## Facts

- Joan S. Borawick sued her aunt and uncle, Morrie and Christine Shay, alleging they sexually abused her during childhood visits to Connecticut in 1961 and 1964.
- Borawick reported having no memory of any abuse for more than twenty years.
- In the mid-1980s, after panic attacks and chronic illness, she pursued psychological treatment and was referred to a hypnotist working under a physician’s supervision.
- From 1987 to 1988, Borawick underwent roughly twelve to fourteen hypnosis sessions; she had no recollection of abuse immediately before or after the sessions.
- Over time, she claimed memories emerged gradually and expanded to allegations against multiple individuals beyond the Shays.
- During discovery, the hypnotist acknowledged having no permanent records of the sessions and had reviewed part of Borawick’s deposition before giving his own testimony.

## Issues

1. Under what standard may a federal court admit a party’s testimony based on memories recalled after therapeutic hypnosis.
2. Whether the district court properly excluded Borawick’s hypnotically refreshed testimony as unreliable.
3. Whether summary judgment for defendants was proper once the hypnosis-derived testimony was excluded.

## Decision

- The Second Circuit affirmed the district court’s in limine exclusion of testimony based on hypnotically refreshed recollections.
- The court rejected both a per se admissibility rule and a per se exclusion rule for hypnosis-based testimony.
- The court adopted a totality-of-the-circumstances reliability approach and held that the circumstances in this case weighed decisively against admissibility.
- Because the remaining evidence was insufficient without the excluded testimony, the court affirmed summary judgment for the defendants.

## Legal Principles

- Testimony derived from therapeutic hypnosis is not automatically admissible or inadmissible; admissibility depends on case-specific reliability.
- Reliability is assessed under a totality-of-the-circumstances inquiry informed by the Federal Rules of Evidence and Daubert’s focus on reliability.
- Factors bearing on reliability include the hypnotist’s qualifications and independence; the presence of procedural safeguards (e.g., documentation of pre-hypnosis memory, controls against suggestion, and recording or detailed contemporaneous notes); the timing and evolution of recalled memories; and corroboration.
- Courts may consider recognized risks associated with hypnosis, including suggestibility, confabulation, and increased confidence in recalled accounts despite uncertain accuracy.
- Where hypnosis procedures lack reliable documentation and safeguards, and the resulting allegations are uncorroborated or implausible on the record, exclusion may be warranted.

## Conclusion

The Second Circuit held that hypnotically refreshed memories may be admitted only after a case-specific reliability showing, and it affirmed exclusion and summary judgment where the hypnosis procedures and resulting allegations lacked adequate indicia of reliability.


Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995)