Commentary on Borawick v Shay - Scheflin
Cultic Studies Journal, 1996, Volume 13, Number 1, pages 26-41
Commentary on Borawick v. Shay: The Fate of Hypnotically Retrieved Memories
Alan W. Scheflin, Esq.
Santa Clara University Law School
The Federal Court of Appeals for the Second Circuit’s decision in Borawick v. Shay correctly applied the “totality-of-the-circumstances” test to the admissibility of hypnotically refreshed testimony in federal courts. The court was incorrect, however, in denying the plaintiff, Ms. Borawick, her day in court to prove her allegations of repressed memories of childhood sexual abuse. Some overly cautious experts in hypnosis and in repressed memory have presented to courts information about these subjects that cannot withstand scientific scrutiny. The current scientific literature demonstrates the truth of the following assertions: (1) hypnosis, when used properly, does not inevitably contaminate or alter memory, (2) hypnosis, when used properly, can assist in the recovery of memories that later can be corroborated as true, (3) repressed memory, or dissociative amnesia, has been verified as real in every study of the issue, and (4) scientific studies so far support the conclusion that repressed memories are no less accurate than always remembered memories.
In 1968 the first American court in this century permitted a previously hypnotized person to testify on the witness stand about hypnotically refreshed memories (Harding v. State, 1968). For a decade afterwards, all courts followed this ruling (Scheflin & Shapiro, 1989).
During the past two decades, however, a small group of hypnosis experts, who appear to be against the expanding use of hypnosis by the police, have been testifying in court to the risk of a dizzying array of dangers when hypnosis is used to help people remember traumatic events. As noted in Brown, Scheflin, and Hammond (in press), judges have been told that the admissibility of hypnotically refreshed testimony brings up eight interrelated problems under three generic headings. These are as follows:
1. The subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval
2. The subject is highly responsive to the possibility of the creation of pseudomemories
3. The subject experiences “memory hardening,” which gives him or her great confidence in both true and false memories, making effective cross-examination more difficult
4. The subject is likely to “confabulate”-- that is, to fill in details from the imagination in order to make an answer more coherent and complete
5. The subject has source amnesia which prevents properly identifying whether a memory occurred before or during hypnosis, or whether the memory is real or suggested
6. The subject experiences a loss of critical judgment
7. Juries will disproportionately believe testimony that is the product of hypnosis
8. The subject can easily feign hypnosis and can be deceptive in trance
Based on these expressed concerns, judges throughout the country in the 1980s, beginning with State v. Mack (1980), moved to exclude from courtrooms any posthypnotic recollections--that is, testimony about memories that appeared during or after hypnosis had been used (Scheflin & Shapiro, 1989; Laurence & Perry, 1988). Thus, the very use of hypnosis was deemed automatically and inevitably to taint memory. By the mid-1980s, a large majority of state courts forbade the introduction into evidence of such posthypnotic recollection (Perry, Orne, London, & Orne, 1996).
The original per se exclusion rule proved to be too inflexible. For instance, because a person who had been hypnotized was disqualified as a witness, that person was not even permitted to state his or her name on the witness stand (People v. Shirley, 1982). Courts were forced, for a variety of reasons, to provide exceptions.
The first exception corrected the disqualification problem by holding that a previously hypnotized person could testify in court, but only concerning matters that had been recorded before the hypnosis was used. Today, most state supreme courts that have addressed the issue have adopted this modified per se exclusion rule (Giannelli, 1995).
The second exception is constitutionally mandated: no state may automatically exclude the hypnotically refreshed recollections of a criminal defendant (Rock v. Arkansas, 1987).
A third exception has not yet been tested by the courts but it has the unanimous support of all commentators, even those who favor a strict per se rule. As Perry et al. acknowledge:
Scheflin (1994) argues persuasively for the admission of evidence from a previously hypnotized crime victim, for instance, a female patient who alleges sexual relationships initiated by a therapist in the course of a hypnosis therapy session. Here there would appear to be no other course but to permit such a witness to testify; to do otherwise would be a clarion call to individuals wishing to engage in unconsenting sexuality without legal penalty by learning and applying hypnotic induction techniques. (1996, p. 77)
Giannelli (1995) has argued correctly that a fourth exception exists regarding persons who were not hypnotized despite the fact that hypnosis induction techniques were used. Courts have accepted expert opinion, based on objective tests of hypnotizability, to show that the hypnosis was ineffectual and therefore the witness may testify about posthypnotic recollections (People v. Caro, 1988).
