# State v. Brown

> North Dakota Supreme Court · July 21, 1983 · 337 N.W.2d 138

URL: https://www.frixlaw.com/law-library/cases/9678815

## Case

- **Full name:** STATE of North Dakota, Plaintiff and Appellee, v. Joseph Lesley BROWN, Defendant and Appellant
- **Court:** North Dakota Supreme Court
- **Decided:** July 21, 1983
- **Citations:** 337 N.W.2d 138; 1983 N.D. LEXIS 326
- **Precedential status:** Published
- **Opinion:** Concurrence by De Walle
- **Judges:** Paulson, Walle, Erickstad, Pederson, Sand, Vande Walle
- **Cited by:** 40 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/9678815

## How later opinions describe it (automated extraction)

- noting trial court presented the issue to the jury in the form of an interrogatory rather than as an essential element

## Opinion text

*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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678815. Public record. Not legal advice.