JOAN S. BORAWICK, Plaintiff-Appellant, v. MORRIE SHAY and CHRISTINE SHAY,
Defendants-Appellees.
BORAWICK v. SHAY
Docket No. 94-7584
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
1995 U.S. App. LEXIS 29707
December 19, 1994, Argued
October 17, 1995, Decided
PRIOR HISTORY: [*1] Plaintiff-appellant appeals from a final judgment entered
on May 10, 1994 by the United States District Court for the District of
Connecticut, (T. F. Gilroy Daly, J.), granting the defendants’ motion for
summary judgment, following an in limine ruling prohibiting the plaintiff from
testifying based on hypnotically refreshed recollections of sexual abuse.
DISPOSITION: Affirmed.
COUNSEL: HELEN L. McGONIGLE, Brookfield, CT, for Plaintiff-Appellant.
CHARLES W. FLEISCHMANN, Bridgeport, CT (GULASH & FLEISCHMANN, Bridgeport, CT),
for Defendants-Appellees.
JUDGES: Before: VAN GRAAFEILAND, WALKER, and CABRANES, Circuit Judges.
OPINION BY: WALKER
Opinion: Walker, Circuit Judge
This case presents an issue of first impression: the circumstances under which
an alleged victim of sexual abuse may testify as to memories of abuse
following therapeutic hypnosis. Plaintiff-appellant, Joan S. Borawick, appeals
from a final judgment entered on May 10, 1994 by the United States District
Court for the District of Connecticut (T. F. Gilroy Daly, District Judge),
adopting the recommendations of Magistrate Judge Joan G. Margolis and entering
summary judgment in favor of defendants, Morrie and Christine Shay, whom
Borawick accused [*2] of sexually abusing her as a child. This judgment for
defendants followed an in limine ruling prohibiting the plaintiff from
testifying based on hypnotically refreshed recollections of sexual abuse.
Borawick v. Shay, 842 F. Supp. 1501, 1508 (D. Conn. 1994).
Background
Borawick, who is currently thirty-eight years old and a citizen of California,
brought a diversity tort action alleging that her aunt and uncle, Christine
and Morrie Shay, Connecticut citizens, sexually abused her in the summers of
1961 and 1964, when she visited them at their home at the ages of four and
seven, respectively. At the time, she lived in Seattle. Borawick had no memory
of the alleged abuse for more than twenty years.
During the fall of 1984, Borawick began to experience panic attacks. When they
continued, in the winter of 1985, she sought and received treatment or. five
or six occasions with a psychiatrist, Dr. Irwin Ruben. From April, 1986
through July, 1987, Dr. Anthony Reading, a clinical psychologist, continued
the treatment. In the spring of 1987, she also sought medical treatment for
chronic physical illness with Dr. Ronald Peters, a medical doctor and part
owner of the Pacific Medical [*3] Center (“PMC”) in Santa Monica, California.
PMC’s clientele was largely composed of people from the entertainment
industry.
After reviewing Borawick’ s medical history of chronic illness, Dr. Peters
referred Borawick to Valerian St. Regis, a hypnotist who worked under Peter’s
supervision, since “problems in childhood” sometimes cause chronic illness and
are susceptible to recall through hypnosis. Borawick underwent twelve to
fourteen hypnotic sessions with St. Regis from the summer of 1987 through the
fall of 1988. Before and immediately following these sessions, she had no
recollection of abuse, much less of any abuse by these defendants.
When deposed in 1993, St. Regis testified that he had no permanent records
relating to the hypnosis of Borawick; however, prior to his deposition, he had
read a portion of Borawick’s deposition. St. Regis maintained that, before
hypnotizing Borawick, he had no expectation of the type of information that
the hypnosis would reveal. He explained that he used “regression therapy” to
take Borawick back to the age of between three and five years old. St. Regis
also testified that, in general, instead of using hypnotic suggestion with
Borawick, he asked [*4] broad questions such as “what happened?,” “what do you
remember?,” or “what do you recall?”
St. Regis testified that Borawick revealed under hypnosis that her aunt,
defendant Christine Shay, persuaded Borawick, at age four, to strip and engage
in “ritual dancing.” St. Regis further stated that during hypnosis Borawick
described anal object penetration by Christine Shay, as well as another
incident in which her aunt inserted a “cap pistol in [Borawick’s] vagina.” St.
Regis also testified that during hypnotic sessions, Borawick disclosed that
her uncle, defendant Morrie Shay, anally raped her. St. Regis did not know
whether the alleged anal rape involved penile insertion or object insertion.
St. Regis testified that he did not reveal to Borawick what she had described
during the sessions, because, in his opinion, such revelations would have been
“devastating” and would probably surface in time. Borawick attended her last
session with St. Regis in the fall of 1988.
Borawick testified in her deposition that during the second week of February,
1989, several months after her final hypnotic session, she experienced her
first non-hypnotic memory of sexual abuse by her father, who [*5] is not a
defendant in this case. Following this initial recollection, according to
Borawick, subsequent memories surfaced in Abits and pieces.” Her first memory
concerning defendant Christine Shay allegedly occurred on February 10, 1989.
On that date, Borawick first recalled her aunt vaginally raping her with a
pistol. In late 1990 or early 1991, she first remembered an incident when
Christine Shay forced Aa broomstick into [Borawick’s] vagina. “Borawick also
stated that she regained memory of being naked in the presence of her aunt and
having to dance around.”
Borawick testified that her memory of being anally raped by defendant Morrie
Shay surfaced in 1990. In addition to recalling sexual abuse by her father,
aunt, and uncle, Borawick also claims sexual abuse by numerous others,
including family members and her father’s friends. More detailed references to
these individuals and their various “rituals” and other alleged abusive
conduct are described in the sealed portion of the appendix.
On January 24, 1992, Borawick commenced this action, seeking compensatory and
punitive damages from Morrie Shay and Christine Shay for their alleged
willful, wanton, and malicious sexual exploitation [*6] of her in 1961 and
1964. Borawick, 842 F. Supp. at 1501. Judge Daly denied plaintiff’s motion to
enlarge time for discovery on July 23, 1992. On November 4, 1992, defendants
filed a motion in limine seeking to exclude the plaintiff’s testimony. The in
limine motion was referred to Magistrate Judge Joan Glazer Margolis.
