Brief Fact Summary. The defendant was charged with kidnapping, rape, and sexual assault after being arrested by undercover police whom he approached. During the investigation, the police used hypnosis to refresh the memory of several victims to help aid in identification of the subject.
Synopsis of Rule of Law. Hypnotically refreshed testimony is per se inadmissible, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis.
Issue. Did the trial court err in ruling that testimony as a product of hypnosis was per se inadmissible?
Did the trial court err in ruling that when a witness’ memory of any part of an event has been “tainted” by hypnotic procedure, that witness is rendered incompetent to testify to any fact, even those related prior to hypnosis?
Held. Hypnotically induced recall memory is per se inadmissible.
Hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis.
Dissent. Dissent to issue number 1. It is not necessary to adopt a per se inadmissible rule. Our system can create procedural safeguards that protect against the introduction of palpably unreliable testimony.
Dissent to issue number 1. The fact of hypnosis should be a matter of weight for the trier of fact, but not a disqualification. If the testimony of a witness was corroborated by independent evidence, that should be sufficient assurance of reliability.
Dissent to issue number 2. Pre-hypnotic memory ceases to exist after the witness is hypnotized. Because this is so, a witness may be required to testify to a set of facts (the pre-hypnotic memory) that they no longer believe. Counsel’s right to cross-examine would be detrimentally affected due to risk of mistrial for eliciting forbidden testimony, and by the witnesses new found confidence in memories which may or may not be accurate.
Discussion. If a hypnotic procedure is not capable of yielding reasonably reliable results, then its probative value may be outweighed by the risks entailed in its use in a criminal trial. The courts have uniformly held that statements made by suspects under hypnosis are inadmissible for substantive purposes for this reason. The threshold question of reliability must be resolved by precluding courtroom use of hypnotically refreshed testimony. No matter how carefully safeguards are followed, the risk of unreliability is high, while the finder of fact will have been deprived of the most important tool (cross-examination) on which to base its judgment of credibility because the demeanor of the witness will be irreversibly altered.
There is no valid public policy for not allowing a rape victim to testify to the fact of the rape, even though she was subsequently hypnotized for purposes of providing identifying facts, which, after verification, might lead to police apprehension of the criminal perpetrator.