Other exceptions appear inevitable, thereby calling into question the existence of so porous a rule. For example, Scheflin (1994) has challenged defenders of the per se rule to respond to the following actual case illustration. No defender of the rule has yet met the challenge. In a New York case described to Scheflin by a district attorney, a 4-year-old girl told her mother that her father had, in effect, been molesting her. The mother had a serious breakdown and required complete institutionalization. The girl was raised by her father and the sexual abuse continued for several years. The girl, however, would no longer talk about the abuse. A year of therapy could not persuade her to talk even though there was solid medical evidence clearly supporting the abuse. Finally, after hypnosis was used for relaxation, the girl told the sad and sordid tale of her father’s repeated abuses of her. Because New York excludes posthypnotic testimony, the girl was unable to tell her story in court, and, therefore, could not identify her father as the perpetrator. Despite the medical evidence corroborating the abuse, she remained in her father’s custody. How is justice served in this case?
Today, the field of forensic hypnosis is fighting for existence. The presence of the oppressive per se rule, even with its expanding list of exceptions, threatens the social and legal interests and rights of many people.
The heavy hand of the per se rule also casts a dark shadow over areas not yet resolved by the law. For example, more than 95% of the forensic cases involving hypnosis decided since 1968 have been criminal matters. Whether the same exclusion rule should be applied in civil cases is not yet resolved by the courts, though the trend appears to be for each state to adopt the same rule in civil cases that it adopted in criminal cases.
Of far greater significance is the impact of the per se rule on therapeutic hypnosis. Only three or four cases have involved situations where the hypnosis was done for the purpose of therapy, not to recover memories of witnessing or being a victim in a pending criminal matter (Scheflin, 1994).
Should the per se rule apply every time a therapist uses hypnosis? Today, any time a therapist uses hypnosis with a patient, the legal interests of both are threatened (Scheflin & Shapiro, 1989; Scheflin, 1993). As aptly noted by 18 diverse organizations who have filed with the United States Supreme Court a motion to file an amicus curiae brief in the Borawick case, the present per se restrictions adversely impact
blameless victims of child sexual abuse, adult and child victims of trauma, victims of sexual assault and violent crimes, mental health and other professionals who use hypnosis, and virtually anyone who has previously undergone any of the many forms of therapeutic hypnosis. (Motion, 1996, p. 1)
The United States Court of Appeals, Second Circuit (Borawick v. Shay, 1995), noticed that the Borawick case raised an as yet unanswered question: may an alleged victim of childhood sexual abuse testify about repressed memories after having been hypnotized for therapeutic purposes? In the court’s answer, and analysis, rests the fate of forensic hypnosis, and also the fate of the restoration of rights to those victimized by the per se exclusion rule.
The Borawick Case
The fact pattern in Borawick is not unique, thereby making the case all the more important. In essence, a young woman, Ms. Borawick, began recalling that she had been sexually molested by relatives nearly 30 years earlier. Several months before the memories returned, she had seen a lay hypnotist for chronic fatigue and stress. During three of the hypnosis sessions, the lay hypnotist used “regression therapy” to return his patient to her early childhood. During these sessions, Ms. Borawick remembered and described certain aspects of the abuse. The lay hypnotist did not pursue the subject outside of trance, and Ms. Borawick had amnesia for the events she described. The lay hypnotist insisted that he had not used suggestive questions or techniques, but there were no audiotapes or videotapes available for independent examination.
When Ms. Borawick’s memories returned outside of trance, many months after the hypnosis sessions had ended, she sued her aunt and uncle for the past sexual abuse she now recalled. Ms. Borawick was told by the courts that the hypnosis prohibited her from testifying about her recollections. The trial judge explained that the lay hypnotist was not sufficiently qualified to perform the hypnosis so her memories could not be deemed to be reliable.
The first issue raised by Borawick concerns the temporal aspect of forensic hypnosis rules: is the fact that the memories occurred during or after the hypnosis sufficient to say they were “refreshed” by it? The Second Circuit accepted the trial judge’s ruling on this point that the memories were in fact refreshed, but there is good reason to question this finding. At work here is the logical fallacy known as post hoc, ergo propter hoc (“after this, therefore because of this”). The fact that something follows in time does not mean that it was caused by what preceded it. Suppose Ms. Borawick’s memories did not return until 1 year, 5 years, or 10 years after the hypnosis sessions. Did the hypnosis “refresh” those memories simply because it preceded them? The Second Circuit fails to analyze this issue, and no American court appears to have addressed the problem.
Of greater significance is the test used by the Second Circuit to consider whether testimony refreshed by therapeutic hypnosis is admissible. After a brief, and incomplete, review of the hypnosis literature, and a survey of court legal approaches to hypnotically refreshed recollection, the Second Circuit noted that most federal courts reject the rigid per se rule and instead follow a so-called case-by-case or totality-of-the-circumstances approach which, by providing individualized justice, is more humane.
