State v. Martin

Brachtenbach, J.

(concurring) — I concur in the majority's result and with Justice Stafford's concurring opinion. At the risk of repeating some of the points made in both opinions, however, I add my own views in order to clarify what I perceive to be the problem with the dissenters' analysis in this case.

The dissenters state that the Frye standard is not applicable because no expert witness is testifying to truth or accuracy of information obtained by scientific methods. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The dissenters feel the only issue that hypnosis involves is a witness' testimony after hypnosis, and, therefore, only the reliability of the specific memory as affected by the specific hypnosis session is in question. As both dissents present the question, the issue is simply a matter of witness credibility, best left to the jury.

Underlying the dissenters' approach are two assumptions. The first assumption is that the only problem with hypnosis is that overt suggestion can occur during a hypnosis session and a trial court can judge a hypnosis session and determine if any impermissible suggestion occurred. The second assumption is that hypno-induced memory is as reliable as ordinary recall. I feel these assumptions, and

*726 therefore, the dissenters' conclusions are not accurate.

Admittedly, the dissenters are correct in asserting the Frye test is utilized to prevent experts from testifying in court as to the results of a scientific process for this is the context in which the issue usually arises. The dissenters' approach, however, ignores the basic theory underlying the Frye test: until a novel process is proven reliable, it has no place in court. See Giannelli, The Admissibility of Novel Scientific Evidence: "Frye v. United States", A Half-Century Later, 80 Colum. L. Rev. 1197 (1980). State v. Cana-day, 90 Wn.2d 808, 811-13 , 585 P.2d 1185 (1978). The reason experts are not allowed to testify about the results of the scientific process is because the process itself is not reliable.

Similarly, the process of hypnosis is being used to "enhance" a person's memory. That enhanced memory, the result of the process of hypnosis, is presented to the jury as factually reliable memory. The direct result of that process is the factually reliable memory and cannot be disassociated from the hypnosis process itself. See People v. Shirley, 31 Cal. 3d 18 , 641 P.2d 775 , 181 Cal. Rptr. 243 , cert. denied, 459 U.S. 860 , 74 L. Ed. 2d 114 , 103 S. Ct. 133 (1982); Polk v. State, 48 Md. App. 382 , 427 A.2d 1041 (1981). See also Beaver, Memory Restored or Confabulated by Hypnosis — Is it Competent?, 6 U. Puget Sound L. Rev. 155 , 181-82 (1983) (hereinafter cited as Beaver, Memory Restored).

The dissenters cannot dispute the fact that the only reason hypnosis is utilized in criminal investigations is for retrieval of factual information theoretically stored in the witness' mind. Therefore, the issue is whether hypnosis is a reliable method of retrieving factual information. Accordingly, the process itself, hypnosis, must be judged before the product of the process, enhanced memory, is presented at trial. Therefore, the Frye test applies to the process of hypnosis and in my opinion does not pass this test.

The dissenters attempt to bolster their conclusion that Frye is inapplicable by listing some of the problems associ *727 ated with hypnosis and concluding that, based on its examination of the scientific literature, hypnosis is a valuable tool and is comparable in reliability to ordinary recall. This statement is almost a tacit conclusion that the Frye test has been met. Cf. State v. Hurd, 86 N.J. 525 , 432 A.2d 86 (1981) (the Hurd court has employed a slightly different variation of Frye, however). While in a clinical setting hypnosis has been found to be a valuable tool, the issue before this court is its forensic use. The medical journals cited by the dissenters all endorse the clinical use of hypnosis and do not address its forensic use.

In some cases hypnosis may help an individual recall facts and may lead to investigative leads. See Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J. of Clinical & Experimental Hypnosis 311 (1979). However, no one, the hypnotized individual, the court or hypnotist can say when that occurs. As the dissenters recognize, neither the subject nor the hypnotist (nor a court or jury) can separate true memories from fantasies. In more concrete terms no one can tell if a memory is false or true, yet inevitably it is presented as factually accurate recall.

The dissenters, however, tacitly analogize hypno-induced memories to the problems associated with normal witness memory to sidestep this problem. The fact that normal witness recall is prone to many of the shortcomings associated with hypnosis, see State v. Hurd, supra; Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969 (1977) (hereinafter cited as Note, Unreliability), does not lead to the conclusion, adopted by the dissenters, that hypno-induced recall is comparable in reliability to ordinary recall.

The fact is that the person's memory after hypnosis is not a product of ordinary recall. The only reason hypnosis is used is to allow a person to recall facts they could not remember with ordinary recall. While ordinary recall may be tainted, see Note, Unreliability, we must accept it and rely on the trial system, i.e., cross examination, to purge the *728 taint inherent in fallible human memory. However, with hypnosis this safeguard is useless.

