*1 No. 21775. Mar. [Crim. 1982.] PEOPLE, Respondent,
THE Plaintiff and SHIRLEY,
DONALD LEE Defendant and Appellant.
Counsel *5 Hosford, Court, under
Stephen appointment by Supreme C. for De-
fendant and Appellant.
Ephraim and William S. Mount as Margolin Amici Curiae on behalf of
Defendant and Appellant. General, Philibosian,
George Robert H. Deukmejian, Attorney Chief General, Kremer,
Assistant Daniel J. Attorney Assistant Gen- Attorney
eral, D. and John W. Harley Mayfield Carney, Deputy Attorneys
General, for Plaintiff and Respondent. (Los
John K. Van de District Kamp, Attorney Angeles), Harry B.
Sondheim, Dino John Leonard, and Roderick Fulgoni W. Dis- Deputy
trict as Amici Attorneys, Curiae on behalf of Plaintiff and Respondent.
Opinion
MOSK, J . The principalquestion on this appeal whether a witness be allowed
may he has testify undergone hypnosis for the pur- after pose restoring memory of the events in issue. The is new question court,
to this but has been often in our litigated sister states and exten- science, In accord with recent and per studied medical
sively we of expert opinion, consensus overwhelming
suasive case law and be admitted in such a witness should not that the testimony
conclude
the courts of California.
I There were
The record a classic case of stories. conflicting discloses witness, complaining to the events: the principal two witnesses
only C., that defendant her threat and compelled
Catherine told the jury him; defen submit to intercourse and to orally copulate
force to sexual testified, act however, Catherine participated
dant willingly intercourse, The believed jury part and there was no oral copulation. defendant of but it also rape; appar
of Catherine’s as it convicted story, when she described in detail the alleged found that she was
ently lying defendant of that charge.1
act of oral as copulation, acquitted task, difficult since Catherine’s performance doubtless had a
jury with instances in replete
witness was far from record is exemplary: prone
which her was vague, changeable, self-contradictory, Indeed, she on occasion unexplained lapses memory. professed wit that she had herself made on the
be unable to remember assertions stand day.
ness only previous circumstances it is particularly important such taint, witness be free of lest a mistaken conviction complaining see, contami-
result. Yet as we shall in the case at bar prosecution her to a subjecting hypnotic experience
nated Catherine’s testimony by in her To story. the eve trial purpose “filling gaps” error; experience her to defendant after that
allow testify against record, we are of the view that the error
and in the of the entire light *6 (Cal. reversal of the requiring judgment.
caused a miscarriage justice
Const., VI, 13.) art. §
A Bud’s bartender at a saloon named
Catherine was a 32-year-old base. The first
Cove, prosecu- Pendleton Marine Camp not far from the addition, charge entering unlawfully of the derivative 1Hn defendant was convicted (Pen. felony, presumably rape. apartment
Catherine’s Code, with intent to commit a completion on count until stayed The court execution of the sentence § other, time. stay permanent on the to become at that of the sentence witness, Lockskin,
tian Marine Charles testified that at 8:50 Sergeiant 25, 1979, he
p.m. entered Bud’s and January Cove approached
Catherine, he had for whom known several months. She was off duty, “looked and like she was kind of bad.” She had a half-consumed feeling her, alcohol,
martini front under the influence was and stag- when
gered she walked. minutes,
After with her some talking for Lockskin to get offered
her eat and her something to take home. drove in his car to a They restaurant, food,
take-out and purchased some arrived at Catherine’s
apartment car; house 9:30 She vomited when she out p.m. got
as this was defendant came happening, up Lockskin and addressed name; leave,
him by Lockskin asked him to and defendant did so.
Lockskin then helped Catherine into the and went apartment into the
kitchen to some prepare room, drinks. When he returned to the living
however, passed she had on the and out couch was fast After asleep. her, her
failing blanket, rouse he covered by shaking her with a door, out
turned locked the front lights, It departed. shortly was
before 10 p.m.
The next was witness Catherine. She testified on the evening she off
question went Bud’s Cove at duty p.m., 6:30 ordered two
martinis, and sat until Lockskin Her “relaxing” came in. as his,
to her activities Lockskin corroborated and she ad- generally she
mitted could “feel” the alcohol she had consumed.