Borawick’s second motion to enlarge time for discovery, filed on February 10,
1993, was not ruled upon.
After an initial ruling on March 24, 1993 that set forth the test the
magistrate judge would follow in deciding the in limine motion and after
receiving further written submissions, the magistrate judge issued a
supplemental ruling on May 26, 1993. The ruling recommended granting the
defendants’ motion in limine to exclude Borawick’s testimony, principally on
the ground that St. Regis was “not appropriately qualified.” Borawick, 842 F.
Supp. at 1508.
While Borawick’s objections to the magistrate judge’s initial and supplemental
ruling were pending before the district judge, the United States Supreme Court
decided Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S. Ct.
2786 (1993). Accordingly, the plaintiff moved for reconsideration of the in
limine rulings [*7] on the ground that the therapeutic use of hypnosis and her
resultant testimony satisfied Daubert. Borawick submitted as additional
evidence copies of two letters purportedly received from her younger sister in
1989. Both referenced sexual assault against the sister, and one expressly
identified the defendants as the perpetrators. Borawick also submitted two
expert affidavits, one from a board-certified psychiatrist, Matthew Klein,
M.D., and one from a clinical and forensic psychologist, Anne Pratt, M.D., as
further support that the therapeutic use of hypnosis is widely accepted in the
mental health community and is used for treatment of victims of sexual abuse.
The defendants filed a reply and objection to plaintiff’s objections,
including a letter dated August 1, 1992, also allegedly written by the younger
sister, that recanted her earlier allegations. Upon reconsideration, the
magistrate judge adhered to her earlier recommended ruling. Borawick, 842
F.Supp. at 1509. On January 10. 1994, the district court adopted the
magistrate judge’s recommendation. Id. at 1501.
Shortly thereafter, the defendants moved for summary judgment. After the
magistrate judge issued a recommended [*8] ruling granting the defendants’
motion, the plaintiff refiled and the district court retained and denied a
motion by Borawick dated February 10, 1993 to reopen discovery and to enlarge
the time for taking depositions. On May 10, 1994, final judgment was entered
in favor of the defendants. Borawick appeals from this judgment. n1
n1 The Record on Appeal includes both an original record from the district
court after oral argument and a supplemental record submitted pursuant to a
stipulation approved by the district judge.
Discussion
Borawick raises the following claims on appeal: (1) the district court erred
in granting the in limine motion because it applied the incorrect legal rule
regarding the admissibility of hypnotically refreshed testimony; (2) the
district court’s ruling was inconsistent with the holding in Daubert v.
Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993); (3)
the district court violated Borawick’s right to a jury trial in granting the
in limine motion, which resulted in a summary judgment [*9] in favor of the
defendants; (4) the district court deprived her of due process in its rulings
on Borawick’s numerous motions.
1. Admissibility of Post-Hypnotic Testimony
This circuit has yet to address the admissibility of post-hypnotic testimony
of memories elicited as a result of hypnosis. While numerous state and federal
courts have considered this issue, nearly all of them dealt with recall in the
context of hypnosis that was specifically intended to enhance a memory of a
particular known or suspected occurrence. The parties have not cited, nor are
we aware of, any case concerning the specific issue before us: the
admissibility of testimony about memories of childhood sexual abuse that are
recalled for the first time in adulthood following the use of hypnosis as part
of psychotherapy.
A. District Court’s Approach
Judge Daly and Magistrate Judge Margolis were highly sensitive to the various
concerns surrounding post-hypnotic testimony. The district court recognized
that, although most of the case law concerns situations in which hypnosis was
used to refresh a victim’s or witness’s memory of a crime or accident, the
hypnosis in this case was used for therapeutic as opposed [*10] to
investigative purposes. Borawick, 842 F. Supp. at 1503B05. Giving credence to
Borawick’s claim that her “psychological injuries caused by childhood sexual
abuse are different than for victims of other torts, and that victims of
sexual abuse may repress conscious memories of the abuse for years,” the
district court concluded that hypnosis is appropriate for the type of
repression and loss of memory Borawick allegedly experienced. Id. at 1505.
Before testimony induced by hypnosis would be admissible, however, the
district court determined that certain safeguards were necessary “not only to
bolster a plaintiff’s legitimate claims for childhood sexual abuse, but also
to protect a defendant against devastating charges.” Id. These safeguards were
that (1) the hypnotist be appropriately qualified, (2) the hypnotist “avoid
adding new elements to the subject’s description,” (3) “a permanent record be
available to ensure against suggestive procedures,” and (4) there be “other
evidence to corroborate the hypnotically enhanced testimony.” Id. The linchpin
of the district court’s ultimate decision to exclude Borawick’s testimony was
its finding as to the first safeguard: that St. [*11] Regis was not qualified.
n2 Id. at 1509 & n.5. The district court did not address the third element,
but noted that St. Regis was not able to produce the reports that he claimed
to have prepared contemporaneously, Id. at 1507. The district court suggested,
however, that the second safeguard was met in that there was “no indication
that St. Regis added new elements to plaintiff’s descriptions while under
hypnosis.” Id. at 1508. Given these findings, particularly St. Regis’s lack of
qualifications, the district court saw no need to decide whether the
corroborating evidence Borawick offered satisfied the fourth safeguard. Id. at
1508 n.5. With two of the four safeguards not met, the district court granted
the in limine motion to exclude Borawick’s testimony of sexual abuse.
n2 The court initially found the record devoid of any information regarding
St. Regis’s qualifications and any safeguards he may have used in conducting
the hypnosis of Borawick. Borawick was given the opportunity to supplement the
record by deposing St. Regis and to offer any corroborating evidence. Id. at
1505.
[*12]
B. Borawick’s Claims
Borawick first contends that the district court erred in characterizing her
recall of sexual abuse as hypnotically refreshed. Rather, she asserts, these
memories may have “unfolded on their own” even without therapeutic hypnosis.
