noting trial court presented the issue to the jury in the form of an interrogatory rather than as an essential element
How later courts described this case
- noting trial court presented the issue to the jury in the form of an interrogatory rather than as an essential element
- "The majority of jurisdictions appear to have declared that hypnotically induced testimonial recall generally poses no barrier to admissibility, but, rather, affects only the weight of the testimony."
- hypnotically refreshed testimony admissible and subject to credibility challenge
Written by the judges who cited it.
The opinion
*154 VANDE WALLE, Justice,
concurring specially.
I concur in the opinion written for the court by Justice Paulson. It contains a thorough discussion of the various viewpoints in other jurisdictions, the pros and cons of the wisdom of admitting testimony of a previously hypnotized witness, as well as our conclusion on the matter. I write separately to indicate that although we have adopted the position that hypnosis affects the credibility but not the admissibility of a witness’s testimony, I, for one, do not view our opinion as a carte blanche invitation to use hypnosis as an investigative tool in all instances. I believe the use of this procedure is justified only where the particular facts of the case are sufficient to indicate a necessity for its use. My concern is that prosecutors and investigators may read our opinion as indicating that hypnosis should be used as a normal investigative tool thus subjecting to the procedure all eyewitnesses or other witnesses who may have heard, smelled, tasted, or touched something in connection with the crime.
Justice Paulson has set forth several facts which are significant in regard to the instant case. They include the fact that Linda was unable to recall important portions of her ordeal with her assailant. A review of the evidence indicates far more than the normal confusion which may beset a victim in these circumstances. I obviously agree that a witness should be subjected to hypnosis only by someone adequately trained in the process and that the procedure specified in the majority opinion be followed. The procedure should not be attempted by amateurs.
Perhaps my thoughts evince some doubt on my part as to the efficacy of hypnosis; however, I am most concerned that the procedure not be used in those instances in which there is no clear and substantial reason for its use. Investigators or prosecutors should not use the procedure in the remote possibility some additional evidence may be forthcoming.
SAND, J., concurs.