Catherine’s version of events after she fell the, occurring asleep later, she
follows: testified she awoke some time still on the lying clothed,
couch and found naked fully standing defendant the coffee
table Defendant took her holding butcher knife.2 into the assertedly
bedroom, clothes, ordered her to her compelled remove her to oral him several
ly copulate minutes. The witness admitted that she felt I
“like was in dream” events were moving “slow motion.”3 police 2Catherine later told the was holding that defendant a butcher both knife pick.” changed subsequently story large an “ice She her and described the latter as a knife, *7 At Phillips prosecution produced screwdriver. trial the neither ice pick, screw-
driver, weapon. nor : other above, jury noted her impliedly testimony describing alleged 3As found that n oral copulation
act of was false. knees, tied made her on her get
Catherine then stated that defendant her stockings, put
her hands behind her her gagged nylon back bed, with her in that position
head down on the and had intercourse was, turn her head to see who he to half an hour. When she tried to
up him; later her to look at he
he struck her with his hand and ordered and struck her on the a over her head for the same
put pillow purpose, felt She claimed the blow sobered her so that she no longer latter
hip.
the effects of her prior drinking. dark, and she totally
Until this had remained point apartment Catherine,
could see the intruder as “a shadow.” only According
however, intercourse, defendant desisted from further removed abruptly room,
her bonds and took her back into the and turned on gag, living couch, For the next lights.4 half hour the two sat naked on she beer,
on his he liked lap, chatted. asked her if she she Finally did; that she
replied he volunteered to some from his get apartment, errand;
and told her where he He lived.5 dressed and left on this on his
return with the beer he took his clothes off she back on his again, got and the
lap, conversation resumed. hour,
After another quarter of an defendant take a suggested they bathroom,
shower and she As entered the together, agreed. how they
ever, the telephone The caller was rang. assertedly “girlfriend” of Mickie,
Catherine named who announced she over to coming defendant, Catherine
apartment. this fact to and told him that relayed
he could return at another time and she would cook dinner Ac for him. Catherine,
cording dressed, defendant then the knife got wrapped
and screwdriver in an extra T-shirt he had thrust them down brought,
the front of his and left when Mickie pants, arrived. Catherine testified Marine,
she told Mickie she had been raped and Mickie her a gave sedative —a
strong dose of a called 100-milligram Mellaril.6 drug hour,
Mickie for half an stayed after she left Cather- immediately 4She claimed they living that as entered the room defendant told her he had intended money take her my nightstand changed but “he seen bible on the next to the bed and his mind.” The explain recognized witness did not how defendant could have a bible in the dark. by, 5Defendant lived apartment separated complex by close in an from Catherine’s
single building. prescribed 6Catherine admitted that Mellaril had been for her to take four times a denied, however,
day, dosage and that she had taken such a for about six months. She drug that she used previous had within the 18 months. *8 Catherine, before was minutes According
inc the police. called
1 a.m. long con during that their admitted Catherine
On cross-examination her de personal numerous defendant told in the room living
versation himself, apartment building, lived in the next that he about e.g.,
tails old, was Don, that he married that he was years his name was
that service, was in the child, happy not that he was Marine but
and had a California, for he had to to Bridgeport, the next morning go
and that the defendant that she engaged She claimed training.7
cold-weather he would do her fur she was afraid conversation because only
foregoing harm; went to beer get when defendant she conceded that yet
ther but that her room floor living the screwdriver on
he left the knife and them, he she remained gone that while was
she did about nothing she did not telephone she had a Although naked on the couch.
sitting did dress to the help, go else nor she anyone or police
call who was “a admittedly big building manager
nearby apartment acknowledged She the front door. also
guy,” nor did she even lock number, name, address, or telephone
she last did know Mickie’s trial, never her since and indeed had seen
where she was at time night question.8 testified that until defendant examination Catherine
On redirect in thought person having she apartment,
turned on the lights man resembled defendant and had her was an older who
tercourse with at the bar where she worked.9
flirted her reporting Lane call telephone
Police Officer Russell testified a.m., than Catherine claimed. He came at 1:45 an hour later rape under the influence to her and found her immediately apartment
went “had drinking who been alcohol: her breath had the smell someone understand, was times difficult to heavily,” speech her slow
quite had She told the officer she been unsteady. brought
and her walk fell asleep Cove at that she “very midnight,
home drunk” from Bud’s couch, She the of- gave and that she awoke in her bed at 12:30 a.m. defendant, personal physical description repeated
ficer a her appeared police responded 7As call and from officer who description, exactly company he was
took a defendant also told Catherine which Camp Pendleton. surprisingly, prosecution produce
8Not did not Mickie as witness. major.” thought him 1 was some
9Defendant testified Catherine told “she
27 disclosed to her their conversation. during information defendant had hurt, her
She then that her buttocks and the officer took complained
a local hospital.
