The opinion
PRESIDING JUSTICE HARRISON, dissenting:
I respectfully dissent.
In State v. Mena (1981), 128 Ariz. 226 , 624 P.2d 1274 , the Arizona supreme court succinctly stated the rationale for excluding testimony which has been tainted by hypnosis:
“The determination of the guilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness’ memory. Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases.” 128 Ariz. 226, 231 , 624 P.2d 1274, 1279 .
In my view, the position articulated in Mena is superior to that adopted in People v. Smrekar (1979), 68 Ill. App. 3d 379 , 385 N.E.2d 848 , and adhered to by the majority herein. Hypnosis simply does not seem to be understood even to the point where experts can agree on its reliability or usefulness, and it is unrealistic to expect that even the most conscientious jury is capable of rationally determining what weight should be accorded to hypnotically tainted testimony. “The degree of reliability attributable to the behavior of the truly hypnotized, cooperative individual is most difficult to ascertain, even for the skilled hypnotist. The hypnotic state induces communication with the unconscious mind of the subject and a combination of delusion, fantasy and reality may be harbored therein. *** The desire to please the hypnotist may induce the subject to mirror the attitude detected in the hypnotist’s questions and his behavior.” (Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 Ohio St. L.J. 567 , 578 (1977).) Moreover, as admitted by the hypnotist in the offer of proof in the instant case, a hypnotized subject may confabulate, or create plausible but inaccurate explanations to fill in gaps in memory. In my opinion, to ask a judge or jury to meaningfully access testimony quite possibly influenced by these most subtle of subtleties is simply to ask too much. As a reviewing court which has observed neither the witness nor the hypnotist, we are especially unfit to conclude, as does the majority here, that a transcript of the hypnotic session “shows that 30 hours of training were sufficient to prevent [the hypnotist] from trying to influence the witness.” Until such time as hypnosis gains general acceptance in the scientific and psychiatric communities, it should not be accorded such acceptance in the judicial process. As our supreme court clearly indicated in People v. Baynes (1981), 88 Ill. 2d 225, 241 , 430 N.E.2d 1070 , when determining that polygraph evidence was wrongly admitted, “ '*** 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.’ (Frye v. United States (1923), 293 F. 1013,1014 .)”
Finally, I believe that the error committed in allowing the hypnotically tainted identification of defendant was greatly exacerbated by the use of the highly suggestive photographic lineup discussed by the majority. The victim, who apparently knew defendant’s name, emerged from the highly suggestive state created by hypnotism to view a photographic lineup in which defendant was pictured wearing a shirt with his name on it. Under these circumstances, I cannot help but conclude that the methods employed “give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968), 390 U.S. 377, 384 , 19 L. Ed. 2d 1247, 1253 , 88 S. Ct. 967, 971 .) For these reasons, I believe that defendant’s conviction should be reversed and this cause remanded for a new trial.