State v. Collins

Murphy, C. J.,

concurring and dissenting:

The Court today holds that a witness cannot testify about matters which have been the subject of questioning under hypnosis, absent a "clear demonstration” that the witness independently recalled and related the substance of the proffered testimony prior to being subjected to questioning under hypnosis. From this holding, I must respectfully dissent.

*704 I

Hypnosis has had several cycles of professional interest and rejection, but currently is widely used as a tool in criminal investigations to aid witnesses in recalling details of events which have been forgotten or imperfectly remembered. 1 See People v. Hughes, 99 Misc.2d 863 , 417 N.Y.S.2d 643 (1979). As an aid to obtaining investigatory leads, hypnosis has received all but unanimous support. See, e.g., State v. Mack, 292 N.W.2d 764, 771 (Minn. 1980):

"We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool when a witness is enabled to remember verifiable factual information which provides new leads to the solution of a crime.”

But cf. People v. Shirley, 31 Cal.3d 18 , 68 n. 55, 181 Cal. Rptr. 243 , 273 n. 55, 641 P.2d 775 , 805 n. 55, cert. denied, 103 S. Ct. 133 (1982). Considerably more disagreement has arisen, however, when the testimonial fruits of hypnosis have sought to be admitted in evidence in court.

Hypnosis-related evidence has taken many forms. Perhaps the most direct is the testimony of a witness given while hypnotized in the courtroom. Uniformly, courts have rejected the practice. See, e.g., Greenfield v. Commonwealth, 214 Va. 710, 716 , 204 S.E.2d 414, 419 (1974). Nor have they been receptive to alternatives to such in-court hypnotic testimony, such as transcripts, audio or video tapes of out-of-court hypnotic sessions, e.g., People v. Blair, 25 Cal.3d 640, 664-66 , 159 Cal. Rptr. 818, 833-34 , 602 P.2d 738, 753-54 (1979); People v. Modesto, 59 Cal.2d 722, 732-33 , 31 Cal. Rptr. 225, 231-32 , 382 P.2d 33, 39 (1963); People v. Hangsleben, 86 Mich. App. 718, 727-31 , 273 N.W.2d 539, 543-44 (1978); State v. Harris, 241 Or. 224, 236-37 , 405 P.2d *705 492, 497-500 (1965); or testimony by the hypnotist as to what was said during the sessions, e.g., Greenfield v. Robinson, 413 F. Supp. 1113, 1120-21 (W.D. Va. 1976); People v. Kester, 78 Ill. App. 3d 902, 909-10 , 397 N.E.2d 888, 893-94 (1979); State v. Conley, 6 Kan. App. 2d 280, 283-286 , 627 P.2d 1174, 1177-78 (1981); People v. Hangsleben, 86 Mich. App. at 727-31 , 273 N.W.2d at 543-44 ; Jones v. State, 542 P.2d 1316, 1326-28 (Okla. Crim. App. 1975); State v. Harris, 241 Or. at 236-37 , 405 P.2d at 497-500 ; Greenfield v. Commonwealth, 214 Va. at 715-16 , 204 S.E.2d at 418-19 . Some courts have admitted such evidence as the basis for an expert’s opinion, e.g., People v. Modesto, 59 Cal.2d at 732-33 , 31 Cal. Rptr. at 231-32 , 382 P.2d at 39-40 ; but see People v. Diaz, Colo. App. , 644 P.2d 71, 73 (1981):

"On retrial, the psychiatrist should not be permitted to testify as to the mental state of the defendant if his opinion is based on information gained through hypnosis.”

An expert’s proffered testimony as to the truth or falsity of the witness’s hypnotized statements generally has been excluded, e.g., Jones v. State, supra, 542 P.2d at 1326-28 .

The area of greatest confusion and controversy has centered on the admissibility of in-court testimony by previously-hypnotized witnesses, and the corollary problem of admissibility of expert testimony about the techniques of hypnosis, before or after the witness has testified. In general, expert testimony designed to bolster the credibility of a previously-hypnotized witness has not been admitted, see, e.g., United States v. Awkard, 597 F.2d 667, 669-71 (9th Cir.), cert. denied, 444 U.S. 885 (1979); People v. Hangsleben, 86 Mich. App. at 728-31 , 273 N.W.2d at 544-45 , unless the credibility of the witness has first been attacked. Even then, some courts have required a preliminary showing that hypnosis is an effective technique before testimony is admitted to bolster credibility, People v. Hangsleben, 86 Mich. App. at 730-31 , 273 N.W.2d at 545 . Where the witness’s testimony has been admitted, expert *706 testimony attacking hypnosis or the witness’s credibility has been allowed. Collier v. State, 244 Ga. 553, 556-59 , 261 S.E.2d 364, 370-71 (1979), cert. denied, 445 U.S. 946 (1980); People v. Lucas, 107 Misc.2d 231, 238 , 435 N.Y.S.2d 461, 466 (1980).

