Cultic Studies Journal, Vol. 15, No. 1, 1998, page 50
the party attempting to admit the hypnotically enhanced testimony bears the burden of
persuading the district court that the balance tips in favor of admissibility.
Simply because hypnotically refreshed testimony may be admitted under the Borawick
approach in certain circumstances, does not mean that a jury will believe the testimony.
Most juries are likely to be very skeptical of repressed memories that only come to light
after undergoing hypnosis, particularly if witnesses have no other evidence to corroborate
their testimony. For example, in the case of Ms. Borawick, the Second Circuit determined
that no reasonable jury would believe Ms. Borawick‟s allegations of ritual abuse, blood
drinking, and satanic activities and affirmed the trial court‟s exclusion of the testimony. But
what if another court were to reach the conclusion that allegations such as Ms. Borawick‟s
were not so inherently unbelievable and allowed the jury to hear them, along with expert
testimony as to the effect of hypnosis on memory. If jurors were convinced of the
truthfulness of such testimony after hearing all the evidence, who is to say that they are
wrong?
Karlin and Orne‟s principal argument for automatically excluding post-hypnotic testimony is
that, for a variety of reasons, hypnosis produces testimony that is not as reliable as
ordinary memory. The authors describe how hypnosis creates “false” memories which
cannot be distinguished from actual fact and how hypnosis produces a “vivid” recall,
unrelated to accuracy. Karlin and Orne suggest that such testimony will be so convincingly
conveyed and sincerely believed by the witness that a jury will be misled. Unlike the
witness whose alibi is a “lie” known as such by the witness, the jury will not be able to see
through the lie of the witness who has undergone hypnosis and sincerely believes the truth
of his or her own testimony.
While Karlin and Orne‟s arguments convince me that judges should be cautious about the
admission of post-hypnotic testimony, they do not convince me that the characteristics of
hypnotically refreshed testimony are so remarkable that it should be excluded in all cases.
Surely, Scheflin is correct that memory itself is fallible. An eyewitness to a crime or a car
accident may testify to “facts” honestly believed that are nonetheless incorrect. The
testimony may be given with complete conviction. Yet we allow such testimony and let the
jury decide the credibility and weight to be given.
In the final analysis, Karlin and Orne essentially contend that the social cost of a case-by-
case analysis of post-hypnotic testimony cannot be justified. Karlin and Orne conjure up a
“battle of the experts,” trying to persuade the jury as to whether the testimony of the
witness is reliable or simply a false memory and conclude that the possibility for error is so
great and the cost so enormous that it is better to adopt a per se rule of exclusion.
The consequences of a rule of per se exclusion, however, may be so severe in particular
cases, as Scheflin argues, that a great injustice may result in individual cases. By providing
judges with a mechanism to evaluate and admit or exclude hypothetically refreshed
testimony, as FRE 403 provides, or as the Borawick totality of the circumstances test
provides, we give judges greater flexibility to tailor their determinations to the specific facts
of individual cases and to take into account the evolving status of scientific thinking on
hypnosis and its effect on memory. Given the substantial dispute among treating
professionals as to the benefits of hypnosis as a means of recovering lost or repressed
memories, a flexible approach to determining the admissibility of hypnotically refreshed
testimony seems sound.
Notes:
1) Karlin and Orne note in passing that they would recognize two exceptions to the rule of per se
exclusion they advocate: (i) abuse during hypnosis and (ii) a criminal defendant who has been
hypnotized. The authors acknowledge that the latter exception is mandated by the Supreme Court‟s
decision in Rock.
the party attempting to admit the hypnotically enhanced testimony bears the burden of
persuading the district court that the balance tips in favor of admissibility.
Simply because hypnotically refreshed testimony may be admitted under the Borawick
approach in certain circumstances, does not mean that a jury will believe the testimony.
Most juries are likely to be very skeptical of repressed memories that only come to light
after undergoing hypnosis, particularly if witnesses have no other evidence to corroborate
their testimony. For example, in the case of Ms. Borawick, the Second Circuit determined
that no reasonable jury would believe Ms. Borawick‟s allegations of ritual abuse, blood
drinking, and satanic activities and affirmed the trial court‟s exclusion of the testimony. But
what if another court were to reach the conclusion that allegations such as Ms. Borawick‟s
were not so inherently unbelievable and allowed the jury to hear them, along with expert
testimony as to the effect of hypnosis on memory. If jurors were convinced of the
truthfulness of such testimony after hearing all the evidence, who is to say that they are
wrong?
Karlin and Orne‟s principal argument for automatically excluding post-hypnotic testimony is
that, for a variety of reasons, hypnosis produces testimony that is not as reliable as
ordinary memory. The authors describe how hypnosis creates “false” memories which
cannot be distinguished from actual fact and how hypnosis produces a “vivid” recall,
unrelated to accuracy. Karlin and Orne suggest that such testimony will be so convincingly
conveyed and sincerely believed by the witness that a jury will be misled. Unlike the
witness whose alibi is a “lie” known as such by the witness, the jury will not be able to see
through the lie of the witness who has undergone hypnosis and sincerely believes the truth
of his or her own testimony.
While Karlin and Orne‟s arguments convince me that judges should be cautious about the
admission of post-hypnotic testimony, they do not convince me that the characteristics of
hypnotically refreshed testimony are so remarkable that it should be excluded in all cases.
Surely, Scheflin is correct that memory itself is fallible. An eyewitness to a crime or a car
accident may testify to “facts” honestly believed that are nonetheless incorrect. The
testimony may be given with complete conviction. Yet we allow such testimony and let the
jury decide the credibility and weight to be given.
In the final analysis, Karlin and Orne essentially contend that the social cost of a case-by-
case analysis of post-hypnotic testimony cannot be justified. Karlin and Orne conjure up a
“battle of the experts,” trying to persuade the jury as to whether the testimony of the
witness is reliable or simply a false memory and conclude that the possibility for error is so
great and the cost so enormous that it is better to adopt a per se rule of exclusion.
The consequences of a rule of per se exclusion, however, may be so severe in particular
cases, as Scheflin argues, that a great injustice may result in individual cases. By providing
judges with a mechanism to evaluate and admit or exclude hypothetically refreshed
testimony, as FRE 403 provides, or as the Borawick totality of the circumstances test
provides, we give judges greater flexibility to tailor their determinations to the specific facts
of individual cases and to take into account the evolving status of scientific thinking on
hypnosis and its effect on memory. Given the substantial dispute among treating
professionals as to the benefits of hypnosis as a means of recovering lost or repressed
memories, a flexible approach to determining the admissibility of hypnotically refreshed
testimony seems sound.
Notes:
1) Karlin and Orne note in passing that they would recognize two exceptions to the rule of per se
exclusion they advocate: (i) abuse during hypnosis and (ii) a criminal defendant who has been
hypnotized. The authors acknowledge that the latter exception is mandated by the Supreme Court‟s
decision in Rock.
