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

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 9
optimistic about the role of hypnosis in memory recall conceptualize a process whereby the
brain records and stores sensory input accurately, much like a videotape. Recall is the
ability to “play back” that tape, and loss of memory is the inability to retrieve that
information. [*17] See Little v. Armontrout, 819 F.2d 1425, 1429 (8th Cir.), aff‟d, 835 F.2d
1240 (8th Cir. 1987) (en banc), cert. denied, 487 U.S. 1210, 101 L. Ed. 2d 894, 108 S. Ct.
2857 (1988) Harker, 800 F.2d at 439 United States v. Valdez, 722 F.2d 1196, 1200 (5th
Cir. 1984) Scientific Affairs, supra, at 1920. Under this theory, hypnosis simply enhances
the retrieval process.
Many scientists reject this theory, however. They view memory recall as “much more
complex and much less accurate than previously thought.” State v. Tuttle, 780 P.2d 1203,
1210 (Utah 1989), cert. denied, 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct. 1323 (1990)
see Scientific Affairs, supra, at 1920. Instead, they espouse a “construction theory” of
memory, which holds that a memory is formed and influenced by numerous factors when
the mind creates and integrates the information from an event “into the memory
representation of that event.” Valdez, 722 F.2d at 1200. The composite created by this
process is malleable and evolves over time as additional input is received. In fact, a leading
proponent of this theory has written that memory is “being continually remade [and]
reconstructed in the interest of the present,” F. Bartlett, Remembering 213 [*18] (reprint
1964) (1932), quoted in Little, 819 F.2d at 1429.
The “constructivists” are highly skeptical of any view that hypnosis can effectively and
accurately enhance memory. They believe that because hypnosis has the power to
contribute to memory reconstruction, it can create inaccurate memories. In other words, if
present events can contribute to a construction of a memory that differs from that which
was originally perceived and if the process of hypnosis is such an event, then hypnosis may
distort memory.
The courts have identified several problems with the reliability of hypnotically refreshed
recall. First, a person undergoing hypnosis becomes more susceptible to suggestion. The
subject may be influenced by verbal and nonverbal cues, intentionally or unintentionally
planted by the hypnotist. This suggestibility may be enhanced by the perception that
hypnosis will refresh one‟s memory and by a wish to please the hypnotist. See Rock, 483
U.S. at 59-60 Little, 819 F.2d at 1429 Hughes, 59 N.Y.2d at 534-35, 466 N. Y.S.2d at
260 State v. Hurd, 86 N.J. 525, 432 A.2d 86, 93 (N.J. 1981).
In addition, a hypnotized person may “confabulate,” that is, fill in the gaps in her [*19]
memory to make it comprehensible. The added details may be derived from irrelevant or
unrelated facts or from pure fantasy. See Rock, 483 U.S. at 60 Little, 819 F.2d at 1429-30.
Like suggestibility, confabulation can occur as a result of the subject‟s desire to please the
hypnotist by coming up with complete and coherent memories. See Harker, 800 F.2d at
440 Pearson v. State, 441 N.E.2d 468, 471 (Ind. 1982) (citing Levitt, “The Use of Hypnosis
to „Freshen‟ the Memory of Witnesses or Victims,” Trial, April 1981, at 56) Hughes, 59
N.Y.2d at 535, N.Y.S.2d at 260.
A third problem with hypnotically refreshed recall is “memory hardening,” a phenomenon
which gives the subject enhanced confidence in the facts remembered, whether they be true
or false. See Rock, 483 U.S. at 60 Harker, 800 F.2d at 440 Hughes, 59 N.Y. 2d at 535,
N.Y.S.2d at 260 (describing experiments that demonstrate this phenomenon). Even as
inaccurate recollections increase, the subject‟s confidence is likely to remain constant or
even to increase. In 1985 a leading scientific journal reported that no studies have shown
“an increase in accuracy associated with an appropriate increase [*20] in confidence in the
veracity of recollections.” Scientific Affairs, supra, at 1921. The lack of correlation between
the accuracy of recall and the subject‟s confidence in the accuracy makes it more difficult for