American Society: A Legal Analysis of Undue Influence, Fraud, and
report explores the meaning of the term cult; explains the concepts of undue
influence, fraud, and misrepresentation; reviews case law developments
concerning these concepts in cult contexts; provides an extensive bibliography
of articles, books, and cases; and includes an appendix addressing the changing
standards for admission of expert testimony in cult-related cases. The report
concludes that the current state of understanding of cultic groups is extremely
limited and, despite the evolution of judicial opinions regarding undue
influence and fraud and misrepresentation, strikingly little cross-fertilization
Society�s scrutiny of groups often regarded as �cults� seems ever more intense.
Instead of isolated incidents in remote locations involving unknown persons, we
have become increas-ing-ly accustomed to finding coverage of cults of many
kinds, both religious and non-religious, in our local papers and television
reports. Cults are located where we live, and involve people and places we know.
AFF and CAN recently offered the following definition of �cult� in a
What We Mean by �Cult�
By �cult� we refer to psychologically manipulative groups that may be religious
or nonreligious (e.g., psychotherapy, political, or commercial). More
specifically, a cult can be defined as a group or movement that, to a
(a) exhibits great or excessive devotion or dedication to some leadership, idea,
or thing, (b) uses a thought reform program to persuade, control, and socialize
members, (c) systematically induces states of psychological dependency in
members, (d) exploits members to advance the leadership�s goals, and (e) causes
psychological harm to members, their families, and the community.
Cults need not be religious. The elements of de-cep-tion, manipulation and blind
devotion to the leader can attach to other groups as well, such as certain
self-improvement trainings or, even, magazine-sel-ling scams.
While society often initially rejects or may feel threatened by any new movement
or group, some new movements eventually become ingrained in our structure, even
developing into stabilizing forces in our society. Other movements, however,
remain under continued critical evaluation as their methods of gaining new
membership and support invoke inquiry as involving a degree of coercive
persuasion beyond the level acceptable to many in society.
Although this study focuses on a legal analysis of undue influence and fraud in
the cult context, these issues naturally cross into other religious and
psychological areas. The cases address the legality or illegality of actions
based on beliefs, thoughts, or fears that were frequently suggested or imposed
on individuals by others, and the issues of psychological coercion and excessive
psychological pressure. In addition, as a review of the significant cases will
demonstrate, harm caused by cult activities to the family unit or family
relationships is a strong undercur-rent in many cases decided on findings of
undue influence or fraud.
On rare occasions, a court refers sweepingly to the consideration of
psychological coercion in many aspects of American jurisprudence. So, for
example, Supreme Court Justice Brennan (joined by Justice Marshall) wrote that
�it would seem that certain psychological, economic, and social means of
coercion can be just as effective as physical or legal means, particularly where
the victims are especially vulnerable.... And drug addiction or weakness
resulting from a lack of food, sleep, or medical care can eliminate the will to
resist as readily as the fear of a physical blow. Hypnosis, blackmail, fraud,
deceit, and isolation are also illustrative methods--but it is unnecessary here
to canvass the entire spectrum of nonphysical machinations by which humans
coerce each other.� United States v. Kozminski, 487 U.S. 931, 953, 955-56 (1988)
(concurring opinion). More often, courts treat such related issues in isolation,
under a particular rubric, such as fraud or duress or undue influence.
Finally, issues of psychological coercion are not new. For centuries, common law
courts weighed undue influence (usually by individuals, sometimes by group
leaders) as a grounds for setting aside gifts or wills. Even before American
Independence, for example, an English court applied the doctrine to set aside a
wo-man�s deed transferring property to a man accused of having a �spiritual
domination� over her. Norton v. Relly, 2 Eden 286, 28 Eng. Reprint 908 (1764). A
19th-century English court set aside gifts finding that a spiritual medium�s
domination over the mind of a wealthy widow persuaded her to believe that her
deceased husband wanted her to adopt the medium and transfer significant funds
to him. Lyon v. Home, 6 ERC 852 (1868). Even as early as 1821, a court in the
United States found: �Cases are not wanting, in which courts of equity have
relieved against bargains made by persons of full age and reason without proof
of actual fraud and imposition, upon the ground, either of public policy, or the
notion of an unconscionable advantage taken of a person�s peculiar circumstances
and necessities.� Harding v. Wheaton, 11 F. Cas. 491 (C.C.R.I. 1821) (No. 6051),
aff�d in part and rev�d in part sub. nom., Harding v. Hardy,24 U.S. 103 (1826).
Undue Influence: Legal Principles
The term �undue influence� has eluded a universally accepted, clear legal
definition. Frequently, courts define the term in relation to the circum-stances
of the case at hand. Some courts regard undue influence as closely linked to
duress, others as a subspecies of fraud. But undue influence has a separate,
distinct legal meaning.
What is necessary in undue influence actions is a showing that the free agency
or will of the injured person was overcome. For a prima facie case, the
presumption that this occurred can be shown by the existence of a confidential
or fiduciary relationship.
Your distant cousin, age 82, lives alone and has always prided herself on being
independent and self-sufficient. There�s a message on your answering machine
from her insurance company that her check for this quarter�s payment �bounced
twice� (as a precaution, years ago she listed you with the company to notify in
the event of any problem, but you have never been contacted before).
To succeed in an undue influence claim, one must prove that the free will of the
person injured was taken or destroyed and the will of another was substituted.
The influence must be of such a degree as to control the mental decision
operations of the one influenced, overcoming independent powers of resistance,
and thereby resulting in effect in the adoption of the will of the other. In
addition, the undue influence must have caused the influenced person to act (or
desist from acting) as he would not otherwise have done. The exact extent or
degree of control is not particularly relevant, as long as the threshold level
to make the person act as another in the particular fraud situation is reached.
The four essential elements of undue influence are:
1. a person subject to influence;
2. opportunity to exert undue influence;
3. disposition to exert undue influence; and
4. result indicating undue influence.
She says the insurance company or bank must have made a mistake, informing you
that an accountant from church has taken care of her finances through a free
program for elder members. She hasn�t had �to worry about bills for months.� She
gives you his name, but can�t show you any bank statements or financial records.
He keeps all of that garbage.�
In determining whether undue influence existed, courts will often consider: the
age, physical condition, and mental condition of the person influenced; whether
independent and disinterested advice was available; any delay in making the
questioned transaction known to family or third parties; the amount of
consideration (if any); distress of the person influenced; the predisposition of
the person to act; the value of the transfer in relation to the person�s overall
wealth; the extent the transaction hinders the ability to provide for family;
the methods of solicitation and persuasion used; and the relationship between
Frequently, age, mental condition, and physical condition are mentioned as
factors in determining whether undue influence occurred. Advanced age and
physical infirmities, alone, however, are often weak indicators. Mental
weakness, on the contrary, often in itself can raise a presumption of undue
influence especially in transactions between individuals with substantially
different levels of mental ability.
The accountant is more than a little surprised to see you the next morning and
refuses to discuss your distant cousin�s finances �for professional
The actual relationship between the parties is key in any undue influence
action. When one person is in control or in a position of authority over another
by virtue of the relationship, it is justified to assume that the other will not
act inconsistent with his welfare. A transaction induced by unfair persuasion in
such circumstances is presumed to be produced by undue influence. Undue
influence is generally inferred in all cases of confidential or
quasi-confidential relationships where the person in control or power receives a
In the absence of a fiduciary relationship, there is no presumption of undue
influence. But where a fiduciary relationship exists, the presumption goes
against the party with the superior, dominant position or control, shifting to
him the burden to prove that the transaction was bona fide and not obtained by
Mere friendship and confidence short of a trust relationship is not enough to
establish the requisite fiduciary relationship.
You convince your cousin to visit the bank with you on the pre-text of
�straightening out the bank�s error and not causing the accountant any
additional work.� Records show that the insurance check had �bounced,� but was
eventually covered along with a penalty fee after crediting the month�s social
security check. Then you glance at her savings account record.
However, it is not necessary to prove that the beneficiary held such a dominant
position that the person induced was entirely without power to assert his will.
Nor need there be what would be considered a strict fiduciary relationship. What
is required is that a confidential relationship existed and that the transaction
results from the improper exercise of the relationship.
Generally, a presumption of undue influence may be rebutted by competent and
sufficient evidence. The person charged with undue influence is given the
opportunity to prove that the party allegedly influenced had benefit of
disinterested advice, or that the person voluntarily and deliberately acted.
Another defense to undue influence is that the transaction itself was equitable
(that, for example, the influenced seller received fair market value). The mere
opportunity to exercise undue influence is not sufficient in itself to prove
undue influence, nor in non-fiduciary relationship situations does the fact of
power, motive, and opportunity to exercise undue influence result in a
Reviewing her savings account, you�re shocked to see that during the past six
months most of the $23,000 she had has been depleted. She tells you she knew
about the savings: �Most of the monies have gone into the new church wing;
they�re going to put up a plaque with my name on it in gold. I don�t have long
Ordinarily, actions taken based on undue influence are not automatically void,
but voidable. A business contract, will, or property transfer is, therefore,
open to attack--but until successfully challenged the actions are considered
legitimate, even where a fiduciary relationship exists.
A presumption of undue influence arises in confidential relationships where the
beneficiary is the dominant spirit in the transaction. What constitutes undue
influence, however, is a question of fact dependent on individual case
circumstances and, in general, are issues often submitted to a jury or judge as
the trier of fact.
What, if anything, should and can you do to �help� your cousin? She knows, for
the most part, how her money is being spent. The church leader is a pillar in
the community, and your cousin has been a long-time member. But you know she has
never given more than a few hundred, at most, to any charitable cause. And the
accountant--what�s his role here. Does she really want to do this? The case
decisions in the next section might assist you to begin answering these
Undue Influence: Case Law Developments in the Cult Context
Many nonprofit, philanthropic and religious organizations rely heavily on the
practice of solicitation to remain in existence. These organizations often
devote a significant portion of their staff and resources to increasing overall
contributions. To the degree that the donations of money, property, or time are
given willingly and with deliberate judgment, they are proper. To the degree
that they are received without the donor�s use of deliberate discretion, reason,
or judgment but as a result of another person exercising power through a
confidential or quasi-confidential relationship, the gifts are subject to a
challenge based on undue influence.
