Cultic Studies Journal, Vol. 15, No. 1, 1998, page 49
Example (3) above presents the issue addressed in the case of Borawick v. Shay, 68 F.3d
597 (2d Cir. 1995) (“Borawick”), discussed at length by Scheflin and by Karlin and Orne.
The admissibility of testimony refreshed by hypnosis in a private civil action does not raise
any constitutional issue and, therefore, the court in Borawick did not face any constitutional
impediment to the admission of Ms. Borawick‟s testimony.
The Second Circuit‟s decision in Borawick illuminates many of the difficulties courts have
had in deciding how to characterize hypnotically refreshed testimony and how to rule upon
its admissibility. As noted in the Borawick decision, some courts have reasoned that the fact
of hypnosis merely goes to the credibility and weight to be given to the evidence by the jury
and does not render the witness incompetent to testify, essentially a rule of per se
admissibility. See, e.g., Harding v. State, 5 Md. App. 230 (1968). A rule of per se
admissibility is in keeping with the trend over time, embodied in FRE 601, to abolish nearly
all grounds for witness disqualification based on incompetency.
To the extent that a rule of per se admissibility negates any argument that the evidence
should be excluded under FRE 403 because of its prejudicial effect or tendency to confuse a
jury, it does not take into account the full panoply of evidentiary considerations that a trial
judge would normally make. Moreover, a rule of per se admissibility ignores the concerns
raised by Karlin and Orne with respect to the use of hypnotically influenced testimony at
trial. At the other end of the spectrum, a number of courts have adopted a rule of per se
exclusion, as advocated by Karlin and Orne. See, e.g., People v. Shirley, 31 Cal.3d 18
(1982). Followed to its logical limit such a rule means that a witness who has been
hypnotized is incompetent to testify even as to events recalled prior to the hypnosis, based
on the rationale that the witness‟ memory has been “contaminated” and it is no longer
possible to distinguish truth from fiction. Many of the courts adopting such a rule have
treated hypnotically refreshed testimony as scientific or expert testimony and concluded
that it does not satisfy the Frye test because hypnosis has not gained “general acceptance”
in the scientific community as a reliable means of restoring memory. See, e.g. People v.
Hughes, 59 N.Y.2d 523, 543 (1983)(“In fact, it [hypnosis] is a scientific process and the
recollections it generates must be considered as scientific results ....it would seem that the
proper inquiry is whether hypnosis has gained general acceptance in the scientific
community as a means of restoring recollection. It is evident, however, that at the present
time hypnosis has not achieved that status”).
The legal underpinnings of the Hughes decision and others following its approach are now
suspect, at least in the federal courts, where the Fyre test has been superseded by Daubert
v. Merrill Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) (“Daubert”) and FRE 702. Under
Daubert, general acceptance in the scientific community, although a factor in testing the
admissibility of scientific evidence, is no longer a requirement. Each court must function as
a “gate keeper” and make an independent assessment of the probative value and reliability
of the evidence.2
As noted in the Borawick decision, it is by no means readily apparent that testimony from a
witness who has undergone hypnosis should be tested under the standards for admitting
expert testimony. The witness whose memory is refreshed by hypnosis is not being offered
as an “expert” witness, but rather as a lay witness whose testimony is generally permitted
under the Federal Rules of Evidence, if relevant and not unduly prejudicial.3 Accordingly,
the Second Circuit in Borawick, following the lead of other federal circuit courts, adopted a
totality of the circumstances test, which uses a number of factors to weigh the reliability of
the evidence and its probative value versus any prejudicial effect. This test lies somewhere
in between the two extreme positions of per se exclusion and per se admissibility. It is akin
to the test which all federal judges must make under FRE 403 before admitting evidence at
trial, albeit more complex and more weighted against admission because under Borawick
Example (3) above presents the issue addressed in the case of Borawick v. Shay, 68 F.3d
597 (2d Cir. 1995) (“Borawick”), discussed at length by Scheflin and by Karlin and Orne.
The admissibility of testimony refreshed by hypnosis in a private civil action does not raise
any constitutional issue and, therefore, the court in Borawick did not face any constitutional
impediment to the admission of Ms. Borawick‟s testimony.
The Second Circuit‟s decision in Borawick illuminates many of the difficulties courts have
had in deciding how to characterize hypnotically refreshed testimony and how to rule upon
its admissibility. As noted in the Borawick decision, some courts have reasoned that the fact
of hypnosis merely goes to the credibility and weight to be given to the evidence by the jury
and does not render the witness incompetent to testify, essentially a rule of per se
admissibility. See, e.g., Harding v. State, 5 Md. App. 230 (1968). A rule of per se
admissibility is in keeping with the trend over time, embodied in FRE 601, to abolish nearly
all grounds for witness disqualification based on incompetency.
To the extent that a rule of per se admissibility negates any argument that the evidence
should be excluded under FRE 403 because of its prejudicial effect or tendency to confuse a
jury, it does not take into account the full panoply of evidentiary considerations that a trial
judge would normally make. Moreover, a rule of per se admissibility ignores the concerns
raised by Karlin and Orne with respect to the use of hypnotically influenced testimony at
trial. At the other end of the spectrum, a number of courts have adopted a rule of per se
exclusion, as advocated by Karlin and Orne. See, e.g., People v. Shirley, 31 Cal.3d 18
(1982). Followed to its logical limit such a rule means that a witness who has been
hypnotized is incompetent to testify even as to events recalled prior to the hypnosis, based
on the rationale that the witness‟ memory has been “contaminated” and it is no longer
possible to distinguish truth from fiction. Many of the courts adopting such a rule have
treated hypnotically refreshed testimony as scientific or expert testimony and concluded
that it does not satisfy the Frye test because hypnosis has not gained “general acceptance”
in the scientific community as a reliable means of restoring memory. See, e.g. People v.
Hughes, 59 N.Y.2d 523, 543 (1983)(“In fact, it [hypnosis] is a scientific process and the
recollections it generates must be considered as scientific results ....it would seem that the
proper inquiry is whether hypnosis has gained general acceptance in the scientific
community as a means of restoring recollection. It is evident, however, that at the present
time hypnosis has not achieved that status”).
The legal underpinnings of the Hughes decision and others following its approach are now
suspect, at least in the federal courts, where the Fyre test has been superseded by Daubert
v. Merrill Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) (“Daubert”) and FRE 702. Under
Daubert, general acceptance in the scientific community, although a factor in testing the
admissibility of scientific evidence, is no longer a requirement. Each court must function as
a “gate keeper” and make an independent assessment of the probative value and reliability
of the evidence.2
As noted in the Borawick decision, it is by no means readily apparent that testimony from a
witness who has undergone hypnosis should be tested under the standards for admitting
expert testimony. The witness whose memory is refreshed by hypnosis is not being offered
as an “expert” witness, but rather as a lay witness whose testimony is generally permitted
under the Federal Rules of Evidence, if relevant and not unduly prejudicial.3 Accordingly,
the Second Circuit in Borawick, following the lead of other federal circuit courts, adopted a
totality of the circumstances test, which uses a number of factors to weigh the reliability of
the evidence and its probative value versus any prejudicial effect. This test lies somewhere
in between the two extreme positions of per se exclusion and per se admissibility. It is akin
to the test which all federal judges must make under FRE 403 before admitting evidence at
trial, albeit more complex and more weighted against admission because under Borawick