Based on the timing and nature of the recollections, however, we discern no
basis for disturbing the district court’s finding that the memories were in
fact refreshed by hypnosis.
The gravamen of Borawick’s appeal is that even if her testimony were to be
construed as post-hypnotic, the district court erred in adopting its legal
test in requiring both independent corroborating evidence and a permanent
record of the hypnosis. She also argues that the district court clearly erred
in concluding that St. Regis was not qualified as a hypnotist. Instead,
Borawick argues, she should be deemed competent to testify under Federal Rule
of Evidence 601, which reflects a strong presumption in favor of witness
competency, and that this circuit should adopt a rule of per se admissibility
of testimony related to memories following the use of hypnosis for therapeutic
purposes.
C. Standard of Review
Before turning to the merits of this case, [*13] we address the appropriate
standard of review. Borawick argues that because the exclusionary rule
resulted in her inability to oppose the summary judgment motion, which led to
her ultimate defeat on the summary judgment motion, we should review the
challenge de novo. The Shays contend that because this is an evidentiary
issue, the district court had broad discretion and we should therefore review
its decision for abuse of discretion.
Our review must be de novo on the question whether, in exercising its
discretion to admit evidence, the district court applied the proper legal
test. See A/S Dampskibsselskcabet Torm v. Beaumont Oil Ltd., 927 F.2d 713, 716
(2d Cir.), cert. denied, 502 US. 862, 116 L. Ed. 2d 144, 112 S. Ct. 183
(1991). We review the district court’s finding that St. Regis was unqualified
for clear error. Id.
D. What Is Hypnosis?
While “there is no single, generally accepted theory of hypnosis, [or]
consensus about a single definition,” Council on Scientific Affairs,
“Scientific Status of Refreshing Recollection by the Use of Hypnosis,” 253
JAMA 1918, 1919 (1985) [hereinafter, Scientific Affairs], A ‘there is
considerable consensus at the descriptive level’ as to how the [phenomenon]
[*14] manifests itself in the hypnotized individual,” 27 Charles A. Wright &
Victor J. Gold, Federal Practice and Procedure: Evidence ' 6011, at 116 (1990)
[hereinafter Federal Practice] (quoting Orne, “On the Simulating Subject as a
Quasi-Control Group in Hypnosis Research, What Why and How,” in Hypnosis:
Developments in Research and New Perspectives, 519B21 [E. Fromm & R. E. Shor,
eds., 2d ed., 1979]). The American Medical Association has described hypnosis
as a temporary condition of altered attention in the subject which may be
induced by another person and in which a variety of phenomena may appear
spontaneously or in response to [verbal] or other stimuli. These phenomena
include alterations in consciousness and memory, increased susceptibility to
suggestion, and the production in the subject of responses and ideas
unfamiliar to him in his usual state of mind.
People v. Zayas, 131 Ill. 2d 284, 546 N.E.2d 513, 515B16, 137 Ill. Dec. 568
(Ill. 1989) (alteration in original) (quotations omitted).
As early as 1958, the American Medical Association recognized hypnosis as a
valid therapeutic technique. Council on Medical Health of the American Medical
Association, “Medical Uses of Hypnosis,” 168 JAMA [*15] 186, 187 (1958). It
has been found useful in psychotherapy, in the treatment of psychosomatic
illness, to alleviate pain or as a substitute for anesthesia, and for memory
recall. See People v. Hughes, 59 N.Y.2d 523, 533; 466 N.Y.S.2d 255, 259, 453
N.E.2d 484 (1983); Jacqueline Kanovitz, “Hypnotic Memories and Civil Sexual
Abuse Trials,” 45 Vand. L. Rev. 1185, 1210 n.101 (l992). Hypnosis has been
credited with restoring lost memories that include repressed memories of
painful experiences. Federal Practice, supra, ' 6011, at 117; see also
Kanovitz, supra, at 1225 & n.168 (1992). It has sometimes been useful in
developing leads in criminal investigations. See Harker v. Maryland, 800 F.2d
437, 440 (4th Cir. 1986) (noting that “Dr. Martin Orne, a psychiatrist and
frequent expert witness, believes that “’hypnosis may be useful in some
instances to help bring back forgotten memories following an accident or a
crime.’“ (quoting Orne, “The Use and Misuse of Hypnosis in Court,” 27 Int. J.
Clinical & Experimental Hypnosis 311, 317B18 [1979]); see Hughes, 59 N. Y.2d
at 533; 466 N.Y.S.2d at 259; Federal Practice, supra, ' 6011, at 118B19.
Despite these successes, many in the field [* 16] remain skeptical of the
reliability of hypnosis as a technique for refreshing or restoring memory.
Hughes, 59 N.Y.2d at 533; 466 N.Y.S.2d at 259 (noting it provides “at best
mixed results” in criminal investigations). Empirical studies calling into
question the ability of hypnosis to restore memory effectively have engendered
“considerable controversy” concerning the validity of using hypnosis for that
purpose. Scientific Affairs, supra, at 1918. Thus “the popular belief that
hypnosis guarantees the accuracy of recall is as yet without established
foundation,” Rock v. Arkansas, 483 U.S. 44, 59, 97 L. Ed. 2d 37. 107 S. Ct.
2704 (1987), and no consensus has been reached regarding the ability of
hypnosis to enhance memory. Scientific Affairs, supra, at 1918.
The controversy over the effectiveness of hypnosis in memory enhancement
centers in large part on disagreements concerning theories of memory. Those
scientists who are most optimistic about the role of hypnosis in memory recall
conceptualize a process whereby the brain records and stores sensory input
accurately, much like a videotape. Recall is the ability to “play back” that
tape, and loss of memory is the inability to retrieve that information. [*17]
See Little v. Armontrout, 819 F.2d 1425, 1429 (8th Cir.), aff’d, 835 F.2d 1240
(8th Cir. 1987) (en banc), cert. denied, 487 U.S. 1210, 101 L. Ed. 2d 894, 108
S. Ct. 2857 (1988); Harker, 800 F.2d at 439; United States v. Valdez, 722 F.2d
1196, 1200 (5th Cir. 1984); Scientific Affairs, supra, at 1920. Under this
theory, hypnosis simply enhances the retrieval process.