At the she a He that he was examined testified hospital by physician. and But hip
found a bruise on her “crease marks” on her wrists. right with tied aby the latter were consistent her hands been
although having
fabric, he not tell cause and them the kind of could their described
marks on in the bed She re one receives from wrinkles linen. sleeping used
ported to the that she “occasional Mellaril and alcohol physician He testified that Mellaril is “a and
frequently.” major tranquilizer,”
that in doses of 100 or more it is day prescribed primar milligrams per states, for
ily schizophrenia, and cases.10 psychotic manic-depressive examination,
After the Police Officer Leonard took physical Goodwin
a statement of the events from The evening’s Catherine. next morning
Officer went apartment Lane to defendant’s and arrested him as he was for
leaving report When the officer announced the duty. charges
were defendant and said he had burglary rape, angry became
“picked a drunk bitch at Bud’s Cove and took her up home and fucked
her,” and she report “now wants to that he her” and “that is all a raped
bunch of bullshit.”
Defendant took the stand in his own He defense. testified a few
days before these events Catherine had waited on him at Bud’s Cove.
On the entered evening question he the bar saw her sitting Lockskin,
Sergeant recognized. whom he When Lockskin went to the room,
men’s defendant her and asked how she was approached feeling. defendant, conversation; had a brief
They she him her according told lived,
name was Cathy, identified the in which she apartment house
invited him “grab sometime and come over.” When Lock- six-pack returned,
skin defendant left bar and bought some beer at liquor his,
store. After to locate a friend of defendant to Cath failing walked
erine’s he apartment approached, house. As Catherine and Lockskin drove and defendant up briefly with the latter.* Defendant then spoke while, beer,
returned own to his drank some went apartment so,
back to When he Catherine’s asked did he building. why explained, concerning testimony 10The doctor’s uses of Mellaril was corroborated another physician-witness, Dr. Donald Schafer. remainder Dr. Schafer’s (See B, pt. post.)
discussed I below. above, Sergeant As noted Lockskin corroborated defendant’s in this regard. I back home Indiana. was
“Well, wife was myself. Kind my her invitation to come to apartment.” had an And I
lonely. door; arrival, there knocked twice Catherine’s
On his defendant *10 inside who was he he heard someone
was but response, thought no he called her knocking, no answered further as if ill. When one
moaning He testified that he lifted off the screen. through
name window and inside was sick.12
believed someone asked, the front door and defendant point opened
At that Catherine screen; to the front her she next put
“Are He handed you okay?”
door, room, down on the couch. Defen- went to the and living lay back Her okay?” “Are question, you
dant sat next to her and Repeated kissing his neck and him. He begin was to her arms around
reply put the bedroom. they at his soon moved to
responded, suggestion and clothes; defendant re- in him remove her
There she cooperated helping down, and room for his living cigarettes, stripped
turned to the briefly in intercourse proceeded her on the bed. have
rejoined They from vaginally then that he entered her turned so
“missionary position,” He he did so. in- stop
behind. She asked defendant and abruptly “couldn’t be emotion- what was and she that she
quired wrong, replied turned on men.”
ally substantially to the events ensuing
Defendant’s couch talk- living sat unclothed on room They
same as Catherine’s. turn, hour, she half and he told her all about himself. an
ing Indiana, that hard for her
told him that she was from times were too in that she had seven children problems,
and she was having began upset cry, Home for Children. She became
Knightstown testified, defendant that her. As Catherine had nobody loved
saying shower, a but they beer and then take suggested
went home to some get on the He dressed and telephone. ended when Mickie called evening arrive, “was feeling just
waited for the latter to that Catherine en- After some minutes Mickie state of mind to left alone.”
wrong arm, and defendant left.
