State Ex Rel. Collins v. SUPERIOR COURT, ETC.

HOLOHAN, Chief Justice

(dissenting):

The decision of the court in this case effectively ends the use of hypnosis as a memory aid in this jurisdiction. The rule fashioned by the court is that the pretrial use of hypnotism precludes the use of the witness who was subjected to hypnotism. Faced with such a ruling by this court no law enforcement agency can risk using hypnosis because the person subjected to hypnosis cannot thereafter be used as a witness. I disagree with the court’s position and I reject the unfortunate rule fashioned by this court.

Since our decisions in State v. La Mountain, 125 Ariz. 547 , 611 P.2d 551 (1980) and State v. Mena, 128 Ariz. 226 , 624 P.2d 1274 (1981), further research has convinced me that our position is wrong and should be changed. The problems described in . our two earlier cases and the one at issue are, in my judgment, magnified all out of proportion to reality. If we apply the court’s concern with suggestivity and difficulty of cross-examination to all witnesses, we would not allow a lawyer to talk to his witnesses before trial, we would exclude most identification testimony, and relatives and friends of a party would be excluded as witnesses.

One of the court’s authorities acknowledges that “conventional eyewitness testimony is fraught with grave problems of inaccuracy and distortion,” but apparently the author feels that hypnotism is too extreme. Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 341-42 (1980).

The use of hypnotically induced testimony is not limited to the prosecution. It was favorable to the accused in State v. Grier, 129 Ariz. 279 , 630 P.2d 575 (App.1981), and it would indeed be unfortunate if the defense were prevented from using the testimony of a witness which might exonerate the defendant.

It is important to note that the issue in this case is not whether the hypnotist may testify in the case that the witness told him the truth or, for that matter, testify as to what the witness said under hypnosis. The issue is whether the witness may testify at trial after having, sometime in the pretrial period, been hypnotized.

This court has ruled that such witnesses may not even be called to testify in the case. This is an extreme position. Some courts which preclude the witness from relating posthypnotic refreshed testimony allow the witness to testify to matters remembered prior to hypnosis. Emmett v. State, 232 Ga. 110 , 205 S.E.2d 231 (1974); Creamer v. State, 232 Ga. 136 , 205 S.E.2d 240 (1974); State v. Mack, 292 N.W.2d 764 (Minn.1980).

Some courts have allowed the admission of hypnotically refreshed testimony of witnesses, ruling that hypnosis is a factor affecting credibility not admissibility. United States v. Awkard, 597 F.2d 667 (9th Cir. 1979), cert. denied, 444 U.S. 885 , 100 S.Ct. 179 , 62 L.Ed.2d 116 (1979); State v. McQueen, 295 N.C. 96 , 244 S.E.2d 414 (1978).

*192 A few courts have suggested some safeguards to be followed before admitting testimony of a witness who had undergone hypnosis prior to trial. United States v. Adams, 581 F.2d 193 (9th Cir. 1978), cert. denied, 439 U.S. 1006 , 99 S.Ct. 621 , 58 L.Ed.2d 683 (1978); People v. Smrekar, 68 Ill.App.3d 379 , 24 Ill.Dec. 707 , 385 N.E.2d 848 (1979); People v. Lucas, 107 Misc.2d 231 , 435 N.Y.S.2d 461 (N.Y.Sup.1980). The Adams court suggested at a minimum that complete stenographic records be made of the interview of the hypnotized person, but an audio or video recording would be more helpful.

In Smrekar the Illinois appellate court suggested four requirements before admitting testimony of witnesses who had previously undergone hypnosis. They are: (1) that the hypnotist be shown to be competent; (2) that the evidence shows no undue suggestion; (3) that the identification be corroborated by evidence unknown to the witness when hypnotized; and (4) that the witness be shown by the evidence to have had an opportunity to observe the accused.

The safeguards proposed by the New York court in Lucas , before hypnotically refreshed testimony is admitted in evidence, are much more extensive than those required by other courts. The requirements are that:

1. The expert hypnotist be trained in the mental health field;

2. The hypnotist should receive a written memo of facts from the police, so the court can know what information s/he knew prior to communicating with the witness;

3. The hypnotist be neutral, not affiliated with prosecution/defense;

4. Videotapes be made of all pre-, during, and post-hypnotic sessions;

5. Only the hypnotist and the subject should be present;

6. Pre-hypnosis, the subject should be examined by a mental health professional for mental or physical disorders and to determine the subject’s mental competence;

7. Pre-hypnosis, the hypnotist should interview the subject and determine the extent of the subject’s recollections in detail;

8. The hypnotist avoid all suggestions to the subject;

9. The court consider any evidence controverting or corroborating the witness’ hypnotic statements.

Although the New York standards appear to be too restrictive, they are certainly an improvement over this court’s “nothing.” At least to give the court system the benefit of this useful procedure, which has been used for over a century in the medical field, I would adopt the New York safeguards for future cases.

The case', at issue shows the value of hypnotism as an aid to the justice system. The police had no suspects. The witnesses were women who had gone through the trauma of rape. A deputy sheriff, Fred Fiore, whose qualifications are set forth in State v. La Mountain, supra, 125 Ariz. at 550 , 611 P.2d at 554 , employed hypnosis on the several witnesses to see if they could remember more details of the events of the rape. Audio tapes were made of each hypnotic session, although two of the tapes were inaudible. In five instances, the hypnotized witnesses provided information that had not appeared in their pre-hypnosis statements; almost all of this new information was subsequently corroborated after the accused was arrested.

Prior to trial the trial court held a hearing on the motion of the defense to exclude the testimony of any of the witnesses who had undergone hypnosis. The state presented as witnesses Fred Fiore, the hypnotist; two Maricopa County Sheriff’s Office personnel; two of the hypnotized victims; and a psychologist, Dr. Barber. After the hearing, the trial judge found that the evidence and the tapes showed that the witnesses’ statements were not affected by the hypnotic sessions, that the witnesses’ pre-hypnotic written statements and statements to police were not tainted by the hypnosis, and that the dangers of undue suggestion had been obviated by the record *193 ing of the sessions and by the preservation of the witnesses’ pre-hypnotic statements. From my review of the record, I believe that the evidence supports the findings of the trial judge. However, the trial judge felt compelled to follow the previous decisions of this court in La Mountain and Mena , so he granted the defense motion and ruled that the witnesses who had undergone hypnosis were precluded from testifying in the case.

Despite the record made by the state which included the testimony of the psychologist, Dr. Barber, and the finding of the trial court, this court finds that witnesses who underwent hypnosis are “tainted” and no longer competent to testify to anything, and, in fact, they cannot be called as witnesses. It is indeed a sorry result when the victim of a rape cannot even take the stand to say she was raped. I do not find the reasons given for this court’s decision to be convincing, and I, therefore, dissent from the decision.