Many scientists reject this theory, however. They view memory recall as “much
more complex and much less accurate than previously thought.” State v. Tuttle,
780 P.2d 1203, 1210 (Utah 1989), cert. denied, 494 U.S. 1018, 108 L. Ed. 2d
498, 110 S. Ct. 1323 (1990); see Scientific Affairs, supra, at 1920. Instead,
they espouse a “construction theory” of memory, which holds that a memory is
formed and influenced by numerous factors when the mind creates and integrates
the information from an event “into the memory representation of that event.”
Valdez, 722 F.2d at 1200. The composite created by this process is malleable
and evolves over time as additional input is received. In fact, a leading
proponent of this theory has written that memory is being continually remade
[and] reconstructed in the interest of the present,” F. Bartlett, Remembering
213 [*18] (reprint 1964) (1932), quoted in Little, 819 F.2d at 1429.
The “constructivists” are highly skeptical of any view that hypnosis can
effectively and accurately enhance memory. They believe that because hypnosis
has the power to contribute to memory reconstruction, it can create inaccurate
memories. In other words, if present events can contribute to a construction
of a memory that differs from that which was originally perceived and if the
process of hypnosis is such an event, then hypnosis may distort memory.
The courts have identified several problems with the reliability of
hypnotically refreshed recall. First, a person undergoing hypnosis becomes
more susceptible to suggestion. The subject may be influenced by verbal and
nonverbal cues, intentionally or unintentionally planted by the hypnotist.
This suggestibility may be enhanced by the perception that hypnosis will
refresh one’s memory and by a wish to please the hypnotist. See Rock, 483 U.S.
at 59B60; Little, 819 F.2d at 1429; Hughes, 59 N.Y.2d at 534B35, 466 N. Y.S.2d
at 260; State v. Hurd, 86 N.J. 525, 432 A.2d 86, 93 (N.J. 1981).
In addition, a hypnotized person may “confabulate,” that is, fill in the gaps
in her [*19] memory to make it comprehensible. The added details may be
derived from irrelevant or unrelated facts or from pure fantasy. See Rock, 483
U.S. at 60; Little, 819 F.2d at 1429B30. Like suggestibility, confabulation
can occur as a result of the subject’s desire to please the hypnotist by
coming up with complete and coherent memories. See Harker, 800 F.2d at 440;
Pearson v. State, 441 N.E.2d 468, 471 (Ind. 1982) (citing Levitt, “The Use of
Hypnosis to >Freshen’ the Memory of Witnesses or Victims,” Trial, April 1981,
at 56); Hughes, 59 N.Y.2d at 535, N.Y.S.2d at 260.
A third problem with hypnotically refreshed recall is “memory hardening,” a
phenomenon which gives the subject enhanced confidence in the facts
remembered, whether they be true or false. See Rock, 483 U.S. at 60; Harker,
800 F.2d at 440; Hughes, 59 N.Y. 2d at 535, N.Y.S.2d at 260 (describing
experiments that demonstrate this phenomenon). Even as inaccurate
recollections increase, the subject’s confidence is likely to remain constant
or even to increase. In 1985 a leading scientific journal reported that no
studies have shown “an increase in accuracy associated with an appropriate
increase [*20] in confidence in the veracity of recollections.” Scientific
Affairs, supra, at 1921. The lack of correlation between the accuracy of
recall and the subject’s confidence in the accuracy makes it more difficult
for a jury or even an expert to judge the credibility of hypnotically-enhanced
testimony, see Hurd, 432 A.2d at 93B94, and makes cross-examination difficult,
Rock, 483 U.S. at 60.
Finally, after undergoing hypnosis to refresh memory, individuals may lose the
ability to assess their memory critically and be more prone to speculation
than if they had relied only on normal memory recall. Little, 819 F.2d at
1430B31. The subject becomes less able “to discriminate between accurate and
inaccurate recollections.” Scientific Affairs, supra, at 1921. He or she may
also experience “source amnesia,” believing that a statement heard prior to
hypnosis was a product of his or her own memory. Little, 819 F.2d at 1430.
As a result of the foregoing phenomena, the “hypnotically recalled memory is
apt to be a mosaic of (1) appropriate actual events, (2) entirely irrelevant
actual events, (3) pure fantasy, and (4) fantasized details supplied to make a
logical whole.” Bernard [*21] L. Diamond, “Inherent Problems in the Use of
Pretrial Hypnosis on a Prospective Witness,” 68 Cal. L. Rev. 313, 335 (1980);
see Scientific Affairs, supra, at 1921. In the worst case, someone who has
undergone hypnosis might “inaccurately reconstruct the memory ... and ... then
become convinced of the absolute accuracy of the reconstruction through memory
hardening.” Harker, 800 F.2d at 441. The “constructionist” views, supported as
they are in the scientific community, have considerable force. In our view,
they cannot easily be discounted when the integrity of the judicial
fact-finding process is at stake, particularly when no study has shown that
hypnosis used to refresh memory increases only accurate recall. Scientific
Affairs, supra, at 1921.
E. Various Approaches to the Admissibility Question
The state and federal courts that have been faced with the admissibility of
hypnotically refreshed testimony have followed four different approaches. Some
courts treat all such testimony as per se admissible under the theory that
hypnosis does not render the witness incompetent, but goes to the question of
credibility. See, e.g., Kline v. Ford Motor Co., 523 [*22] F.2d 1067, 1069
(9th Cir. 1975) (“That [a witness’s] present memory depends upon refreshment
claimed to have been induced under hypnosis goes to the credibility of her
testimony not to her competence as a witness.”); United States v. Waksal, 539
F. Supp. 834, 838 (S.D. Fla. 1982), rev’d on other grounds, 709 F.2d 653 (llth
Cir. 1983); Pearson, 441 N.E.2d at 473; Federal Practice, supra, ' 6011, at
123B24. This position depends in considerable part on one’s faith in the
jury’s ability to evaluate the testimony accurately in light of
cross-examination, expert testimony relating to hypnosis, and jury
instructions. Federal Practice, supra, ' 6011, at 124. Such an approach was
particularly favored when courts were just beginning to address the
admissibility of hypnotically refreshed testimony, see Tuttle, 780 P.2d at
1208, but it “has sparsely been followed since 1980,” Zayas, 546 N.E.2d at
516.