One prerequisite to a finding of undue influence is a determination that a
confidential relationship existed. Courts have recognized various confidential
relationships, including attorney-client, guardian-ward, parent-child, and
priest-parishioner. The issue in the cult context is, when does the relationship
between the advisor in a cult and the recipient of the advice rise to the
presumption of confidentiality that would require the advisor to defend an undue
Early cases involving church, spiritual, or religious leaders indicated that a
confidential relationship is presumed per se in all religious situations. See
Corigan v. Pironi, 23 A. 355 (N.J. 1891) and McClellan v. Grant, 82 N.Y.S. 208
(4th Dep�t 1903), aff�d 74 N.E. 119 (1905). While rebuttable, the relationship
automatically gave rise to the presumption. See also, Ryan v. Saint Michael�s
Roman Catholic Church of Whitlemore, 216 N.W. 713 (Iowa 1927) (finding no undue
influence after shift of burden).
Other cases, even some from the late 1800s, cite factors in addition to the
relationship itself as necessary before granting the presumption. In Muller v.
Saint Louis Hospital Asso., 5 Mo.App. 390 (Mo. 1878), aff�d 73 Mo. 242, for
example, the presumption (and subsequent decision) rested on the court finding
that the patient who named the hospital as chief beneficiary in his will made
the will in favor of his chief spiritual advisor�s organization, while within a
facility owned and operated by the organization, and with the assistance of the
The Muller court�s method of investigation beyond the mere priest-parishioner
relationship has been adopted by the courts. The courts have generally concluded
that the simple existence of the relationship does not evoke the presumption.
See Guill v. Wolport, 218 N.W.2d 224 (Neb. 1974) (expressly rejecting Corigan);
and see also Else v. Freemont Methodist Church, 73 N.W.2d 50 (Iowa 1955).
Traditionally, the evidence courts consider to determine whether a confidential
relationship exists has included the mental and physical state of the donor. See
Good v. Zook, 88 N.W. 376 (Iowa 1901). Frequently, as in testamentary cases and
those in which transactions occur shortly before the actor�s death, available
evidence on mental health and condition is circumstantial. While courts will
consider other factors such as age and forgetfulness, standing alone these will
probably not prove undue influence.
A crucial consideration in undue influence contests is the donor�s receipt of
independent advice. In Klaber v. Unity School of Christianity, 51 S.W.2d 30 (Mo.
1932), a sizeable gift to the school was upheld even though the ninety-year-old
donor was unquestionably both mentally and physically infirm. The school
successfully defended the undue influence charge in large measure because they
provided evidence that the woman had received independent advice on the gift.
On the independent advice issue, most courts have not restricted the advice in
terms of its legality. The focus is on the independence and competence of the
adviser. In a split decision, In Re Estate of Riley, 479 P.2d 1 (Wash. 1970)
held that an attorney on retainer for a church nursing home operated by the
sisters of the church was sufficiently disassociated from the church to provide
some degree of independent advice. The court approved Riley�s change of wills,
disinheriting two relatives, in part by recognizing Riley�s long history of
limiting business discussions with others. While the advice she received may not
have been sufficient to help overcome an undue influence charge involving many
other individuals, it was sufficient in Riley�s case perhaps because her actions
reflected her established character.
In another early undue influence case, a local Rhode Island religious sect
directed by a married couple, the Dodges, compelled church members to transfer
possessions to the sect and live in the sect�s house/church. Nelson v. Dodge, 68
A.2d 51 (R.I. 1949). A member, also the Dodges� son-in-law, gave everything he
owned, including his children�s life insurance policies, to the Dodges. Eight
years later, he and his family were expelled from the church and left destitute.
The issue before the court was whether by inducing the person to transfer all
his property on the pretext that if he did not his and his family�s souls would
be lost, the Dodges� conduct amounted to undue influence. The court found a
confidential relationship existed. Also, the court found the Dodges� actions
amounted to undue influence--noting the isolation of the community and the
continual pressure imposed even after initial rejections by the son-in-law to
transfer his property. The court also found that the eight year delay did not,
in these circumstances, constitute laches.
In Robert-Douglas v. Meares, 624 A.2d 405 (D.C. 1992), parishioners alleged that
their contributions were obtained through undue influence. The court reversed a
lower court ruling and found that evidence of repeated individualized threats of
eternal damnation for failure to contribute or increase contributions was
relevant to the issue of whether undue influence existed. Although general
invocations from the pulpit on God�s wrath could rarely, if ever, be the basis
of an undue influence action, the court found that continued, one-on-one
personal threats, made against vulnerable listeners may not be afforded First
Amendment protection and could sustain an action in undue influence.
One case particularly illustrative of the presumption of undue influence and
defense against the presumption is In Re The Bible Speaks, Dovydenas v. The
Bible Speaks, 869 F.2d 628 (1st Cir. 1989) cert. denied 493 U.S. 816. Dovydenas
was heir to a large estate valued at over $19 million. The court record showed
that beginning about 1984, Dovydenas became increasingly interested in a
ministry operated by Carl Stevens called The Bible Speaks (TBS). Stevens and
Dovydenas began personal discussions in the mid-1980s, resulting in Dovydenas
donating one million dollar to TBS. Stevens advised Dovydenas that he hoped her
donation would prove to cure a TBS official of his migraine headaches. Stevens
later lied and told Dovydenas that the gift had cured the migraines.
Believing that her donations had the power to cause temporal events, Dovydenas
considered making another substantial contribution. Stevens then informed
Dovydenas of a TBS pastor, restrained in Romania and probably suffering. He told
her that her contemplated gift of $5 million would secure the pastor�s release.
Dovydenas made the $5 million donation; Stevens told her not to inform her
family or others about it. Three days later, the pastor returned and Dovydenas
was led to believe that her gift was the catalyst--even though the pastor had
been released before the $5 million donation was executed.
In 1985, Dovydenas contributed approximately $80,000 to TBS; during this period,
she was also persuaded by Stevens to replace her attorney, accountant, and
stockbroker with individuals associated with TBS. A new will was prepared for
Dovydenas, leaving all to TBS with the exception of some jewelry and the minimum
required by law to her husband.
Dovydenas told Stevens that she was experiencing marital problems in 1985, and
she asked whether another gift would solve her problems. Stevens responded by
suggesting a $500,000 donation could help.
Dovydenas�s marital problems presumably were resolved. She reconciled with her
husband and other family. She then reconsidered the donations she had made to
TBS and sued TBS to recover alleging undue influence.
On appeal, the circuit court in Dovydenas held that the first million dollar
gift was proper on the basis that Dovydenas�s own motivation was the
cause--although TBS did later misrepresent the effects of her donation. The
court also refused to rescind the $80,000 in donations, finding no undue
influence in those specific instances. However, the court upheld setting aside
the $5 million donation based on fraudulent, influential statements made by TBS
to Dovydenas about what the gift�s effects would be. The $500,000 gift was also
set aside, as resulting from misrepresentations about the donations� secular
effects. The court also found that efforts by TBS to silence Dovydenas and
remove her from independent advice significant.
The Dovydenas court expressly stated that its decision was not based on any
general presumption of undue influence. The court required a finding of more
than the confidential relationship. In fact, Dovydenas was required to
demonstrate how undue influence specifically affected each donation. Stevens�s
clear undue influence in one gift transaction did not substantially taint other
separate transactions. The court inferred that had Stevens been truthful in his
disclosures throughout, and had he not so isolated Dovydenas from outside
advice, the ruling might have been entirely in TBS�s favor. Later obtained
wisdom or a change in mind alone will not, in and of itself, serve to void
unwise donations made to those in a confidential relationship. The Dovydenas
court did note that its ruling on confidential relationships applies to
non-religious undue influence situations as well.
In a similar case, Whitmire v. Kroelinger, 42 F.2d 699 (W.D.S.C. 1930), the
court also distinguished between various gifts to a pastor. Gifts determined to
be the result of the donor�s own choice were upheld. Other donations made after
the pastor had become aware of the donor�s religious fervor and had begun
concerted solicitation efforts were set aside.
However, religious fanaticism and actions based on religious fervor have not, in
themselves, been held as grounds to find undue influence. In Held v. Florida
Conference Assn. of Seventh Day Adventists, 193 So. 828 (Fla. 1940), the court
in a split decision on appeal summarily upheld a lower court ruling allowing the
donations. The donor in Held became a church member late in life and thereafter
made a substantial testamentary donation to the church. The decision quotes the
lower court: AA careful consideration of this record ... may indicate that [the
donor] was what some people call a religious fanatic. However, his peculiarities
and conduct fail to disclose a state of mind which would indicate that, in
contemplation of the law, he was insane, or that he was subject to any undue
The Held court found no evidence that the donor did not understand his business
dealings or appreciate the significance of his actions. In fact, the donor�s
religious fanaticism and devotion may have influenced the court to not find
undue influence by the church in receipt of the large donation. The religious
fervor pro-vided a logical basis for the donation.
When gifts provided to an organization are radically different from previously
expressed intentions of the donor, however, undue influence may be indicated.
For example, in In Re Hampton�s Estate, 103 P.2d 611 (Cal. App. 1940) and In Re
Rupert�s Estate, 54 P.2d 274 (Or. 1936) (noncult cases), the courts set aside
granting the bulk of the deceased�s estates to recently hired caretakers. No
previous gifts to the parties were evidenced, nor was evidence presented to
demonstrate that the donor had acted so spontaneously in giving in the past. But
Gifts to religious organizations have also been challenged on the basis that the
donor either becomes impoverished through the gift or fails to adequately
provide for his family. The focus in these cases is not on the size of the gift
itself, but on the relative value of the gift to the estate. In Longenecker v.
Zion Evangelical Lutheran Church, 50 A. 244 (Pa. 1901), for example, the court
found a $5000 donation not out of proportion to the individual�s $60,000 estate.
In Redman v. Watchtower Bible and Tract Soc. of Pa., 630 N.E.2d 676 (Ohio 1994),
sisters of the decedent contested a sixteen-year-old will which left most of the
estate to the parent organization of the Jehovah�s Witnesses church. While
finding that the extended period between execution of the will and the death did
not bar an undue influence challenge, the period provided nonpresumptive
evidence of the testator�s freedom from undue influence. The court also found
the trial court had erred in its examination of witness religious beliefs to
impeach a witness�s credibility. The religious beliefs of a witness can be used
to show witness bias, but religious affiliation or beliefs (even beliefs alleged
to justify misrepresentation) cannot be used to attack the credibility of the
The undue influence issues surrounding donations of time, money, or property to
cults and organizations, religious or not, revolve around when and under what
conditions the donations were given. Courts differ on their focus, using the
general principles mentioned, but often reviewing and emphasizing particular
aspects of the questioned activities and transactions. As in the area of fraud
and misrepresentation, an evaluation of case law leads to the conclusion that
the decisions are decided in part on the �personalities� involved, frequently
invoking circumstantial evidence, instead of a pure, absolute legal doctrinal
Fraud and Misrepresentation: Legal Principles
Fraud, broadly defined, includes any misrepresentation or deception resorted to
for the purpose of gaining advantage over another. All acts and concealments
which breach a legal or equitable duty and result in damage are fraud. Without a
breach of some legal or equitable duty, fraud cannot exist.