Borawick’s adoption of the totality-of-the-circumstances test is an extremely important holding. This test is consistent with the majority opinion of the most authoritative recent texts on forensic hypnosis (McConkey & Sheehan, 1995; American Society of Clinical Hypnosis, 1995; Brown et al., in press; Scheflin & Shapiro, 1989), which recognize that the above-articulated dangers of hypnosis are not supported in the scientific literature.
Does science show hypnosis to be so dangerous that memory contamination always occurs when hypnosis is utilized? Every recent in-depth review by hypnosis experts has concluded that the eight dangers of hypnosis listed earlier have been exaggerated and distorted by advocates of total inadmissibility of hypnotically refreshed testimony. The most thorough review is in Brown et al. (in press), where each of the eight objections is evaluated, and dismissed, based on recent laboratory experimentation and clinical practice. The American Society of Clinical Hypnosis (1995) has issued comprehensive guidelines for the appropriate use of clinical and forensic hypnosis. If the guidelines are followed, hypnosis will not contaminate memory. McConkey and Sheehan (1995), two of the most preeminent Australian hypnosis researchers, have recently reached the same conclusion: hypnosis, when properly used, does not automatically contaminate or distort memory. They are forthright in their support of the totality-of-the-circumstances test, even if hypnosis did have a contaminating effect on memory in some cases.
These reviewers have all reached the same conclusion as Borawick on the admissibility of hypnotically stimulated recollection: a totality-of-the- circumstances test should be applied in every case in a pretrial hearing to determine whether the hypnosis was properly used. Although Borawick is not current and not accurate on its understanding of the science of forensic hypnosis, the court did reach the correct conclusion on the appropriate legal rule that should be applied.
After adopting the right test, the Second Circuit then took the wrong approach. No sooner did the court grant the right to a pretrial hearing than it took that right away by deciding, on its own, without the advantage of a factual record, that Ms. Borawick’s testimony must be unreliable. The court gave two reasons for this conclusion.
First, the court noted that the hypnotist did not have academic credentials or formal training. But surely this fact ought not to be conclusive, unless the court is adopting, without so holding, a per se exclusionary rule when lay hypnotists are involved. Suppose Ms. Borawick were able to present independent corroborative evidence of the truth of the memories. Should the fact that a lay hypnotist was involved be sufficient to prevent testimony even when it can be verified by other means? In this case, Ms. Borawick had such evidence. The Second Circuit never considered it, in violation of the spirit and purpose of the totality-of-the-circumstances test.
The court also objected to the absence of any audio, video, or written record of the hypnosis sessions, thus depriving experts the opportunity to examine what really transpired. This objection is valid, but should it be fatal? Once again, if testimony can be proven, must it be excluded?
The second factor influencing the Second Circuit to deny Ms. Borawick her pretrial hearing is the court’s opinion about “the inherent incredibility of Borawick’s allegations” including rape, ritual abuse, blood drinking, satanic activities, and other events involving relatives and strangers. The court acknowledges that Ms. Borawick was denied an opportunity to substantiate her claims with proof, and then denies her that opportunity. In short, because the court felt the claims were “incredible,” it denied Ms. Borawick the right to prove they were true. Once again, this violates the spirit and the purpose of the totality-of-the-circumstances test, as well as common sense. Even if some of the claims are incredible, others might well be true. Let Ms. Borawick have her hearing to see what she can prove.
Does Daubert Apply?
In 1993 the United States Supreme Court changed the test federal courts must use in admitting expert opinion testimony. Under the old rule articulated in Frye v. United States (1923), a novel technique or procedure used as the basis of an expert’s testimony must have established itself in the eyes of the relevant scientific community as “reliable.” Under the new test articulated in Daubert v. Merrell Dow Pharmaceuticals (1993), expert opinions are tested by the answers to a series of questions such as the following:
1. Has the expert’s theory been tested?
2. Has the theory been subject to peer review?
3. What is the theory’s potential or known rate of error?
4. What standards were used during the technique’s operation?
5. Has the theory been generally accepted in the scientific community?
At the dawn of the modern case rulings on hypnotically refreshed recollection, State v. Mack (1980) took a fatal misstep by applying the Frye ruling about expert testimony to the admissibility of lay witness testimony, where it has no place. In lockstep, many courts have followed this error (People v. Shirley, 1982). But the rules of evidence have no such barrier for the admissibility of competent witness testimony that is relevant.
