Lead Opinion
The issue presented in this special action is if persons who have been previously hypnotized concerning the matters of the litigation will be permitted to testify at a civil trial. We accept jurisdiction of this special action under Ariz.Const.Art. 6, § 5(1) and hold that persons who have undergone hypnosis and have been questioned on matters concerning the litigation are not permitted to testify at a subsequent civil trial.
On April 17, 1979 there was a collision involving respondent Rix and petitioner Lemieux. Emery, a witness to the accident, spoke with authorities on four separate occasions. Although Emery had given lengthy statements to the police she voluntarily agreed to undergo hypnosis to “refresh” her recall. The fourth interview of Emery three days after the collision was during hypnosis. Emery’s “recall” during the hypnotic trance was that the Rix vehicle was across the third line (the imaginary lateral extension of the curb line which defines the intersection) when the traffic light was yellow. The hypnotic memory is contrary to that recounted prior to the session.
Liability in the pending case turns on the precise location of the Rix vehicle at the moment the light turned red. A.R.S. § 28-645(AX3)(a). The relevant statute at the time of the collision stated that vehicular traffic facing a steady red signal is to “stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection.”
Petitioners filed a motion in limine requesting the exclusion of posthypnotic testimony by Emery. The trial judge entered an order denying petitioners’ motion in limine.
This Court has previously held that posthypnotic testimony is inadmissible in criminal trials. State ex rel. Collins v. Superior Court,
In State ex rel. Collins this Court noted that subjects under hypnosis are susceptible to suggestion. The danger of implanting suggestion is present because hypnotists can suggest responses unwittingly. A subject may react to seemingly innocuous factors such as: the tone of voice and body language of the hypnotist; the status of the hypnotist; the environment in which the hypnotism takes place; and the mere fact of being hypnotized.
Experts in the hypnotism field acknowledge that hypnotized subjects will respond
The art and/or science of hypnosis has not been shown to be scientifically reliable. The principles underlying hypnotic procedure must gain general acceptance as reliable among experts in the field before posthypnotic testimony is permitted during a civil trial in Arizona. See State ex rel. Collins, supra; Mena, supra; cf. Seales v. City Court of City of Mesa,
This Court must now consider whether the rule of law announced today is to have prospective or retrospective effect. “A state is free under the Constitution to make a choice for itself between the principle of forward operation of a ruling and that of relation backward.” State v. Gates,
Petitioners’ prayer for relief is denied. We uphold the trial court’s order denying petitioners’ motion in limine and vacate the stay order.
Notes
. In 1980 A.R.S. § 28-645(A)(3)(a) was amended to read, “[v]ehicular traffic facing a steady red signal alone shall stop before entering the intersection * *
Concurrence Opinion
(specially concurring):
Having presented our position on this subject in State ex rel. Collins v. Superior Court,
SPECIAL ACTION SUPPLEMENTAL OPINION
In our original opinion in this case, we held that persons who had undergone hypnosis and had been questioned on matters concerning the litigation would not be permitted to testify at a subsequent civil trial. Lemieux v. Superior Court,
The facts were set out in our original opinion and are as follows:
On April 17, 1979 there was a collision involving respondent Rix and petitioner Lemieux. Emery, a witness to the accident, spoke with authorities on four separate occasions. Although Emery had given lengthy statements to the police she voluntarily agreed to undergo hypnosis to “refresh” her recall. The fourth interview of Emery three days after the collision was during hypnosis. Emery’s “recall” during the hypnotic trance was that the Rix vehicle was across the third line (the imaginary lateral extension of the curb line which defines the intersection) when the traffic light was yellow. The hypnotic memory is contrary to that recounted prior to the session.
Liability in the pending case turns on the precise location of the Rix vehicle at the moment the light turned red.
The original opinion in this case was based on our previous holding in State ex rel. Collins v. Superior Court (Collins I),
We believe that the result reached in Collins II is equally applicable to civil cases. Therefore, for the reasons stated in that opinion, we now modify our original opinion in this case. While we reaffirm our holding that in civil cases witnesses may not testify to hypnotically induced recall, we modify our previous opinion by holding that a witness in a civil case may testify with regard to those matters which he or she was able to recall and relate prior to the use of hypnosis, providing the following foundation is established for the prehypnotic recall. Before hypnotizing a potential witness for investigatory purposes, the party intending to offer the prehypnotic recall must appropriately record by written statement, tape recording or preferably videotape form the substance of the witness’ knowledge and recollection about the evidence in question so that the prehypnotic recall may be shown. This must be preserved so that at trial the testimony of that witness can be limited to the prehypnotic recall. If such steps are not taken, admission of the prehypnotic recall will be error, requiring reversal if prejudicial. Further, parties intending to use hypnosis for investigatory purposes should make sure that the hypnotic procedure is performed in a manner designed to minimize the danger of contamination of both prehypnotic and posthypnotic recall.
In closing, as we stated in Collins II,
The law has long recognized that there are few dangers so great in the search for truth as man’s propensity to tamper with the memory of others. The prevention of such evil is necessary for the benefit of all.... It is in the interest of the judicial system and of society as a whole that such risks be minimized.
LEMIEUX’S MOTION FOR REHEARING:
In the original opinion in this case, we held that our holding was to have prospective effect only. At the request of Lemieux, we must now decide whether our opinion as modified will have prospective effect also. As stated in the original opinion in this case, “ ‘A state is free under the Constitution to make a choice for itself between the principle of forward operation of a ruling and that of relation backward.’ ” Lemieux v. Superior Court,
The prayer for relief of Rix, the real party in interest, is granted in part and denied in part. Petitioner Lemieux’s prayer for relief is denied and the case is remanded to the trial court to proceed in accordance with the original opinion, as modified.
. These dangers are described in detail in both Collins I and Collins II, supra.
. These standards are as follows:
First, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session....
Second, the professional conducting the hypnotic session should be independent of and not regularly employed by the [plaintiff], investigator or defense.
Third, any information given to the hypnotist by [either party] prior to the hypnotic session must be recorded, either in writing or in other suitable form....
Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them....
Fifth, all contacts between the hypnotist and the subject must be recorded. This will establish a record of the preinduction interview, the hypnotic session, and the posthypnotic period, enabling a court to determine what information or suggestions the witness may have received....
Sixth, only the hypnotist and the subject should be present during any phase of the hypnotic session, including the prehypnotic testing and the post-hypnotic interview....
State ex rel. Collins v. Superior Court (Collins II),
Concurrence Opinion
concurring in the result:
I concur in the result.
Concurrence Opinion
concurring in the result:
I concur in the result.
Concurrence Opinion
(concurring):
I concur with Vice Chief Justice Gordon’s dissent.
Dissenting Opinion
ing):
Adhering to the position I espoused in the original opinion in this matter, Lemieux v. Superior Court,