Courts at the other end of the spectrum have found that post-hypnotic
testimony is per se inadmissible because the witness is incompetent to testify
regarding such matters. See, e.g., Zayas, 546 N.E.2d at 518; Tuttle, 780 P.2d
at 1211; People v. Shirley,[*23] 31 Cal. 3d 18, 723 P.2d 1354, 1384, 181 Cal.
Rptr. 243 (Cal.), cert. denied, 459 U.S. 860 (l982). The common thread running
through these cases is that the possible distorting effects of hypnosis on
memory are impossible to circumvent and are so substantial that “the game is
not worth the candle.” Shirley, 723 P.2d at 1366. Worse yet, “hypnotism
aggravates the unreliability of normal memory.” Valdez, 722 F.2d at 1200
(referring to finding of California Supreme Court). Reasoning that no
safeguard can adequately ensure reliability, these courts deem the evidence
inadmissible. n3 See Shirley, at 723 P.2d at 1384. A number of courts apply a
modified version of the rule by confirming the witness’s testimony to matters
recalled before undergoing hypnosis. See, e.g., Tuttle, 780 P.2d at 1211;
Hughes, 59 N.Y.2d at 545; 466 N.Y.S.2d at 266.
n3 Many courts have taken this position on the basis that the testimony does
not meet the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), since there is no general acceptance in the scientific community that
hypnosis can reliably enhance memory. See Tuttle, 780 P.2d at 1209B10; Hughes,
59 N.Y:2d at 543, 466 N.Y.S.2d at 265; Federal Practice, supra, ' 6011, at
132B33. This rationale is now called into question with the Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S.
Ct. 2786, 2793 (1993), holding that the Federal Rules of Evidence supersede
Frye. See Federal Practice, supra, ' 6011, at 8 (Supp. 1995).
[*24]
In Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987), the
Supreme Court reviewed Arkansas’s rule that a criminal defendant’s
hypnotically refreshed testimony was per se inadmissible. While the Court
recognized the problems with hypnosis, it concluded that certain procedural
safeguards could reduce the potential inaccuracies of post-hypnotic testimony.
Id. at 59B60. Focusing on the due process right of criminal defendants to
testify in their own defense, id. at 51, the Sixth Amendment right to call
witnesses in the defendant’s favor, id. at 52, and the Fifth Amendment
guarantee against compelled testimony, id. at 52B53, the Court concluded that
the rule of per se inadmissibility was an “arbitrary restriction on the
[criminal defendant’s] right to testify in the absence of clear evidence by
the State repudiating the validity of all post-hypnosis recollections,” id. at
61. Consequently, the Court deemed Arkansas’s prohibition unconstitutional.
The Court, however, explicitly limited the reach of its holding by refusing to
express an opinion as to the appropriate rule of admissibility “of testimony
of previously hypnotized witnesses other than criminal defendants.” Id. [*25]
at 58 n. 15.
The third and fourth approaches occupy a middle ground. These attempt to
balance the competing concerns that animate the per se positions. The third
approach, articulated by the New Jersey Supreme Court in the oft-cited State
v. Hurd, 86 N. J. 525, 432 A.2d 86 (N.J. 1981), requires adherence to a list
of prescribed safeguards intended to ensure the reliability of hypnotically
refreshed testimony. The court concluded that Aa rule of per se
inadmissibility is unnecessarily broad and will result in the exclusion of
evidence that is as trustworthy as other eyewitness testimony.” 432 A . 2d at
94.
In light of recommendations offered by a frequent expert witness, Dr. Martin
Orne, the court adopted the following procedural requirements:
First, a psychiatrist or psychologist experienced in the use of hypnosis must
conduct the session. This professional should also be able to qualify as an
expert in order to aid the court in evaluating the procedures followed.
Second, the professional conducting the hypnotic session should be independent
of and not regularly employed by the prosecutor, investigator or defense.
Third, any information given to the hypnotist [*26] by law enforcement
personnel or the defense prior to the hypnotic session must be recorded,
either in writing or another suitable form.
Fourth, before inducing hypnosis the hypnotist should obtain from the subject
a detailed description of the facts as the subject remembers them [without]
... asking structured questions or adding new details.
Fifth, all contacts between the hypnotist and the subject must be recorded.
Sixth, only the hypnotist and the subject should be present during any phase
of the hypnotic session, including the pre-hypnotic testing and the
post-hypnotic interview.
Id. at 96B97 (footnote omitted).
The presence of these safeguards, however, was not sufficient in Hurd for the
admissibility of post-hypnotic testimony. The trial court was also directed to
assess the reliability and the admissibility of the testimony in light of the
following non-exclusive list of considerations, id. at 96: “the kind of memory
loss that hypnosis was used to restore and the specific technique employed,”
id. at 95, whether the memory loss in question is “likely to yield normal
recall if hypnosis is properly administered,” and [*27] “whether the witness
has any discernible motivation for not remembering or for >recalling’ a
particular version of the events,” id. at 96. Finally, the court held that the
party attempting to admit the hypnotically-enhanced testimony bears the burden
of demonstrating that the testimony is reliable based on the standards
described. Id. at 97.
Several courts have followed the Hurd guidelines or adopted similar ones. See
State v. Weston, 16 Ohio App.3d 279, 475 N.E.2d 805, 813 (Ohio App. 1984);
House v. State, 445 So. 2d 815, 826B27 (Miss. 1984); see also Federal
Practice, supra, ' 6011, at 168.
Finally, the approach most frequently taken by the federal courts, Federal
Practice, supra, ' 6011, at 173, is a so-called case-by-case or
totality-of-the-circumstances approach, see, e.g., McQueen v. Garrison, 814
F.2d 951, 958 (4th Cir.), cert. denied, 484 US. 944, 98 L. Ed. 2d 359, 108 S.