The term fraud is often confused as synonymous with duress. The essential
difference between fraud and duress is that an individual injured in fraud lacks
true knowledge of the facts or acts with reliance on misrepresentation; in cases
of duress, the individual is fully aware and is compelled to act because of the
awareness of the forces or threats.
Undue influence is also considered by some as a type of fraud. But again there
is a distinction between the terms. Fraud always requires a misrepresentation;
undue influence does not. The two, however, may exist together in the same
The two general types of fraud are actual and constructive fraud. In actual
fraud there is a dishonest intent to deceive someone into relinquishing property
or surrendering some right. Dishonesty or falsehood is an essential element of
actual fraud. Constructive fraud arises out of a breach of duty, frequently a
confidential relationship, and intended deception is not required, though it may
often be present. These distinctions in the types of fraud, however, do not
extend to legal effects.
Your son, Jason, is a sophomore at a business college upstate. You telephone,
but learn Jason �just moved out yesterday� to live with a group of new friends.
Jason does call that night; he�s �all right ... just real busy working and
studying.� You�re pleased that he finally took your advice about a part-time job
and with his newfound enthusiasm for school. On why he moved, he explains, AI
had no friends there; anyway, there�s no rent charge here while I�m in
A brief list of the requirements of actionable fraud is: the representation
(statement or information); its falsity; scienter (the knowledge that charges a
person with the consequences of his actions); deception; and injury.
A more detailed list of elements required for actionable fraud is: (1) a
representation; (2) its falsity; (3) its materiality; (4) the speaker�s
knowledge of its falsity or ignorance of its truth; (5) the speaker�s intent
that it should be acted on by another in a reasonably contemplated manner; (6)
the hearer�s ignorance of the falsity; (7) the hearer�s reliance on its truth;
(8) the hearer�s right to rely; and (9) the hearer�s consequent and proximate
Some state statutes and courts abbreviate or condense the essential elements of
fraud; others specifically omit consideration of particular elements. In a
minority of jurisdictions, for example, scienter is not required, in others
fraudulent intent is not essential.
All jurisdictions, however, recognize actionable fraud to provide that someone
who willfully misleads another with the intent to induce him to act or not act
in a way causing injury is liable for damages.
An example of a standard state statutory definition for fraud is: an intentional
misrepresentation, deceit, or concealment of a material fact where the
concealing party had a duty to disclose, which was gross, oppressive, or
malicious and committed with the intention on the part of the defendant thereby
depriving a person or entity of property or legal rights or otherwise causing
injury. Ala. Code '6-11-2.
Fraud may be committed by words, by actions, or by clear inferences taken from
inaction. There can be no fraud without a misrepresentation. But a single
misrepresentation may suffice.
Jason calls. You ask about school and �work.� School�s �o.k.� and he�s �still
just learning the job, but it�s a great opportunity.� They promise all
volunteers �good -paying jobs� after training. Beyond this, information is
Expressions or statements limited to hopes or desires on what may happen in the
future cannot provide a basis for actionable fraud. Similarly, opinions cannot,
in general, be fraudulent. However, this does not extend to protect those
offering dishonest opinions which express misrepresentations or conceal material
In addition, where a future promise is used as a device to commit fraud and a
fiduciary or trust relationship exists, use of the promise as part of a general
scheme to induce the person to act as he otherwise would and causing injury is
A promise offered in good faith, however, is not considered actionable fraud.
And the truth of the statement is determined at the time it was made. Also,
society expressly accepts seller and dealer �puffing,� or trade talk, as not
constituting actionable fraud.
Fraud may consist of concealment. Mere silence without a duty to speak or inform
is not sufficient. But any relationship deemed confidential imposes a duty to
reveal all material facts to the transaction. Confidential relationships include
priest-parishioner, attorney-client, and parent-child, among others.
If fraud is proven, a court will assume an improper motive. The actual motive
becomes immaterial. Misrepresentations for benevolent motives rather than
self-interest do not negate the fraud.
Jason�s school notifies you that he�s been dropped from the active student roll
due to his failure to complete course work, specifically attendance. Jason says
he �couldn�t do both, and this is more important.� He promises he�ll return
after a year or two of earning �good money.� You have doubts, but he�s
nine-teen. So what can you do?
In nonconfidential situations, jurisdictions differ on whether the ability of
the person injured by the fraud to know or to attain the truth refutes reliance,
an essential element of any fraud. Most courts require that the injured
individual acted with at least ordinary care. Courts do, however, consider
whether circumstances or statements may have induced the injured person to
desist from further inquiry.
The reliance factor, whether the hearer would have acted in the absence of the
fraudulent misrepresentation, is essential. Misrepresentations without reliance
are not fraud. If a confidential relationship exists, however, nothing other
than proof of actual independent knowledge of the hearer will prevent recovery.
To warrant recovery in fraud, there must be a right to rely. Where the
relationship between the parties is confidential, a party may rely on another�s
representations without respect to their nature as opinion and without inquiries
as to their truth. Confidential relations exist where trust and confidence lies
in another under circumstances that impose on that person the obligation to act
in good faith.
Even in confidential relationships with misrepresentations, actionable fraud
does not exist absent damages. Damages is an essential element in all fraud
claims. Damage, in general, must be shown by a pecuniary loss or personal injury
caused by the alleged fraud. However slight, any damage will suffice. Courts
have recognized many types of damages in fraud cases including loss through the
purchase, sale, or exchange of property; physical injury; imprisonment; and loss
of conjugal rights.
It�s a new business venture he heard about from a friend he now lives with. He
said he�s soliciting new investors by telephone, learning �how to lobby, you
know, convince people� and there�s that promised �good job� after training. �I�m
learning more than I ever did in school.�
While damages are controlled by each jurisdiction�s case and statutory law, the
Second Restatement of the Law of Torts notes that in certain circumstances
compensatory damages may be awarded without proof of pecuniary loss for
emotional distress. Restatement Torts 2d '905. But protection against
disagreeable emotions not involving bodily pain is ordinarily only given when
infringement of another interest occurs. Disruption of a marital relationship,
for example, can be the basis of a tort action for the mental distress of
humiliation. And the loss of freedom for a significant period, even without
proof of physical harm or pecuniary loss, can result in damages if the defendant
intentionally caused the imprisonment.
The focus for the courts is damage to the plaintiff, not benefit to the
defendant. Even if the defendant received no benefit or gain actionable fraud
Generally, injury to a third party alone is not sufficient. A third party
stranger to a transaction, who cannot claim under the person directly defrauded,
has no personal right of action. But the courts will permit a third party to
sustain an action where it can be proven that the third party was the real focus
or target of the fraud.
A person cannot be held liable for fraudulent misrepresentations unless he made
them himself or authorized another to do so. But anyone who knowingly accepts
the fruits or benefits of fraud is liable--even if the person lacks direct
participation in the fraud itself.
Substantive defenses of fraud claims, as a rule, focus on proving the absence of
one or more of the essential statutory elements of actionable fraud. If a
defendant can successfully argue that an essential element is missing, the fraud
charge must be dismissed.
The major presumption in fraud cases involves fiduciary relationships. There is
a presumption of fraud where a fiduciary profits at the expense of one who
confides in him. The burden of establishing the existence of the fiduciary
relationship resides with the injured party, but the burden then shifts to the
fiduciary to attempt to prove that the questioned conduct was free of fraud.
Six months after Jason�s �training� began, the job promised remains illusive.
Jason seems stressed, and shows signs of doubt. �Money�s down,� he says. AIf I
don�t get more investors, the whole thing could fall apart. Maybe it will
anyway.� He doesn�t pay rent, meals are provided, and there seems to be some
type of �training,� but...
Without a fiduciary relationship, there is a usual presumption against fraud and
favoring the existence of honest, fair dealing. In nonfiduciary cases, fraud
must be proven by the preponderance of the evidence. Courts will often consider
and rule based on circumstantial evidence, provided that the evidence proves a
clear inference of fraud and not a mere suspicion or conjecture.
Relief in most fraud cases is a return to the status quo--placing the injured
party in a position as close as possible to where he would have been had the
fraud not occurred. In cases where plaintiffs prove a violation of a duty
resulting from a trust or confidential relationship and a deliberate intent to
injure, courts have also allowed exemplary, punitive, or vindictive damages.
Did other volunteers lure Jason into the venture by �fraudulent
representations�? Will �training� really lead to a �good� job? Were the
statements falsehoods or allowable business �puffing�? If false, were they known
as such by the �speaker� at the time? Did Jason act relying on the statements or
was he looking for any excuse to quit school? Did he have a right to rely on the
promises? Was he injured? Did Jason commit fraud convincing others to invest?
The case decisions in the next chapter might help you to answer these questions,
or, at least, assist you to formulate the process courts could use to address
Fraud and Misrepresentation:
Case Law Developments in the Cult Context
Media coverage generated by actions of persons involved with cults or unorthodox
religious sects often comment on the limited extent to which local, state, and
federal governments can regulate such organizations in light of the protections
afforded by the First Amendment to the United States Constitution. While the
circumstances of the individual case will determine whether the First
Amendment�s free exercise of religion clause will bar liability for tort
conduct, the courts have found no absolute protection with respect to damages
resulting from cults� recruitment, indoctrination, or related activities. The
courts specifically have found tort liability based on fraud or
misrepresentation against religious organizations and cults.
When tort actions such as fraud are brought against religious institutions or
officials of the institutions, the defense provided by the First Amendment
guarantee of the free exercise of religion is often used. While the courts have
generally upheld the extremely high value religious freedom is provided under
the Constitution, the courts have nevertheless held that an organization�s or
individual�s religious status does not provide an absolute shield of immunity
from all tort liability.
In finding liability, courts frequently emphasize the distinction between
religious belief, which receives absolute protection, and religious conduct,
which receives protection balanced by those protections afforded society as a
Often another initial consideration for courts has been whether the alleged
fraud activity is in fact religious in character at all, or whether the
religious nature of the institution or the individual is incidental to the
fraud. Where the activity is religious, the degree of protection afforded by the
First Amendment becomes the issue. Where it is not, the free exercise of
religion defense is unavailable.
