A Comment Upon the Debate Between Scheflin Karlin and Orne

Cultic Studies Journal, 1998, Volume 15, Number 1, pages 77-82.

A Comment Upon the Debate Between Scheflin, Karlin, and Orne on the Admissibility of Hypnotically Refreshed Testimony

Gilbert C. Hoover, IV, Esq.

Parker, Chapin, Flattau & Klimpl

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.

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.

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.

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. 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 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.

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Gilbert C. Hoover, IV, Esq. is an associate in the litigation department of Parker, Chapin, Flattau & Klimpl, LLP

Footnotes:

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.

2) As the Supreme Court recently made clear, a trial court's determination to admit or exclude proposed testimony under Daubert will not be disturbed on appeal unless the trial court abused its discretion. General Electric Co. v. Joiner, 118 S.Ct. 512 (1997).

3) In contrast, the admissibility of expert testimony would be directly at issue, assuming hypnotically refreshed testimony were ruled admissible, if a person sought to testify concerning the effect of hypnosis on such testimony.