-Caveat Lector-
11/25/99
Hi !
I have permission to forward this.
Sincerely, Neil Brick
...I apologize for taking a few days to respond to the message you received
regarding hypnosis, lie detectors and "regression therapy". The writers
emphatic and overgeneralized claim that all three are not admissible as
evidence, is simply untrue. First of all, we are talking apples and oranges
about three completely different things. So I will address each separately,
below.
HYPNOSIS
Significantly, some of the case law has been shaped by an out dated American
Medical Association statement on hypnosis, first published in 1985, and based
on a single scientific study. Most of the research on the reliability of
hypnosis and memory has been post 1985. Many more studies are now available.
Nevertheless, there are four different recognized legal approaches for the
admissibility of post-hypnotic testimony which have evolved over time: per se
inadmissible; the safeguard approach; the totality of the circumstances test;
and the rule of per se admissible. Suffice it to say, that the most difficult
approach of per se inadmissible (eg post hypnotic testimony is always
inadmissible) is not likely to have survived the Daubert/Joiner/Khumo Tire,
trilogy of cases decided by the US Supreme Court dealing with the reliability
of scientific testimony. Indeed, in 1987 the US Supreme Court struck down
Arkansas rule of per se inadmissibility as unconstitutional. In sum, the
prevailing view in federal courts is to look at the "totality of the
circumstances" under which the hypnosis took place. So the writer is flat out
wrong to claim that all post hypnotic testimony is not admissible as
evidence. While the rules vary by jurisdiction, clearly this person has not
asked an attorney informed on the subject matter.
A) PER SE INADMISSIBLE Post-hypnotic testimony is automatically excluded
regardless of the facts and circumstances. This rule has been significantly
eroded by Rock v. Arkansas, a 5/4 decision of the U.S. Supreme Court, where
the majority invalidated a state of Arkansas statute imposing a rule of per
se inadmissibility. In Rock, the U.S. Supreme Court recognized the right of a
previously hypnotized criminal defendant to testify. Being a ruling of the
U.S. Supreme Court, Rock is binding in all 50 states but left many questions
unanswered.
B) THE SAFEGUARD APPROACH The seminal case using this approach was the
New Jersey Supreme Court's decision in State vs Hurd, 86 N.J. 525, 432 A.2d
86 (1981) where the court adopted the following safeguards:
1) A psychiatrist or psychologist experienced in the use of hypnosis must
conduct the sessions and should be able to qualify as an expert;
2) the hypnotist should be independent of and not regularly employed by
the prosecution, investigator or defense;
3) any information given to the hypnotist must be recorded wither in
writing or other suitable form;
4) before the hypnosis, the hypnotist should obtain from the subject
detailed descriptions of the facts;
5) all contacts between hypnotist and subject must be recorded with the
use of videotape strongly encouraged; and
6) only the hypnotist and subject should be present during the hypnotic
sessions, pre-hypnotic interviewing and post-hypnotic interviewing.
C) THE TOTALITY OF THE CIRCUMSTANCES APPROACH Presumes a balancing of
factors with the failure to satisfy any one factor not determinative of the
issue. this is the approach adopted by the Fourth, Fifth, Seventh and Eighth
Circuits and purportedly (the test was misapplied) by the Second Circuit in
Borawick v Shay. The decision of the Second Circuit in Borawick v Shay, is
binding in federal courts in Connecticut, New York and Vermont and could be
followed as persuasive authority in other forums. The test adopted in
Borawick v Shay was characterized by the Second Circuit as "a case-by-case
totality of the circumstances approach" and incorporated 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 should be conducted by the district
court.
Other examples include, White v Ieyoub, 25 F.3rd 245, 249 (5th Cir.
1994); Armstrong v Young, 34 F.3d 421, cert. denied, 115 S.Ct.1369 (1994)
McQueen v Garrison, 814 f.2d 951 (4th Cir. 1987), cert. denied, 484 U.S. 944
(1987); and Spryncznatyk v General Motors Corp., 771 F.2d 1112, 1123 n.14
(8th Cir. 1985) cert. denied 475 U.S. 1046 (1986). In White, Armstrong and
McQueen, the testimony was allowed. In Spryncznatyk, the district court
admitted hypnotic testimony. After a sizable jury verdict, General Motors
appealed to the Eighth Circuit which remanded the case to the district court
for application of the totality test. the case settled before a rehearing was
held in the district court.
D. PER SE ADMISSIBLE
The most flexible of the four rules and the rule advocated by the
Plaintiff/Petitioner in Borawick v Shay. The fact of hypnosis goes to the
weight of the testimony, not its admissibility. Permits the previously
hypnotized witness/party to testify, with the facts and circumstances
surrounding the hypnosis being an area of cross-examination. As in all
trials, either party is permitted to offer expert testimony if relevant to
the underlying issue. Notably, in Chaussard v Fulcomer, 816 F.2d 925 (3rd
Cir. 1987), cert. denied 484 U.S. 845 (1987), the Third Circuit (covers
Delaware, New Jersey, Pennsylvania and the Virgin Islands) on review of a
petition for writ of habeas corpus, found no error in the admission of
testimony of a previously hypnotized rape victim, and held that the loss of
notes and the police department's destruction of a tape recording of the
session did not result in the denial of the prisoner's Sixth Amendment right
to confrontation or due process rights.
Other examples would include Clay v Vose, 771 F.2d 1 (1st Cir. 1985),
Kline v Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975), Wyller v Fairchild
Hill Corp., 503 F.2d 506 (9th Cir. 1974), Rowland v Kentucky, 901 S.W. 2d 871
(Ky. 1995); State v Brown, 337 N.W. 2d 138 (N.D. 1983), Chapman v State, 638
P.2d 1280 (Wyo. 1982); and State v Evans 450 S.E. 2d 47(S.C. 1994).
LIE DETECTOR TESTS
As with the admissibility of post hypnotic testimony, the rules on the
admissibility of the results of lie detector tests are equally complex.
Federal appellate courts generally grant trial judges more leeway to admit
polygraph evidence than do their state counterparts, especially in the wake
of Daubert. The majority of federal courts of appeals do not have a per se
rule that polygraph evidence is inadmissible at trial. While I have not gone
back to check the case, the Fifth Circuit had adopted a totality of the
circumstances approach for polygraph evidence.
In the state forum, about 1/2 of the states have adopted a rule of per se
inadmissibility, with some states allowing polygraph evidence by stipulation.
A detailed discussion of the admissibility of polygraph evidence is contained
in State v Porter, 241 Conn. 57 (1997) (adhered to per se rule of
inadmissibility in wake of Daubert).
REGRESSION THERAPY
I am not sure in what context the writer is using the term "regression
therapy". If in the context of hypnotherapy, the rules regarding post
hypnotic testimony discussed above, would apply. If in any other context, the
use of the term in inappropriate. Most clinicians use phase oriented
treatment for trauma survivors. Thus catch phrases of "regression therapy" or
"recovered memory therapy" are inappropriate.
Hope this answers your questions.
Helen McGonigle
Attorney at Law
Brookfield, CT
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