Ct. 332 (1987); Wicker v. McCotter, 783 F.2d 487, 492B93 (5th Cir.), cert.
denied, 478 U.S. 1010, 92 L. Ed. 2d 723, 106 S. Cl. 3310 (l986); Sprynczynatyk
v. General Motors Corp., 771 F.2d 1112, 1123 (8th Cir. 1985), cert. denied,
475 U.S. 1046, 89 L.. Ed. 2d 572, 106 S. Ct. 1263 (1986). While recognizing
the benefits of the Hurd guidelines, these courts conclude [*28] that the
district court should be given discretion to balance all of the factors to
determine the reliability of the evidence and the probative versus prejudicial
effect of the testimony. They note that even though the safeguards required by
other courts
represent the type of general reliability inquiry that must be made[,] ... a
court cannot necessarily rest solely on the reliability vel non of the
hypnosis procedures in ruling on the admissibility of the proffered testimony.
Even though all of the Hurd safeguards might be employed, the defendant may
still be able to demonstrate by expert testimony that a witness’s memory has
been irreparably distorted by hypnosis. On the other hand, even if the
hypnosis procedures are flawed, a trial or appellate court might discern that
a witness’s testimony was nonetheless independent of the dangers associated
with hypnosis.
McQueen, 8I4 F.2d at 958 (citations omitted). As the foregoing summary
indicates, the law continues to be in a state of flux regarding the reception
of hypnotically-enhanced testimony. See Federal Practice, supra, ' 6011, at
123.
F. Hypnosis as a Therapeutic Tool
The existing [*29] case law concerning the admissibility of post-hypnotic
testimony, while helpful to our analysis, is grounded in fact situations where
the hypnosis is specifically directed to the witness’s recollections of known
events, rather than where repressed memories of past traumas previously
unknown simply emerge following hypnosis. Borawick, relying heavily on a law
review article, Kanovitz, supra, at 1213, argues that hypnosis functions
differently and more reliably when it results in the retrieval of repressed
memories of traumatic events than when it is used to refresh one’s memory of
eye-witnessed events and therefore testimony relating to the former should be
admitted on a per se basis.
The research on hypnosis only uses subjects with normal memory function who
are exposed to simulations of real-life events to “replicate eyewitness
situations,” id. at 1212, 1223, since for practical and ethical reasons, it is
impossible to design effective controlled studies to test the ability of
hypnosis to retrieve accurate, suppressed memories of childhood trauma, id. at
1221B22. The Kanovitz article sets forth some arguments in support of the view
that hypnosis may be better able to retrieve [*30] memories ”kept out of
conscious awareness by ego-defenses that protect the psyche from trauma,” id.
at 1194, than hypnosis used for normal memory recall. In the clinical setting,
hypnosis may overcome the psychological barriers to remembering past traumas
because it induces profound relaxation and calmness, intensifies
concentration, and focuses the subject’s attention inward. Id. at 1213. In
addition, the clinical literature “abounds with case histories of spectacular
memory successes.” Id. at 1225. Finally, repressed memories of events that
have a traumatic impact upon the witness may, even if unconscious, tend to
remain fixed and survive longer than memories of events witnessed quickly, in
the context of a great deal of other sensory information. Id. at 1231B32.
Based on those reasons, the article concludes that courts should be more
willing to accept testimony based on retrieval of repressed memories than when
hypnosis is used to enhance eyewitness accounts, particularly since failure to
admit post-hypnotic testimony in cases like this one might discourage the use
of hypnosis in therapy. Therapists might fear that patients who discover they
were victimized as [*31] children could lose the opportunity for legal redress
if their testimony was based on post-hypnotic recall. See id. at 1255B56.
Noting, however, that clinical hypnosis is not without some risk of memory
distortion--for example, clinicians may “overstep the boundaries of
interviewing neutrality” and may be especially interested in their patients’
“subjective impressions” of their pasts, rather than accurate recollections,
id. at 1218Cthe Kanovitz article suggests that courts should ask “whether
hypnosis can create sexual abuse memories in subjects who have never
experienced abuse.” Id. at 1220. Because the “only evidence that hypnosis can
implant false autobiographical memories comes from experiments with subjects
who are hand-picked for their high hypnotizability,” id. at 1235, a
characteristic that can be measured, id. at 1238, the article suggests that
“high hypnotizability [may be] a factor bearing on admissibility.” Id. at
1239.
While we appreciate the force of many of these arguments, the fact remains
that the literature has not yet conclusively demonstrated that hypnosis is a
consistently effective means to retrieve repressed memories of traumatic,
[*32] past experiences accurately. For example, the Council on Scientific
Affairs has pointed out that the case histories of spectacular memory
successes” are anecdotal and difficult to verify independently and there are
no controlled studies confirming these reports. Scientific Affairs, supra, at
1919. In addition, some in the clinical community express reservations
concerning the theory of memory repression, or at least the phenomenon’s
prevalence. See Julie M. Murray, “Repression, Memory, and Suggestibility,” 66
U. Colo. L. Rev. 477, 505B08 (1995). Furthermore, we are highly skeptical of
the belief in the clinician’s ability to “weed out most patently groundless
claims” because childhood sexual abuse often “fits like a tailor-made glove”
to certain psychiatric disorders. Kanovitz, supra, at 1242. Some therapists
may be too eager to find patterns of behavior demonstrative of childhood
sexual abuse. See Murray, 66 U. Colo. L. Rev. at 507B08. But cf. Colette M.
Smith, “Recovered Memories of Alleged Sexual Abuse,” 18 Seattle Univ. L. Rev.
51, 61 (1994) (noting that Harvard Medical School psychiatrist Judith Herman
“believes that therapists rarely wield enough power over [*33] patients to
impose false memories on them”). Therefore, even though there may be important
distinctions between the use of hypnosis to enhance memories of witnessed
events and the use of hypnosis to retrieve repressed memories, given the lack
of empirical studies as to the latter and the complicated nature of
hypnotically-induced recall, we are not willing to assume that the risks of
suggestibility, confabulation, and memory hardening are significantly reduced
when the hypnosis that triggers the testimony is used for therapeutic
purposes.
