Cultic Studies Journal, Vol. 14, No. 2, 1997, page 26
False Memory and Buridan’s Ass:
A Response to Karlin and Orne
Alan W. Scheflin, Esq.
Santa Clara University Law School
Abstract
According to the Karlin and Orne position supporting the per se exclusion rule for
hypnotized witnesses, a person who has been lobotomized can testify in court, a
person who has received massive electroshock treatments can testify in court, a
person who has taken enormous dosages of mind-altering psychiatric drugs or
psychedelics can testify in court, a person who has suffered substantial organic
brain damage can testify in court but a person who had been competently
hypnotized by an experienced licensed professional who carefully followed strict
guidelines to avoid undue suggestions, cannot testify in court. This paper rejects
the Karlin and Orne position supporting per se exclusion on scientific and policy
grounds and it argues that the currently prevailing expert opinion of forensic
hypnosis specialists, in the United States and abroad, also rejects the per se
exclusion. In addition, this paper argues that Karlin and Orne are mistaken in their
conclusions that (1) hypnosis always contaminates memory, (2) repressed memory
does not exist, (3) there is a recognized practice or school of thought called
“recovered memory” therapy, and (4) multiple personality disorder (MPD) or
dissociative identity disorder (DID) is always iatrogenic.
It is a pleasure to respond to the Karlin and Orne (1996) paper for many reasons. First,
because it is a quite thoughtful, well presented, nicely documented, and carefully prepared
statement of what has become known as the “false memory” position, it allows a
meaningful discussion and debate to proceed in a fruitful manner. Second, the authors are
sincere in their concerns about the harm false memories may cause, and I am in agreement
with them that some such harm exists and must be recognized, resisted, and removed. We
are also in agreement that, as they note, childhood sexual abuse exists and is “more
widespread and horrific than the creation of false memories” about it (Karlin &Orne, 1996,
p. 49, n. 2). Third, I would like to seize the moment to pay a debt of gratitude to Martin T.
Orne for being the first, in the 1970s, to alert us to the potential forensic problems that
might occur when hypnosis is used with memory, and again for being a pioneer in alerting
us to the potential problems that might occur when memory is used as the basis of
allegations of childhood sexual abuse. The worlds of science and law are certainly far richer
due to his cautious foresight. My disagreement with him on some of the problems herein
discussed is overshadowed by the many areas in which we are in agreement.
There are two separate issues of importance in this exchange of views, both of which were
presented to the federal Court of Appeals for the Second Circuit in Borawick v. Shay (1995),
the leading case establishing the appropriate test in federal courts for hypnotically refreshed
recollection.1 The first concerns forensic hypnosis and the wisdom of the per se exclusion
rule that prohibits testimony about any new memories first recalled during or after an
hypnosis session has been held. In my view, and as a matter of judicial precedent, this is
the only important issue because it is the only point that will bind other courts. Discussion
by the court on any of the other issues addressed by Karlin and Orne is dicta, meaning that
while it may be interesting, it does not have the force of law. Most of my response will be
directed towards this first essential point.

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 27
The second issue concerns the controversial subject of what has been variously called
“repressed memory,” “false memory,” “recovered memory” or, more appropriately,
according to the DSM-IV, “dissociative amnesia.” As part of the “false memory” argument,
discussions of multiple personality disorder (MPD), satanic ritual abuse, and alien abduction
have become entwined and inevitable, although careful thinkers keep these different ideas
apart. Because the Borawick case did not focus on these issues, my response will only touch
on some of them but the interested reader is advised to consult Brown, Scheflin, and
Hammond (1997) for a fuller discussion of my views about them.
What unites these two social, scientific, and legal problems, besides their common concern
about the malleability of memory, is that they are both painful illustrations of what has for
seven centuries been known as the Buridan‟s Ass dilemma.
Buridan’s Ass
Buridan owned an ass. One day, when the ass was very hungry, Buridan tried an
experiment. He placed two bales of hay in front of the ass, one bale on the left and the
other bale on the right. Both bales were equidistant from the ass and both bales were of
equal size. Confronted with this dilemma --which bale to choose first --the ass died on the
spot of indecision, having no better reason to select one bale over the other (Russell, 1945).
The story of Buridan‟s Ass is in reality a logic puzzle credited to Jean Buridan (c. 1295-
1356), an influential and controversial professor of philosophy at the University of Paris
during the first half of the 14th century.2 Almost entirely forgotten today, it is unmentioned
in contemporary formal logic books (Aldisert, 1989 Billig, 1987 Copi, 1982 Holland,
Holyoak, Nisbett, &Thagard, 1986 Hurley, 1982), informal logic texts (Blair &Johnson,
1980 Nolt, 1984 Fogelin, 1982 Johnson &Blair, 1983 Scriven, 1976), and books on
practical reasoning (Beardsley, 1975 Damer, 1980 Engel, 1982 Flew, 1977 Gula, 1981
Katz, 1986 Toulmin, Rieke, &Janik, 1984 Weddle, 1978). Rescher (1967) has noted that
“there is almost no discussion in modern literature of the logical issues involved in resolving
the problem of „Buridan‟s ass‟ that is, of reasoned choice in the absence of preference” (p.
428). Nevertheless, Buridan‟s Ass serves as a potent metaphor for a dilemma that routinely
faces lawyers, judges, and law students when courts are urged to choose between two
opposing principles, two contradictory lines of precedent, or two competing opinions about
what happened or did not happen in the past.
For example, in Attorney Grievance Commission of Maryland v. Wright (1986), clients filed
an ethical complaint against an attorney claiming that he charged an excessive fee in
closing out two joint savings accounts and paying from them the inheritance taxes owed.
The case was sent to Circuit Court Judge Raymond G. Thieme, Jr. for an evidentiary hearing
at which State Bar counsel produced three attorneys who expressed the opinion that the bill
was excessive, and the defendant-attorney produced three attorneys who concluded that
the bill was reasonable. Judge Thieme, Jr. found that the equal deadlock among the
experts, “all of whom the Court knows to be attorneys of impeccable reputation,” prevented
either argument from being successful. How then to decide the case? The judge proceeded
to use the burden of proof which required the State Bar counsel to prove misconduct by
clear and convincing evidence. Because this burden had not been met by the State Bar, the
attorney could not be found to have charged an excessive fee.
Perhaps the most visible contemporary public illustration of the Buridan‟s Ass dilemma was
the confrontation in Congress between the testimony of Judge Clarence Thomas and that of
Professor Anita Hill about alleged acts of sexual harassment. Both witnesses were highly
believable and highly credible yet, one of them was not telling the historical truth. How do
we choose between them?