedures were used. Ideally, the session should be
videotaped or audiotaped. Fourth, a court should consider whether the hypnotist was
appropriately qualified by training in psychology or psychiatry. A fifth factor is whether
corroborating evidence exists to support the reliability of the hypnotically refreshed
memories. Sixth, evidence of the subject‟s hypnotizability may also be relevant. A highly
hypnotizable subject may be more prone to confabulate and more susceptible to suggestion.
Seventh, the court should consider any expert evidence offered by the parties as to the
reliability of the procedures used in the case. Finally, a pretrial evidentiary hearing is highly
desirable to enable the parties to present expert evidence and to test credibility through
cross-examination.
After consideration of all of the relevant circumstances, the trial court should weigh the
factors in favor of and against the reliability of the hypnosis procedure [*39] in the exercise
of its discretion whether to admit the post-hypnotic testimony. Finally, we add that the
party attempting to admit the hypnotically-enhanced testimony bears the burden of
persuading the district court that the balance tips in favor of admissibility. Hurd, 432 A..2d
at 97.
H. Application of Admissibility Approach to This Case
While we conclude that the test for admissibility adopted by the district court in this case
was insufficiently flexible, and while we believe that it would have been more appropriate
for the district judge to have conducted an evidentiary hearing prior to issuing his ruling, we
nonetheless affirm the district court‟s in limine ruling and subsequent summary judgment.
Since in our view the factors before the district court weighed decisively against the
admissibility of Borawick‟s testimony, we are convinced that if the district court had followed
our test, it would have necessarily reached the same conclusion. We see no point in
remanding the case so that the district court can reach the same finding.
First, Borawick‟s assertions notwithstanding, it is beyond question that St. Regis lacked
adequate professional qualifications as a hypnotist. [*40] While a panoply of academic
qualifications is not necessary in all circumstances for one to qualify as an expert, there
should be a general presumption in favor of appropriate academic credentials. The district
court‟s finding that St. Regis was not properly qualified finds ample support in the record:
his formal education ended with a high school diploma he had no formal training in