G. Totality-of-the-Circumstances Approach
Based on our review of the literature and the case law, we conclude that the
district court was correct to reject a per se rule of admissibility or
inadmissibility. A per se rule of exclusion or inclusion is too blunt a tool
with which to address the concerns regarding the reliability of post-hypnotic
testimony or the concerns that people who have been sexually abused may lose
an opportunity to bring suit against their abusers.
To be sure, the exclusion of such testimony in every case avoids the problems
of unreliability, but it ignores Federal Rule of Evidence 601, which
“abolished almost all grounds [*34] for witness disqualification based on new
assumptions that took a more optimistic view of witness reliability and jury
perceptiveness.” Federal Practice, supra, ' 6011, at 124, 129. In addition. we
believe that it risks the elimination of reliable testimony. See State v.
Iwakiri, 106 Idaho 618, 682 P.2d 571, 577 (Idaho 1984).
On the other hand, to admit all such testimony without pause, even if the jury
is informed of the risks of the potential problems of hypnotically-enhanced
testimony, creates the danger of having a lay jury speculate as to the effects
of the hypnosis in the case before it. As a result, such an approach seems to
us inadequate to protect defendants from unfounded charges in either criminal
or civil suits. See Federal Practice, supra, ' 6011, at 127B28. While we
appreciate the care and sensitivity with which the district court chose its
methodology, we nevertheless find its approach too rigid and restrictive and
prefer a “totality-of-the-circumstances” approach. First, we believe that to
treat the presence or absence of safeguards as the sole criteria of
admissibility may not always mitigate the problems associated with
hypnotically refreshed memory, and it may [*35] “give hypnosis an aura of
reliability which misleads the jury into disregarding the remaining dangers.”
Federal Practice, supra, ' 6011, at 169B70. Second, like the Fourth Circuit,
we are reluctant to treat the presence of safeguards as a litmus test for
determining the reliability of pre-trial hypnosis, since even though the
safeguards are relevant to the inquiry, “a court cannot necessarily rest
solely on the reliability vel non of the hypnosis procedures in ruling on the
admissibility of the proffered testimony.” McQueen, 814 F.2d at 958.
Conversely, the absence of safeguards does not compel the conclusion in every
case that post-hypnotic testimony is unreliable: “Even if the hypnosis
procedures are flawed, a trial or appellate court might discern that a
witness’s testimony was nonetheless independent of the dangers associated with
hypnosis.” Id.; see also Iwakiri, 682 P.2d at 578 (Merely because one of the
safeguards was not followed should not result in the automatic exclusion of
the entire testimony.”).
Thus, we believe that the rule of admissibility should be more flexible than
the one suggested by the district court and we therefore find preferable the
[*36] approaches taken by the Eighth Circuit in Sprynczynatyk, 771 F.2d at
1112, and the Fourth Circuit in McQueen, 814 P.2d at 951. In Sprynczynatyk,
the Eighth Circuit required pretrial hearings to assess the procedures used in
hypnosis to determine “in view of all the circumstances,” whether the
testimony was sufficiently reliable and whether its probative value outweighed
any prejudicial effect. 771 F.2d at 1122.
In McQueen, the Fourth Circuit required the trial court to
conduct a balanced inquiry to determine if the testimony had a basis that was
independent of the dangers associated with hypnosis--in other words, a
balanced inquiry to determine whether a witness’s memory and ability to
testify from it was distorted by the earlier hypnosis. The balanced
inquiry...can-not be circumscribed by narrow considerations, and...must be
determined by a detailed factual analysis on a case-by-case basis.
814 F.2d at 958. Despite flawed hypnosis procedures, the Fourth Circuit
concluded that the hypnotically-enhanced testimony of a witness to a murder
was admissible because “considerable circumstantial evidence corroborated
[the] testimony,” id. [*37] at 959, her testimony “exhibited the
characteristics normally expected from a witness recalling details of facts
five years after their occurrence,” and there was “no indication of a memory
unshakably frozen by hypnosis,” id. at 961.
In conducting a case-by-case analysis, the district court should consider the
following non-exclusive list of factors. First, it should evaluate the purpose
of the hypnosis: whether it was to refresh a witness’s memory of an accident
or crime or whether it was conducted as part of therapy. In the former
instance, the subject may feel pressured to remember details, to aid the
criminal investigation, whereas when the subject has undergone therapy to
explore the sources of her psychological ailments, she may be less inclined to
confabulate or describe a complete coherent story. In the latter case,
however, the court should be mindful of the possibility that the subject may
have received subtle suggestions from her therapist that abuse or other
traumas could be at the root of her problems. Thus, a second important
consideration is whether the witness received any suggestions from the
hypnotist or others prior to or during hypnosis such as a theory of [*38] the
cause of the subject’s ailments or key information relevant to the
investigation for which she underwent hypnosis. A third and related factor is
the presence or absence of a permanent record, which can help the court
ascertain whether suggestive procedures were used. Ideally, the session should
be videotaped or audiotaped. Fourth, a court should consider whether the
hypnotist was appropriately qualified by training in psychology or psychiatry.
A fifth factor is whether corroborating evidence exists to support the
reliability of the hypnotically refreshed memories. Sixth, evidence of the
subject’s hypnotizability may also be relevant. A highly hypnotizable subject
may be more prone to confabulate and more susceptible to suggestion. Seventh,
the court should consider any expert evidence offered by the parties as to the
reliability of the procedures used in the case. Finally, a pretrial
evidentiary hearing is highly desirable to enable the parties to present
expert evidence and to test credibility through cross-examination.
After consideration of all of the relevant circumstances, the trial court
should weigh the factors in favor of and against the reliability of the
hypnosis procedure [*39] in the exercise of its discretion whether to admit
the post-hypnotic testimony. Finally, we add that 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. Hurd, 432
A..2d at 97.
H. Application of Admissibility Approach to This Case
While we conclude that the test for admissibility adopted by the district
court in this case was insufficiently flexible, and while we believe that it
would have been more appropriate for the district judge to have conducted an
evidentiary hearing prior to issuing his ruling, we nonetheless affirm the
district court’s in limine ruling and subsequent summary judgment. Since in
our view the factors before the district court weighed decisively against the
admissibility of Borawick’s testimony, we are convinced that if the district
court had followed our test, it would have necessarily reached the same
conclusion. We see no point in remanding the case so that the district court
can reach the same finding.