The widest divergence of judicial opinion is on the admissibility of in-court testimony of a witness who has been hypnotized in out-of-court sessions. One line of decisions was initiated by a Maryland Court of Special Appeals case, Harding v. State, 5 Md. App. 230 , 246 A.2d 302 (1968), cert. denied, 395 U.S. 949 (1969). In Harding , the defendant was charged with assault with intent to rape. The victim was found in a state of shock, lying on the roadside, with a gunshot wound in the chest and evidence of recent sexual intercourse. Her statements recounting the events which resulted in her injury were inconsistent, and she was at first unable to recall certain parts of what happened. After being released from the hospital, the victim was hypnotized by a psychiatrist and was able to recall the events occurring after she had been shot. At trial, both the victim and the psychologist testified over the defendant’s objection. The victim recounted her recollection of events, as well as her recollections of the hypnotic session. The psychologist testified on the techniques of hypnotism, the events of the victim’s hypnosis session, and also expressed an opinion as to the reliability of the results of the session. The Harding court found:

"The admissibility of [the victim’s] testimony concerning the assault with intent to rape case causes no difficulty. On the witness stand she recited the facts and stated that she was doing so from her own recollection. The fact that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide.” Id. at 236 , 246 A.2d at 306 .

*707 The Harding rationale — that the effect of out-of-court hypnosis on in-court testimony goes to the weight of the evidence rather than admissibility — has been adopted by a substantial number of jurisdictions. See, e.g., United States v. Awkard, 597 F.2d at 669 ; United States v. Waksal, 539 F. Supp. 834, 838 (S.D. Fla. 1982); United States v. Narciso, 446 F. Supp. 252, 282-84 (E.D. Mich. 1977); Clark v. State, 379 So.2d 372, 375 (Fla. Dist. Ct. App. 1979); People v. Smrekar, 68 Ill. App. 3d 379, 385-88 , 385 N.E.2d 848, 852-55 (1959); State v. Greer, 609 S.W.2d 423, 436 (Mo. App. 1980), vacated on other grounds, 450 U.S. 1027 (1981); State v. McQueen, 295 N.C. 96, 119-22 , 244 S.E.2d 414, 427-29 (1978); State v. Jorgensen, 8 Or. App. 1, 7-9 , 492 P.2d 312, 315 (1971); State v. Glebock, 616 S.W.2d 897, 903-04 (Tenn. Crim. App. 1981); Chapman v. State, 638 P.2d 1280, 1282-85 (Wyo. 1982). Some jurisdictions, while not finding testimony of witnesses who have been previously hypnotized per se inadmissible, have established strict guidelines which must be followed in the hypnosis sessions before the witnesses are allowed to testify. E.g., State v. Hurd, 86 N.J. 525, 545-46 , 432 A.2d 86, 96-97 (1981); State v. Beachum, 97 N.M. 682, 689 , 643 P.2d 246, 253 (1981); People v. McDowell, 103 Misc.2d 832 -35, 427 N.Y.S.2d 181, 182-83 (1980); State v. Armstrong, 110 Wis.2d 555 , 329 N.W.2d 386 (1983). Cf. United States v. Adams, 581 F.2d 193 , 199 n. 12 (9th Cir.), cert. denied, 439 U.S. 1006 (1978). Other courts, after considering the reliability of hypnosis evidence under the general acceptance test propounded in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), or its equivalent, have concluded that testimony from a witness who has been hypnotized and questioned prior to trial is per se inadmissible at least as to newly recalled memory. State v. LaMountain, 125 Ariz. 547, 551 , 611 P.2d 551, 555 (1980); People v. Shirley, supra; People v. Gonzales, 108 Mich. App. 145, 159-60 , 310 N.W.2d 306, 314 (1981), aff'd, 415 Mich. 615 , 329 N.W.2d 743 (1982); State v. Mack, supra, 292 N.W.2d at 771 ; State v. Palmer, 210 Neb. 206, 218 , 313 N.W.2d 648, 655 (1981); People v. Hughes, 59 N.Y.2d 523 , 453 N.E.2d 484 (1983). Some courts have left open the question of the application of *708 the Frye standard to hypnosis. See Commonwealth v. Nazarovitch, 496 Pa. 97, 111 , 436 A.2d 170, 178 (1981); Commonwealth v. Juvenile, 381 Mass. 727, 730-35 , 412 N.E.2d 339, 342-44 (1980).

