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involve lay hypnotists. Although the authors do not say so, People v. Kempinski (1980)
involved a police hypnotist. They correctly note that State v. Mack (1980) involved what
they label as a “self-taught, lay hypnotist” (p. 56) and People v. Shirley (1982) involved a
deputy district attorney who was trying to get the alleged victim to tell one consistent,
coherent story rather than what she had been doing, which was changing her story every
time she told it.
Thus, in the very heart of their defense of the per se exclusionary rule, we find a significant
false premise --Karlin and Orne fail to distinguish between the careful use of hypnosis by a
licensed and trained professional, and the careless use of hypnosis by an untrained and
nonlicensed lay hypnotist. It should be clear that the conduct of overzealous, incompetent,
and biased lay hypnotists does not prove the need for the per se exclusion rule, nor should
it be used as the basis for condemning hypnosis in general. This attempt to attack hypnosis
by citing the misadventures of lay hypnotists would appear to be a longstanding and
fundamental premise of the Karlin and Orne argument. In Karlin (1983), the author
described only two cases involving the misuse of hypnosis in the criminal setting, but one of
them involved a lay hypnotist.4 Also, Perry (1997), another advocate of per se exclusion,
cites only cases involving lay hypnotists, including Borawick. Astonishingly, he somehow
fails to report that the Borawick court accepted the “totality-of-the-circumstances” test and
rejected the per se exclusion rule.
Thus, I repeat, it is a false premise to demean the work of licensed professionals by citing
horror stories of the conduct of lay practitioners.
Confusing Hypnosis with the Malleability of Memory
Another major fallacy in the Karlin and Orne premises is that they mistakenly equate
hypnosis with the malleability of memory. This mistake thoroughly permeates their entire
argument. For example, Karlin and Orne reject the use of the State v. Hurd guidelines on
several grounds, the first of which is that the guidelines “do not prevent the subject from
being influenced by other postevent information and turning such information into „memory‟
during hypnosis” (p. 58, n. 5). As a mountain of evidence has demonstrated, however, this
“postevent misinformation effect” is not a function of hypnosis it is a function of memory
because it will occur even if hypnosis is not used (Brown et al., 1997 Spear &Riccio, 1994
Zechmeister &Nyberg, 1982).
All researchers agree that one of the serious problems with memory is its ability to accept
some forms of postevent misinformation suggestion. For example, Loftus (1979) discovered
that if, after showing a short film to students, she later asked them if they had seen “a”
gun, she got a relatively low report. But if she asked the students whether they saw “the”
gun, many more reported that they did, even though there was no gun in the film. This
relatively simple experiment is repeated constantly in real life as later impressions reshape
our recollections of prior events. The postevent suggestion effect is especially significant
when eyewitness testimony is used in courts of law to obtain convictions (Loftus, 1979
Ross, Read, &Toglia, 1994 Wells &Loftus, 1984 Yarmey, 1979).
Memory researchers all agree that “postevent misinformation effect” experiments with
students at least demonstrate that under certain circumstances, some people can be led to
report misinformation as if it were fact (Frischholz, 1990 Loftus, 1980). There is
disagreement, however, regarding precisely how easy it is to distort memory by later
misinformation. On the one side, Loftus and other false memory advocates believe that
memory is easily distorted by suggestion (Loftus &Ketcham, 1994 Ofshe &Watters, 1994).
These researchers make two points, both of which have been rejected by other researchers.
First, they argue that memory is easily malleable by postevent misinformation. The most
useful way to understand this argument is by way of slight exaggeration. Loftus and others
show a film of a bank robbery and later provide misinformation about a minor (“peripheral”)

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 31
detail. For example, they might ask whether the observer saw a pink shirt on the man in the
back of the bank. Naturally, because most observers were not looking at the man in the
back, who was actually wearing a blue shirt, the misinformation is accepted by a number of
observers. False memory writers use this illustration to make a sweeping claim that memory
is highly malleable. But if the observers instead were asked whether they saw the rocket
ship, none of the observers would accept the misinformation, thus leading the
experimenters to conclude, inaccurately, that memory is never malleable. The point is
clearly made in the memory literature which discounts Loftus‟s high numbers when
misinformation involves “gist” rather than “peripheral” details (Smith &Ellsworth, 1987).
Yuille (1980) found that a misleading question did not distort the accuracy of memory when
it was clear that the observers had a clear and correct memory initially. Thus, in the
misinformation experiment, the misinformation effect may work on some observers because
they never initially encode the information about the man‟s shirt in the back of the bank.
When properly encoded, however, the misinformation effect virtually disappears. Smith and
Ellsworth (1987) found that when the misleading information was presented by someone
described as highly knowledgeable about the events, the misinformation effect was present,
but not when the misinformation was presented by someone described as naive about the
events. Thus, a social influence effect is present which accounts for the reported distortion.
Researchers not affiliated with the false memory movement have reached conclusions about
the malleability of memory that are far more moderate (Brown et al., 1997 Frischholz,
1990). Smith and Ellsworth (1987), reviewing the experimental data, summarize it as
follows:
Memories for some facts are relatively immune to alteration by the presentation of
misleading information.... It appears that only memories that are somewhat
indefinite are subject to distortion on the basis of subsequent information. (p. 299)
Second, false memory proponents argue that postevent misinformation distorts memory by
destroying the old memory and replacing it with a new memory of the misinformation and a
source amnesia that makes the later information appear to have been part of the original
event. Other researchers, however, have rejected this conclusion and demonstrated that by
bribes and other means, researchers are able to get observers to distinguish between false
reports and false memories (American Society of Clinical Hypnosis, 1995). In other words,
observers can tell the difference between what they saw and what they were later told
(McCloskey &Zaragoza, 1985).
This problem of the alleged malleability of memory is not related to hypnosis. If hypnosis
did not exist, memory would be just as malleable and just as receptive to postevent
suggestion. In fact, an overwhelming number of the studies on postevent misinformation
have not involved hypnosis at all. Where postevent misinformation experiments have been
conducted, however, usually high hypnotizables have been the subjects. Because high
hypnotizables appear more vulnerable to suggestion effects, false memory researchers have
claimed that hypnosis can easily implant memories (Laurence &Perry, 1983). When other
researchers have examined this data, however, it turns out that even among high hypnotiz-
ables, the number of subjects who respond to postevent misinformation even for peripheral
details is relatively small (McCann &Sheehan, 1988). Furthermore, Spanos and McLean
(1986) showed that later instructions given to the subjects were capable of almost
eliminating the misinformation effect. They concluded that false reports, not memories,
were involved. Naturally, using subjects who are not high hypnotizables and presenting
misleading information about the gist of an event would demonstrate virtually no memory
distortion.