Cultic Studies Journal, Vol. 13, No. 1, 1996, page 8
Our review must be de novo on the question whether, in exercising its discretion to admit
evidence, the district court applied the proper legal test. See A/S Dampskibsselskcabet
Torm v. Beaumont Oil Ltd., 927 F.2d 713, 716 (2d Cir.), cert. denied, 502 US. 862, 116 L.
Ed. 2d 144, 112 S. Ct. 183 (1991). We review the district court‟s finding that St. Regis was
unqualified for clear error. Id.
D. What Is Hypnosis?
While “there is no single, generally accepted theory of hypnosis, [or] consensus about a
single definition,” Council on Scientific Affairs, “Scientific Status of Refreshing Recollection
by the Use of Hypnosis,” 253 JAMA 1918, 1919 (1985) [hereinafter, Scientific Affairs],
“„there is considerable consensus at the descriptive level‟ as to how the [phenomenon]
[*14] manifests itself in the hypnotized individual,” 27 Charles A. Wright &Victor J. Gold,
Federal Practice and Procedure: Evidence § 6011, at 116 (1990) [hereinafter Federal
Practice] (quoting Orne, “On the Simulating Subject as a Quasi-Control Group in Hypnosis
Research, What Why and How,” in Hypnosis: Developments in Research and New
Perspectives, 519-21 [E. Fromm &R. E. Shor, eds., 2d ed., 1979]). The American Medical
Association has described hypnosis as a temporary condition of altered attention in the
subject which may be induced by another person and in which a variety of phenomena may
appear spontaneously or in response to [verbal] or other stimuli. These phenomena include
alterations in consciousness and memory, increased susceptibility to suggestion, and the
production in the subject of responses and ideas unfamiliar to him in his usual state of
mind.
People v. Zayas, 131 Ill. 2d 284, 546 N.E.2d 513, 515-B16, 137 Ill. Dec. 568 (Ill. 1989)
(alteration in original) (quotations omitted).
As early as 1958, the American Medical Association recognized hypnosis as a valid
therapeutic technique. Council on Medical Health of the American Medical Association,
“Medical Uses of Hypnosis,” 168 JAMA [*15] 186, 187 (1958). It has been found useful in
psychotherapy, in the treatment of psychosomatic illness, to alleviate pain or as a substitute
for anesthesia, and for memory recall. See People v. Hughes, 59 N.Y.2d 523, 533 466
N.Y.S.2d 255, 259, 453 N.E.2d 484 (1983) Jacqueline Kanovitz, “Hypnotic Memories and
Civil Sexual Abuse Trials,” 45 Vand. L. Rev. 1185, 1210 n.101 (l992). Hypnosis has been
credited with restoring lost memories that include repressed memories of painful
experiences. Federal Practice, supra, § 6011, at 117 see also Kanovitz, supra, at 1225 &
n.168 (1992). It has sometimes been useful in developing leads in criminal investigations.
See Harker v. Maryland, 800 F.2d 437, 440 (4th Cir. 1986) (noting that “Dr. Martin Orne, a
psychiatrist and frequent expert witness, believes that “‟hypnosis may be useful in some
instances to help bring back forgotten memories following an accident or a crime.‟” (quoting
Orne, “The Use and Misuse of Hypnosis in Court,” 27 Int. J. Clinical &Experimental Hypnosis
311, 317-18 [1979]) see Hughes, 59 N. Y.2d at 533 466 N.Y.S.2d at 259 Federal
Practice, supra, § 6011, at 118-19. Despite these successes, many in the field [*16] remain
skeptical of the reliability of hypnosis as a technique for refreshing or restoring memory.
Hughes, 59 N.Y.2d at 533 466 N.Y.S.2d at 259 (noting it provides “at best mixed results”
in criminal investigations). Empirical studies calling into question the ability of hypnosis to
restore memory effectively have engendered “considerable controversy” concerning the
validity of using hypnosis for that purpose. Scientific Affairs, supra, at 1918. Thus “the
popular belief that hypnosis guarantees the accuracy of recall is as yet without established
foundation,” Rock v. Arkansas, 483 U.S. 44, 59, 97 L. Ed. 2d 37. 107 S. Ct. 2704 (1987),
and no consensus has been reached regarding the ability of hypnosis to enhance memory.
Scientific Affairs, supra, at 1918.
