Cultic Studies Journal, Vol. 14, No. 2, 1997, page 54
Today, by contrast, many scientific studies have provided the necessary knowledge
concerning the relationship between hypnosis and memory, and guidelines have been
developed that help ensure reliable interviews. The American Society of Clinical Hypnosis
appointed an 11-member task force to prepare a report on memory and hypnosis.9 After
more than a year of study, a draft of the Guidelines was prepared. The draft was sent to
approximately 80 of the world‟s leading scholars and researchers in the fields of memory,
hypnosis, trauma, and suggestion for feedback and commentary. An enormous response
was received by the task force, and the draft was substantially altered over a period of
months to accommodate these viewpoints. When published in 1995, the final report --
Clinical Hypnosis and Memory: Guidelines for Clinicians and for Forensic Hypnosis --
represented the most major worldwide effort ever undertaken to establish working
procedures for the use of hypnosis with memory. To this day the Guidelines is the most
thorough and accurate document in the field and should be considered as setting the
standard of care for the use of hypnosis with memory.
The United States Supreme Court’s Daubert Test
In the summer of 1993 the United States Supreme Court issued its significant decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc., which changed the law in all federal courts
and, as of the beginning of 1997, approximately two-thirds of the state courts, on the
proper test for the admissibility of expert opinion testimony. The Court replaced the long-
standing Frye (1923) reliability test based on general acceptance in the scientific community
with a more complicated relevance test based on verifiability and falsifiability that now
requires trial judges to be “gatekeepers” concerning the admissibility of the expert opinions.
Commentators generally acknowledge, and the Court specifically noted, that the intention of
the new rule is to permit more expert testimony to reach juries, but they disagree on how
lenient or strict trial judges should be when faced with the softer behavioral or social
sciences compared to the physical sciences.
Of the several hundred judicial decisions issued since the Daubert ruling appeared, only a
small fraction have involved the behavioral or social sciences. Of these opinions involving
the behavioral or social sciences, very few have directly addressed hypnosis or repressed
memory issues. When courts have ruled in these areas, however, they have not accepted
the Karlin and Orne position.
The Daubert (1993) decision in the United States Supreme Court has led several courts to
hold that per se exclusion rules are no longer defensible. In two cases involving polygraph
evidence, the United States Court of Appeals for the Fifth Circuit held that information
obtained from a lie detector cannot automatically be excluded from evidence. In United
States v. Posado (1995), the defendant in a drug trial was denied the opportunity to admit
into evidence the results of a polygraph interview. The Fifth Circuit reversed this ruling:
Our precedent, with few variations, has unequivocally held that polygraph evidence
is inadmissible in a federal court for any purpose.... However, we now conclude
that the rationale underlying this circuit‟s per se rule against admitting polygraph
evidence did not survive Daubert v. Merrell Dow Pharmaceuticals. (p. 429)
The Posado judges then took note that the United States Supreme Court had stated that it
was replacing the “austere” Frye rule of general acceptance in the scientific community with
the “flexible” inquiry based upon the Federal Rules of Evidence which require that the trial
judge make “initial determinations” that the evidence to be admitted is reliable (“as
scientific, technical or other specialized knowledge” that is trustworthy) and relevant (“will it
assist the trier of fact?”). A per se exclusion rule prohibits a judge from performing these
tasks and is therefore indefensible under Daubert.

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 55
Of major significance is the fact that, as the court specially noted, “the government
concedes that a per se rule against admitting polygraph evidence, without further inquiry, is
not viable after Daubert” (pp. 431-432). Thus, if prosecutors agree that per se rules violate
Daubert, their advocacy against such rules should carry great weight with the courts.
The Posado court also made a point of explaining that under Daubert, the scientific evidence
does not have to be absolute truth. The Daubert justices had written that the reliability
element is satisfied when the evidence offered is “more than speculative belief or
unsupported speculation.... Certainty is not required, but the knowledge asserted must be
based on „good grounds‟” (p. 433).
One year after its Posado decision, the Fifth Circuit again returned to the same issue and
upheld its earlier ruling. In United States v. Pettigrew (1996), the facts closely parallel those
in Posado because again a defendant in a criminal case sought to introduce polygraph
evidence showing he had not intentionally deceived bank regulators. The Fifth Circuit
reaffirmed the Posado rejection of per se exclusionary rulings and also reaffirmed the
Posado court‟s reasoning that polygraph evidence could still be excluded, but not
automatically. The trial judge in each individual case must “be guided by the twin precepts
of [Federal Rules of Evidence] Rule 702: the scientific validity of the method, and ability to
„assist the trier of fact to understand the evidence or determine a fact in issue...‟” (p. 1514).
The Ninth Circuit Court of Appeals has also read Daubert to preclude per se exclusion rules.
In United States v. Cordoba (1996), the court held that its per se exclusion rule against the
admission of polygraph evidence was “effectively overruled” by the “flexible inquiry assigned
to the trial judge by Daubert.” The court further noted that other per se rules were equally
as vulnerable to abolition:
This holding is consistent with precedent in this circuit. We have held that Daubert
overruled a per se rule excluding expert testimony regarding the credibility of
eyewitness identification. See United States v. Amador-Galvan, 9 F.3d 1414, 1417-
18 (9th Cir. 1993) (declining to follow per se rule of United States v. Amaral, 488
F.2d 1148, 1153 (9th Cir. 1973) and instead requiring district courts to consider
whether expert testimony regarding eyewitness identification meets Daubert
requirements). Similarly, in United States v. Rincon, 28 F.3d 921 (9th Cir.), cert.
denied, 513 U.S. 1029, 115 S.Ct. 605, 130 L.Ed.2d 516 (1994), we upheld a
district court‟s decision to exclude expert testimony on eyewitness identification
under Daubert, stating: Notwithstanding our conclusion, we emphasize that the
result we reach in this case is based upon an individualized inquiry, rather than
strict application of the past rule concerning expert testimony on the reliability of
eyewitness identification.... Our conclusion does not preclude the admission of such
testimony when the proffering party satisfies the standard established in Daubert
by showing that the expert opinion is based upon “scientific knowledge” which is
both reliable and helpful to the jury in any given case.... District courts must strike
the appropriate balance between admitting reliable, helpful expert testimony and
excluding misleading or confusing testimony to achieve the flexible approach
outlined in Daubert. (p. 228)
In May 1997, the United States Supreme Court, in United States v. Scheffer, agreed to
decide the issue of whether per se exclusion rules in polygraph cases violate a criminal
defendant‟s Sixth Amendment constitutional right to present a defense. Scheffer thus
appears before the Court in the same posture as the Rock v. Arkansas (1987) case did with
hypnosis. The Court‟s opinion, which is expected in early 1998, may simply follow Rock’s
conclusion and abolish per se restrictions against polygraphs in criminal cases when applied
to defendants, or it may further banish per se rules in general, and also clarify ambiguities
in the interpretation of the Daubert standard (Fried, 1997). Although the Scheffer opinion