tered beer under her six-pack of carrying pur- that screen for the person who had removed 12The defendant was not first prosecution’s In the climbing through bedroom window. pose of Catherine’s previous tenant of the same Sergeant that he was the case-in-chief Lockskin testified month; and that about three had in with him for apartment; Catherine moved he and discovered had night question he returned home with her
weeks before the the bedroom win- removed the screen on key. thereupon testified he lost his Lockskin apartment. through it into the dow and climbed he when denial made Officer angry
Defendant acknowledged the next and he further denied rape morning;
Lane accused him of or her with a knife or apartment,
he into Catherine’s threatened broke
screwdriver, her, her her or struck had intercourse with or tied or up consent, act oral
without her any copulation. engaged officers, a number of Marine defendant’s
Finally, including platoon
commander, commander, first and his company his company sergeant,
testified his behalf. On the basis of their unanimous- experience they for defendant’s truthfulness
ly expressed high personal regard he good had a for those traits of
honesty, reported reputation
character. His first further he testified that was made aware of sergeant altercations and that defendant had no occurring company, *11 or violent
history engaging aggressive behavior.
B
We relate next the evidence on bearing the issue of Prior to hypnosis.
trial, counsel for defendant moved to exclude all of the com- testimony that
plaining witness was the result of her having been He hypnotized. to
offered that case prove the was set for trial on originally May
1979, but was trailed because the unavailability an adequate jury 30, 1979, that in
pool; i.e., the evening April more than three months
after the question, events in district deputy assigned to attorney
case, Fulton, Richard had Catherine hypnotized another dis- deputy Farnell,
trict attorney, Richard at the and courthouse presence
Mr. Moore; Fulton and one and Terry that Catherine made certain
statements under which hypnosis would cause her at trial to different significantly from her preliminary hearing.
Counsel then identified one such and discrepancy, argued that “this is
an improper use “it hypnosis” because in fact a wit- refreshing
ness’s recollection” but “it is in fact manufactured He evidence.”
distinguished those cases in which has been hypnosis used such pur-
poses as an helping eyewitness to remember a license He plate number.
denied that court in state any had ruled use of hypnosis permis- cases,
sible all that here the were charged People “to attempting
expand hypnosis into an area which cannot they lay adequate foun- [in]
dation for its reliability” as tool for refreshing recollection.
The trial motion, court denied the ruling prior of a wit- hypnosis
ness affects the but not weight admissibility testimony.
Accordingly, the court directed that if Catherine gave evidence that she was hypnotized, exist —before she that did not not remember —or
could before should be put of that hypnosis
the fact circumstances
jury. to a number was allowed testify Catherine ruling,
Pursuant to this unable to recall on two occa- been assertedly matters that she had on i.e., police statements to the when she gave
sions prior hypnosis, pre- when she at the testified question, of the events in night after occasions she stated that example, For on those
liminary hearing. room, her she awoke on the couch in asleep living in her clothes
falling bed, gagged herself naked
in her bedroom and found lying she above, that when trial, At noted she testified instead
bound. clothed, then and defendant fully
awoke she still on couch and prior get Again,
forced her to into the bedroom and undressed. go be- sexual with her she that defendant had intercourse stated at trial she as well act of oral while alleged copulation,
fore as after whatever.
testified that intercourse copulation preceded oral the oral stated her hands were tied during
Prior to she hypno- trial she denied this claim.
copulation, Finally, prior while at the knife hand
sis she stated the first time she saw in defendant’s intercourse, after the
was when to the room sexual living returned they be-
while at she saw it when she awoke on the couch trial she testified
fore bedroom. entering the hypnotic and effect of Catherine’s
Both nature explored counsel Catherine, she re- being before hypnotized to
experience. According She discuss- evening question only “vaguely.” in
called events of Fulton, Attorney District Deputy
ed the her recollection with gap in over back purpose going be “for of hypnotized
and consented to she on She verified that was hypnotized
what occurred that nighj;.” Farnell; courthouse, the latter 30, 1979, although Mr.
April She was not or even a physician. “some he a psychiatrist
had training,” before, it enables a knew” that “just
had not been but she hypnotized than to mote normal.” “remember
person
Apparently she was not in that She disappointed expectation. agreed
that the hypnosis at least her sort partly “cured” recollection as to “this
of dreamlike that we’re about.” She credited the period talking hypnosis causing
with her to “fill in the her memory, in and also to recall gap”
that certain took in place sequence. events a different In she particular, to each
specifically ascribed the effect of the above-listed hypnosis
changes between her at trial and her statements to pretrial at the police preliminary hearing. W.
