Cultic Studies Journal, Vol. 13, No. 1, 1996, page 20
The heavy hand of the per se rule also casts a dark shadow over areas not yet resolved by
the law. For example, more than 95% of the forensic cases involving hypnosis decided since
1968 have been criminal matters. Whether the same exclusion rule should be applied in civil
cases is not yet resolved by the courts, though the trend appears to be for each state to
adopt the same rule in civil cases that it adopted in criminal cases.
Of far greater significance is the impact of the per se rule on therapeutic hypnosis. Only
three or four cases have involved situations where the hypnosis was done for the purpose of
therapy, not to recover memories of witnessing or being a victim in a pending criminal
matter (Scheflin, 1994).
Should the per se rule apply every time a therapist uses hypnosis? Today, any time a
therapist uses hypnosis with a patient, the legal interests of both are threatened (Scheflin &
Shapiro, 1989 Scheflin, 1993). As aptly noted by 18 diverse organizations who have filed
with the United States Supreme Court a motion to file an amicus curiae brief in the
Borawick case, the present per se restrictions adversely impact
blameless victims of child sexual abuse, adult and child victims of trauma, victims
of sexual assault and violent crimes, mental health and other professionals who
use hypnosis, and virtually anyone who has previously undergone any of the many
forms of therapeutic hypnosis. (Motion, 1996, p. 1)
The United States Court of Appeals, Second Circuit (Borawick v. Shay, 1995), noticed that
the Borawick case raised an as yet unanswered question: may an alleged victim of
childhood sexual abuse testify about repressed memories after having been hypnotized for
therapeutic purposes? In the court‟s answer, and analysis, rests the fate of forensic
hypnosis, and also the fate of the restoration of rights to those victimized by the per se
exclusion rule.
The Borawick Case
The fact pattern in Borawick is not unique, thereby making the case all the more important.
In essence, a young woman, Ms. Borawick, began recalling that she had been sexually
molested by relatives nearly 30 years earlier. Several months before the memories
returned, she had seen a lay hypnotist for chronic fatigue and stress. During three of the
hypnosis sessions, the lay hypnotist used “regression therapy” to return his patient to her
early childhood. During these sessions, Ms. Borawick remembered and described certain
aspects of the abuse. The lay hypnotist did not pursue the subject outside of trance, and
Ms. Borawick had amnesia for the events she described. The lay hypnotist insisted that he
had not used suggestive questions or techniques, but there were no audiotapes or
videotapes available for independent examination.
When Ms. Borawick‟s memories returned outside of trance, many months after the hypnosis
sessions had ended, she sued her aunt and uncle for the past sexual abuse she now
recalled. Ms. Borawick was told by the courts that the hypnosis prohibited her from
testifying about her recollections. The trial judge explained that the lay hypnotist was not
sufficiently qualified to perform the hypnosis so her memories could not be deemed to be
reliable.
The first issue raised by Borawick concerns the temporal aspect of forensic hypnosis rules:
is the fact that the memories occurred during or after the hypnosis sufficient to say they
were “refreshed” by it? The Second Circuit accepted the trial judge‟s ruling on this point that
the memories were in fact refreshed, but there is good reason to question this finding. At
work here is the logical fallacy known as post hoc, ergo propter hoc (“after this, therefore
because of this”). The fact that something follows in time does not mean that it was caused
by what preceded it. Suppose Ms. Borawick‟s memories did not return until 1 year, 5 years,
or 10 years after the hypnosis sessions. Did the hypnosis “refresh” those memories simply

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 21
because it preceded them? The Second Circuit fails to analyze this issue, and no American
court appears to have addressed the problem.
Of greater significance is the test used by the Second Circuit to consider whether testimony
refreshed by therapeutic hypnosis is admissible. After a brief, and incomplete, review of the
hypnosis literature, and a survey of court legal approaches to hypnotically refreshed
recollection, the Second Circuit noted that most federal courts reject the rigid per se rule
and instead follow a so-called case-by-case or totality-of-the-circumstances approach which,
by providing individualized justice, is more humane.
Borawick‟s adoption of the totality-of-the-circumstances test is an extremely important
holding. This test is consistent with the majority opinion of the most authoritative recent
texts on forensic hypnosis (McConkey &Sheehan, 1995 American Society of Clinical
Hypnosis, 1995 Brown et al., in press Scheflin &Shapiro, 1989), which recognize that the
above-articulated dangers of hypnosis are not supported in the scientific literature.
Does science show hypnosis to be so dangerous that memory contamination always occurs
when hypnosis is utilized? Every recent in-depth review by hypnosis experts has concluded
that the eight dangers of hypnosis listed earlier have been exaggerated and distorted by
advocates of total inadmissibility of hypnotically refreshed testimony. The most thorough
review is in Brown et al. (in press), where each of the eight objections is evaluated, and
dismissed, based on recent laboratory experimentation and clinical practice. The American
Society of Clinical Hypnosis (1995) has issued comprehensive guidelines for the appropriate
use of clinical and forensic hypnosis. If the guidelines are followed, hypnosis will not
contaminate memory. McConkey and Sheehan (1995), two of the most preeminent
Australian hypnosis researchers, have recently reached the same conclusion: hypnosis,
when properly used, does not automatically contaminate or distort memory. They are
forthright in their support of the totality-of-the-circumstances test, even if hypnosis did
have a contaminating effect on memory in some cases.
These reviewers have all reached the same conclusion as Borawick on the admissibility of
hypnotically stimulated recollection: a totality-of-the- circumstances test should be applied
in every case in a pretrial hearing to determine whether the hypnosis was properly used.
Although Borawick is not current and not accurate on its understanding of the science of
forensic hypnosis, the court did reach the correct conclusion on the appropriate legal rule
that should be applied.
After adopting the right test, the Second Circuit then took the wrong approach. No sooner
did the court grant the right to a pretrial hearing than it took that right away by deciding,
on its own, without the advantage of a factual record, that Ms. Borawick‟s testimony must
be unreliable. The court gave two reasons for this conclusion.
First, the court noted that the hypnotist did not have academic credentials or formal
training. But surely this fact ought not to be conclusive, unless the court is adopting,
without so holding, a per se exclusionary rule when lay hypnotists are involved. Suppose
Ms. Borawick were able to present independent corroborative evidence of the truth of the
memories. Should the fact that a lay hypnotist was involved be sufficient to prevent
testimony even when it can be verified by other means? In this case, Ms. Borawick had such
evidence. The Second Circuit never considered it, in violation of the spirit and purpose of
the totality-of-the-circumstances test.
The court also objected to the absence of any audio, video, or written record of the hypnosis
sessions, thus depriving experts the opportunity to examine what really transpired. This
objection is valid, but should it be fatal? Once again, if testimony can be proven, must it be
excluded?