II

The majority concludes that the Frye-Reed test must be applied in determining the admissibility of hypnotically-enhanced testimony. Maryland has, of course, adopted this test for the admissibility of mechanical or scientific test results, and expert testimony based thereon. In Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), the issue before the court was the admissibility of voice identification testimony based on analysis of spectrograms, known popularly as "voiceprints.” To resolve the question of the reliability of such a "scientific” method, we applied the test first articulated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923):

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

In Reed , the Court did not find voiceprints to have gained "general acceptance in the particular field.” 283 Md. at 399 , 391 A.2d at 377 . In discussing the Frye standard in Reed , the Court quoted with approval from People v. Kelly, 17 Cal.3d 24, 31-32, 130 Cal. Rptr. 144, 149 , 549 P.2d 1240, 1245 (1976):

*709 " . Frye was deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.. .. Several reasons founded in logic and common sense support a posture of judicial caution in this area. Lay jurors tend to give considerable weight to "scientific” evidence when presented by "experts” with impressive credentials. We have acknowledged the existence of a "... misleading aura of certainty which often envelopes a new scientific process obscuring its currently experimental nature.” (Huntingdon v. Crowley, supra, 64 Cal.2d at p. 656, 51 Cal.Rptr. at p. 262, 414 P.2d at p. 390;....) As stated in Addison, supra, in the course of rejecting the admissibility of voiceprint testimony, "scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury . .. .” (United States v. Addison, supra, 498 F.2d at p. 744.)’ ”

Thus, the "judicial caution” of Frye and Reed is counselled by twin dangers: that unreliable experimental evidence may be given undue weight by the jury because of the "scientific” process which generated it; and that "expert testimony” based on such evidence may be given undue weight for similar reasons.

The majority recognizes that, "[sjtrictly speaking the evidence here is not of the type with which Frye is normally concerned,” and that "hypnosis is somewhat different from [other scientific tests] mentioned in Reed. ” In spite of the evident need for caution in extending a rule by analogy into an area with substantial differences, the majority mechanically applies the Frye-Reed test to hypnosis, drawing support from State v. Mack, 292 N.W. 2d at 768 :

"Under the Frye rule, the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view *710 that the results are scientifically reliable as accurate. Although hypnotically-adduced 'memory’ is not strictly analogous to the results of mechanical testing, we are persuaded that the Frye rule is equally applicable in this context, where the best expert testimony indicates that no expert can determine whether memory retrieved by hypnosis, or any part of that memory, is truth, falsehood, or confabulation — a filling of gaps with fantasy. Such results are not scientifically reliable as accurate. (Emphasis supplied.)

The emphasized portions of the Mack case highlight the analytical error made by the majority and by those cases which follow the rule adopted by the Court today. The "result” of hypnosis is not an assertion that the testimony is necessarily true or accurate. Although some proponents of hypnosis have suggested that memory retrieved by hypnosis is similar in accuracy to a videotape replay, no such claim has been made in this case and such a position is not generally accepted. Rather, the "result” of hypnosis is the ability to produce recall where there was little or none before. In this connection, there is little, if any, dispute that hypnosis is reliable in producing more recall. See, e.g., Note, The Admissibility of Testimony Inñuenced by Hypnosis, 67 Va. L. Rev. 1203 , 1208-14 (1981). Instead, those who oppose hypnosis in the courtroom focus attention on the accuracy of the recall. In effect, they (and the majority here) would seemingly require that hypnosis prove, as a matter of general acceptation, that all testimony based on memory recalled under hypnosis is historically accurate. Such a standard is virtually impossible to meet and, if applied to other evidence, would bar virtually all testimony and most other forms of evidence. Such a standard flies in the face of the truth-seeking process, by which the fact-finder is allowed to sift through the widest possible range of evidence, some of which, inevitably, is inaccurate, in order to best determine what actually occurred. Only where the scientific process itself purports to answer ultimate questions of truthfulness *711 and credibility of evidence should the Frye-Reed test impose such a difficult standard. In the case of hypnosis, the claim is only that the recall produced is at least as accurate as other testimony.

Those who oppose hypnotically-adduced testimony advance two primary reasons: first, that the "recall” is partially or totally "confabulated,” with fantasy elements unconsciously added to fill gaps in historically accurate recall, or modified to conform to the hypnotist’s expectations; and second, that the resulting blend of fact and fiction is "hardened” by the hypnotic process into an unshakable conviction by the witness that what he "recalls” is true. The point is most forcefully advanced by Dr. Diamond, quoted extensively by the majority, to the effect that

"once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence.” Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. L. Rev. 313 , 314 (1980).

