Cultic Studies Journal, Vol. 15, No. 1, 1998, page 53
Federal Evidence Code and the move from the general acceptance standard in Frye (1923)
to Justice Blackmun‟s dicta in Daubert (1993). But the last few years have seen thousands
deluded by hypnotically elicited “memories” of events before birth or of sexual abuse at the
hands of aliens on spaceships or, as in Borawick, at the hands of nonexistent satanic cults.
While such absurd “memories” are easily ignored by the judicial system, hypnosis heightens
the risk that persuasive, but nevertheless entirely inaccurate memories will be elicited by
well-meaning people from well-meaning people.
Even more problematic, “refreshing” the memory of a bystander via hypnosis results in
creating an eyewitness who is either different from the one who existed before hypnosis or,
in some cases, has been created out of hypnotic whole cloth. We have seen too many cases
in which, after hypnosis, the person sincerely believes that he or she has mentally returned
to the scene, now has viewed the crime or traumatic event (often fantasized) clearly, and
can confidently testify as to the facts of the case (e.g., People v. Kempinski, 1980 State v.
Mack, 1980). Moreover, cross examination depends on the ability to elicit and contest the
person‟s original perception of the event and original confidence in what he or she saw.
Thus, in our view there is no question hypnotizing a prospective witness tampers with the
evidence.
Though ordinary eyewitness testimony has problems, our system of justice could not
function without it.. But note that the law requires the exclusion of other testimony that has
been tampered with or is the product of an unduly suggestive procedure that irretrievably
alters memory (e.g., a “show up” where one suspect is presented for identification as
opposed to a line up where the suspect must be chosen from a physically similar group).
Why should the law allow hypnosis to be an exception when it inherently involves undue
suggestion, irretrievable memory change, and a pervasive lowering of the relationship
between certainty and accuracy, a relationship critical to cross examination? Creating a
detailed, vivid, certain, honest liar who is allowed to testify can not help the trier of fact
determine truth.
Thus, our position favors per se exclusion of the testimony of any witness whose recall has
been “refreshed” by hypnosis or hypnotic like techniques. If a per se rule is not enforced, we
will be encouraging the use of hypnosis with potential witnesses by sometimes allowing
admission. The chance of aiding the cause of justice with hypnosis is too low and that of
creating a serious miscarriage of justice too high for that to be acceptable.
References
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). 125 L.Ed. 2d 469.
Dywan, J. (1995). The illusion of familiarity: An alternative to the report-criterion account of
hypnotic recall. International Journal of Clinical and Experimental Hypnosis, 43, 194-
211.
Frankel, F. (1994). The concept of flashbacks in historical perspective. International
Journal of Clinical and Experimental Hypnosis, 4, 321-336.
Frye v. United States (1923). 293 F.1013 (D.C. Cir.)
Hoover, G. (1998). A Comment Upon the Debate Between Scheflin and Karlin and Orne on
the Admissibility of Hypnotically Refreshed Testimony. Cultic Studies Journal, 15, 1, 77-
82.
Karlin, R. (1983). Forensic hypnosis: Two brief case reports. International Journal of Clinical
and Experimental Hypnosis, 31, 227-234
Karlin, R. (1997). Illusory safeguards: Legitimizing distortion in recall with guidelines for
forensic hypnosis --Two case reports. International Journal of Clinical and Experimental
Hypnosis, 45, 18-40.
Federal Evidence Code and the move from the general acceptance standard in Frye (1923)
to Justice Blackmun‟s dicta in Daubert (1993). But the last few years have seen thousands
deluded by hypnotically elicited “memories” of events before birth or of sexual abuse at the
hands of aliens on spaceships or, as in Borawick, at the hands of nonexistent satanic cults.
While such absurd “memories” are easily ignored by the judicial system, hypnosis heightens
the risk that persuasive, but nevertheless entirely inaccurate memories will be elicited by
well-meaning people from well-meaning people.
Even more problematic, “refreshing” the memory of a bystander via hypnosis results in
creating an eyewitness who is either different from the one who existed before hypnosis or,
in some cases, has been created out of hypnotic whole cloth. We have seen too many cases
in which, after hypnosis, the person sincerely believes that he or she has mentally returned
to the scene, now has viewed the crime or traumatic event (often fantasized) clearly, and
can confidently testify as to the facts of the case (e.g., People v. Kempinski, 1980 State v.
Mack, 1980). Moreover, cross examination depends on the ability to elicit and contest the
person‟s original perception of the event and original confidence in what he or she saw.
Thus, in our view there is no question hypnotizing a prospective witness tampers with the
evidence.
Though ordinary eyewitness testimony has problems, our system of justice could not
function without it.. But note that the law requires the exclusion of other testimony that has
been tampered with or is the product of an unduly suggestive procedure that irretrievably
alters memory (e.g., a “show up” where one suspect is presented for identification as
opposed to a line up where the suspect must be chosen from a physically similar group).
Why should the law allow hypnosis to be an exception when it inherently involves undue
suggestion, irretrievable memory change, and a pervasive lowering of the relationship
between certainty and accuracy, a relationship critical to cross examination? Creating a
detailed, vivid, certain, honest liar who is allowed to testify can not help the trier of fact
determine truth.
Thus, our position favors per se exclusion of the testimony of any witness whose recall has
been “refreshed” by hypnosis or hypnotic like techniques. If a per se rule is not enforced, we
will be encouraging the use of hypnosis with potential witnesses by sometimes allowing
admission. The chance of aiding the cause of justice with hypnosis is too low and that of
creating a serious miscarriage of justice too high for that to be acceptable.
References
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). 125 L.Ed. 2d 469.
Dywan, J. (1995). The illusion of familiarity: An alternative to the report-criterion account of
hypnotic recall. International Journal of Clinical and Experimental Hypnosis, 43, 194-
211.
Frankel, F. (1994). The concept of flashbacks in historical perspective. International
Journal of Clinical and Experimental Hypnosis, 4, 321-336.
Frye v. United States (1923). 293 F.1013 (D.C. Cir.)
Hoover, G. (1998). A Comment Upon the Debate Between Scheflin and Karlin and Orne on
the Admissibility of Hypnotically Refreshed Testimony. Cultic Studies Journal, 15, 1, 77-
82.
Karlin, R. (1983). Forensic hypnosis: Two brief case reports. International Journal of Clinical
and Experimental Hypnosis, 31, 227-234
Karlin, R. (1997). Illusory safeguards: Legitimizing distortion in recall with guidelines for
forensic hypnosis --Two case reports. International Journal of Clinical and Experimental
Hypnosis, 45, 18-40.
