Cultic Studies Journal, Vol. 13, No. 1, 1996, page 32
number of cases were few, in the long run similar rulings may require a large expenditure of
judicial and expert resources to little advantage. The American Medical Association Council
on Scientific Affairs (AMA) recently reaffirmed its 1985 statement (AMA, 1994) calling for a
per se exclusion of testimony influenced by hypnosis. Based on considerable scientific
evidence and experience with forensic hypnosis, the AMA view should not be dismissed
lightly.
Finally, the court noted that in previous cases hypnosis was used to refresh recollection,
while in the case of Borawick v. Shay (1995), hypnosis was used therapeutically. However,
in its decision, the court was “not willing to assume that the risks of suggestibility,
confabulation, and memory hardening are significantly reduced when the hypnosis that
triggers the testimony is used for therapeutic purposes.” This segment of the court‟s
decision will be supported in this paper. When hypnotically influenced recall emanates from
a clinical setting, it may often pose as great or even greater risks to the fact-finding process
than if it originates during an investigation.
In summary, the court‟s decision excluded Ms. Borawick‟s testimony on the formal grounds
of the unreliability of hypnotically influenced testimony and the somewhat more informal
rationale of the “fanciful” nature of her accusations about devil-worshiping Masons.
Beginning with hypnosis, these two factors will be discussed.
Notes on the History of Forensic Hypnosis
Joan Borawick‟s memories of childhood abuse originally emerged during hypnosis. The
District and Circuit Courts disallowed Ms. Borawick‟s testimony because her recall had been
hypnotically influenced. The hypermnesia techniques used by recovered memory therapists
involve either formal hypnosis or what Perry (1995) has called hidden hypnosis: guided
imagery and “regression work.” So the effects of hypnosis on memory play a central role in
this matter.
Problems with hypnosis and the testimony resulting from it formed the basis for judicial
decisions in France as early as the 1850s. By the 1880s, the problems of confabulation,
simulation, and the possibility of lay hypnotists harming their subjects were debated
regularly in French courts (Laurence &Perry, 1988). Around the same time, a number of
psychiatrists became aware of the possible pathogenic consequences of memories from
early traumatic events recounted during hypnosis (Ellenberger, 1970). For example, Janet
(1889, 1894) worked with hypnosis as a means of tapping into such memories and altering
the idée fixe. At about the same time, Freud was producing abreactions during hypnosis
(Freud &Breuer, 1895). After hypnosis, the patients of both psychiatrists obtained relief
from their symptoms. It should be noted that Janet‟s work depended on the ability to alter
memory with hypnosis, whereas Freud‟s work led to a recognition that the early childhood
events his patients recounted in hypnosis were partially or entirely fantasy. Thus, both Janet
and Freud knew that hypnotic memories were both mutable and historically inaccurate.
Interestingly, Freud‟s realization of the inaccuracy of hypnotic recall led to his conception of
the Oedipal fantasy (Ellenberger, 1970).
Despite the experience of European psychiatry around the turn of the 20th century,
investigations about whether hypnotic age regression involved a true reliving of earlier
events continued through the 1950s. Studies of age-regressed adults found physiological
and cognitive patterns believed possible only in young children or infants (e.g., Gidro-Frank
&Bowersbuch, 1948 Reiff &Scheerer, 1959 True, 1949). These results were considered
seriously until necessary methodological advances and careful controls showed such findings
artifactual (cf. O‟Connell, Shor, &Orne, 1970 Orne, 1951).3 Age-regressed adults are
adults who act as if they were children. The fact that well-respected psychiatrists and
psychologists continued research on whether literal childhood responses could be
number of cases were few, in the long run similar rulings may require a large expenditure of
judicial and expert resources to little advantage. The American Medical Association Council
on Scientific Affairs (AMA) recently reaffirmed its 1985 statement (AMA, 1994) calling for a
per se exclusion of testimony influenced by hypnosis. Based on considerable scientific
evidence and experience with forensic hypnosis, the AMA view should not be dismissed
lightly.
Finally, the court noted that in previous cases hypnosis was used to refresh recollection,
while in the case of Borawick v. Shay (1995), hypnosis was used therapeutically. However,
in its decision, the court was “not willing to assume that the risks of suggestibility,
confabulation, and memory hardening are significantly reduced when the hypnosis that
triggers the testimony is used for therapeutic purposes.” This segment of the court‟s
decision will be supported in this paper. When hypnotically influenced recall emanates from
a clinical setting, it may often pose as great or even greater risks to the fact-finding process
than if it originates during an investigation.
In summary, the court‟s decision excluded Ms. Borawick‟s testimony on the formal grounds
of the unreliability of hypnotically influenced testimony and the somewhat more informal
rationale of the “fanciful” nature of her accusations about devil-worshiping Masons.
Beginning with hypnosis, these two factors will be discussed.
Notes on the History of Forensic Hypnosis
Joan Borawick‟s memories of childhood abuse originally emerged during hypnosis. The
District and Circuit Courts disallowed Ms. Borawick‟s testimony because her recall had been
hypnotically influenced. The hypermnesia techniques used by recovered memory therapists
involve either formal hypnosis or what Perry (1995) has called hidden hypnosis: guided
imagery and “regression work.” So the effects of hypnosis on memory play a central role in
this matter.
Problems with hypnosis and the testimony resulting from it formed the basis for judicial
decisions in France as early as the 1850s. By the 1880s, the problems of confabulation,
simulation, and the possibility of lay hypnotists harming their subjects were debated
regularly in French courts (Laurence &Perry, 1988). Around the same time, a number of
psychiatrists became aware of the possible pathogenic consequences of memories from
early traumatic events recounted during hypnosis (Ellenberger, 1970). For example, Janet
(1889, 1894) worked with hypnosis as a means of tapping into such memories and altering
the idée fixe. At about the same time, Freud was producing abreactions during hypnosis
(Freud &Breuer, 1895). After hypnosis, the patients of both psychiatrists obtained relief
from their symptoms. It should be noted that Janet‟s work depended on the ability to alter
memory with hypnosis, whereas Freud‟s work led to a recognition that the early childhood
events his patients recounted in hypnosis were partially or entirely fantasy. Thus, both Janet
and Freud knew that hypnotic memories were both mutable and historically inaccurate.
Interestingly, Freud‟s realization of the inaccuracy of hypnotic recall led to his conception of
the Oedipal fantasy (Ellenberger, 1970).
Despite the experience of European psychiatry around the turn of the 20th century,
investigations about whether hypnotic age regression involved a true reliving of earlier
events continued through the 1950s. Studies of age-regressed adults found physiological
and cognitive patterns believed possible only in young children or infants (e.g., Gidro-Frank
&Bowersbuch, 1948 Reiff &Scheerer, 1959 True, 1949). These results were considered
seriously until necessary methodological advances and careful controls showed such findings
artifactual (cf. O‟Connell, Shor, &Orne, 1970 Orne, 1951).3 Age-regressed adults are
adults who act as if they were children. The fact that well-respected psychiatrists and
psychologists continued research on whether literal childhood responses could be