First, Borawick’s assertions notwithstanding, it is beyond question that St.
Regis lacked adequate professional qualifications as a hypnotist. [*40] While
a panoply of academic qualifications is not necessary in all circumstances
for one to qualify as an expert, there should be a general presumption in
favor of appropriate academic credentials. The district court’s finding that
St. Regis was not properly qualified finds ample support in the record: his
formal education ended with a high school diploma; he had no formal training
in psychiatry or psychotherapy; his hypnotic technique used an experimental
cranial electronic stimulator; he did not read the professional literature;
and his work experience prior to being a hypnotist at Pacific Medical Center
was intermittent. The fact that Dr. Peters, a medical doctor, self-servingly
stated that he considered St. Regis to be qualified is not enough to disturb
the district court’s determination.
There was also no permanent record of the procedures that St. Regis used, no
videotapes, audiotapes, or even contemporaneously-drafted medical reports
existed. 842 F. Supp. at 1507. As a result, the district court was not
provided with any means, independent of St. Regis’s testimony, to determine
whether or not he was inadvertently suggestive in his approach or otherwise
used suspect techniques [*41] in conducting the hypnosis. Without such a
record, expert testimony would have been of little value, since experts
similarly would have had no basis on which to evaluate the actual procedures
St. Regis used.
Finally, we receive no comfort from the fact that St. Regis read excerpts from
Borawick’s deposition transcript prior to testifying himself. Given that he is
not qualified and that the record lacks any basis on which to assess the
reliability of the procedures he used, this circumstance further undermines
the value, if any, of his testimony.
Our conclusion is reinforced by the inherent incredibility of Borawick’s
allegations. In this case, Borawick has leveled fanciful accusations of sexual
abuse against numerous persons other than the defendants in this matter that
include persons both familiar and unfamiliar to her. For example, Borawick
allegedly recalls being raped and sexually abused at the age of three during
rituals by men whom she believed to be members of the Masons. She also
purports to recollect several incidents in which she was drugged by injection
as well as an incident in which she was forced to drink blood at a ritual
involving a dead pig, incense, chanting, [*42] and people dressed in black
gowns. Several additional incidents of a similarly unlikely nature involving
sexual abuse by others are included in the sealed record. That Borawick has
made these far-fetched, uncorroborated accusations against others, in addition
to the defendants, erodes our confidence in the allegations against Morrie and
Christine Shay and properly weighs against the admissibility of her
hypnotically-induced memories.
We note that the district court failed to consider the evidence that Borawick
offered as corroboration in her motion for reconsideration, including letters
from her sister alleging abuse. In the face of the record before the district
court, we find that Borawick’s corroborating evidence was simply too weak to
overcome the very strong evidence against admissibility. Consequently, we
affirm the district court’s ruling as to the in limine motion.
II. The Application of Daubert
Borawick also contends that the district court’s in limine ruling was not
consistent with Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113
S. Ct. 2786 (1993), in which the Supreme Court held that the test set forth in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), [*43] was superseded by
the adoption of the Federal Rules of Evidence. 113 S. Ct. at 2793. In
determining “the proper standard for the admission of expert testimony,” id.
at 2792, the Court noted that several of the Federal Rules of Evidence
applied. Rather than impose a rigid framework of criteria that must be met in
order for the testimony to be admissible, the Court ruled that judges must
determine whether an expert’s testimony is scientifically valid” by examining
(1) whether the theory had been tested, (2) whether it had been subjected to
peer review, (3) what the potential or known rate of error is, (4) what sort
of standards control the technique’s operation, and (5) whether the theory or
technique has generally been accepted. Id. at 2796B97. This inquiry, the Court
emphasized, should be flexible. Id. at 2797. In giving trial judges the task
of ensuring that an expert’s testimony both rests on a reliable foundation and
is relevant to the task at hand,” id. at 2799, the Court assigned trial judges
“a gatekeeping role” for the admissibility of scientific evidence. Id. at
2798.
We do not believe that Daubert is directly applicable to the issue here since
Daubert [*44] concerns the admissibility of data derived from scientific
techniques or expert opinions. The issue before us is whether Borawick is a
competent witness, see Federal Practice, supra, ' 6011, at 125B26, or whether
her lay testimony is admissible, Valdez, 722 F.2d at 1200B01. Under either
characterization, the question does not concern the admissibility of
experimental data or expert opinions. See id. But see Tuttle, 780 P.2d at 1211
(rejecting the State’s position that the issue only concerns the admissibility
of testimony from a lay eyewitness as opposed to an expert on the basis that
“the hypnotically-enhanced testimony given by the witness is the product of
scientific intervention”).
Even though Daubert does not provide direct guidance, our decision today is
informed by the principles underlying the Supreme Court’s holding. First, by
loosening the strictures on scientific evidence set by Frye, Daubert
reinforces the idea that there should be a presumption of admissibility of
evidence. Second, it emphasizes the need for flexibility in assessing whether
evidence is admissible. Rather than using rigid “safeguards” for determining
whether testimony should [*45] be admitted, the Court’s approach is to permit
the trial judge to weigh the various considerations pertinent to the issue in
question. Third, Daubert allows for the admissibility of scientific evidence,
even if not generally accepted in the relevant scientific community, provided
its reliability has independent support. Finally, the Court expressed its
faith in the power of the adversary system to test “shaky but admissible”
evidence, Daubert, 113 S. Ct. at 2798, and advanced a bias in favor of
admitting evidence short of that solidly and indisputably proven to be
reliable. Finally, we note that, even if Daubert were of direct application,
nothing in Daubert is inconsistent with our outlined approach.
Conclusion
We have considered the Due Process and Seventh Amendment claims raised by
Borawick and conclude that they are meritless. Consequently, for the foregoing
reasons we affirm the district court’s summary judgment in favor of defendants
dismissing the complaint.
Cultic Studies Journal, Volume 13, Number 1 1996