The defense called Dr. Donald Schafer an witness to expert on the Dr. is a hypnosis. psy Schafer board-certified
testify and 10 years private
chiatrist the staff practice years Irvine, is of California where he a clinical University professor has had it
psychiatry. He extensive and has used training hypnosis,
his for two decades.13 practice Dr. Schafer acknowledged hypnosis uses,
has certain valid medical such as pain control and relief from var
ious cases it also used psychosomatic symptoms. appropriate can neuroses,
for the treatment a re e.g., by patient recover assisting events,
pressed memories of including traumatic rape. warned, however,
Dr. Schafer grave that there are risks in relying
other on the purposes accuracy of memories recalled under hypnosis.
He explained that while no one knows how human exactly mind information, recorder, i.e.,
stores it does not act like a videotape a ma-
chine capable of back” the exact or has “playing images it impressions Rather,
received. “there are that alter the many things storage exact assurance, testified, is
memory.” There therefore no the doctor
memory recalled is correct. On the hypnosis person under contrary, recollection, hallucinate, can be mistaken in or can can or
“confabulate,” i.e., create a false or even pseudomemory, can deliber- Indeed, lie. easier lie
ately may be under because from hypnosis,
the viewpoint person the trance “the would put
responsibility on of the hypnotist.” shoulders First,
Dr. Schafer made four important additional when points. per
son put event, under hypnosis and asked recount an no one able Second,
to determine whether he is telling truth.14 when a person truth,
has a subconscious motive distort in order e.g., to make *13 others,
himself look in better the of eyes that motive will usually oper indeed,
ate even hypnosis; under “hypnosis would in a sense give [him] Third,
permission” to in such engage distortion. the effect of hypnosis additive, i.e.,
on a is preexisting memory permit re usually may the details;
call of additional if the instead remembers the person event addition, past president Society 13In Dr. Schafer is national the for and a of Clinical Experimental Hypnosis, Hypnosis, a of the Society fellow American Clinical and founding president Society Orange both Hypnosis the California of Clinical the County Society Hypnosis. using hypnosis psychiatric of Clinical As well as prac- his
tice, taught has hypnosis hypnoanalysis. Finally, he advanced in medical courses professional hypnosis. of the date of he had trial written to 15 articles on only opinion 14Dr. Schafer that this was not but profession, stated the consensus of his
and he attributed that consensus to the work of Dr. Martin T. Orne of Philadelphia. We cite Dr. Orne’s work in some detail below. (See pt. 14Dr. Schafer stated that this was not only his opinion but the consensus of his profession, and he to the attributed that consensus work of Dr. T. Martin Orne D, Philadelphia. (See pt. We cite Dr. Orne’s work in some detail below. III post.) that either his state- discrepancy implies under the
differently hypnosis, that memory the was lie or the describing preexisting memory
ment Fourth, when a has been person was a confabulation. hypnosis
under is while under and after hypnosis, hypnosis
asked to recall an event event, the is to effect of the sqme prior
asked to remember event; had about the such would persons all doubt he have may
remove that what had said in truth.” “convinced they Schafer testified although hypnot
On cross-examination Dr.
ic case! bar was excellent from viewpoint induction Catherine’s pos did not take into consideration
technique, hypnotist of the factors motivation distort the truth under one hypnosis;
sible was the above-discussed question Dr. Schafer to motivation
leading in her
discrepancies testimony. of hyp- Schafer had no doubt as up, unreliability Dr.
Summing matter. He warned particular
nosis for the truth of discovering a¡ serum-like and concluded experience,” no truth
“hypnosis way produced reliability something
“there is no way assessing as such.”
hypnosis, discredited Dr. Schafer’s on cross-ex- opinion neither prosecution
amination, nor witness of its own. anjr expert called
II disrepute, hypnosis While through periods vogue passing Its use in le in one or another for centuries.15
has been form practiced however, and the recent relatively phenomenon,
gal proceedings are by hypnosis of evidence induced admissibility
rules governing two decades. The past question found in the case' law of
mainly in two contexts: efforts
such has arisen admissibility primarily asserted, introduce, excul the truth of the matter
the defendant efforts by made while under hypnosis; statements
patory whose of a witness
prosecution incriminating introduce! will As hypnosis. appear, has been refreshed assertedly state as to the latter. to the former but in a of flux
law is well settled as *14 1974) (15th ed. history, Encyclopaedia see 9 Britannica summary a brief of its 15For overviews, Gibson, 133; Its Hypnosis: Hypnosis, for detailed historical see page more! 2; Methodologies Perry, (1977) chapter Sheehan & Therapeutic Uses
Nature and Paradigms (1976) pages Hypnosis: Appraisal Contemporary Hypnosis A Critical 1967) 3-39; (Gordon chapter 2. Hypnosis ed. Experimental Handbook of Clinical
A excluding of the cases evidence begin
We brief discussion because reason hypnosis,
the truth of statements made under has point recently
their rule bears closely present inquiry. 640,
been our v. Blair 25 Cal.3d adjudicated by People court. 818, 738], P.2d the defendant to intro sought Cal.Rptr. [159
duce, that statements favorable to him objection, tape-recorded over pre
were made an while she was under eyewitness hypnosis during evidence,
trial interview. The trial court excluded the that ruling
statements were not admissible recollection recorded. On past appeal correct,16
the defendant latter but conceded the contended ruling
the statements should have been admitted in event because they
were critical to the defense were to be likely trustworthy, citing 284,
Chambers v. 410 U.S. 298-302 L.Ed.2d Mississippi
297, 310-312,
We unanimously trial rejected “the explaining
court’s did not ruling elevate fastidious adherence to the technicalities
of the law of evidence here, over the to a fair right trial. For unlike
Chambers, there was no solid assurance that the hearsay statements
were reliable. It appears to the rule in all in which the jurisdictions
matter has been considered that statements made under hypnosis may not be introduced to prove the truth the matter asserted because the
reliability such statements is questionable. While in California such
statements —and those made under the influence of truth may serum — be used to establish a basis for expert opinion, the cases either state spe-
cifically assume are not they admissible to prove truth of the (Italics
matter therein added; contained. 25 Cal.3d at [Citations.]” We further rejected defendant’s claim circum-
stances Blair made it likely witness was telling truth: “The
fact that she awas person neutral and had no reason to her falsify
statements under hypnosis and that she intended to tell truth are
obviously insufficient to establish reliability, especially in the light
expert testimony that is no there toway determine a person under if (Italics added; relating actual 665-666.) id. at pp. facts.” (id.
As we 665), observed Blair at p. “The rule is the same in other
jurisdictions.” Indeed, no court has held otherwise. Thus the leading prior 16A if, alla, past statement admissible as recollection only recorded inter (Evid. Code,
witness testifies that it was true. (a)(3).) subd. In Blair the wit- § ness was unable testify. to so
34 (1974) 710 S.E.2d 214 Va.
case v. Commonwealth of [204 Greenfield had of the events 414, who no a defendant 432], 92 A.L.R.3d those to relating nevertheless made statements the crime
surrounding inadmissible, In the statements hypnotized. holding
events while “Most that experts agree hypnot stressed that Court
Virginia Supreme can manufac
ic because a under person hypnosis evidence is unreliable A under a person hypnotic
ture or invent false statements. [Citations.] (Id. at heightened suggestibility.
trance is also [Citations.]” to the de 419.) corpus habeas relief same
p. subsequently denying “the
fendant, very court stated that reason the federal district its unreliability.” due to potential evidence is
excluding hypnotic 1113, 1120.) (W.D.Va. 1976) 413 Other F.Supp.
(Greenfield v. Robinson of because its lack have evidence rejected expressly
courts hypnotic such evidence inad while others have declared simply still
reliability,17 se.18 per
missible the cases that have excluded this evi
Particularly relevant here.are (Frye rule. v. United ground Frye
dence on the well-known (D.C. 1013.) 1923) Cir. F. That admissi
States 293 rule conditions the proof evidence on a new scientific method based
bility that has as reliable in technique generally accepted been
showing (Id. 1014.) Find developed. scientific which it community such had made with
ing showing regard hypnosis, that no been 1975) (Crim.App.
