Cultic Studies Journal, Vol. 15, No. 1, 1998, page 48
A Comment Upon the Debate Between Scheflin and Karlin and Orne
on the Admissibility of Hypnotically Refreshed Testimony
Gilbert C. Hoover, IV, Esq.
Parker, Chapin, Flattau &Klimpl
New York, NY
Karlin and Orne‟s position supporting the per se exclusion of hypnotically refreshed
testimony is plainly shaped by their experience of the use of hypnosis in therapeutic
settings. They hold a sincere belief that more harm than good has been accomplished by
the use of hypnosis as a means of recovering patients‟ memories of childhood abuse and
advocate that the relevant professional psychotherapeutic societies should denounce the
use of hypnosis as a means of “creating” memories of childhood abuse. From a lawyer‟s
perspective, however, I am left questioning whether the dangers posed by the use of
hypnotically refreshed testimony at trial cannot be addressed in a more flexible and just
manner under traditional evidentiary standards than by a rule of per se exclusion.
As a general rule, the Federal Rules of Evidence (“FRE”) (and analogous state court rules of
evidence), including FRE 402 (admissibility of relevant evidence), 403 (exclusion of unduly
prejudicial evidence), 601(competency of witnesses) and 702 (admissibility of expert
testimony) provide a sufficient framework for determining the admissibility of testimony.
Why the need to exclude all post-hypnotic testimony without weighing the facts under
accepted evidentiary standards?
It is important to distinguish between several different proposed uses of hypnotically
refreshed testimony discussed by the authors, each of which may call for a different
evidentiary ruling. For example, each of the following situations raises a distinct evidentiary
issue involving the admissibility of hypnotically refreshed testimony:
1) Whether a criminal defendant who has undergone hypnosis should be allowed to testify
in his or her own defense.
2) Whether an alleged victim of a crime who has undergone hypnosis should be allowed to
testify in a criminal trial as to his or her recollection of the events.
3) Whether an alleged victim of a crime who has undergone hypnosis should be allowed to
testify in a civil trial as the plaintiff seeking to recover damages in tort.
With respect to example (1), the Constitutional right of a criminal defendant to testify on his
or her own behalf, embodied in the Due Process Clause of the Constitution and in the Sixth
Amendment‟s Compulsory Process Clause, severely restricts any evidentiary rule that would
prevent a criminal defendant from testifying on his own behalf. Accordingly, the Supreme
Court in Rock v. Arkansas, 483 U.S. 44 (1987) held that Arkansas‟ evidentiary rule
prohibiting the admission of hypnotically refreshed testimony violated a defendant‟s right to
testify on her own behalf as a defendant in a criminal case.1
With respect to example (2), it could be argued that the right of a criminal defendant to
confront his or her accuser is unconstitutionally impinged by a rule that would allow the
admission of hypnotically refreshed testimony from the victim in a criminal case. This
argument assumes (and would require proof) that the peculiar effects of hypnosis on
memory makes meaningful cross examination impossible. Although such an argument may
someday be persuasive, it would seem unlikely to carry the day at the present time when a
lively debate exists between treating professionals who hold deeply divergent views on the
effect of hypnosis on memory.
A Comment Upon the Debate Between Scheflin and Karlin and Orne
on the Admissibility of Hypnotically Refreshed Testimony
Gilbert C. Hoover, IV, Esq.
Parker, Chapin, Flattau &Klimpl
New York, NY
Karlin and Orne‟s position supporting the per se exclusion of hypnotically refreshed
testimony is plainly shaped by their experience of the use of hypnosis in therapeutic
settings. They hold a sincere belief that more harm than good has been accomplished by
the use of hypnosis as a means of recovering patients‟ memories of childhood abuse and
advocate that the relevant professional psychotherapeutic societies should denounce the
use of hypnosis as a means of “creating” memories of childhood abuse. From a lawyer‟s
perspective, however, I am left questioning whether the dangers posed by the use of
hypnotically refreshed testimony at trial cannot be addressed in a more flexible and just
manner under traditional evidentiary standards than by a rule of per se exclusion.
As a general rule, the Federal Rules of Evidence (“FRE”) (and analogous state court rules of
evidence), including FRE 402 (admissibility of relevant evidence), 403 (exclusion of unduly
prejudicial evidence), 601(competency of witnesses) and 702 (admissibility of expert
testimony) provide a sufficient framework for determining the admissibility of testimony.
Why the need to exclude all post-hypnotic testimony without weighing the facts under
accepted evidentiary standards?
It is important to distinguish between several different proposed uses of hypnotically
refreshed testimony discussed by the authors, each of which may call for a different
evidentiary ruling. For example, each of the following situations raises a distinct evidentiary
issue involving the admissibility of hypnotically refreshed testimony:
1) Whether a criminal defendant who has undergone hypnosis should be allowed to testify
in his or her own defense.
2) Whether an alleged victim of a crime who has undergone hypnosis should be allowed to
testify in a criminal trial as to his or her recollection of the events.
3) Whether an alleged victim of a crime who has undergone hypnosis should be allowed to
testify in a civil trial as the plaintiff seeking to recover damages in tort.
With respect to example (1), the Constitutional right of a criminal defendant to testify on his
or her own behalf, embodied in the Due Process Clause of the Constitution and in the Sixth
Amendment‟s Compulsory Process Clause, severely restricts any evidentiary rule that would
prevent a criminal defendant from testifying on his own behalf. Accordingly, the Supreme
Court in Rock v. Arkansas, 483 U.S. 44 (1987) held that Arkansas‟ evidentiary rule
prohibiting the admission of hypnotically refreshed testimony violated a defendant‟s right to
testify on her own behalf as a defendant in a criminal case.1
With respect to example (2), it could be argued that the right of a criminal defendant to
confront his or her accuser is unconstitutionally impinged by a rule that would allow the
admission of hypnotically refreshed testimony from the victim in a criminal case. This
argument assumes (and would require proof) that the peculiar effects of hypnosis on
memory makes meaningful cross examination impossible. Although such an argument may
someday be persuasive, it would seem unlikely to carry the day at the present time when a
lively debate exists between treating professionals who hold deeply divergent views on the
effect of hypnosis on memory.