The controversy over the effectiveness of hypnosis in memory enhancement centers in large
part on disagreements concerning theories of memory. Those scientists who are most
Our review must be de novo on the question whether, in exercising its discretion to admit
evidence, the district court applied the proper legal test. See A/S Dampskibsselskcabet
Torm v. Beaumont Oil Ltd., 927 F.2d 713, 716 (2d Cir.), cert. denied, 502 US. 862, 116 L.
Ed. 2d 144, 112 S. Ct. 183 (1991). We review the district court‟s finding that St. Regis was
unqualified for clear error. Id.
D. What Is Hypnosis?
While “there is no single, generally accepted theory of hypnosis, [or] consensus about a
single definition,” Council on Scientific Affairs, “Scientific Status of Refreshing Recollection
by the Use of Hypnosis,” 253 JAMA 1918, 1919 (1985) [hereinafter, Scientific Affairs],
“„there is considerable consensus at the descriptive level‟ as to how the [phenomenon]
[*14] manifests itself in the hypnotized individual,” 27 Charles A. Wright &Victor J. Gold,
Federal Practice and Procedure: Evidence § 6011, at 116 (1990) [hereinafter Federal
Practice] (quoting Orne, “On the Simulating Subject as a Quasi-Control Group in Hypnosis
Research, What Why and How,” in Hypnosis: Developments in Research and New
Perspectives, 519-21 [E. Fromm &R. E. Shor, eds., 2d ed., 1979]). The American Medical
Association has described hypnosis as a temporary condition of altered attention in the
subject which may be induced by another person and in which a variety of phenomena may
appear spontaneously or in response to [verbal] or other stimuli. These phenomena include
alterations in consciousness and memory, increased susceptibility to suggestion, and the
production in the subject of responses and ideas unfamiliar to him in his usual state of
mind.
People v. Zayas, 131 Ill. 2d 284, 546 N.E.2d 513, 515-B16, 137 Ill. Dec. 568 (Ill. 1989)
(alteration in original) (quotations omitted).
As early as 1958, the American Medical Association recognized hypnosis as a valid
therapeutic technique. Council on Medical Health of the American Medical Association,
“Medical Uses of Hypnosis,” 168 JAMA [*15] 186, 187 (1958). It has been found useful in
psychotherapy, in the treatment of psychosomatic illness, to alleviate pain or as a substitute
for anesthesia, and for memory recall. See People v. Hughes, 59 N.Y.2d 523, 533 466
N.Y.S.2d 255, 259, 453 N.E.2d 484 (1983) Jacqueline Kanovitz, “Hypnotic Memories and
Civil Sexual Abuse Trials,” 45 Vand. L. Rev. 1185, 1210 n.101 (l992). Hypnosis has been
credited with restoring lost memories that include repressed memories of painful
experiences. Federal Practice, supra, § 6011, at 117 see also Kanovitz, supra, at 1225 &
n.168 (1992). It has sometimes been useful in developing leads in criminal investigations.
See Harker v. Maryland, 800 F.2d 437, 440 (4th Cir. 1986) (noting that “Dr. Martin Orne, a
psychiatrist and frequent expert witness, believes that “‟hypnosis may be useful in some
instances to help bring back forgotten memories following an accident or a crime.‟” (quoting
Orne, “The Use and Misuse of Hypnosis in Court,” 27 Int. J. Clinical &Experimental Hypnosis
311, 317-18 [1979]) see Hughes, 59 N. Y.2d at 533 466 N.Y.S.2d at 259 Federal
Practice, supra, § 6011, at 118-19. Despite these successes, many in the field [*16] remain
skeptical of the reliability of hypnosis as a technique for refreshing or restoring memory.
Hughes, 59 N.Y.2d at 533 466 N.Y.S.2d at 259 (noting it provides “at best mixed results”
in criminal investigations). Empirical studies calling into question the ability of hypnosis to
restore memory effectively have engendered “considerable controversy” concerning the
validity of using hypnosis for that purpose. Scientific Affairs, supra, at 1918. Thus “the
popular belief that hypnosis guarantees the accuracy of recall is as yet without established
foundation,” Rock v. Arkansas, 483 U.S. 44, 59, 97 L. Ed. 2d 37. 107 S. Ct. 2704 (1987),
and no consensus has been reached regarding the ability of hypnosis to enhance memory.
Scientific Affairs, supra, at 1918.
The controversy over the effectiveness of hypnosis in memory enhancement centers in large
part on disagreements concerning theories of memory. Those scientists who are most
