Cultic Studies Journal, Vol. 13, No. 1, 1996, page 35
again removed his clothes. Catherine reported she got back on his lap, and they resumed
their conversation.
A short time later, one of Catherine‟s girlfriends called to say she was coming to visit.
Catherine told this to Shirley and asked him to return at another time when she would cook
dinner. According to Catherine, Shirley put on his clothes again, wrapped the weapon in a T-
shirt, concealed it in the front of his pants, and, after being introduced to Catherine‟s
girlfriend, left the apartment. Catherine and her girlfriend discussed what had happened.
After her girlfriend left, Catherine called the police and reported that she had been raped.
Catherine‟s story changed repeatedly during subsequent retelling. One of the changing
elements was her description of Shirley‟s weapon. More than 3 months after the events in
question, Catherine was hypnotized by a deputy district attorney. At that point, her story
changed one more time. She did not waver from her final version, which she told in court
with considerable certainty.
Shirley claimed Catherine invited him to her apartment and engaged in consensual
intercourse with him. He said he did not tie her up and did not carry a knife or other sharp
instrument. No weapon of any description was ever found. A number of Marine officers
testified in his behalf, and unanimously expressed their high personal regard for the
defendant‟s “truthfulness and honesty.” His first sergeant testified that he knew of no
altercations involving the defendant and that Shirley had no history of aggressive or violent
behavior. Shirley was convicted of rape at trial.
On appeal, the California Supreme Court stated that Catherine‟s hypnosis created an
“artificial but impenetrable aura of certainty” around her entire testimony and that, given
her constantly changing prehypnotic story, her unwarranted certainty was prejudicial.
Referring to Diamond‟s (1980) warnings, that years later were also noted by the Borawick
court, the California Supreme Court excluded hypnotically influenced testimony per se,
concluding that “the game isn‟t worth the candle.” Subsequently, the State Legislature
changed the law to allow the admission of hypnotically influenced testimony when the Hurd
safeguards were observed.5
Summary. These three cases illustrate some of the problems that the research on hypnosis
and memory suggests will occur. Hypnosis can serve as a catalyst not only to revise earlier
memory reports, but also to create memories de novo in which the individual is confident.
People become certain of one version of their story, where previously their testimony was
either nonexistent or quite variable. The source of a memory is often attributed to viewing
the original event, even when a record shows it was not the case, and so on. In criminal
cases, hypnosis has occasioned little new useful material but a great deal of highly suspect
testimony. With the exceptions of a defendant‟s right to testify in his own defense (Rock v.
Arkansas, 1987) and a plaintiff‟s right to testify about abuse that allegedly occurred during
hypnosis (McConkey &Sheehan, 1995), the per se exclusion seems warranted.
An Illustration of One Problem with Hypnotically Influenced
Testimony from Borawick v. Shay
Are the problems with hypnotically influenced recall pertinent to the Borawick case?
Interestingly, the court‟s decision in Borawick v. Shay (1995) has implications for most of
the important areas of debate in forensic hypnosis. Let us begin with the Borawick court‟s
quotation from Harker v. Maryland (1986): “In the worst case, someone who has undergone
hypnosis might inaccurately reconstruct the memory...and...then become convinced of the
absolute accuracy of the [re]construction through memory hardening.”
A person unfamiliar with the results of hypnotic age-regression procedures may have
difficulty believing the frequency with which this “worst case” occurs. A good example may
be seen in the following accusations Ms. Borawick made about her aunt‟s behavior:
again removed his clothes. Catherine reported she got back on his lap, and they resumed
their conversation.
A short time later, one of Catherine‟s girlfriends called to say she was coming to visit.
Catherine told this to Shirley and asked him to return at another time when she would cook
dinner. According to Catherine, Shirley put on his clothes again, wrapped the weapon in a T-
shirt, concealed it in the front of his pants, and, after being introduced to Catherine‟s
girlfriend, left the apartment. Catherine and her girlfriend discussed what had happened.
After her girlfriend left, Catherine called the police and reported that she had been raped.
Catherine‟s story changed repeatedly during subsequent retelling. One of the changing
elements was her description of Shirley‟s weapon. More than 3 months after the events in
question, Catherine was hypnotized by a deputy district attorney. At that point, her story
changed one more time. She did not waver from her final version, which she told in court
with considerable certainty.
Shirley claimed Catherine invited him to her apartment and engaged in consensual
intercourse with him. He said he did not tie her up and did not carry a knife or other sharp
instrument. No weapon of any description was ever found. A number of Marine officers
testified in his behalf, and unanimously expressed their high personal regard for the
defendant‟s “truthfulness and honesty.” His first sergeant testified that he knew of no
altercations involving the defendant and that Shirley had no history of aggressive or violent
behavior. Shirley was convicted of rape at trial.
On appeal, the California Supreme Court stated that Catherine‟s hypnosis created an
“artificial but impenetrable aura of certainty” around her entire testimony and that, given
her constantly changing prehypnotic story, her unwarranted certainty was prejudicial.
Referring to Diamond‟s (1980) warnings, that years later were also noted by the Borawick
court, the California Supreme Court excluded hypnotically influenced testimony per se,
concluding that “the game isn‟t worth the candle.” Subsequently, the State Legislature
changed the law to allow the admission of hypnotically influenced testimony when the Hurd
safeguards were observed.5
Summary. These three cases illustrate some of the problems that the research on hypnosis
and memory suggests will occur. Hypnosis can serve as a catalyst not only to revise earlier
memory reports, but also to create memories de novo in which the individual is confident.
People become certain of one version of their story, where previously their testimony was
either nonexistent or quite variable. The source of a memory is often attributed to viewing
the original event, even when a record shows it was not the case, and so on. In criminal
cases, hypnosis has occasioned little new useful material but a great deal of highly suspect
testimony. With the exceptions of a defendant‟s right to testify in his own defense (Rock v.
Arkansas, 1987) and a plaintiff‟s right to testify about abuse that allegedly occurred during
hypnosis (McConkey &Sheehan, 1995), the per se exclusion seems warranted.
An Illustration of One Problem with Hypnotically Influenced
Testimony from Borawick v. Shay
Are the problems with hypnotically influenced recall pertinent to the Borawick case?
Interestingly, the court‟s decision in Borawick v. Shay (1995) has implications for most of
the important areas of debate in forensic hypnosis. Let us begin with the Borawick court‟s
quotation from Harker v. Maryland (1986): “In the worst case, someone who has undergone
hypnosis might inaccurately reconstruct the memory...and...then become convinced of the
absolute accuracy of the [re]construction through memory hardening.”
A person unfamiliar with the results of hypnotic age-regression procedures may have
difficulty believing the frequency with which this “worst case” occurs. A good example may
be seen in the following accusations Ms. Borawick made about her aunt‟s behavior:
