Cultic Studies Journal, Vol. 13, No. 1, 1996, page 24
We have seen that the wisdom of the exclusionary rule leaves much to be desired, and
science fails to support the overly cautious approach taken by the majority of courts.
Borawick is correct to reject the per se exclusion rule.
But if Borawick succeeds on the law, it also fails on the facts because it does not practice
what it preaches. The Second Circuit is on solid grounds when it (1) acknowledges the
difference between therapeutic hypnosis and investigative hypnosis, (2) adopts the totality-
of-the-circumstances test, (3) recognizes that Daubert does not apply, and (4) agrees that
the new approach to the admissibility of evidence rejects rigidity in favor of flexibility so
that there is an informal “presumption of admissibility of evidence” in operation.
Although the judges adopted the right legal test in Borawick, they did make some mistakes
along the way, mostly because of incorrect expert testimony that has shaped court
judgments about hypnosis and about repressed memory. These expert opinions are now in
the process of being corrected in the scientific literature, and soon in the courts as well.
In regard to hypnosis, two major errors are apparent to knowledgeable hypnosis specialists.
First, the court refers to experts who favor the admissibility of hypnotically refreshed
recollection as adhering to a “tape recorder” view of memory whereby everything
experienced is accurately recorded and stored in the brain. While some experts do hold this
position, most do not. The “constructionist” model, whereby memory is a continual process
of reconstruction, is generally accepted by memory experts. Strict adherence to this model,
however, would signal the elimination of all memory testimony from courtrooms. The
Borawick judges failed to see that if memory is always in the process of reconstruction, then
it is distorted or inaccurate even when hypnosis is not used. Thus, the problem lies with
memory, not with hypnosis used to facilitate retrieval. It is a simple error, but nevertheless
a profound one.
Second, the court relies on the American Medical Association‟s (AMA) 1985 Study “Scientific
Status of Refreshing Recollection by the Use of Hypnosis.” The recent hypnosis literature
fails to support the conclusions of that report, and the report itself is seriously flawed
because when it was written only three or four studies were in existence. As McCann and
Sheehan (1988) have noted, at the time the AMA report was issued, and by the time most
courts had adopted a per se exclusion rule, “only three studies to date, however, bear
directly on the experimental creation of false memories in hypnotically responsive subjects”
(p. 339). Those studies were highly overexaggerated in their conclusions about the ease
with which memory may be contaminated.
Thus, it is a provable fact that the law about forensic hypnosis developed before the science
of forensic hypnosis was developed. Consequently, the courts have accepted the highly
critical judgments of a minority of experts whose conclusions can no longer be supported by
the scientific data, now that it exists. A forthcoming paper by Dr. Edward Frischholz, Editor-
in-Chief of the American Journal of Clinical Hypnosis, lays bare the serious shortcomings of
the AMA report, and demonstrates that almost half of the original authors no longer accept
its conclusions. Recent publications have corrected some of the AMA‟s earlier errors
(American Society of Clinical Hypnosis, 1995 Brown et al., in press).
For experts in the areas of cults, cult indoctrination techniques, brainwashing, and coercive
persuasion, there is an interesting irony worth mentioning. Proponents of the “false
memory” movement have argued that repressed memory does not exist and that expert
testimony on the subject should not be admitted into court under the Frye or Daubert
standards addressed in Borawick. Many of these “false memory” advocates have been
experts in cult cases arguing that brainwashing theory is scientifically valid. If the “false
memory” views they profess should prevail, there is a strong possibility that courts will also
shut the door on brainwashing theory. United States v. Fishman (1990), where two leading
anticult theorists were held disqualified from testifying, signals the potential victory cults
We have seen that the wisdom of the exclusionary rule leaves much to be desired, and
science fails to support the overly cautious approach taken by the majority of courts.
Borawick is correct to reject the per se exclusion rule.
But if Borawick succeeds on the law, it also fails on the facts because it does not practice
what it preaches. The Second Circuit is on solid grounds when it (1) acknowledges the
difference between therapeutic hypnosis and investigative hypnosis, (2) adopts the totality-
of-the-circumstances test, (3) recognizes that Daubert does not apply, and (4) agrees that
the new approach to the admissibility of evidence rejects rigidity in favor of flexibility so
that there is an informal “presumption of admissibility of evidence” in operation.
Although the judges adopted the right legal test in Borawick, they did make some mistakes
along the way, mostly because of incorrect expert testimony that has shaped court
judgments about hypnosis and about repressed memory. These expert opinions are now in
the process of being corrected in the scientific literature, and soon in the courts as well.
In regard to hypnosis, two major errors are apparent to knowledgeable hypnosis specialists.
First, the court refers to experts who favor the admissibility of hypnotically refreshed
recollection as adhering to a “tape recorder” view of memory whereby everything
experienced is accurately recorded and stored in the brain. While some experts do hold this
position, most do not. The “constructionist” model, whereby memory is a continual process
of reconstruction, is generally accepted by memory experts. Strict adherence to this model,
however, would signal the elimination of all memory testimony from courtrooms. The
Borawick judges failed to see that if memory is always in the process of reconstruction, then
it is distorted or inaccurate even when hypnosis is not used. Thus, the problem lies with
memory, not with hypnosis used to facilitate retrieval. It is a simple error, but nevertheless
a profound one.
Second, the court relies on the American Medical Association‟s (AMA) 1985 Study “Scientific
Status of Refreshing Recollection by the Use of Hypnosis.” The recent hypnosis literature
fails to support the conclusions of that report, and the report itself is seriously flawed
because when it was written only three or four studies were in existence. As McCann and
Sheehan (1988) have noted, at the time the AMA report was issued, and by the time most
courts had adopted a per se exclusion rule, “only three studies to date, however, bear
directly on the experimental creation of false memories in hypnotically responsive subjects”
(p. 339). Those studies were highly overexaggerated in their conclusions about the ease
with which memory may be contaminated.
Thus, it is a provable fact that the law about forensic hypnosis developed before the science
of forensic hypnosis was developed. Consequently, the courts have accepted the highly
critical judgments of a minority of experts whose conclusions can no longer be supported by
the scientific data, now that it exists. A forthcoming paper by Dr. Edward Frischholz, Editor-
in-Chief of the American Journal of Clinical Hypnosis, lays bare the serious shortcomings of
the AMA report, and demonstrates that almost half of the original authors no longer accept
its conclusions. Recent publications have corrected some of the AMA‟s earlier errors
(American Society of Clinical Hypnosis, 1995 Brown et al., in press).
For experts in the areas of cults, cult indoctrination techniques, brainwashing, and coercive
persuasion, there is an interesting irony worth mentioning. Proponents of the “false
memory” movement have argued that repressed memory does not exist and that expert
testimony on the subject should not be admitted into court under the Frye or Daubert
standards addressed in Borawick. Many of these “false memory” advocates have been
experts in cult cases arguing that brainwashing theory is scientifically valid. If the “false
memory” views they profess should prevail, there is a strong possibility that courts will also
shut the door on brainwashing theory. United States v. Fishman (1990), where two leading
anticult theorists were held disqualified from testifying, signals the potential victory cults
