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In conclusion, there are costs to every solution to the question of admitting hypnotically
influenced testimony. Certainly, we consider a case-by-case review of the
“totality-of-the-circumstances” --the approach that the Borawick court approved --the
second best choice: far better than admission of such testimony automatically or admission
determined solely by adherence to inherently inadequate safeguards. But under this
“totality-of-the-circumstances” rule, experts would have debated whether Ms. Borawick‟s
testimony about blood-drinking, black-robed Masons engaged in ritual child abuse should be
admitted at trial. Under the “totality-of-the-circumstances” standard, all such arguments
would have to be considered on a case-by-case basis. If a myriad of such cases are to be
tried, both the costs, in time, effort, and expense, and the risks of major miscarriages of
justice, will be considerable.
When the Shirley (1982) court reflected on the case-by-case consideration of the effects of
hypnosis, they concluded that “the game isn‟t worth the candle” and held for a per se
exclusion. We concur case-by-case evaluation of hypnotically influenced testimony is not
worth the extensive judicial and psychological resources it requires nor the risks it incurs.
Notes
1. These safeguards were originally proposed by the second author in an amicus brief in
California v. Quaglino (1978). After over a decade of experience, he and his
colleagues arrived at a consensus that such safeguards are inadequate to protect the
fact-finding process (cf. Orne et al., 1984). This consensus was reflected by the
American Medical Association‟s statements on this issue (AMA, 1985, 1994).
2. Of course there are times when an exception must be made. The criminal defendant
who has been hypnotized has a constitutional right to tell his story (Rock v.
Arkansas, 1987). Moreover, we agree that anyone who claims to have been abused
during hypnosis is entitled to case by case consideration under a totality of the
circumstances standard. But such exceptions are relatively rare.
3. A full discussion of the scientific literature on memory and hypnosis over the past
two decades is beyond the scope of this paper. We note here that an appropriate
review must examine the literature in light of the specific research paradigms
employed the presence or absence of a clear, coherent memory prior to hypnosis
the circumstances of original encoding controls for productivity how hypnotizability
was measured the demand effects in specific studies and so on. If such distinctions
are not made, reviews can be quite misleading.
For example, Spanos, Gwynn, Comer, Baltruweit, and de Groh (1989) conducted two
experiments examining the impact of varied cross-examination conditions on
mistakes and misidentifications after misleading interrogation. In Experiment 1, high
and low hypnotizables in hypnosis, imagery, or control conditions were shown a film
depicting the robbery of a candy store by a Caucasian male in his late teens. The
offender was seen for 30 seconds of a 3-minute, color video in which subjects saw
both full body shots and close-ups of the offender‟s face and upper body. After
viewing the film, subjects were asked to relate everything they would have felt and
done had they been in the store. They were then asked to describe what happened
in the film, what the offender looked like, was wearing, and what he said and did.
Several days later, subjects witnessed a second videotape in which they saw a
suspect arrested and fingerprinted. The suspect, however, was not the perpetrator in
film one, differing from him in a number of ways, including eight distinctions about
which misleading questions were asked.
Subjects who made at least one misattribution in line with leading questions, or who
misidentified the perpetrator in a photo lineup from a display that contained a foil but

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 19
not the original perpetrator, were exposed to a cross-examination session
approximately a week later. Before cross-examination, they all took an oath that
they would tell the truth. All cross-examination in Experiment 1 was rigorous,
designed to break down the subjects and convince them the person in the second
film was not the offender (as in fact, he was not). Subjects who admitted uncertainty
were considered to have broken down in response to cross-examination.
The results of the first experiment indicated that subjects in all conditions showed a
major decrement in mistakes during cross-examination, with the subjects in the
leading question condition without either hypnosis or imagery showing the smallest
degree of breakdown under cross-examination. Similar patterns were seen on the
mug shots with more of the highly hypnotizable subjects in the hypnosis and
imagery conditions breaking down. Thus, neither hypnosis, high hypnotizability, nor
their interaction seemingly helped subjects maintain their testimony in the face of
stringent cross-examination.
In Experiment 2, only highly hypnotizable subjects were used, but along with the
stringent interrogation seen in Experiment 1, two other forms of cross-examination
were used: a benign cross-examination, in which it was not necessarily implied that
subjects had been previously incorrect, and a hidden observer condition, in which
subjects were told that a hidden part of them “remains uninfluenced by suggestion.
The hidden part can always distinguish between suggestions and reality.” In this
second experiment, the stringent cross-examination was nowhere near as successful
as it seemingly had been during the first study. In fact, the decrease in the number
of mistaken characteristics, while significant for all three conditions, showed a
smaller decrease in the stringent cross-examination condition (the one studied in
Experiment 1) than in either the benign cross-examination or the hidden observer
condition, with the difference being significant for the hidden observer condition.
Similarly, confidence in mug shot misidentifications decreased only slightly (and
nonsignificantly) for those in the stringent and benign cross-examination conditions
and decreased about three times as much (and significantly) in the hidden observer
condition. Thus, contrary to Experiment 1, in Experiment 2, the misidentification of
mug shots --probably the most important single problem in terms of witness
misidentification --did not show a significant decrement despite stringent
cross-examination of these highly hypnotizable subjects.
Why does the effect of stringent cross examination fail to replicate? Perhaps because
we are looking at the wrong variable. The stringent cross-examination after hypnosis
condition is the active treatment in the first experiment, while the hidden observer
condition is the active treatment in Experiment 2. One way to view this is that, taken
together, the two experiments show that the active treatment, whatever it is, yields
the results Spanos and his colleagues anticipated. An alternative way of stating this
view is to note that Spanos et al. (1989) found that stringent cross-examination
causes decrements in mistaken hypnotically influenced testimony only when
expected to do so, when it is the active condition on which the experiment focuses,
not when it is one of the control conditions. While this interpretation is post hoc, it is
consistent with effects seen in a variety of experimental contexts, effects that must
be most carefully considered when hypnosis is used and ecological validity is a
central consideration (cf. Orne, 1970).
In regard to ecological validity, the oath and stringent cross-examination were used
by Spanos et al. (1989) in an attempt to parallel real-world courtrooms. However, in
real-world courtrooms, witnesses have been prepared and are called by one side and
their social role suggests maintaining their testimony as best they can during cross-
examination. Therefore, real courtrooms would seem to provide an a fortiori version