Cultic Studies Journal, Vol. 13, No. 1, 1996, page 18
Commentary on Borawick v. Shay:
The Fate of Hypnotically Retrieved Memories
Alan W. Scheflin, Esq.
Santa Clara University Law School
Abstract
The Federal Court of Appeals for the Second Circuit‟s decision in Borawick v. Shay
correctly applied the “totality-of-the-circumstances” test to the admissibility of
hypnotically refreshed testimony in federal courts. The court was incorrect,
however, in denying the plaintiff, Ms. Borawick, her day in court to prove her
allegations of repressed memories of childhood sexual abuse. Some overly cautious
experts in hypnosis and in repressed memory have presented to courts information
about these subjects that cannot withstand scientific scrutiny. The current scientific
literature demonstrates the truth of the following assertions: (1) hypnosis, when
used properly, does not inevitably contaminate or alter memory, (2) hypnosis,
when used properly, can assist in the recovery of memories that later can be
corroborated as true, (3) repressed memory, or dissociative amnesia, has been
verified as real in every study of the issue, and (4) scientific studies so far support
the conclusion that repressed memories are no less accurate than always
remembered memories.
In 1968 the first American court in this century permitted a previously hypnotized person to
testify on the witness stand about hypnotically refreshed memories (Harding v. State,
1968). For a decade afterwards, all courts followed this ruling (Scheflin &Shapiro, 1989).
During the past two decades, however, a small group of hypnosis experts, who appear to be
against the expanding use of hypnosis by the police, have been testifying in court to the risk
of a dizzying array of dangers when hypnosis is used to help people remember traumatic
events. As noted in Brown, Scheflin, and Hammond (in press), judges have been told that
the admissibility of hypnotically refreshed testimony brings up eight interrelated problems
under three generic headings. These are as follows:
A. Suggestibility
1. The subject becomes “suggestible” and may try to please the hypnotist with answers
the subject thinks will be met with approval
2. The subject is highly responsive to the possibility of the creation of
pseudomemories
B. Reliability
3. The subject experiences “memory hardening,” which gives him or her great
confidence in both true and false memories, making effective cross-examination
more difficult
4. The subject is likely to “confabulate” --that is, to fill in details from the
imagination in order to make an answer more coherent and complete
5. The subject has source amnesia which prevents properly identifying whether a
memory occurred before or during hypnosis, or whether the memory is real or
suggested
6. The subject experiences a loss of critical judgment
C. Believability
7. Juries will disproportionately believe testimony that is the product of hypnosis
8. The subject can easily feign hypnosis and can be deceptive in trance

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 19
Based on these expressed concerns, judges throughout the country in the 1980s, beginning
with State v. Mack (1980), moved to exclude from courtrooms any posthypnotic
recollections--that is, testimony about memories that appeared during or after hypnosis had
been used (Scheflin &Shapiro, 1989 Laurence &Perry, 1988). Thus, the very use of
hypnosis was deemed automatically and inevitably to taint memory. By the mid-1980s, a
large majority of state courts forbade the introduction into evidence of such posthypnotic
recollection (Perry, Orne, London, &Orne, 1996).
The original per se exclusion rule proved to be too inflexible. For instance, because a person
who had been hypnotized was disqualified as a witness, that person was not even permitted
to state his or her name on the witness stand (People v. Shirley, 1982). Courts were
forced, for a variety of reasons, to provide exceptions.
The first exception corrected the disqualification problem by holding that a previously
hypnotized person could testify in court, but only concerning matters that had been
recorded before the hypnosis was used. Today, most state supreme courts that have
addressed the issue have adopted this modified per se exclusion rule (Giannelli, 1995).
The second exception is constitutionally mandated: no state may automatically exclude the
hypnotically refreshed recollections of a criminal defendant (Rock v. Arkansas, 1987).
A third exception has not yet been tested by the courts but it has the unanimous support of
all commentators, even those who favor a strict per se rule. As Perry et al. acknowledge:
Scheflin (1994) argues persuasively for the admission of evidence from a
previously hypnotized crime victim, for instance, a female patient who alleges
sexual relationships initiated by a therapist in the course of a hypnosis therapy
session. Here there would appear to be no other course but to permit such a
witness to testify to do otherwise would be a clarion call to individuals wishing to
engage in unconsenting sexuality without legal penalty by learning and applying
hypnotic induction techniques. (1996, p. 77)
Giannelli (1995) has argued correctly that a fourth exception exists regarding persons who
were not hypnotized despite the fact that hypnosis induction techniques were used. Courts
have accepted expert opinion, based on objective tests of hypnotizability, to show that the
hypnosis was ineffectual and therefore the witness may testify about posthypnotic
recollections (People v. Caro, 1988).
Other exceptions appear inevitable, thereby calling into question the existence of so porous
a rule. For example, Scheflin (1994) has challenged defenders of the per se rule to respond
to the following actual case illustration. No defender of the rule has yet met the challenge.
In a New York case described to Scheflin by a district attorney, a 4-year-old girl told her
mother that her father had, in effect, been molesting her. The mother had a serious
breakdown and required complete institutionalization. The girl was raised by her father and
the sexual abuse continued for several years. The girl, however, would no longer talk about
the abuse. A year of therapy could not persuade her to talk even though there was solid
medical evidence clearly supporting the abuse. Finally, after hypnosis was used for
relaxation, the girl told the sad and sordid tale of her father‟s repeated abuses of her.
Because New York excludes posthypnotic testimony, the girl was unable to tell her story in
court, and, therefore, could not identify her father as the perpetrator. Despite the medical
evidence corroborating the abuse, she remained in her father‟s custody. How is justice
served in this case?
Today, the field of forensic hypnosis is fighting for existence. The presence of the oppressive
per se rule, even with its expanding list of exceptions, threatens the social and legal
interests and rights of many people.