By Helen L. McGonigle, Esq
The United States Court of Appeals for the Second Circuit, in Borawick vs. Shay, /FN1/, set a legal precedent adopting a more flexible test for the admissibility of testimony following therapeutic hypnosis. In adopting a more flexible test, however, the Second Circuit misapplied its new test and excluded the Plaintiff's testimony without so much as an evidentiary hearing. Binding in federal cases in Connecticut, New York and Vermont, the test could be adopted as persuasive authority elsewhere. The Second Circuit's test has broad application for any professional using hypnosis, whether a medical doctor, psychologist, dentist, osteopath, chiropractor, nurse, hypnotherapist, marriage and family counselor, social worker, pain control specialist, or habit control specialist. A petition requesting review of the Second Circuit's decision by the United States Supreme Court was supported by eighteen organizations, including the American Coalition on Abuse Awareness, Believe the Children, Mothers Against Sexual Abuse, National Victim Center, One Voice, SAVE and many others. The United States Supreme Court declined review on May 28, 1996, leaving the Second Circuit's test in place.
The issue on appeal concerned the ability of a civil litigant to testify following therapeutic hypnosis for the treatment of chronic illness and stress, as distinguished from its forensic use as a memory retrieval tool in criminal cases. The Plaintiff underwent hypnosis on the advice of her medical doctor, a Stanford University and UCLA graduate, licensed as a medical doctor since 1970. The Plaintiff was hypnotized on 10-12 occasions over a one year span between the summer of 1987 and the fall of 1988, with most sessions employing hypnotic relaxation techniques. Hypnotic age regression was used in the last three sessions. The Plaintiff left each session with no conscious recollection of having been sexually abused as a child. Months after the hypnosis ended, while driving alone in her car, the Plaintiff regained her first conscious recollection of having been sexually abused. Despite the time gap between the hypnosis and when the memories spontaneously emerged, the Court was guided by cases where the hypnotic subject immediately awakes with a refreshed recollection of what transpired while hypnotized.
The issue of the competency of a previously hypnotized witness to testify, often decided by judges lacking any expertise in hypnosis, traumatic amnesia, or memory, has generated four legal tests: 1) a rule of per se inadmissibility, meaning all post-hypnotic testimony is excluded regardless of the circumstances; 2) the safeguard approach with various inflexible safeguards; 3) the totality of the circumstances approach, which involves balancing flexible factors of admissibility, with no one factor determinative; and 4) a rule of per se admissibility, meaning the circumstances of the hypnosis impacts the weight of the testimony, not its admissibility, leaving the fact of hypnosis the subject of cross-examination. The law has been shaped by a dated 1985 report of the American Medical Association's Council on Scientific Affairs, then chaired by Martin T. Orne, M.D., Ph.D., /FN2/ now a False Memory Syndrome Foundation Scientific Advisory Board member.
In Borawick, the Second Circuit adopted a case-by-case totality of the circumstances approach incorporating the following "non-exclusive" factors:
1) an evaluation of the purpose of the hypnosis, whether investigative or therapeutic;
2) whether the subject received suggestions from the hypnotist or others prior to or during the hypnosis;
3) the presence or absence of a permanent record, which can help the court ascertain whether suggestive procedures were used, ideally the sessions should be videotaped or audiotaped;
4) whether the hypnotist was appropriately qualified by training in psychology or psychiatry;
5) whether corroborating evidence exists to support the reliability of the hypnotically-refreshed memories;
6) evidence of the subject's hypnotizability may also be relevant;
7) consideration of expert evidence offered by the parties as to the reliability of the procedures used; and
8) a pre-trial evidentiary hearing conducted by the district court so the above factors can be applied to a given case.