After hypnosis, a person is subjectively convinced in the truth of his memories. This fact is universally recognized and affects the memories remembered during hypnosis. See generally Beaver, Memory Restored, and authorities cited therein. Thus, normally tainted human recall is further tainted by the process and side effects of hypnosis. A person is unshakeable in his belief in the accuracy of his memories which may totally alter his demeanor and attitude in court. The effects of hypnosis effectively eliminate the only real safeguard interposed between the fallibilities of ordinary recall and the jury. This fact in and of itself leads me to the conclusion that, at the present time, hypnosis has no place in the law.

The dissenters believe procedural safeguards can guard against the evils associated with hypnosis. Relying on State v. Hurd, supra; People v. Smrekar, 68 Ill. App. 3d 379 , 385 N.E.2d 848 (1979) and State v. Armstrong, 110 Wis. 2d 555 , 329 N.W.2d 386 (1983), the dissenters conclude that procedural safeguards can guard against any impermissible suggestion that may occur in the process. I feel these procedural safeguards are unworkable and fail to address the problems associated with hypnosis.

Hypnosis is defined as a suggestive process. It is not like a lineup or showup that can be viewed objectively for aspects of suggestiveness. How a trial court is to determine when a hypnosis session is suggestion free, when even trained professionals are unable to do so, is beyond me. More troublesome is the fact that even the most suggestion free session will not definitely produce reliable memory. Confabulation can occur at any time and neither the hypnotist nor the subject can tell factual memories from fantasies. Also, suggestions can be implanted in the subject's subconscious at any time during the investigatory process and not foster itself until the person is hypnotized. Therefore, the memory may be the product of suggestion that no procedural safeguards can detect or prevent.

*729 Additionally, the process itself makes procedural safeguards meaningless. A second aspect of hypnosis is hyper-compliance.

The subject's increased compliance stems from the feeling of a close relationship promoted by the hypnotist to ensure cooperation. It is a cooperative effort in which the therapist aids the subject by means of a specialized knowledge and technique to achieve a purpose which both have agreed upon as valid and worthwhile. It must be remembered that the typical witness will be hypnotized after interviews by police authorities. The purpose of the hypnosis is the noble and worthwhile goal of remembering forgotten facts about the crime to which one has been exposed.

(Footnotes omitted.) Beaver, Memory Restored, at 194. See also Commonwealth v. Nazarovitch, 496 Pa. 97 , 436 A.2d 170 (1981).

A subject's awareness of the purpose of the hypnotic session, coupled with the hypersuggestibility which the subject experiences, amounts to a situation fraught with unreliability.

Nazarovitch , at 104. If a person undergoes hypnosis specifically to remember forgotten facts about a crime he is exposed to, hypnosis may allow him to remember some facts just to please the hypnotist. Cf. People v. Shirley, at 30. ("[The subject] 'just knew' that it enables a person to 'remember more than normal.'") See also Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313 (1980). Whether the remembered "facts" are true or false is not objectively ascertainable absent independent verification.

I believe that independent verification does not lend itself to the particular problem associated with the forensic use of hypnosis. However, hypnosis is usually used in cases involving witnesses or victims of crimes who cannot remember important aspects of the crime. Almost always their posthypnotic memories result in identification of the perpetrator of the crime. This case is an excellent example. See also Commonwealth v. Kater, 388 Mass. 519 , 447 *730 N.E.2d 1190 (1983); People v. Hughes, 59 N.Y.2d 523 , 453 N.E.2d 484 , 466 N.Y.S.2d 255 (1983); People v. Shirley, supra; Commonwealth v. Nazarovitch, supra; State v. Mena, 128 Ariz. 226 , 624 P.2d 1274 (1981); State v. Mack, 292 N.W.2d 764 (Minn. 1980). The fact remains that the individual identification may be the result of a false memory produced through the use of hypnosis and no independent verification can be made of this "remembered fact".

Finally, the approach will inevitably relegate the issue of hypnosis to a battle of the experts. Once the prosecution masters the procedural aspects of conducting a "suggestion free" hypnosis session, no great task, the jury will simply be asked to evaluate the accuracy of a hypnotized memory. The experts will only be able to inform the jury that hypnosis may or may not allow for accurate recall. The jury is in no position to judge the reliability of a hypnosis session, and the testimony resulting therefrom, when even trained professionals cannot do so.

Therefore, this court must address the problems associated with hypnosis. Until the scientific community is able to say that hypnosis is a reliable method of "refreshing one's recollection", the results of this forensic tool should not be placed before the jury.

Williams, C.J., and Pearson, J., concur with Brachten-bach, J.