The Second Circuit acknowledges this point by stating that “Daubert does not provide direct guidance” because the testimony before the court “does not concern the admissibility of experimental data or expert opinions.” Under the appropriate rules of evidence in state and federal courts, Ms. Borawick’s lay testimony is clearly admissible.
It should be noted that those experts who argue for Daubert to exclude hypnotically refreshed recollection will also have to argue that Daubert excludes expert opinion on matters of cult brainwashing, mind control, or coercive persuasion because these areas are even “softer” and less amenable to objective verification than the area of hypnotically refreshed recollection. This would be most unfortunate, and most unnecessary. Daubert should not serve as a barrier to expert opinion on hypnotically refreshed recollection, nor to expert opinion on cult mind control activities. And Daubert should have no relevance at all to the admissibility of lay testimony.
Of great importance is the fact that when Daubert has been held to apply, courts have concluded that it prohibits the use of a per se rule of exclusion in hypnosis cases (Rowland v. Commonwealth, 1995) and in polygraph cases (United States v. Posado, 1995).
The issue of hypnotically refreshed recollection, and the science that informs us about it, becomes more complex when the heavily litigated issues of repressed memories are added (Spiegel & Scheflin, 1994). Beginning in 1986, when the first appellate court decided the first repressed memory case (Tyson v. Tyson, 1986), a fierce debate has raged in scientific and public circles about two issues: Do repressed memories exist? And, if so, are they accurate?
Once again, crusading experts left their laboratories and lecture halls to enter courtrooms and warn that people who have been severely traumatized as children do not forget that trauma (Loftus & Ketcham, 1994). If memories of childhood sexual abuse are unavailable for decades of an adult’s life until suddenly recovered, usually in therapy, then the abuse did not occur (Ofshe & Watters, 1994).
These experts have not fared as well as their hypnosis predecessors, though they are equally wrong in their presentation of the available scientific literature. Courts and legislatures have been less willing to buy the argument that repressed memories are illusory. Indeed, legislators and judges in half the states have provided additional protection, by way of delaying the running of the statute of limitations on childhood sexual abuse cases, to victims who have repressed their memories of the abuse they suffered as children (Bowman & Mertz, 1996). Furthermore, every study conducted on the reality of repressed memories has found that it exists (Brown et al., in press; Scheflin & Brown, in press). Repressed memories, more accurately called “dissociative amnesia” by the DSM-IV, have been well documented in the scientific literature across all traumas, including wars, natural disasters, the Holocaust, violent criminal conduct, physical abuse, and childhood sexual abuse. Furthermore, recent studies suggest that repressed memories are as accurate as available memories (Williams, 1995).
Borawick v. Shay pits one of the most prestigious and influential courts in the country against these formidable hypnosis and memory issues. Although some experts and the media have distorted the scientific literature, misstated the factual circumstances of important cases, and testified contrary to current knowledge, Borawick does a fair job of avoiding most of the taint of the current pseudoscience being peddled by the “false memory” advocates on one side of the issue, and the “recovered memory” therapists on the other side.
The court notes that the forensic hypnosis literature is based on “fact situations where the hypnosis is specifically directed to the witness’s recollection of known events, rather than where repressed memories of past traumas previously unknown simply emerge following hypnosis.” The court, citing only law review articles, and ignoring the increasingly sophisticated scientific studies, concludes that the same dangers earlier identified with investigative hypnosis are also present when repressed memories occur following hypnosis. The scientific literature, however, demonstrates that (1) the dangers listed for hypnosis do not exist if hypnosis is correctly used, and (2) repressed memories (traumatic amnesia) are not less accurate than ordinary memories. Brown et al. (in press) assess this literature and conclude that when hypnosis is properly used, the accuracy of repressed memories is not adversely affected.
The Borawick court correctly rejects the argument that repressed memories are unreal. The court never doubts the validity of such memories, and rightly so. The better reasoned judicial opinions that have addressed the issue have also concluded that repressed memories are valid (Isely v. Capuchin Province, 1995; Shahzade v. Gregory, 1996; State v. Walters, 1995).
Is the per se exclusion wise, especially in an era when courts, legislatures, and popular referendums and initiatives are mandating that evidentiary rules be restricted in order to permit juries to hear and examine all relevant testimony and evidence? Only if justice is better served by a total elimination of all posthypnotic testimony. The only way justice would be so served is if (1) the relevant science supports the above-listed objections to the use of forensic hypnosis, and (2) total exclusion in all cases was necessary to avoid prejudice.
We have seen that the wisdom of the exclusionary rule leaves much to be desired, and science fails to support the overly cautious approach taken by the majority of courts. Borawick is correct to reject the per se exclusion rule.