Several factors militated in favor of the Plaintiff testifying: the purpose of the hypnosis was therapeutic; no suggestions were made about the defendants prior to, during or after the hypnosis; corroborating evidence was offered by two other family members; and unrebutted expert affidavits were submitted supporting the reliability of the hypnotic procedure. In addition, the court determined the hypnotist asked only nonleading questions, concluding "there is no indication that [the hypnotist] added new elements to plaintiff's descriptions while under hypnosis". The court also found the hypnotist "did not use hypnotic suggestions with the plaintiff, as it was not his practice to stimulate memory recall by suggestion with a hypnotized subject" and the "hypnosis was appropriate for the memory loss involved". With suggestibility a nonissue, the court's decision barring the testimony rested on the hypnotist's qualifications and the absence of permanent records of the sessions. The hypnotist kept notes, but had moved his office and the notes could not be located.
The Second Circuit found the hypnotist's qualifications inadequate even though he had nearly fifty years practical experience, education specific to his profession, studied with a Swiss psychiatrist, attended lectures on hypnosis, neurolinguistics, and anesthesiology using hypnosis, lectured in California, Alaska, and Japan, lectured to court personnel at the U.S. Bankruptcy Court for the District of Alaska, was certified as a clinical hypnotherapist by the American Institute of Hypnotherapy, was a member of the American Association of Professional Hypnotherapists, and worked under the supervision and direction of a licensed medical doctor as is permissible in the State of California where the hypnosis took place.
While more liberal than the per se inadmissible rule or safeguard test, the non-exclusive multi-factored test adopted by the Second Circuit is flawed in several respects and was misapplied by the Court. /FN3/ The qualification component is ill-defined and may exclude many professionals who use hypnosis. The legal rights of many could be jeopardized if courts apply the qualification factor in the determinative manner enforced by the Second Circuit. With a "nonexclusive" multi-factored test, even those practitioners who seemingly comply can never be certain their patient's testimony will be admissible. Moreover, in today's mobile society, with conflicting legal tests on hypnosis, compliance with the law in one jurisdiction may not satisfy the legal test adopted in the state where the witness is to testify. It is unfortunate the U.S. Supreme Court declined review of Borawick v Shay, missing the opportunity to settle the conflicting law on hypnosis by adopting a uniform test with nationwide applicability.
1. Borawick v Shay, 68 F.3rd 597 (2d Cir. 1995), certiorari denied 116 S. Ct. 1869, 134 L. Ed. 2d 966 (1996). The author is a practicing attorney in Brookfield, Connecticut and was plaintiff's counsel in Borawick v Shay.
2. The report of the Council on Scientific Affairs to the American Medical Association is published in JAMA 1985 Vol. 253, No. 13, pp. 1918-1923. Martin Orne, M.D., Ph.D. is also on the Scientific Advisory Board of a Philadelphia based organization known as The False Memory Syndrome Foundation (FMSF). The FMSF advocates the interests of those accused of child sexual abuse. At least one source, citing to a 1962 report on one of Orne's laboratories, the Institute for Experimental Psychiatry, showed two sizable grants from what are believed to be CIA front organizations, Human Ecology Society and Scientific Engineering Institute. John Marks, The Search for the Manchurian Candidate (W. W. Norton and Company, pp. 166-167). Orne was the senior research psychiatrist at the Massachusetts Mental Health Center and Director of studies in hypnosis and human ecology projects from 1960-1964. Massachusetts Mental Health Center was a known site for CIA funded human behavorial experimentation, as was the Institute of Experimental Psychiatry in Boston, where Orne was executive director. For more information on this topic see CIA v. Sims, 471 U.S. 159, 85 L.Ed. 2d 173, 105 S.CT 1881 (1985) Free access to CIA v. Sims can be gained at http://www.findlaw.com/casecode/supreme.html,[then typing in "471 US 159" in the search fields].
3. For a thoughtful analysis describing how the Court misapplied its own test see Alan W. Scheflin, Esq., Commentary on Borawick v Shay: The Fate of Hypnotically Retrieved Memories, Cultic Studies Journal Vol. 13, No. 1, 1996, p. 26 and Alan W. Scheflin, False Memory and Buridan's Ass: A Response to Karlin & Orne, "Hypnosis, Social Influence, Incestous Child Abuse, and Satanic Ritual Abuse: The Iatrogenic Creation of Horrific Memories For the Remote Past", published in the Cultic Studies Journal, Vol 14. No. 2, Summer 1997 available thr