Another issue for the courts in determining the applicability of the free
exercise of religion defense is whether the group claiming the protection is a
religious group. At times, courts have required organizations to demonstrate
their religious status before reaching the free exercise issue. The likelihood
that the court will seriously inquire on an organization�s religious status
often hinges on whether the �religion� is new or particularly unorthodox in its
practices and beliefs.
Similarly, the allegedly injured individual�s status in relation to the
organization is also a factor. This is especially true in cases involving
internal church affairs--where group membership may be equated with consent to
certain punishment or actions.
Tort actions in fraud against a cult or religious organization raise some of the
most intriguing issues in the religious freedom context. While the truth or
falsity of the defendant�s statements are usually core to any fraud action, the
freedom to exercise religion clause simultaneously prevents a judge from
reaching a decision based on the truth or falsity of the defendant�s religious
Restrictions on court examination of the veracity of religious beliefs has
resulted in the courts� generally finding no liability for fraud-based actions
founded solely on statements of religious belief. The courts will, however,
consider statements of a secular nature, including deceitful concealment of
religious affiliation as unprotected by the free exercise clause.
The rights of individuals in society protected by tort law and the rights of
individuals in that society as protected by the freedom to exercise religion
clause can collide. With a similar approach to that taken when considering
legislative infringements on religious institutions or practices, courts in free
exercise clause cases have frequently adopted a balancing testCweighing the
state�s legitimate interest in protecting the public against the legitimate
interest to protect an individual�s right to religious freedom. Factors in the
balancing test vary. Alleged fraudulent conduct frequently does not fall simply
on one side of the scale or the other, but rests between the religious and
secular. The scale itself may be tipped, often depending on the uniqueness of
the institution or its doctrines. But the courts� focus should not be on the
truth or falsity of the beliefs nor on the unique or even illogical character of
the beliefs. The inquiry should be on whether the teachings are of the type
generally afforded First Amendment protection. In short, while guideposts have
been marked, in many decisions the determining factors have been the specific
factual circumstances of the case as presented, more than on results from any
established constitutional litmus tests.
In 1940, the United States Supreme Court provided an authoritative
interpretation of the freedom to exercise religion clause of the First Amendment
which has been adopted in many tort actions. Cantwell v. Connecticut, 310 U.S.
296 (1940). The Cantwell court found that the First Amendment�s protection of
religious freedom embraces two essential yet distinct concepts: (1) the freedom
to believe and (2) the freedom to act. The Court further found that the freedom
to believe is absolute, protected from all and any challenges. The freedom to
act on those beliefs, however, has no such absolute protection.
In 1963, the United States Supreme Court in Sherbert v. Verner, 374 U.S. 398
(1963) expounded on the constitutional protections provided for the free
exercise of religion. Reviewing a state law that prohibited unemployment
benefits to persons unavailable to work every day of the week except Sundays,
the Court held that laws which pressure individuals to abandon their religious
precepts must demonstrate that the burdens imposed on the individuals are the
least restrictive means for the state to achieve a compelling governmental
The Sherbert �compelling state interest� test, with minor interpretations,
remained the standard for evaluating the constitutionality of laws that burdened
the free exercise of religion until 1990. In 1990, a divided Supreme Court
abandoned the compelling state interest standard, at least in part. Employment
Div., Dep�t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), reh�ring
denied, 110 S. Ct. 2605. The Court held that except in cases where the law at
issue burdens another constitutional right in addition to the free exercise of
religion or where unemployment benefits are conditioned on an applicant�s
willingness to work under conditions violating his religious beliefs, the lower
rational relationship standard should be substituted for the compelling state
interest standard. The matter before the Employment v. Smith court related to
the denial of unemployment compensation to two Native Americans who were fired
from a private drug and alcohol rehabilitation facility after admitting use of
peyote as a sacrament during a religious ceremony in their Native American
Church. The minority disputed the Court�s attempt to justify distinguishing
between the types of protection provided the freedom to exercise religion.
As a result of the Employment v. Smith decision, Congress enacted the Religious
Freedom Restoration Act of 1993. P.L. 103-141. The Act reasserts Sherbert,
�creating a statutory prohibition against government action substantially
burdening the exercise of religion, even if the burden results from a rule of
general applicability, unless the Government demonstrates that the action is the
least restrictive means of furthering a compelling governmental interest.�
While Congress has statutorily recognized broad constitutional protections for
the exercise of religious freedom, restrictions on religious conduct
nevertheless can be valid if the compelling government interest standard is
satisfied. Thus conduct, even religious conduct, by its very nature remains
subject to constraints imposed for the protection of society as a whole. Not all
activity, therefore, even when taken in the name of religion and in compliance
with religious beliefs, is protected by the free exercise clause, but may result
in legal liability for damages caused.
In Van Schaick v. Church of Scientology, Inc., 535 F. Supp. 1125 (D.C.Mass
1982), an action brought by a former Church of Scientology member alleging
fraud, the church argued that the challenged representations were religious
practices and beliefs and, as such, protected by the First Amendment. The
ex-member charged that the First Amendment protection did not apply, alleging
that the church was in fact a commercial organization not truly religious in
nature. The court avoided ruling on the church status issue, finding that even
religious institutions remain liable for damages resulting from secular
activities. The court reasoned that the freedom to exercise religion clause
immunity is at least to some degree dependent on whether the court would be
required to offer a judicial determination on the validity of the organization�s
religious beliefs--which it cannot do. If the court does not have to reach a
validity of belief issue, then the court may permit restrictions on the
organization�s actions--as long as the restrictions are the least restrictive
means to achieve the compelling state interest of protecting the public.
The Van Schaick court then focused on the allegations that the allegedly injured
party was induced to participate in �auditing,� a practice of study related to
dianetics, which in the advertisements for the course was Ascientifically
guaranteed� to provide certain secular benefits such as increased intellect and
physical well-being. The court concluded that while the distinction between
secular and religious is not always clear, the First Amendment�s protection of
religious beliefs does not extend to secular beliefs. The statements regarding
the effects of auditing guaranteed by science were held to be proper
misrepresentations for basing fraud action--even though the same guarantees
without the evocation of science would not. The court not only looked at the
belief itself, but the secular nature of the inducement which the allegedly
injured individual was led to believe.
Similarly, in Kropinski v. World Plan Executive Council-U.S., 853 F.2d 948 (D.C.
1988), an appeal was taken from the district court granting over $137,000 in
damages to a former student and instructor of Transcendental MeditationJ.
Kropinski claimed that he was induced through misrepresentations to study and
practice the organization�s methods of meditation which caused him physical,
financial, and psychological harm. While not invoking the freedom to exercise
religion protection, World Plan did argue protection for its statements based on
the First Amendment protection barring libel actions based on opinions. The
court held that the case challenged not opinions, but secular misstatement, such
as that practicing Transcendental Meditation could lead to levitation. The court
also held that evidence of fraud leading to thought reform could be admitted to
show why Kropinski did not detect the alleged fraud after his injuries, thus
opening up the possibility for the plaintiff to successfully defend a statute of
In Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988), two ex-Unification
Church members sued an individual, a church, and a related institution for a
variety of tort offenses including fraud. The alleged fraud developed from
misrepresentations made to induce the ex-members to join the church. A variety
of deceptive tactics were involved including denial by those proselytizing of
the Unification Church connection.
Molko reviewed the ex-members� charges and found that their claims did not
attack the validity of church doctrines nor even the validity of the beliefs of
the converted. Instead, the fraud charges challenged the church practice of
concealing or misrepresenting its identity so unsuspecting outsiders could more
easily be brought into the church. The church practice is not belief, but
conduct. The court, however, rejected the ex-members� argument that the conduct
was secular and not religious. The church�s practice of misrepresentation as
experienced by the ex-members was founded on a church doctrine called AHeavenly
Deception.� The doctrine taught that it is acceptable to lie to someone in order
to give him the opportunity to hear the teachings of the church. While perhaps
appearing secular on its face, the church�s fraudulent behavior was found to be
�rooted in religious belief.� While this distinction did not absolutely protect
the practice from state restrictions, it did require that any restrictions
imposed survive a constitutional freedom to exercise religion test justifying
The Molko court cited Cantwell in reasoning that while religious beliefs are
absolutely protected, action, even if compelled by belief, remains subject to
restrictions imposed for the protection of society. The court then considered a
balancing test, weighing the state interest to protect society against the
burden that would be imposed on the religion. The court explained that the
greater the burden imposed by the state, the greater the state�s interest must
be to justify the burden. In addition, the state�s imposed burden must be no
more imposing than necessary, non-discriminating between religions, and
non-discriminating between religious and non-religious institutions. See
Employment Div. Dep�t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
(prohibiting use of peyote in religious ceremonies).
The Molko test became whether the state�s interest in allowing tort liability
for church deceptive recruiting practices is important enough to outweigh the
burdens such liability would impose on the church�s conduct. The court
recognized the reality of the burden--the avenue for church recruitment would be
somewhat closed--but concluded the burden was �marginal.� The court found the
state interest, to protect its citizens from being deceived into unknowing
submission into a potentially damaging atmosphere of coercive persuasion,
compelling. Finally, the court concluded that permitting private action for
fraud constituted the least restrictive means available to advance the state�s
In Anderson v. Worldwide Church of God, 661 F. Supp 1400 (D.C.Minn. 1987), later
proceed., 661 F. Supp. 1401, an ex-church member charged that the church
committed fraud in misrepresenting that the world would end. In an attempt to
avoid the First Amendment defense, the plaintiff argued the insincerity of the
church�s beliefs and as evidence showed that the church continued to take
actions protecting fiscal assets and inaction to prepare for the world�s end.
The court held, however, that the freedom to exercise clause protection was
justified, noting that under the official church doctrine church members and the
church itself were taught to continue to lead normal lives in the areas of
fiscal responsibility. The court also cited plaintiff�s admission of his belief
that certain church ministers sincerely believed that the world was soon to end.
In Christofferson v. Church of Scientology, 644 P.2d 577 (or. 1982), an
ex-member of the Church of Scientology filed a fraud action alleging that
fraudulent misrepresentations were made to induce her into joining the
organization. The church claimed freedom to exercise religion protection. As in
Van Schaick, the ex-member alleged that the First Amendment did not apply
because the challenged church conduct was purely secular. After recognizing the
church as a religion, the court found that the church�s statements related to
religious beliefs. Finally, the court considered whether the statements with a
religious character were nonetheless made for a wholly secular purpose. More
directly than in Van Schaick, the court focused on the intent of the language
used by the church, not merely the words themselves.
