Cultic Studies Journal, Vol. 14, No. 2, 1997, page 56
could also uphold per se exclusions, commentators predict the Supreme Court will follow the
recent trend towards total abolition (Fried, 1997).
More directly on point, in Rowland v. Commonwealth (1995), a stepmother saw her stepson
shoot her and her daughter in the back. The stepmother‟s physician diagnosed her as
having posttraumatic stress disorder and he recommended she see Dr. William Wester, a
psychologist. Wester agreed with the diagnosis and decided to treat her with hypnosis.
Before beginning the hypnosis treatment, Dr. Wester, a former president of the American
Society of Clinical Hypnosis with extensive forensic hypnosis experience, took complete
statements from the stepmother about the shooting incident. The first statement was audio-
taped the second statement was videotaped. Following the videotaping, Dr. Wester used
hypnosis for the first time. The stepmother‟s statement while in trance was virtually
identical to her recorded prehypnotic statements. The defendant requested that all
testimony from the stepmother be suppressed, but the trial judge ruled “that the Common-
wealth would be precluded from informing the jury that [the stepmother] had been placed
under hypnosis. Further, he gave the defense leave to cross-examine her on this point, and
ruled that, if the defense did so, then the Commonwealth would be allowed to introduce
additional testimony to explain hypnosis” (p. 872). The defendant on appeal argued for a
rule of per se inadmissibility. In a 4-3 decision, the Supreme Court of Kentucky held that a
per se inadmissibility rule was inappropriate. The court cited the Court of Appeals decision
which noted that a per se exclusion might violate Daubert. The dissenting judges favored
the per se exclusion because of their erroneous belief that hypnotically refreshed
recollection “inherently involves dangerous problems with reliability” (p. 874).
Thus, the Daubert decision seems likely to erode the per se exclusion rule in one of two
ways. First, some courts, as we have already seen, will decide that Daubert mandates the
abolition of automatic exclusion. Second, other courts will not see the mandate, but will
respond to the spirit of Daubert‟s desire for flexibility by shifting from total exclusion to
case-by-case analysis rules. On this latter point, Perry (1997), after reviewing three recent
repressed memory cases,10 notes:
At this point in the evolution of Daubert (1993) as the standard for determining the
admissibility of scientifically based testimony, there appears to be a reluctance to
impose per se exclusions of certain procedures that have a scientific base. In all
three recovered-memory cases cited here, the tendency was to determine
admissibility on a case-by-case basis. (p. 276)
It is not hard to understand why this is so. Perry‟s own analysis provides an explanation.
Perry states that the issue in recovered memory, hypnosis and polygraph cases is “one of
unreliability.” He then defines “unreliability” so globally that even ordinary memory and
ordinary perception would be per se excluded under his definition:
To say that a particular technique is unreliable is merely to indicate that on some
occasions it will yield accurate information, and on other occasions the information
will be inaccurate. Usually, there is no way of knowing whether, on any specific
occasion, the technique or procedure is performed accurately or inaccurately. (p.
270)
False memory advocates have expressed alarm about this development abolishing per se
exclusion rules and replacing them with case-by-case determinations (Perry, 1997
Slovenko, 1997), but for most people, the era of slamming the courthouse door in the faces
of innocent victims will soon come to an end. When that happens, every person will at least
be entitled to present his or her evidence to a judge and thereby have a day in court.

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 57
The Prevailing Expert Opinion
Most recent commentary by forensic hypnosis experts supports abolition of the per se
exclusion rule. Scheflin &Shapiro‟s Trance on Trial (1989) received a Manfred S.
Guttmacher Award from the American Psychiatric Association. The ASCH (1995) Guidelines
received the Society for Clinical and Experimental Hypnosis Arthur Shapiro Award for the
“Best Book of the Year.” In addition, McConkey and Sheehan (1995), the two leading
Australian forensic hypnosis specialists, have recently published a series of very instructive
forensic hypnosis failures which serve as excellent examples of mistakes to avoid. They do
not conclude, as do Karlin and Orne, that because forensic hypnosis can be done poorly by
insufficiently trained individuals, it should not be done at all by well trained professionals. In
fact, they expressly reject the per se exclusion rule in favor the “admissibility with
safeguards” (p. 211) approach, which is a variation of the “totality-of-the-circumstances”
test adopted by Borawick.
One important aspect of the McConkey and Sheehan (1995) text is their focus on the
motivation of the hypnotic subject (Scheflin, 1997b). The authors draw attention to the fact
that witnesses who undergo hypnosis are not always neutral and pure. Karlin (1997) makes
this same point in civil cases involving automobile accidents.
Graham Wagstaff (1996), one of Britain‟s foremost forensic experts, has just published a
paper describing his experience as an expert for the defense in a case where a witness, who
happened to be an off-duty police officer, observed certain parts of a crime, including the
getaway car. The police used hypnosis, but, because the details that the officer gave were
contradictory to the prosecution‟s case, the use of hypnosis was not revealed until after the
trial was over. In his report, Wagstaff concluded:
But I would argue that, instead of a blanket rejection of anything said by the
witness in such cases, we must judge each case individually. Perhaps we might
more usefully ask, what might be the effect of this particular hypnosis session, on
particular statements, made by this particular witness? (p. 189)
In fact, virtually the only recent commentaries espousing the per se exclusion rule are
articles by Orne (Karlin &Orne, 1996 Perry, Orne, London, &Orne, 1996) or by others who
have adopted his definition of hypnosis (Giannelli, 1995 Karlin, 1997). For the development
of many additional arguments against the per se exclusion rule, and additional data
undercutting the scientific accuracy of the Orne view, see Brown et al. (1997).
The AMA Report
In 1985, a panel of the American Medical Association (AMA), led by Dr. Martin T. Orne,
released a report on their study of hypnosis with memory. The AMA panel reached three
important conclusions. First, the panel found no evidence of increased recollection by means
of hypnosis for recall of memory for meaningless material. The experiments relied on dealt
with nonsense syllables, or nonmeaningful word passages, learned under nonstressful
conditions. The great bulk of the studies examined by the panel, where hypnosis was
involved, fell into this category.
These studies are of questionable value to the forensic arena where meaningful information
obtained under traumatic conditions is generally involved. Witnesses are not generally
asked to recite silly poetry on the witness stand. Memory for nonsense is generally weak
without hypnosis because the information is not important enough to be stored in long term
memory. Hypnosis does not increase recall of this material, nor does anything else.
Second, the panel found no evidence of increased recollection by means of hypnosis for
recognition memory.