Oklahoma court held in Jones v. State 542 P.2d 1326-1327,
1316, as to the state expert testimony truthfulness of
ments made the defendant under was inadmissible for the serum”
same reason the results of lie detector and “truth tests are
excluded, i.e., such tests “have not attained sufficient because scientific nor recognition being psychological accuracy general capable
definite and interpretation.” certain (1978) so People Hangsleben court held in v. 86
Again, Michigan 539, 718
Mich.App. 543-544], declaring N.W.2d the defen- [273
dant’s made attempt statements prove reliability 231, (“the (1974) reliability 232 Ga. S.E.2d 17Emmett v. State 110 [205 235] established”); (1965)
hypnosis
492,
Ore.
P.2d
has not
v. Harris
241
224
been
State
[405
truthfulness”);
Harper
(1969)
(hypnosis
guarantee
People v.
111
“does not
498]
5,
(“the
Ill.App.2d
reliability
[hypnosis
of neither
nor
N.E.2d
scientific
[250
7]
justify
“truth
use of test
either
serious busi
sufficient
results of
serum”]
prosecution”).,
ness
criminal
414,
418];
(1950)
35 of the “is an hypnotist inadequate the founda by showing qualifications the of Frye
tion for scientific evidence” under version the Michigan State 1976) And in Rodriguez (Fla.App.
rule. 327 903, 904,
So.2d the Florida court excluded such evidence under ver its i.e., Frye,
sion that the of a new method of proof of must reliability or “‘have from ex
generally accepted by passed scientists the of stage to that of
perimentation uncertainty demonstrability.’” reasonable test, the held the court evidence inadmissible because
Applying
was of of “unconvinced the statements reliability procured by way
hypnosis.”
B
With this unanimous of law in mind we turn to body the second above, i.e.,
group cases mentioned those the addressing admissibility of a witness whose has re- assertedly been memory v. State
freshed by hypnosis. The seminal case was Harding 302], witness, A.2d the
Md.App. There Mildred prosecuting was roadside, found the
Coley, by wounded the victim an apparent assault; she
aggravated sexual was in state of shock and could re- defendant,
member that anything had after shot the happened being
who had been with her in a riding car. Several weeks later she tak- was
en the police to barracks to be from the hypnotized by psychologist
state hospital. The furnished the with police hypnotist the details of the
case, and he informed he was her Coley going “get back.” memory
After put in, he her under he invited two state and di- troopers
rected her to tell him that on the “everything happened” day
question. She related defendant, certain events incriminating
occasional He denied prompting by hypnotist. suggesting her
answers to his but did her that questions, give suggestion after she she
awoke would relate same events. He then her out brought
trance, and under questioning one the state she troopers gave duly
the same answers she had while conced- given hypnotized; hypnotist
ed had her posthypnotic suggestion made “want to do so.” He
testified in his her under be- opinion story reliable corroborated,
cause certain her statements were because “her recall same,”
afterwards was she because had “no reason” essentially On time, lie. the witness story stand third Coley gave claiming
that “When I was it all came back to me.” asleep appeal
On from his with intent commit rape, conviction of assault
the defendant that the urged pretrial hypnosis Coley’s rendered testimo- Maryland Court
ny judgment, inadmissible. Affirming single this contention on the dismissed Appeals summarily
Special her of the events was accu witness believed
ground Mildred Coley’s testimony concerning
rate: “The admissibility *17 the On witness to case causes no rape difficulty.
assault intent so her doing the and stated that she was from
stand she recited facts told stories or had
own recollection. The fáct that she had different the after concerns being hypnotized
achieved her present knowledge facts, this which trier of in
question of the of the evidence weight at p. must decide.” jury,
case a series simi spawned
In the 10 these few sentences ensuing years were decisions witnesses to to recollections that testify
lar permitting General, The natu pretrial hypnosis. Attorney refreshed
assertedly by at bar. an relies on decisions in case But
rally, those heavily ap discloses
examination of the a evolution opinions significant cases, In as in Harding, of the courts to this issue. the earlier
proach issue, of the reit merely
the courts little or no engaged analysis “goes
erated the that the fact general proposition hypnosis of the evidence. If discussed they not the
weight, admissibility” all, noted believed he was
point at the courts that witness simply could credibility presum from his own that
testifying (See v. Jorgensen be tested cross-examination. State
ably by ordinary 312,
(1971) 8 1 v. Fairchild Hiller 315]; Wyller P.2d Ore.App. [492 (9th 1974) 506, 509-510; Cir. 503 F.2d Kline Ford Mo
Corporation Co., 1067, 1069-1070; (9th 1975) Inc. Cir. 523 F.2d State v.
