Cultic Studies Journal, Vol. 14, No. 2, 1997, page 62
violence and substandard education that leave them without the basic skills to earn
their way and advance in a complex society....
Added to the threat of poverty is the threat of violence, in their own homes and in
the community. Every day nearly 8,500 children are abused or neglected and 3 die
from abuse. An additional 15 children a day die of gunshot wounds.
Frankly, as a parent, if I were accused of molestation, I would make the choice to allow my
daughter her day in court, even though I knew the allegations were completely and totally
false. I could not, in good conscience, tell her that her viewpoint was not worth hearing, and
that the legal system had no interest in listening to her complaint. In my world, the children
come first.
Conclusion
There are no scientific studies showing that hypnosis, when used correctly according to the
ASCH Guidelines, necessarily distorts memory. Indeed, many appellate cases involve
witnesses who had been hypnotized, but their story remained the same with no additional
details.
There are no scientific studies showing that hypnosis, when used properly, is less effective
as a memory refresher than other memory retrieval techniques.
The fact that with hypnosis may come false information as well as accurate information, and
the fact that no one can tell the difference without independent corroboration, is
meaningless because the same is true of every memory retrieval technique, and of memory
itself. No technique may boast either that it always produces truthful information or that it
can always tell the difference between accurate and inaccurate memories.
Every other area of suggestion considered by the law has rejected a per se exclusion rule:
lineups, financial undue influence claims, eyewitness testimonies, police interrogations, and
confessions. Only hypnosis has been singled out for such harsh treatment. Yet, the
applicable science fails to support any reasons for total exclusion of hypnotically refreshed
recollection.
In People v. Williams (1982), Judge Gardner, the appellate judge who wrote the opinion
that the California Supreme Court in People v. Shirley reversed, colorfully stated his
dissatisfaction with the per se inadmissibility rule of Shirley. His views are well worth
revisiting:
However, much as I admire the writing style of Shirley, I am troubled by the
concept that the testimony of a percipient witness as to relevant facts be deemed
inadmissible simply because he has undergone hypnosis.
What next? Once we begin to rule evidence inadmissible because of our
dissatisfaction with the witness‟ credibility based on improper memory jogging,
where do we stop? What about witnesses who have been brainwashed, coached,
coerced, bribed or intimidated? Are we going to reject all this testimony because it
is suspect? I have no doubt that a corrupt polygraph operator could convince a
witness of limited intelligence that his accurate memory is actually faulty and thus
persuade him to testify to an untruth. The same is true with the so-called truth
serums, hallucinogenic drugs or other exotic drugs only hinted at in C.I.A.
suspense fiction. I have no doubt that through the misuse of these drugs a witness
„testimony may become faulty and even suspect. Once having undergone exposure
to something of this nature is the witness still going to be allowed to give his best
recollection, or be precluded from testifying?

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 63
I am firmly of the belief that jurors are quite capable of seeing through flaky
testimony and pseudo-scientific clap-trap. I quite agree that we should not waste
our valuable court time watching witch doctors, voo-doo practitioners or brujas go
through the entrails of dead chickens in a fruitless search for the truth. However
this is only because the practice is too time consuming and its probative value is
zilch.... However, the idea that an eyeball witness to a transaction be denied the
opportunity to tell a jury his recollections of what he saw is disturbing to me
whether that recollection has been refreshed by hypnosis, truth serum, drugs,
intimidation, coercion, coaching, brainwashing or impaired by the plain old passage
of time. (pp. 501-502)
Notes
1. On May 28, 1996, the United States Supreme Court declined to review the Second
Circuit‟s opinion in Borawick v. Shay, thus leaving this opinion as a final judgment.
Borawick v. Shay, certiorari denied 116 S.Ct. 1869, 134 L.Ed.2d 966 (1996).
2. Buridan was not the first to use the dilemma of two equal preferences although his
name has now permanently attached to the illustration. Aristotle (384=322 B.C.), in his
De Caelo (295b32), had used a similar analogy, but the first clear record of the dilemma
as an issue of logic appears in the writings of an Arabic philosopher, Ghazali (1058-
1111), who used the example of two dates that are placed in front of a hungry man. See
Averroes, Tahafut al-Tahafut, translated by Simon van den Bergh, vol. 1, p. 21 (London,
1954). A contemporary examination of the Buridan‟s Ass dilemma may be found in N.
Rescher, “Choice Without Preference: A Study of the Logic and of the History of the
Problem of „Buridan‟s Ass,‟” in Kant-Studien, 21, 142-175 (1959/1960).
3. These two dangers are not equal, however. While false accusations against a parent are
reprehensible and debilitating, true accusations that go unacknowledged are even
worse. The stigma of being falsely labeled as a child molester is a heavy burden to bear,
but it does not compare with the burden borne by a true victim of parental abuse,
especially one who is disbelieved. As psychologist Jennifer J. Freyd has cogently noted in
her recent book, Betrayal Trauma: The Logic of Forgetting Childhood Abuse (Harvard
University Press, 1996), the trauma experienced by a young child who is molested by a
primary caregiver, such as a parent, is among the worst experiences that can happen to
a person. The child must simultaneously trust the parent and yet also be the parent‟s
victim. The scars of the molesting never fully heal. To then be disbelieved, and placed in
the custody of the molesting parent once again, is a horrible tragedy. To later be
disbelieved again and denied a day in court to prove the truth is a senseless
retraumatization resulting in an increased sense of helplessness and hopelessness.
4. The other case report discussed by Karlin appears to have involved a physician who
failed to follow any recognized set of safeguards, including taping the sessions.
5. If they were not so dangerous, it would be hard to take these positions seriously. Not
only is it bad enough to equate hypnosis with all suggestion, thereby making the terms
synonymous, as the false memory advocates do it is even worse to equate it with all
relaxation. Does Perry think that therapists should keep their patients agitated in order
to keep them out of trance? It should also be observed that, under the logic of Perry and
the false memory advocates, any request for recall of the past is both suggestive and
also the product of demand characteristics of wanting to please the questioner, etc. The
request for information about the past also carries the implication that memory can
reproduce prior events with accuracy. Logically, the false memory argument eliminates
all memory from evidence.