# State v. Martin > Washington Supreme Court · June 7, 1984 · 101 Wash. 2d 713 URL: https://www.frixlaw.com/law-library/cases/9629118 ## Case - **Full name:** The State of Washington, Respondent, v. David Martin, Petitioner - **Court:** Washington Supreme Court - **Decided:** June 7, 1984 - **Citations:** 101 Wash. 2d 713; 684 P.2d 651; 1984 Wash. LEXIS 1679 - **Precedential status:** Published - **Opinion:** Dissent by Thompson - **Judges:** Dore, Stafford, Brachtenbach, Dolliver, Thompson - **Cited by:** 67 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629118 ## How later opinions describe it (automated extraction) - concluding same regarding hypnosis evidence - rejecting hypnotically induced testimony ## Opinion text Thompson, J. * (dissenting) — I dissent. This case presents an unusual factual pattern. It seems to me that it is an almost unique situation when hypnosis is sought by the victim's mother without any participation by law enforcement personnel or the State. Ordinarily, the hypnosis would be initiated by law enforcement personnel as part of the investigation. The real issue in this case is, should the testimony of a victim who has been hypnotized, where the State has no participation in the hypnosis, be excluded in whole or in *742 part as incompetent, or should all of the victim's testimony be admissible along with evidence as to how hypnosis may affect its credibility? Courts in other jurisdictions have divided their views as to the admissibility of hypnotically influenced testimony. See People v. Lucas, 107 Misc. 2d 231 , 435 N.Y.S.2d 461 (1980). The views are that such testimony should be: (1) totally excluded on the basis that a witness who has been hypnotized is incompetent to testify; (2) admissible, on the premise that hypnosis bears on credibility rather than admissibility; (3) admissible, providing that specific procedures are followed. (This is the State v. Hurd, 86 N.J. 525 , 432 A.2d 86 (1981) view, with the six requirements as set forth in the majority opinion.) In my view this is simply a credibility issue, the view adopted by the Ninth Circuit Court of Appeals. Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir, 1975); Wyller v. Fairchild Hiller Corp., 503 F.2d 506 (9th Cir, 1974); United States v. Awkard, 597 F.2d 667 (9th Cir.), cert. denied, 444 U.S. 885 , 62 L. Ed. 2d 116 , 100 S. Ct. 179 (1979). The basis of the majority opinion is that the victim's testimony is the result of a scientific experiment. I submit that testimony in itself is not a result of a scientific experiment. It is not like the reading of a Breathalyzer, the analysis after a laboratory experiment, nor the opinion of an expert as to whether a witness is telling the truth after being administered a polygraph. What is being excluded under the majority opinion is lay testimony. The hypnotist's expert opinion as to whether or not the victim is telling the truth might rationally be analyzed to be the result of a scientific experiment. The expert's testimony, however, has not been challenged. In my opinion Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) does not apply. There was no state participation in the hypnosis in this case. Therefore, the cases concerning eyewitness identification of a criminal defendant, which are analogous to the situation here, do not offer any help. See State v. Greer, 609 S.W.2d 423 (Mo. Ct. App. 1980). In those cases, the *743 testimony of the witness is challenged on the basis that there has been an improper lineup or showup. Here, a critical stage of the proceedings had not been reached at the time of the hypnosis; therefore, the Sixth Amendment right to counsel does not apply. Kirby v. Illinois, 406 U.S. 682 , 32 L. Ed. 2d 411 , 92 S. Ct. 1877 (1972). Likewise, since no state action was involved, there can be no due process challenge under the Fifth Amendment that the victim's testimony has been influenced by the state. Neil v. Biggers, 409 U.S. 188 , 34 L. Ed. 2d 401 , 93 S. Ct. 375 (1972). If law enforcement personnel or the State had participated in any way in the hypnosis, then constitutional safeguards should apply as in the eyewitness cases. The true basis for the majority opinion is that the victim's testimony influenced by hypnosis is unreliable and is therefore incompetent. The tendency of this court is toward reducing the grounds of incompetency. See E. Cleary, McCormick on Evidence § 61 (2d ed. 1972); ER 601; CrR 6.12; State v. Smith, 97 Wn.2d 801 , 650 P.2d 201 (1982). Smith holds that a mentally retarded person is not incompetent to testify. Under the majority decision, the testimony as to facts recalled prior to the hypnosis is deemed to be competent, and the testimony as to facts not remembered until after hypnosis is incompetent. I submit that, especially in cases dealing with child abuse, this rule may very well lead to the court receiving unreliable testimony. A victim may very well be withholding information prior to the hypnosis for reasons other than lack of memory, such as: (1) fear that if she talked, she would be punished by her father; or (2) perhaps her father told her, over the course of the illicit conduct, that she should never say anything about it to anyone; or (3) a feeling by the victim that she wished to protect her father from prosecution. Testimony as to such facts, if first related after the hypnosis, may be excluded under the majority rule. The trier of the facts would be receiving only part of the victim's story, which may not be the ultimate truth. *744 Many other persons undoubtedly have contact with child abuse victims that may very strongly influence the victim's testimony, including the mother, social workers, doctors and nurses, family and friends. We do not exclude the victim's testimony on account of any of these contacts. The nature and extent of such contacts are considered in weighing the credibility of the victim's testimony. In my view, especially in cases in which there has been no state participation in the administration of the hypnosis, it would be better to present all of the evidence and let the trier of the facts sift through it for a determination of the truth. The testimony of the victim would be subject to impeachment by her prior inconsistent statements. Expert testimony as to the effect of hypnotism on the reliability of memory should be allowed. There is an additional ground for affirming the trial court. The defendant, after learning of the victim's hypnotic session, submitted himself for hypnosis before another hypnotist. This information and the second hypnotist's conclusion that the defendant did not commit the offense were included as part of the defendant's motion in limine regarding the admissibility of the victim's testimony. The tape of the hypnotic session was introduced by the defendant and admitted into evidence. Then, during trial, defense counsel made no objection to Teeter's (the victim's hypnotist's) qualifications as an expert nor the admissibility of the tapes of the victim's hypnotic sessions. No objection having been made, the error, if any, has not been preserved for appeal. RAP 2.5(a). For these reasons, I would affirm the trial court. Reconsideration denied September 4, 1984. Judge Donald H. Thompson is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. 4, § 2(a) (amend. 38). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629118. Public record. Not legal advice.