stating that "[t]he administration of procedural safeguards would lead to elaborate demands for discovery, expert witnesses, and special pretrial hearings, and accordingly inject undue delay, confusion and costs into the judicial process."
How later courts described this case
- stating that "[t]he administration of procedural safeguards would lead to elaborate demands for discovery, expert witnesses, and special pretrial hearings, and accordingly inject undue delay, confusion and costs into the judicial process."
- holding that testimony of witnesses who have undergone hypnosis is no longer admissible
- witness may only testify to matters recalled prior to hypnosis; testimony inadmissible because facts did not demonstrate pre-hypnosis corroboration
- superceded on seemingly unrelated grounds by section 490.065, RSMo (2000), which discusses the standard for admitting expert testimony
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
dissenting.
I dissent. I believe that the Court errs in adopting a per se exclusionary rule for hypnotically induced testimony. I would opt for the approach of Sprynczynatzk v. General Motors Corporation, 771 F.2d 1112 (8th Cir. August 16, 1985), holding that hypnotically induced testimony may be received in evidence if certain procedural standards are met. I have little to add to Judge Ross’s thorough and well documented opinion in that case, which, along with the principal opinion, adduces substantially all of the case law and journal comment.
I do not sense substantial scientific disagreement over the proposition that a person’s memory may be enhanced through hypnosis. Questions of reliability, then, should be addressed to juries, and not concluded by appellate decision. The polygraph situation is not comparable. The problem is that the hypnotist may influence the witness’s recollection through suggestion. The question of whether there has been undue suggestion should be addressed initially to the hypnotist, and the jury may assess the hypnotist’s credibility just as it does with all witnesses. The possibility that a witness may lie is no ground for excluding testimony.
Nor would I accept the proposition that the hypnotized witness may not be effectively cross-examined. The jury might be very suspicious of a witness who purports to remember legally significant events but has no memory, or inaccurate memory, of other events and details in the same time frame. 1 Juries might also be wary of a witness whose memory is belatedly refreshed, and well might accept the conflicting, unenhaneed testimony of other witnesses. The witness who will lie following non-suggestive hypnosis would not hesitate to lie to aid his case without hypnosis.
If opposing counsel is fearful that the jury will give special credence to hypnotically enhanced testimony, the fact of hypnosis need not be brought out. The decision is a matter of trial strategy.
It has been suggested that the trial judge in this case might properly have excluded Alsbach’s testimony, in the exercise of his discretion, because of the absence of procedural safeguards. It is clear from the transcript, however, that this particular trial judge foretold the principal opinion by applying a per-se exclusionary rule, on the analogy of the polygraph cases, and did not *831 consider that he had discretion. I would not foreclose the exercise of discretion if there were to be a retrial.
The law of evidence deals with probabilities and does not demand unobtainable certainty. I would reverse and remand for proceedings consistent with these expressed views.
. It is reported that, in the celebrated "Queen’s Case,” 2 Broderip & Bingham 284 (1820), an Italian witness testified, through an interpreter, in great detail as to where the Queen slept on each night of a voyage, but, when asked where other passengers slept, consistently replied, "non mi ricordo.” The House of Lords was moved to discredit his testimony. See 3A Wig-more, Evidence, (Chadbourn Ed., 1970), p. 933; Stryker, For the Defense, (Doubleday, 1947), p. 549 ff.