Although Dr. Diamond has convinced one court, see People v. Shirley, supra, his view has not fared as well elsewhere. See, for example, United States v. Waksal, supra, 539 F. Supp. at 838 , where the court noted:

"The defendant presented Dr. Diamond, a psychiatrist on the faculty of the University of California, who has additional impressive credentials; his tes *712 timony was most interesting but basically his ultimate conclusion is that once a witness is hypnotized, the value of a witness’ testimony is completely vitiated and the witness is thereafter incompetent because hypnosis tends to freeze the memory. Dr. Diamond admits that his 'position is the extreme’.

"Several Federal courts have considered the admissibility of hypnosis testimony and Dr. Diamond’s extreme position has been rejected. United States v. Awkard, 597 F.2d 667 (9th Cir. 1979); United States v. Adams, 581 F.2d 193 (9th Cir. 1978); Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975); Wyller v. Fairchild Hiller Corp., 503 F.2d 506 (9th Cir. 1974); and United States v. Narciso, 446 F. Supp. 252 (E.D. Mich. 1977).”

Considered as a matter of competency, the Diamond view must overcome the general rule that all persons are competent to testify in criminal matters except those who are expressly excluded, either by statute or some rule of law. 97 C.J.S. Witnesses § 49 (1957). I do not find Dr. Diamond’s self-professed "extreme” view to be either generally accepted in his field or persuasive on the merits. Absent a showing that a witness in fact has no personal recollection of the events to which he or she is testifying, or has been subject to hypnotic suggestion or manipulation, the mere fact that a witness has been hypnotized prior to trial should not render him perse incompetent to testify. This determination should be within the sound discretion of the trial judge.

All the alleged distortions in posthypnotic recall can be produced by non-hypnotic means. In fact, most of the asserted distortions are a normal component of the reconstructive nature of all memory recall. As the court observed in State v. Hurd, supra, 432 A.2d at 95 :

"Research has shown that 'witnesses — particularly victims — often become more confident of the correctness of their identification as time *713 progresses/ in spite of the natural tendency of memory to decay.. . . This false confidence in the details of one’s memory, especially when it satisfies a personal need to know and is reinforced through repeated interrogation, imparts an impression of credibility to the jury that is difficult for an adversary to undermine through cross-examination. In addition, because the witness himself generally is unaware of the changes in his memory over time..., his reputation for honesty and innate critical judgment cannot be counted on to reveal any inaccuracy.” (Citations omitted.)

The majority acknowledges the point, quoting People v. Shirley, 31 Cal.3d at 58 , 181 Cal. Rptr. at 267 , 641 P.2d at 798-99, for the proposition that "condensation, elaboration and invention are common features of ordinary remembering” and that "the past is being continually remade, reconstructed in the interests of the present.”

In my view, the proper course through the Frye-Reed test was chartered by the Supreme Court of New Jersey in Hurd :

"Unlike the courts in [State v. Mena, 128 Ariz. 244 , 624 P.2d 1292 (1980)] and Mack, supra, the court below did not demand, as a precondition of admissibility, that hypnosis be generally accepted as a means of reviving truthful or historically accurate recall. We think this was correct. The purpose of using hypnosis is not to obtain truth, as a polygraph or 'truth serum’ is supposed to do. Instead, hypnosis is employed as a means of overcoming amnesia and restoring the memory of a witness. See Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St.L.J. 567, 584 (1977).... In light of this purpose, hypnosis can be considered reasonably reliable if it is able to yield recollections as accurate as those of an ordinary witness, which likewise are often historically *714 inaccurate. Based on the evidence submitted at trial, we are satisfied that the use of hypnosis to refresh memory satisfies the Frye standard in certain instances. If it is conducted properly and used only in appropriate cases, hypnosis is generally accepted as a reasonably reliable method of restoring a person’s memory. Consequently, hypnotically-induced testimony may be admissible if the proponent of the testimony can demonstrate that the use of hypnosis in the particular case was a reasonably reliable means of restoring memory comparable to normal recall in its accuracy.” 432 A.2d at 92 .

