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?
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?