The ex-member in Christofferson was informed that a course at the church�s
school would provide her with more knowledge than any psychologist or
psychiatrist, that the course�s theories (dianetics) were scientifically
provable to cure a variety of illnesses, and that �auditing� increases intellect
and cures physical and emotional problems. The court ruled that not all of the
challenged statements were clearly religious in nature, thus potentially
removing First Amendment projections. The court held that a question for the
jury remained on whether the offer of courses was actually a part of a religious
practice or, instead, a wholly secular activity. A wholly secular activity, the
court noted, could include interests of the church solely to solicit funds--even
if, as in this case, a condition of attendance was joining the church and
religious materials were offered as course materials. A jury could find, the
court explained, that the course offerings were purely secular in nature with an
irrelevant religious designation merely �added on.� While the distinction
between secular and religious is not always clear, protection does not extend to
purely secular misrepresentations made by religious organizations. Thus, the
court will not allow religious language to serve as a First Amendment shield for
fraudulent secular activity conducted by a religious organization. While
directing a verdict in favor of certain defendants for failure to demonstrate
actual knowledge or participation by them in the fraud, the court ruled against
the local church and church officials. Interestingly, the court used a business
law �piercing the corporate veil� analogy in its distinction as to liability of
Freedom to exercise religion defenses can be attacked, though often
unsuccessfully, by directly questioning whether the church is a religious
institution. This challenge was raised in the Van Schaick case mentioned above.
The Church of Scientology argued in Van Schaick that it was entitled to judicial
notice that it was a religion with First Amendment protections. The court
rejected the church�s argument, finding that Scientology was not an established
religion at that time, and ordered the church to prove that it was a religion.
Specifically, the court requested information on whether the church considered
matters of �ultimate concern,� whether church doctrines are comprehensive, and
whether the church has formal external characteristics similar to those of
established religious organizations. The court further held that a prima facie
showing by the church was rebuttable. However, the court warned that while
rebuttable, the church�s claim to be a religion protected by the First Amendment
could not be attacked through inquiry into the sincerity of church members�
personal beliefs, but would be limited to intrinsic evidence of the
organization�s secular nature.
Similar to the issue of whether an organization is a church entitled to First
Amendment protections is whether the plaintiff in a tort action against a church
is or was a recent church member. Courts have held that an individual presumably
consents to religiously motivated discipline or chastisement by being a member
of a church. Membership is, in effect, a contract with the church. Damages
resulting from discipline issued under the terms of the membership contract is
Church elders� public discussions of a church member who alleged emotional
distress from the experience were held to be absolutely protected by the freedom
to exercise clause. Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Ok.
1989). In Guinn, the public disciplinary proceedings exposing the person�s
private life were protected, even though the individual disavowed church
membership (church doctrine viewed all members as family, without the ability to
disassociate from the family).
In Paul v.Watchtower Bible and Tract Soc., 819 F.2d 875 (Ninth Cir. 1987) cert.
denied 108 S. Ct. 289, a church decision to �shun� or disassociate from a former
member was upheld as not actionable. The court decided that it could not
interfere with the church-member (or recent member) relationship.
However, in Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987), a tort action was
upheld against a Baptist clergyman when the minister failed to produce
sufficient evidence that the plaintiff was a church member.
The Watchtower case also provides an example of the limitations in court
evaluation of church doctrines. When the church member in Watchtower had
disassociated from the church, the �shunning� practice by church doctrine only
applied to members who were formally excommunicated. After the plaintiff�s
voluntary disassociation, the church changed its doctrine, applying �shunning�
to disassociated former members as well. The court protected the �shunning�
practice in this case, even though the doctrine permitting it was never in
effect at the time the injured, complaining party was a church member.
In another similar shunning case, however, the court held that the First
Amendment�s protections did not apply. In Bear v. Reformed Mennonite Church, 341
A.2d 105 (Pa. 1975), an ex-church member alleged that the shunning had extensive
secular effects beyond personal emotional damages. He argued that as a result of
the shunning, he was unable to hire employees, obtain business loans, or market
his product. The plaintiff also alleged that the shunning extended within his
family home, causing his wife and children to disassociate from him. The court
reasoned that the shunning in this case caused damages through excessive
interference with areas of paramount state interest and concern--both the
continuation of commerce and the maintenance of the family structure. First
Amendment protection was denied.
Interest to protect the family was addressed in the Molko decision as well. The
Molko court recognized that when a person is unknowingly subjected to coercion
and undue influence, frequently the family of that person suffers stress
accompanied on occasion by significant financial loss. The damage fraud can
cause extends beyond the individual directly injured. While third party claims
to fraud are not generally recognized without an agency relationship, protection
of the individual and the family can be considered in any weighing or balancing
test where the aim is to expand church liability.
As the court in Bear provided civil protection once the negative secular effects
of shunning extended beyond the emotional level of damages demonstrated in the
Guinn and Watchtower cases, judicial interpretation of criminal statutes in
coercion cases involving fraud have frequently more tangible or more objective
evidence than victim testimony of emotional or mental coercion. In United States
v. Kozminski, 487 U.S. 931 (1988), the U.S. Supreme Court held that for purposes
of criminal prosecution of farm operators accused of conspiring to hold two
persons with mental disabilities in involuntary servitude �threatened use of
physical or legal coercion� is required. Evidence of other coercion and the
victim�s special vulnerabilities were found relevant only insofar as they can be
used to substantiate disputed testimony regarding threats of physical or legal
While agreeing with the result the majority reached in Kozminski, Justice
Brennan filed a concurring opinion, joined by Justice Marshall, which challenged
the appropriateness of the majority�s reliance on threats of a physical or legal
nature as the trigger for criminal culpability.
To the contrary, it would seem that certain psychological, economic, and social
means of coercion can be just as effective as physical or legal means,
particularly where the victims are especially vulnerable.... Hypnosis,
blackmail, fraud, deceit, and isolation are also illustrative methods--but it is
unnecessary here to canvas the entire spectrum of nonphysical machinations by
which humans coerce each other.... Indeed, this case and others readily reveal
that the typical techniques now used to hold persons in slavelike conditions are
not limited to physical or legal means.
The Kozminski court�s disagreement on the degree or type of coercive evidence
required in criminal matters foreshadowed the ongoing debate in the courts on
the standard of admissibility for psychological or psychiatric evidence,
particularly in civil actions including those alleging fraud and undue
influence. The strict standards formerly established for criminal cases have
been modified by federal rules and have resulted in many jurisdictions expanding
the boundaries of what will be admitted.
Finally, in one of the most celebrated criminal fraud cases of the decade, the
court in United States v. LaRouche, 896 F.2d 815 (4th Cir. 1990) affirmed a
criminal conviction on mail and tax fraud charges against Lyndon LaRouche, along
with the convictions of six others on mail fraud counts only. According to the
court decision, LaRouche and others knowingly orchestrated fund-raising
activities in which fund raisers obtained loans from contributors by making
false statements about when and whether the loans would be repaid. A former
LaRouche fund raiser testified that when he began making telephone calls for
contributions he was instructed:
You have to have only one thing on your mind. That is getting the money. No
matter what the person you are talking to says, get the money. If you are
talking to a little old lady and she says she is going to lose her house, ignore
it. Get the money. If you are talking to an unemployed worker who says he has
got to feed ... a dozen children, forget it. Get the money. Most of these people
are immoral anyway. This is the most moral thing they have ever done is to give
In addition, evidence was introduced that LaRouche created a policy of
nonrepayment of loans. Lenders would initially be approached to convert their
loans into contributions. Lenders who refused to do so would, for the most part,
simply not be repaid.
The LaRouche case demonstrates the difficulty in reaching an organization�s
leadership when charges of fraud are brought. Although it was successful, years
passed before a final decision was reached. Evidence against LaRouche and others
was, based on the court records, collected over a lengthy period in great
detail. The case also clearly demonstrates the ease with which well-organized
groups using fraudulent practices can elicit volunteers who in turn elicit
funds. (In 1984 and 1985 alone, the LaRouche organization National Caucus of
Labor Committees �borrowed� more than $25 million from �contributors.�)
Today, cult �domination� of individuals remains a topic of public discussion and
concern--both for the protection of the individual and of society as a whole.
Hearings held jointly by subcommittees of the House of Representatives
Committees on the Judiciary and on Government Reform in July and August 1995
reviewed law enforcement issues concerning David Koresh and the Branch Davidians
near Waco, Texas, and refocused attention on Mr. Koresh�s amazing influence over
his followers. The issue came up in Congress, in a floor colloquy initiated by
the Chairman of the Congressional Task Force on Terrorism and Unconventional
Warfare, Congressman Jim Saxton (R-NJ), who observed:
Many Americans are concerned and puzzled by the conduct of individuals involved
in events such as the bombing of the Murrah Federal Building in Oklahoma City,
the Sarin attack in the Tokyo subway and the extreme hold that David Koresh had
on his followers.
The current state of understanding of such groups is extremely limited.... [W]e
hope to increase our understanding of characteristics of such groups which are
associated with increased potential for terrorism, violence or other criminal
behavior; the manner in which such groups recruit individuals and influence
their behavior sufficiently to move them toward terrorism, violence, and other
criminality; the causes behind members leaving such groups; and mental health
effects of membership in such groups.
This research project is limited to principles of undue influence and fraud.
Even in these two areas, it is striking how distinctly the law has evolved and
been expressed in judicial opinions, with so little apparent cross-fertilization
as regards the similar psychological issues in the two categories of
jurisprudence. Mr. Justice Brennan�s thoughtful synthesis in Kozminski is a rare
exception. It appears that in the legal context as in the behavioral science
context Congressman Saxton�s observation holds: �The current state of
understanding of such groups is extremely limited.�
Citations and Bibliographies
Andersen, S., & Zimbardo, P. �On resisting social influence,� 1(2) Cultic
Studies Journal 196B219 (1984).
Anthony, D., & Robbins, T. �Law, social science and the �brainwashing� exception
to the First Amendment,� 10 Behavioral Sciences and the Law 1B26 (1992).
Boarders, J.D. �Fit to be Fryed: Frye v. United States and the admissibility of
novel scientific evidence,� 77 Kentucky Law Journal 849B862 (1989).
Brown, L.B. �He who controls the mind controls the body: False imprisonment,
religious cults, and the destruction of volitional capacity,� 25 Valparaiso
Univ. Law Rev. 407B454 (Spring 1991).
Castillo, M.E., & Passas, N. �Scientology and the >clear� business,� 10
Behavioral Science and the Law 103B116 (Winter 1992).
Clark, J.G. �Cults,� 242 Journal of the American Medical Association 179B181
(July 20, 1979).
Delgado, R. �When religious exercise is not free: Deprogram-ming and the
Constitutional status of coercively induced belief,� 37 Vanderbilt Law Rev.
