Cultic Studies Journal, Vol. 13, No. 1, 1996, page 22
The second factor influencing the Second Circuit to deny Ms. Borawick her pretrial hearing is
the court‟s opinion about “the inherent incredibility of Borawick‟s allegations” including rape,
ritual abuse, blood drinking, satanic activities, and other events involving relatives and
strangers. The court acknowledges that Ms. Borawick was denied an opportunity to
substantiate her claims with proof, and then denies her that opportunity. In short, because
the court felt the claims were “incredible,” it denied Ms. Borawick the right to prove they
were true. Once again, this violates the spirit and the purpose of the totality-of-the-
circumstances test, as well as common sense. Even if some of the claims are incredible,
others might well be true. Let Ms. Borawick have her hearing to see what she can prove.
Does Daubert Apply?
In 1993 the United States Supreme Court changed the test federal courts must use in
admitting expert opinion testimony. Under the old rule articulated in Frye v. United States
(1923), a novel technique or procedure used as the basis of an expert‟s testimony must
have established itself in the eyes of the relevant scientific community as “reliable.” Under
the new test articulated in Daubert v. Merrell Dow Pharmaceuticals (1993), expert opinions
are tested by the answers to a series of questions such as the following:
1. Has the expert‟s theory been tested?
2. Has the theory been subject to peer review?
3. What is the theory‟s potential or known rate of error?
4. What standards were used during the technique‟s operation?
5. Has the theory been generally accepted in the scientific community?
At the dawn of the modern case rulings on hypnotically refreshed recollection, State v. Mack
(1980) took a fatal misstep by applying the Frye ruling about expert testimony to the
admissibility of lay witness testimony, where it has no place. In lockstep, many courts have
followed this error (People v. Shirley, 1982). But the rules of evidence have no such barrier
for the admissibility of competent witness testimony that is relevant.
The Second Circuit acknowledges this point by stating that “Daubert does not provide direct
guidance” because the testimony before the court “does not concern the admissibility of
experimental data or expert opinions.” Under the appropriate rules of evidence in state and
federal courts, Ms. Borawick‟s lay testimony is clearly admissible.
It should be noted that those experts who argue for Daubert to exclude hypnotically
refreshed recollection will also have to argue that Daubert excludes expert opinion on
matters of cult brainwashing, mind control, or coercive persuasion because these areas are
even “softer” and less amenable to objective verification than the area of hypnotically
refreshed recollection. This would be most unfortunate, and most unnecessary. Daubert
should not serve as a barrier to expert opinion on hypnotically refreshed recollection, nor to
expert opinion on cult mind control activities. And Daubert should have no relevance at all
to the admissibility of lay testimony.
Of great importance is the fact that when Daubert has been held to apply, courts have
concluded that it prohibits the use of a per se rule of exclusion in hypnosis cases (Rowland
v. Commonwealth, 1995) and in polygraph cases (United States v. Posado, 1995).
Repressed Memories
The issue of hypnotically refreshed recollection, and the science that informs us about it,
becomes more complex when the heavily litigated issues of repressed memories are added
(Spiegel &Scheflin, 1994). Beginning in 1986, when the first appellate court decided the
first repressed memory case (Tyson v. Tyson, 1986), a fierce debate has raged in scientific
and public circles about two issues: Do repressed memories exist? And, if so, are they
accurate?

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 23
Once again, crusading experts left their laboratories and lecture halls to enter courtrooms
and warn that people who have been severely traumatized as children do not forget that
trauma (Loftus &Ketcham, 1994). If memories of childhood sexual abuse are unavailable
for decades of an adult‟s life until suddenly recovered, usually in therapy, then the abuse
did not occur (Ofshe &Watters, 1994).
These experts have not fared as well as their hypnosis predecessors, though they are
equally wrong in their presentation of the available scientific literature. Courts and
legislatures have been less willing to buy the argument that repressed memories are
illusory. Indeed, legislators and judges in half the states have provided additional
protection, by way of delaying the running of the statute of limitations on childhood sexual
abuse cases, to victims who have repressed their memories of the abuse they suffered as
children (Bowman &Mertz, 1996). Furthermore, every study conducted on the reality of
repressed memories has found that it exists (Brown et al., in press Scheflin &Brown, in
press). Repressed memories, more accurately called “dissociative amnesia” by the DSM-IV,
have been well documented in the scientific literature across all traumas, including wars,
natural disasters, the Holocaust, violent criminal conduct, physical abuse, and childhood
sexual abuse. Furthermore, recent studies suggest that repressed memories are as accurate
as available memories (Williams, 1995).
Borawick v. Shay pits one of the most prestigious and influential courts in the country
against these formidable hypnosis and memory issues. Although some experts and the
media have distorted the scientific literature, misstated the factual circumstances of
important cases, and testified contrary to current knowledge, Borawick does a fair job of
avoiding most of the taint of the current pseudoscience being peddled by the “false
memory” advocates on one side of the issue, and the “recovered memory” therapists on the
other side.
The court notes that the forensic hypnosis literature is based on “fact situations where the
hypnosis is specifically directed to the witness‟s recollection of known events, rather than
where repressed memories of past traumas previously unknown simply emerge following
hypnosis.” The court, citing only law review articles, and ignoring the increasingly
sophisticated scientific studies, concludes that the same dangers earlier identified with
investigative hypnosis are also present when repressed memories occur following hypnosis.
The scientific literature, however, demonstrates that (1) the dangers listed for hypnosis do
not exist if hypnosis is correctly used, and (2) repressed memories (traumatic amnesia) are
not less accurate than ordinary memories. Brown et al. (in press) assess this literature and
conclude that when hypnosis is properly used, the accuracy of repressed memories is not
adversely affected.
The Borawick court correctly rejects the argument that repressed memories are unreal. The
court never doubts the validity of such memories, and rightly so. The better reasoned
judicial opinions that have addressed the issue have also concluded that repressed
memories are valid (Isely v. Capuchin Province, 1995 Shahzade v. Gregory, 1996 State v.
Walters, 1995).
Conclusion
Is the per se exclusion wise, especially in an era when courts, legislatures, and popular
referendums and initiatives are mandating that evidentiary rules be restricted in order to
permit juries to hear and examine all relevant testimony and evidence? Only if justice is
better served by a total elimination of all posthypnotic testimony. The only way justice
would be so served is if (1) the relevant science supports the above-listed objections to the
use of forensic hypnosis, and (2) total exclusion in all cases was necessary to avoid
prejudice.