As Harding indicates, the testimony of a previously hypnotized witness may be attacked on its credibility. Prior inconsistent statements, including any earlier failure to identify a suspect, as here, may be introduced for impeachment purposes. The alleged distorting and hardening effects of hypnosis may be introduced in evidence and, if attacked, the credibility of the witness may be rehabilitated by opposing testimony. If, as the majority indicates, the extra burden created by the attempted introduction of hypnosis enhanced testimony is truly "not worth the candle,” such testimony will no doubt be used sparingly. The majority’s rule would totally ban all such testimony rather than allowing the parties involved to decide the relative burdens and benefits in using or challenging such testimony.

Ill

After deciding in Part II of the opinion that the Frye-Reed test applies to hypnosis, and canvassing relevant scientific and judicial opinions on the subject in Part III, the majority declares the law of Maryland in Parts IV and V of the opim ion. After rejecting on "practical” grounds the procedures outlined in State v. Hurd, supra, the majority states that it is "not satisfied that hypnotically enhanced testimony meets the Frye-Reed test.” However, the majority finds "no reason *715 why a person should not be permitted to testify in court in accord with statements which it can clearly be demonstrated he made prior to hypnosis,” since "[s]uch is not then hypnotically enhanced testimony.” This conclusion flies in the face of the position advanced by Dr. Diamond, which appears to provide the principal undergirding for the rule which the Court adopts today. The confusion is compounded by the majority’s refusal to "spell out the exact procedures which must be followed to clearly demonstrate that such statements were made prior to hypnosis.” Although it indicated that one method might be the guidelines identified in State ex rel. Collins v. Superior Court, etc., 132 Ariz. 180 , 644 P.2d 1266 (1982), the majority apparently decides that there has been no such demonstration in this case.

The rule the majority adopts today will most certainly call forth some prescient guessing as to what the Court will accept in the future as a "clear demonstration.” Some guidance from the Court on this critical point is, I believe, essential. Not only does the Court fail to provide workable guidelines on how to preserve pre-hypnotic recollections, it compounds the confusion by failing to indicate how such evidence may be used at trial. Here, the transcript of the first trial containing the pre-hypnotic testimony of the witness would presumably meet the test of clearly demonstrating the witness’ pre-hypnotic recall, and the Court concedes that "[o]rdinarily, it would be admissible for that purpose.” Inexplicably, the Court finds the witness’ "prehypnotic observations ... tainted by virtue of their inconsistency with his posthypnotic testimony.” How subsequent testimony can "taint” earlier recorded testimony, and whether such "tainted” testimony will be admissible in the new trial is not specified.

IV

The majority today restricts the scope of evidence which fact-finders may consider in their deliberations. I share the concern expressed by Gardner, J., concurring in People v. Williams, 132 Cal. App. 3d 920, 927-28 , 183 Cal. Rptr. 498, 501-502 (1982):

*716 "I am troubled by the concept that the testimony of a percipient witness as to relevant facts be deemed inadmissible simply because he has undergone hypnosis.

"What next? Once we begin to rule evidence inadmissible because of our dissatisfaction with the witness’ credibility based on improper memory jogging, where do we stop? What about witnesses who have been brainwashed, coached, coerced, bribed or intimidated? Are we going to reject all this testimony because it is suspect? ... Once having undergone exposure to something of this nature is the witness still going to be allowed to give his best recollection, or be precluded from testifying?

"I am firmly of the belief that jurors are quite capable of seeing through flaky testimony and pseudoscientific claptrap. I quite agree that we should not waste our valuable court time watching witch doctors, voodoo practitioners or brujas go through the entrails of dead chickens in a fruitless search for the truth.... However, the idea that an eyeball witness to a transaction be denied the opportunity to tell a jury his recollections of what he saw is disturbing to me whether that recollection has been refreshed by hypnosis, truth serum, drugs, intimidation, coercion, coaching, brainwashing or impaired by the plain old passage of time.”

In my view, the concerns expressed about the quality of testimony refreshed by hypnosis and the need for protective standards could best be expressed by evidentiary rule, perhaps by imposing guidelines such as those advanced in Hurd . Absent such limits, however, I find nothing in the Frye-Reed standard which compels the majority’s truncation of admissible evidence available to the fact-finder. I would adhere to the reasoning in Harding and its progeny and allow the fact-finder to weigh the credibility of hyp *717 notically-enhanced testimony in light of the circumstances in each case.

I am in full agreement with Part VI of the Court’s opinion and, accordingly, I would affirm the judgment in this case.

.- Elements of hypnotic technique have been used since antiquity, although Franz Anton Mesmer (1734-1815), an Austrian physician, is generally credited with the "discovery” of hypnosis in Europe, modestly giving it the name "mesmerism.” The term "hypnosis” was coined in 1840 by a Scottish physician, James Baird.