1071B1115 (October 1984).
Delgado, R. �Cults and conversion: The case for informed consent,� 16 Georgia
Law Review 533B574 (1982).
Delgado, R. �Religious totalism: Gentle and ungentle persuasion under the First
Amendment,� 51 Southern California Law Review 1B98 (1977).
Farber, I.E., Harlow, H.F., & West, L.J. �Brainwashing, conditioning, and DDD
(debility, dependency, and dread),� 20 Sociometry 271B285 (1956).
Finkelstein, P., Wenegrat, B., & Yalom, I. �Large group awareness training,� 33
Annual Review of Psychology 515B539 (1982).
Flanagan, S.M. A �Go, therefore, and make disciples of all nations,� but do not
offend the state: Tortious religious recruitment and the exercise of religion
defense,� 25 New England Law Rev. 1071B1099 (Spring 1991).
Fournier, V.M. �The admissibility of expert testimony in brainwashing related
cases--Should witnesses be Fryed?,� 32 Santa Clara Law Rev. 607B647 (Spring
Giannelli, P.C. �The admissibility of novel scientific evidence: Frye v. United
States, a half century later,� 80 Columbia Law Rev. 1197B1206 (1992).
Goldberg, L., & Goldberg, W. �Group work with former cultists,� Social Work
165B170 (March 1982).
Griffith, E.E. AA critical evaluation of coercive persuasion as used in the
assessment of cults,� 10 Behavioral Sciences and the Law 89B101 (Winter 1992).
Haaken, J., & Adams. �Pathology as �personal growth�: A participant-observation
study of Lifespring Training,� 46 Psychiatry 270B280 (1983).
Halperin, D. �Group processes in cult affiliation and recruitment,� 6 Group
Hinkle, L.E., & Wolff, H.B. �Communist interrogation and indoctrination of
�enemies of the state,�� 76 Archives of Neurology and Psychiatry 115B174 (1956).
Hochman, J. (Ed.). �Cults� (special issue), 20 Psychiatric Annals: The Journal
of Continuing Psychiatric Education, 20 (1990).
Jarboe, J.B. �Undue influence and gifts to religious organizations,� 35 Catholic
Lawyer 3, 271B282 (Summer 1992).
Landa, S. �Children and cults: A practical guide,� 29 Journal of Family Law
591B634 (May 1991).
Langevoort, D.C. �Where were the lawyers? A behavioral inquiry into lawyers�
responsibility for clients� fraud,� 46 Vanderbilt Law Rev. 75B119 (January
Lucksted, O., & Martell, D. �Cults: A conflict between religious liberty and
involuntary servitude?,� FBI Law Enforcement Bulletin (April, May, June 1982).
MacDonald, J. A �Reject the wicked man�--Coercive persuasion and deviance
production: A study of conflict management,� 5 Cultic Studies Journal 59B121
MacHovec, F. �Cults: Forensic and therapeutic aspects,� 10 Behavioral Sciences
and the Law 31B37 (Winter 1994).
McGovern, W.M. Jr. �Undue influence and professional responsibility,� 28 Real
Property, Probate and Trust Journal 643B681 (Winter 1994).
Martin, P., Langone, M., Dole, A., & Wiltrout, J. �Post-cult symptoms as
measured by the MCMI before and after residential treatment,� 9(2) Cultic
Studies Journal 219B250 (1992).
Merloo, J. �The crime of menticide,� 107 American Journal of Psychia-try 594B598
Michela, P.E. A �You may have already won...�: Telemarketing fraud and the need
for a federal legislative solution,� 21 Pepperdine Law Rev. 553B616 (January
Nievod, A. �Undue influence in contract and probate court,� 10(1) Cultic Studies
Journal 1B18 (1993).
Ofshe, R. �Coerced confessions: The logic of seemingly irrational action,� 6(1)
Cultic Studies Journal (1989).
Ofshe, R., & Singer, M. �Attacks on peripheral versus central elements of self
and the impact of thought reforming techniques,� 3 Cultic Studies Journal 3B24
Ogloff, J.R., & Pfeifer, J.E. �Cults and the law: A discussion of the legality
of alleged cult activities,� 10 Behavioral Sciences and the Law 117B140 (Winter
Oldman, M.A. �Attacking wills: The interplay of fraud, undue influence and
mental disorders,� Los Angeles Lawyer 21B23, 40B42 (April 1994).
Patrinelis, C.S. �Undue influence in non-testamentary gift to clergyman,
spiritual adviser, or church,� 14 ALR 2d 649B680.
Pressman, S. �Mixing lawyers and cults: Conspiracy theories haunt a lawyer
representing the Church of Scientology,� 12 California Lawyer 22 (June 1992).
Ransford, K. �Financial abuse of elderly adults,� 23 Colorado Lawyer 1077B1082
Richardson, J.T. �Cult/brainwashing cases and freedom of religion,� 33 Journal
of Church and State 56B74 (Winter 1991).
Richardson, J.T. �Minority religions, religious freedom, and the new
Pan-European political and judicial institutions,� 37 Journal of Church and
State 39B59 (Winter 1995).
Sanchez, V.C. �Whose God is it anyway?: The Supreme Court, the orishas, and
Grandfather Peyote,� 28 Suffolk Univ. Law Rev. 39B62 (1994).
Sarano, G.G. �Liability of religious association for damages for intentionally
tortious conduct in recruitment, indoctrination, or related activity,� 40 ALR
Sarano, G.G. �Validity of guardianship proceeding based on brainwashing of
subject by religious, political, or social organization,� 44 ALR 4th, 1207B1217.
Sargant, W. �The mechanism of conversion,� 2 British Medical Journal 311B316
Singer, M.T. �Undue influence and written documents: Psychological aspects,�
10(1) Cultic Studies Journal 19B32 (1993).
Singer, M., & Ofshe, R. �Thought reform programs and the production of
psychiatric casualties,� 20 Psychiatric Annals: The Journal of Continuing
Psychiatric Education 188B193 (1990).
Singer, M., Temerlin, M.K., & Langone, M. �Psychotherapy cults,� 7(2) Cultic
Studies Journal 101B125 (1990).
Sirkin, M., & Wynne, L. �Cult involvement as relational disorder,� 20
Psychiatric Annals: The Journal of Continuing Psychiatric Education 204B218
Stephens, A. �Free exercise of religion clause of First Amendment as defense to
tort liability,� 93 ALR Fed 754B810.
Temerlin, M., & Temerlin, J. �Psychotherapy cults: An iatrogenic perversion,� 19
Psychotherapy: Theory, Research, and Practice 131B141 (1982).
Van Huey, S.E. �Cults in court,� 13 Los Angeles Lawyer 40B49 (February 1991).
Wayne, J. �Dialing for defendants (telemarketing fraud),� 13 California Lawyer
28 (August 1993).
Wrosch, A.P. �Undue influence, involuntary servitude and brainwashing: A more
consistent, interests-based approach,� 25 Loyola of Los Angeles Law Rev. 499B554
Young, J.L., & Griffith, E.E.H. AA critical evaluation of coercive persuasion as
used in the assessment of cults,� 10 Behavioral Sciences and the Law, 89B101
Zorn, J.G. �Cults and the ideology of individualism in First Amendment
discourse,� The Journal of Law and Religion 483B530 (Summer 1989).
Cases (cited in text)
Anderson v. Worldwide Church of God, 661 F. Supp 1400 (D.C.Minn. 1987), later
proceed., 661 F. Supp. 1401.
Bear v. Reformed Mennonite Church, 341 A.2d 105 (Pa. 1975).
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Christofferson v. Church of Scientology, 644 P.2d 577 (Or. 1982).
Corigan v. Pironi, 23 A. 355 (N.J. 1891).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).
Else v. Freemont Methodist Church, 73 N.W.2d 50 (Iowa 1955).
Employment Div., Dep�t of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990), rehiring den., 110 S. Ct. 2605.
Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923).
Good v. Zook, 88 N.W. 376 (Iowa 1901).
Guill v. Wolport, 218 N.W.2d 224 (Neb. 1974).
Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Ok. 1989).
Harding v. Wheaton, 11 F. Cas. 491 (C.C.R.I. 1821) (No. 6051), aff�d in part and
rev�d in part sub. nom., Harding v. Hardy, 24 U.S. 103 (1826).
In Re Hampton�s Estate, 103 P.2d 611 (Cal. App. 1940).
Held v. Florida Conference Assn. of Seventh Day Adventists, 193 So. 828 (Fla.
Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987).
Klaber v. Unity School of Christianity, 51 S.W.2d 30 (Mo. 1932).
Kropinski v. World Plan Executive Council-U.S., 853 F.2d 948 (D.C. 1988).
Longenecker v. Zion Evangelical Lutheran Church, 50 A. 244 (Pa. 1901).
Lyon v. Home, 6 ERC 852 (England 1868).
McClellan v. Grant, 82 N.Y.S. 208 (4th Dep�t 1903), aff�d 74 N.E. 119 (1905).
Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988).
Muller v. Saint Louis Hospital Asso., 5 Mo.App. 390 (Mo. 1878), aff�d 73 Mo.
Nelson v. Dodge, 68 A.2d 51 (R.I. 1949).
Norton v. Relly, 2 Eden 286, 28 Eng. Reprint 908 (1764).
Paul v.Watchtower Bible and Tract Soc., 819 F.2d 875 (9th Cir. 1987) cert.
denied 108 S. Ct. 289.
Redman v. Watchtower Bible and Tract Soc. of Pa., 630 N.E.2d 676 (Ohio 1994).
Riley, In Re Estate of, 479 P.2d 1 (Wash. 1970).
Robert-Douglas v. Meares, 624 A.2d 405 (D.C. 1992).
Rupert�s Estate, In Re, 54 P.2d 274 (Or. 1936).
Ryan v. Saint Michael�s Roman Catholic Church of Whitlemore, 216 N.W. 713 (Iowa
Sherbert v. Verner, 374 U.S. 398 (1963).
The Bible Speaks, In Re Dovydenas v. The Bible Speaks, 869 F.2d 628 (1st Cir.
1989) cert. denied 493 U.S. 816.
United States v. Kozminski, 487 U.S. 931 (1988).
United States v. LaRouche, 896 F.2d 815 (4th Cir. 1990).
Van Schaick v. Church of Scientology, Inc., 535 F. Supp. 1125 (D.C.Mass 1982).
Whitmire v. Kroelinger, 42 F.2d 699 (W.D.S.C. 1930).