But if Borawick succeeds on the law, it also fails on the facts because it does not practice what it preaches. The Second Circuit is on solid grounds when it (1) acknowledges the difference between therapeutic hypnosis and investigative hypnosis, (2) adopts the totality-of-the-circumstances test, (3) recognizes that Daubert does not apply, and (4) agrees that the new approach to the admissibility of evidence rejects rigidity in favor of flexibility so that there is an informal “presumption of admissibility of evidence” in operation.
Although the judges adopted the right legal test in Borawick, they did make some mistakes along the way, mostly because of incorrect expert testimony that has shaped court judgments about hypnosis and about repressed memory. These expert opinions are now in the process of being corrected in the scientific literature, and soon in the courts as well.
In regard to hypnosis, two major errors are apparent to knowledgeable hypnosis specialists. First, the court refers to experts who favor the admissibility of hypnotically refreshed recollection as adhering to a “tape recorder” view of memory whereby everything experienced is accurately recorded and stored in the brain. While some experts do hold this position, most do not. The “constructionist” model, whereby memory is a continual process of reconstruction, is generally accepted by memory experts. Strict adherence to this model, however, would signal the elimination of all memory testimony from courtrooms. The Borawick judges failed to see that if memory is always in the process of reconstruction, then it is distorted or inaccurate even when hypnosis is not used. Thus, the problem lies with memory, not with hypnosis used to facilitate retrieval. It is a simple error, but nevertheless a profound one.
Second, the court relies on the American Medical Association’s (AMA) 1985 Study “Scientific Status of Refreshing Recollection by the Use of Hypnosis.” The recent hypnosis literature fails to support the conclusions of that report, and the report itself is seriously flawed because when it was written only three or four studies were in existence. As McCann and Sheehan (1988) have noted, at the time the AMA report was issued, and by the time most courts had adopted a per se exclusion rule, “only three studies to date, however, bear directly on the experimental creation of false memories in hypnotically responsive subjects” (p. 339). Those studies were highly overexaggerated in their conclusions about the ease with which memory may be contaminated.
Thus, it is a provable fact that the law about forensic hypnosis developed before the science of forensic hypnosis was developed. Consequently, the courts have accepted the highly critical judgments of a minority of experts whose conclusions can no longer be supported by the scientific data, now that it exists. A forthcoming paper by Dr. Edward Frischholz, Editor-in-Chief of the American Journal of Clinical Hypnosis, lays bare the serious shortcomings of the AMA report, and demonstrates that almost half of the original authors no longer accept its conclusions. Recent publications have corrected some of the AMA’s earlier errors (American Society of Clinical Hypnosis, 1995; Brown et al., in press).
For experts in the areas of cults, cult indoctrination techniques, brainwashing, and coercive persuasion, there is an interesting irony worth mentioning. Proponents of the “false memory” movement have argued that repressed memory does not exist and that expert testimony on the subject should not be admitted into court under the Frye or Daubert standards addressed in Borawick. Many of these “false memory” advocates have been experts in cult cases arguing that brainwashing theory is scientifically valid. If the “false memory” views they profess should prevail, there is a strong possibility that courts will also shut the door on brainwashing theory. United States v. Fishman (1990), where two leading anticult theorists were held disqualified from testifying, signals the potential victory cults may have in demonstrating that brainwashing theory has not received sufficient scientific support. To the extent that “false memory” proponents succeed in their goal of weakening psychotherapy in general as a science, they may also succeed in strengthening the sway cults hold over people. Experts may be forbidden access to courtrooms to explain social influence theory, coercive persuasion, and mind control tactics and techniques.
Borawick may be applauded because it reaches the right legal result, but also it demonstrates how so-called neutral experts can contaminate not only the law, but also the very basis of human knowledge.
The United States Supreme Court has been asked to review the Borawick decision (Petition, 1996). If it does so, we must hope that the Court will do three things: (1) review the scientific literature closely on hypnosis, memory, and repressed memory, (2) uphold a flexible, liberal test for the admission of hypnotically refreshed recollection, and (3) give Ms. Borawick her day in court. The first point allows the law to be built on science, not political belief. The second point provides that courts will dispense justice by hearing the claims of those who have been cruelly injured by others. The third point is one of simple fairness: Ms. Borawick wants the opportunity to state her claim before a judge in a pretrial hearing. Why is that too much to ask?
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Alan W. Scheflin, Esq., is a professor of law at Santa Clara University Law School, Santa Clara, California. He is forensic editor of the American Journal of Clinical Hypnosis and winner of the American Psychiatric Association’s Manfred S. Guttmacher Award for his work in hypnosis.