Additional Cases (not cited in text)
Candy H. v. Redemption Ranch, Inc., 563 F. Supp. 505 (M.D. Al. 1983)
(allegations of fraud and misrepresentation to obtain and retain residents for a
home for female juveniles).
Church of Scientology Flag Service Org., Inc. v. City of Clearwater, 2 F.3d 1514
(11th Cir. 1993) (the First Amendment and local solicitation ordinances ).
Founding Church of Scientology v. United States, 412 F.2d 1197 (Ct.Cl. 1969)
(determination of certain federal income tax exemptions for religious
George v. International Society for Krishna Consciousness of California, 4 Cal
Rptr. 2d 473 (Cal. App. 4 Dist. 1992) (damages suit alleging emotional stress
International Soc. for Krishna Consciousness, Inc. v. Lee, 112 S.Ct. 2701 (1992)
(the First Amendment and the distribution of literature and solicitation of
Katz v. Superior Court, 141 Cal. Rptr. 234 (Cal. App. 1 Dist. 1977) (challenge
to the appropriateness of the appointment and power of a conservator to
Latham v. Father Divine, 85 N.E.2d 168 (N.Y. 1949) (fraud and undue influence in
Lee v. Weisman, 112 S.Ct. 2649 (1992) (separation of church and state in
graduation invocation ceremonies).
Maheras, In the Matter of the Estate of, 897 P.2d 268 (Ok. 1995) (undue
influence and wills).
Miller v. Alamo, 748 F. Supp. 695, 699 (W.D.Ark. 1990), aff�d. 924 F.2d 143 (8th
Cir. 1991), review denied, 61 U.S.L.W. 3643 (March 22, 1993) (organization�s
individual leader responsible as the organization; infliction of extreme
emotional and physical harm). �The court can conceive of no higher duty
incumbent on it than the protection of children from outrageous batteries like
the one that the evidence here so plainly reveals. No feeling person could fail
... to be revolted by the cold-blooded and calculated manner in which the
punishment of Justin Miller was carried out.� 748 F. Supp. at 698.
McKittrick, In the Matter of, 865 P.2d 1099 (Mont. 1993) (trusts and undue
New Jersey v. Jurcsek, 588 A.2d 875 (N.J. 1991) (fraud and deception, communal
P.E.P., In the Matter of the Adoption of, 407 S.E.2d 505 (N.C. 1991) (fraud in
the adoption context).
Polin, In the Matter of the Guardianship of, 675 P.2d 1013 (Okla. 1983) cert.
denied 105 S.Ct. 167 (challenge to incapacity determination involving religious
Sims v. Sims, 452 S.E.2d 761 (Ga. 1995) (estate planning and undue influence of
Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 6 Dist
1989) (tort action against religious organization for imposition of sanctioned
punishment against member).
Tilton v. Marshall, 38 Tex. Sup Ct. 1140 (1995 WL 453268) (Tex. August 1, 1995)
(allegations of fraud and infliction of distress against televised religious
United States v. Article or Device, Etc., 331 F. Supp. 357, 359, 360, 361 (D.D.C.
1971) (scientific claims appear to be �devoid of any religious overlay�).
United States v. Fishman, 743 F. Supp. 713 (N.D. Cal. 1990) (admissibility of
expert testimony on coercive persuasion and religious �brainwashing� in mail
United States v. Kuch, 288 F.Supp. 439 (D.C.D.C. 1968) (Constitutional
protection and religious drug use).
Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991) (fraud and undue influence
alleged by child against stepmother).
Wisconsin v. Yoder, 406 U.S. 205 (1972) (separation of church and state; high
Wollersheim v. Church of Scientology of California, 260 Cal. Rptr. 331 (Cal.
App. 2 Dist. 1989) (former organization member sues) N.B.: readers may want to
consider other related decisions in this lengthy challenge; see, for example,
Wollersheim v. Church of Scientology of California, 832 P.2d 898, 10 Cal.Rptr.2d
182 (1992) and Religious Technology Center v. Wollersheim, 971 F.2d 364 (9th
Asch, S.E. Effects of group pressure upon the modification and distortion of
judgments (New York: Holt, Rinehart and Winston 1952).
Brown, J.A.C. Techniques of persuasion: From propaganda to brain-washing (New
York: Penguin 1963).
Chen, T.E.H. Thought reform of the Chinese intellectuals (New York: Oxford
University Press for Hong Kong University Press 1960).
Cialdini, R. B. Influence: How and why people agree to things (New York: Morrow
Enroth, R. Churches that abuse (Grand Rapids, MI: Zondervan 1992).
Frank, J. Persuasion and healing (New York: Schocken Books 1974).
Group for the Advancement of Psychiatry. Factors used to increase the
susceptibility of individuals to forceful indoctrination: Observations and
experiment (Washington, DC: American Psychiatric Press 1956).
Group for the Advancement of Psychiatry. Methods of forceful indoctrination:
Observations and interviews (Washington, DC: American Psychiatric Press 1957).
Group for the Advancement of Psychiatry. Leaders and followers: A psychiatric
perspective on religious cults (Washington, DC: American Psychiatric Press
Hunter, E. Brainwashing in Red China: The calculated destruction of men�s minds
(New York: Vanguard 1953).
Langone, M. (Ed.). Recovery from cults: Help for victims of psychological and
spiritual abuse (New York: Norton 1993).
Lifton, R. J. Thought reform and the psychology of totalism (New York: Norton
Lifton, R. J. The future of immortality and other essays for a nuclear age (New
York: Basic Books 1987).
Milgram, S. Obedience to authority: An experimental view (New York: Harper & Row
Mindszenty, J. Memoirs (New York: Macmillan 1974).
Mitchell, D., Mitchell, C., & Ofshe, R. The light on Synanon (New York: Seaview
Rogge, O. Why men confess (New York: Thomas Nelson 1959).
Schein, E., Schneier, I., & Barker, C. Coercive persuasion: A
sociopsy-chological analysis of the �brainwashing� of American civilian
prisoners by the Chinese communists (New York: Norton 1961).
Singer, M., with Lalich J. Cults in our midst: The hidden menace in our everyday
lives (San Francisco: Jossey-Bass 1995)
Zimbardo, P. G., Ebbesen, E.B., & Maslach, C. Influencing attitudes and changing
behavior: An introduction to method theory, and applications of social control
and personal power (Reading, MA: Addison-Wesley 1977).
Chapters in Texts
Ofshe, R. �Coercive persuasion and attitude change,� in E.F. Borgatta & M.L.
Borgatta (Eds.), Encyclopedia of sociology (New York: Macmillan 1992).
Singer, M. �Group psychodynamics,� in Merck Manual of Diagnosis and Treatment,
15th ed., Psychiatry Section ( Rahway, NJ: Merck, Sharp and Dohme 1986).
Singer, M., & Addis, M. �Cults, coercion, and contumely,� in A. Kales, C.M.
Pierce, & M. Greenblatt (Eds.), The mosaic of contemporary psychiatry in
perspective (New York: Springer-Verlag 1992).
West, L.J., & Singer, M.T. �Cults, quacks and nonprofessional psychotherapies,�
in H.I. Kaplan, A.M. Freedman, & B.J. Sadock (Eds.), Comprehensive textbook of
psychiatry, III (Baltimore: Williams & Wilkens 1980).
American Law Institute. Restatement (Second) of Torts.
Bardin, D. �Psychological Coercion and Human Rights� (pamphlet) (Washington, DC:
AFF and CAN 1994).
Colloquy between Mr. Saxton and Mr. Porter during House of Representatives
consideration of the 1995 Labor, HHS and Education Appropriations Bill. 141
Congressional Record, �Daily Edition,� August 2, 1995, p. H8248. (The House of
Representatives passed the bill on August 3, 1995).
Joint Statement of AFF President Rosedale and CAN President Rehling at Oversight
Hearings on Federal Law Enforcement Actions Related to the Branch Davidian
Compound in Waco, Texas, July 19, 1995, before Subcommittee on Crime of the
Committee on the Judiciary and Subcommittee on National Security, International
Affairs, and Criminal Justice of the Committee on Government Reform & Oversight,
U. S. House of Representatives.
New organizations operating under the protection afforded to religious bodies:
Resolution of the European Parliament. Reprinted 2(2) Cultic Studies Journal
Sects or new religious movements: A pastoral challenge. Vatican Report on Cults,
reprinted 3(1) Cultic Studies Journal 93B116 (1986).
State of Israel report of the interministerial committee set up to examine cults
(Anew groups�) in Israel. Reprinted 6(1) Cultic Studies Journal 32B68 (1989).
The Council of Europe�s report on sects and new religious movements. Reprinted
9(1) Cultic Studies Journal 89B119 (1992).
Expert Testimony: Daubert and the Changing Standards
for Admission of Psychiatric, Psychological, and Other Evidence
A key element in many fraud and undue influence cases involving cults is
evidence of the mental relationship between the parties. To the degree that the
individuals charged can be shown to have mentally controlled or manipulated the
alleged injured party, the greater the likelihood that the plaintiff�s suit will
succeed. Issues which evaluate why a person acted are difficult, if not
impossible, to answer in some instances. In addition to available extrinsic
evidence, psychiatric or psychological testimony from experts on the mental
state of the individuals involved can be helpful in these cases, if not
In Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988), discussed earlier, the
admissibility of testimony from a psychologist and a psychiatrist, both experts
on cult use of persuasive coercion, was a central factor in the case. The trial
court and the court of appeals ruled inadmissible testimony from the experts
that the Unification Church used sophisticated indoctrination techniques which
rendered the two ex-member plaintiffs incapable of exercising their own
judgments and unable to respond upon learning of the deceptive recruitment
practices. The state supreme court reversed, allowing the testimony. In doing
so, the court reviewed conflicting authorities on the topic of brainwashing.
While not resolving the controversies surrounding the issue, it [the court]
concluded that the existence of conflicting opinions by experts on the existence
and effects of brainwashing raises a factual issue. The testimony would be
allowed for consideration.
In Kropinski v. World Plan Executive Council, 853 F.2d 948 (D.D.C. 1988), the
trial court allowed expert testimony that transcendental meditation was a
�thought reform� system which changed the plaintiff practitioner�s perspective
or �world view� even without physical threats or coercion. The defense
challenged the admission as irrelevant, inflammatory, and scientifically
unsupported. The defense relied on the Frye rule, which held that scientific
evidence can be offered only upon a showing that the type of evidence is
generally accepted in the field. See, Frye v. United States, 293 F.2d 1013 (D.C.
Cir. 1923). The appellate court noted that Frye had only been applied in the
jurisdiction in criminal cases, and that civil cases require a less stringent
standard, indicating that a scientific theory with a �significant following� in
the field would probably qualify. The court, however, rejected the expert
testimony finding that even this lesser standard had not been proven and ordered
that the admissibility issue would be reconsidered at trial.
In 1990, a federal district court reviewed the Frye standard in light of expert
testimony on coercive persuasion and cults. In United States v. Fishman, 743 F.
Supp. 713 (N.D. Cal. 1990), a criminal case, the defendant intended to plead
insanity as a defense to mail fraud on the basis that he was brainwashed by the
Church of Scientology, allegedly behind the fraud scheme. A forensic scientist
was allowed to testify as to the defendant�s state of mind at the time of the
charged offenses. The court rejected, however, testimony on coercive persuasion
in religious cults as a thought reform theory not generally accepted within the
scientific community. In addition, the court also rejected testimony proffered
from a sociology professor who taught graduate courses on thought reform. The
court found the sociologist lacked expertise to address the defendant�s state of
mind or the church members� as a group.
Whether, how, and to what degree expert testimony on the mental state of
individuals in cult cases was permitted have unclear guidelines. These standards
have recently once again been reopened for interpretation as a result of a
general review of the federal rules governing admissibility of expert scientific
The United States Supreme Court decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) governs all expert testimony in
federal court, rejecting the Frye rule in favor of a more complex formulation.
Although not directly binding on state courts, the Supreme Court�s reasoning is
likely to make matters related to psychiatric and psychological evidence in many
jurisdictions more complicated than they once were.
Daubert overturned the seventy-year-old threshold federal standard for admitting
scientific evidence which was established in Frye. At the same time, the state
court standard was left in limbo as many state courts reexamine their rules in
light of Daubert.
As Justice Blackmun�s opinion in Daubert explains, until 1993 most courts,
federal and state, followed the Frye rule that psychiatric, psychological, or
other scientific evidence could be offered in the courtroom only upon the
showing that the type of evidence was generally accepted in the field. That
general principle has been called into question with the determination that, at
least in the federal courts, Federal Rule 702 supersedes Frye and does away with
the �general acceptance� prerequisite. Instead, the new standard for federal
courts is whether �scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence to determine a fact in
What Daubert means for state courts is not yet entirely clear. A number of
jurisdictions already were using less rigorous admissibility standards than Frye
for scientific and technical evidence even before Daubert. Some jurisdictions
are presently in the process of reviewing admissibility standards to determine
whether they should be made more inclusive. And a number of states are opting to
retain Frye or a close variation. See Note: �Daubert v. Merrell Dow
Pharmaceutical, Inc.: Sounding the Death Knell for Frye v. United States in the
Commonwealth,� 21 N. Kentucky L. Rev. 475, 491B92 (1994).
As a result, many state court litigators and courts must deal with all the
traditional problems inherent with psychiatric and psychological evidence along
with the uncertainties spawned by the Daubert decision, including which
admissibility standard governs and how the standard should be applied to
different types of psychiatric or psychological evidence. Post-Daubert judges
have an enlarged gatekeeper�s function, with increased latitude to admit or
exclude evidence. The door is open. The degree to which individual judges will
screen expert testimony offered by psychologists, psychiatrists, and other
professionals in cases involving undue influence or fraud and issues of the
mental state and activities of the participants remains to be determined in many
Significant Decisions by Jurisdiction on Expert Testimony Standards
(All citations are to state supreme court cases unless otherwise noted.)
Jones v. Arkansas, 862 S.W.2d 242, 245 (1993). Arkansas rejected the Frye
standard before Daubert. See Prater v. Arkansas, 820 S.W.2d 429 (1991).
Nelson v. Delaware, 628 A.2d 69, 73 (1993).
Harrison v. Indiana, 644 N.E.2d 1243, 1252 (1995).
Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 885, 886 (1994).
Louisiana v. Foret, 628 So. 2d 1116, 1122, 1123 (1993).
Massachusetts v. Lanigan, 641 N.E.2d 1342, 1349 (1994). Accepts Daubert�s
reasoning but suspects general acceptance will continue to be the significant,
and often the only, issue.
Montana v. Moore, 885 P.2d 457, 471 (1994).
New Mexico v. Alberico, 861 P.2d 192, 203 (1993).
North Carolina v. Goode, 461 S.E.2d 631, 639 (1995).
Oregon v. O�Key, 899 P.2d 663, 680 (1995).
South Carolina v. Dinkins, 462 S.E.2d 59, 60 (1995).
South Dakota v. Hofer, 512 N.W.2d 482, 484 (1994).
Robinson v. E.I. DuPont de Nemours & Co., No. 94-0843 (6/15/1995).
Vermont v. Brooks, 643 A.2d 226, 229 (1993).
Cotton v. Virginia, 451 S.E.2d 673, 675 (Va. Ct. App. 1994). The Virginia
Supreme Court rejected Frye in Spencer v. Virginia, 393 S.E.2d 609 (1990), cert.
denied, 498 U.S. 908 (1990). Spencer test emphasizes reliability.
Wilt v. Buracker, 443 S.E.2d 196, 203 (1993).
Wisconsin v. Peters, 534 N.W.2d 867, 872 (Wis. App. 1995). Wisconsin rejected
the Frye standard before Daubert. See Watson v. Wisconsin 219 N.W.2d 398, 403
Springfield v. Wyoming, 860 P.2d 435, 442, 443 (1993).
Mattox v. Alaska Revenue Dept, 875 P.2d 763, 764 (1994). General scientific
acceptance is a statutory requirement for admissibility of technical tests in
paternity cases. The court uses Alaska Statute and a common law requirement for
scientific evidence where no statute governs. Cited Pulakios v. Alaska 476 P.2d
474 (1970) (adopting Frye).
California v. Leahy, 882 P.2d 321, 331 (1994). The Kelly/Frye standard survives
District of Columbia
Taylor v. United States, 661 A.2d 636, 651, 652 (1995).
Flanagan v. Florida, 625 So. 2d 827, 829 (1993).
Kansas v. Warden, 891 P.2d 1074, 1085 (1995). AThis court has adopted the Frye
test concerning the admissibility of scientific evidence.� See Kansas v. Witte,
836 P.2d 1110 (1992).
Hutton v. Maryland, 663 A.2d 1289, 1296 (1995). Uses Frye/Reed standard. See
Reed v. Maryland, 391 A.2d 364 (1978).
Nebraska v. Dean, 523 N.W.2d 681, 692 (1994).
New York v. Wesley, 633 N.E.2d 451 (1994). Concurring opinion states that all
judges agreed to follow Frye.
Washington v. Gentry, 888 P.2d 1105, 1117 (1995).
No Decision by a State Supreme Court
Arizona v. Bible, 858 P.2d 1152, 1183 (1993). We leave Daubert for another day
and apply Frye.
Lindsey v. Colorado, 892 P.2d 281, 288 (1995). Uses Frye standard. The court did
not consider Daubert because the issue was not raised.
Connecticut v. Sivri, 646 A.2d 169, 189 (1994). Uses Frye because neither party
asked the court to change.
Orkin Exterminating Co. v. McIntosh, 452 S.E.2d 159, 165 (Ga. App. 1994).
�Daubert involves the application of FRE 702, which has not been adopted in
Georgia. The applicable law in Georgia is OCGA '24-9-67, which provides: �[t]he
opinions of experts on any question of science, skill, trade or like questions
shall always be admissible.��
Dotto v. Okan, 646 N.E.2d 1277, 1279 (Ill. App. Ct. 1995). Adopts Daubert;
general acceptance test is no longer proper.
Tungate v. Kentucky, 901 S.W.2d 41, 43 (1995). Uses Frye.
Michigan v. Lee, 537 N.W.2d 233, 248, 249 (Mich. App. 1995). Follows Davis/Frye
standard. See Michigan v. Davis, 72 N.W.2d 269 (1955).
Minnesota v. Klawitter, 518 N.W.2d 577, 578 (1994). �We express no opinion on
the continued validity of the Frye rule in Mn.�
Missouri v. Hill, 865 S.W.2d 702, 703 (Mo. App. 1993). Follows Frye.
New Hampshire v. Cavaliere, 663 A.2d 96, 97 (1995). Court used Daubert standard,
but did not decide whether Frye is still valid.
Bahrle v. Exxon Corp., 652 A.2d 178, 192 (Super. Ct. App. Div. 1995). Follows
Ohio v. Martens, 629 N.E.2d 462, 466 (Ohio App. 1993). Follows own test: Ohio v.
Thomas, 423 N.E.2d 137 (1981). The test asks whether the expert�s theory is
commonly accepted in the scientific community.
Taylor v. Oklahoma, 889 P.2d 319, 328 (Ok. Crim. App. 1995). Abandons Frye and
Pennsylvania v. Crews, 640 A.2d 395, 400 (1994). Whether Daubert will supersede
Frye in Pa. is left to another day.
Dikeou v. Osborn, 881 P.2d 943, 946 (Utah App. 1994).
This research project was prepared in 1995 by David Hominik, Director of Legal
Research of the American Bar Association�s Commission on Mental and Physical
Disability Law (CMPDL), for the American Family Foundation (AFF) and the Cult
Awareness Network (CAN). John Parry provided editorial assistance; Laurie Lewis
assisted in research. David J. Bardin of Arent Fox Kintner Plotkin & Kahn,
Washington, D.C., guided the project�s focus and provided significant editorial
comments. Herbert L. Rosedale of Parker Chapin Flattau & Klimpl, New York City,
and William Rehling of Chicago also provided constructive suggestions during the
course of the project. Funding was provided by AFF, CAN, and the Cult Hot Line
and Clinic of the Jewish Board of Family & Children�s Services (NYC).
The contents of this document are not to be construed as the official policy of
the American Bar Association, the Association�s Commission on Mental and
Physical Disability Law, the American Family Foundation, or the Cult Awareness
Reproduction of this document in whole or in part may be made without permission
provided no fees or handling costs of any kind are charged. Copies can be
obtained by contacting CMPDL at 202-662-1575 or 740 15th Street, N.W.,
Washington, D.C. 20005-1009 ($10.00 plus postage per individual copy with
discounts for multiple copies available) or from AFF, which reprinted the report
in its Cultic Studies Journal, Vol. 12, No. 1 (1995) and makes electronic
reprints available for $3.00 (go to www.cultinfobooks.com and click on "csj
reprints"). Printed copies from AFF are available for $10 plus postage and
handling. Contact email@example.com or 239-514-3081 or P.O. Box 2265,
Bonita Springs, FL 34133.
Cultic Studies Journal Volume 12, Number 1 1995