tor 414, Clark 427]; 295 96 S.E.2d v. State
McQueen N.C. [244 1979) 372, 375.) 379
(Fla.App. So.2d close, however, the courts to take no began
As the decade a drew purpose, inherent for this hypnosis
tice of dangers using “safeguards” hope
developed increasingly complex procedural until Circuit Court of Thus 1978 Ninth
forestalling dangers. those (see in civil cases Harding only Wyller had rule
Appeals applied cases, Kline, in that to criminal year rule extending supra); however, concerned, “We that use investigatory
the court warned: are in court testify later be called hypnosis persons may upon who care be exercised to for abuse. Great must potential
carries dangerous of the product subject’s are the
insure statements after recollections, recall tainted received suggestions
own rather than of (United (9th 1978) 581 Adams Cir. under States v.
while hypnosis.” 193, 198-199.) proposed the court sever- point In a footnote
F.2d
37 al believed would eliminate “poten such safeguards apparently
tial abuse.”19 707, v. Smrekar (1979) Ill.Dec. Ill.App.3d People followed the Harding Court of the Illinois 853], Appeals
N.E.2d “the not without problems.
rule but use of recognized events, or to verify aspects to recall real
‘Asking patient only false, remove the element of
material as true or reduces but does not subject also
fantasy’ suggestion hypnotized [citation]. the court admissible the identifica held hypnotist.” Accordingly, hypnotized
tion because of a previously eyewitness only
number of factors in the record which the court viewed as impliedly *18 reliability.20
guaranteeing subsequent very
In
cases the
became
elaborate
required safeguards
v. Hurd
State
86],
Thus in
indeed. A.2d was unable or to the defendant as
eyewitness-victim unwilling identify assailant,
her only hypnotized did so after three weeks later. being
The defendant moved trial her before to in-court suppress proposed
identification, and extensive taken on the expert testimony subject was reliability the induced hypnotically recollection. The trial court or-
dered the testimony suppressed.
On the New held the admissibil- appeal, Jersey Supreme Court induced Frye
ity hypnotically testimony must be judged by
standard, but to immediately qualified require rule that in only is, effect,
case the hypnosis recall that no produce more inaccurate that, minimum, 19“We think at complete stenographic hyp records interviews of persons notized who testify later should be Only judge, jury, maintained. if the and the
opponent questions asked, know who present, was responses that were and the witness’s can the effectively. 199, matter be with dealt An recording audio or video interview (Id. helpful.” p. 12.) would be Although at fn. safeguards the court found those had not been observed in Adams and approve declared “we do of the omitted; (fn. p. 199), methods used here” id. rejected at it nevertheless the claim of er ground ror on the object that the defendant had failed to the inadequate to foundation. 667, (9th In 1979) United States v. Awkard Cir. 597 F.2d the court reaffirmed holding 2) its explained (at Adams and fn. the purpose of the Adams safe- guards is “to ensure posthypnosis truly subject’s statements are own recollections.” 20Thus the court hypnotist stressed that a physician with exper extensive using hypnosis; only session; ience he and the present witness were at the hypnotic although recorded, the session was not the hypnotist anything he suggest denied did witness; corroborated; the identification to the the identification was and the witness ample had had opportunity (Id. to see the defendant at the time of the crime. at 854-855.) pp. (Id. at who has not been hypnotized. witness
than that of the average inherent in a number of 91-92.) recognized dangers court
pp. unless con- carefully hypnosis, which “explain why
hypnotic process obtaining means of
trolled, reliable accepted is not generally included the ex- (id. 93); dangers subject’s p. at
accurate recall” confabulate, judgment, tendency of critical
treme loss suggestibility, The court nevertheless his new “memories.” confidence in
and excessive se, that “the asserting inadmissible per such testimony
declined to hold (Id. shortcomings.” reveals similar ordinary eyewitnesses
reliability 94.) p.
at risks of court hypnosis, if the admitted
Yet to minimize possible to its use. prerequisites an intricate set procedural
went on to adopt kind loss that
First, both the of memory trial court should “evaluate based technique employed, specific was used restore (Id. 95.) The court expert presented by parties.” hypnosis,” amenability then into “the inquire
should more may sug trances capable entering deeper persons
because turn, the must offering party
gestible. re procedural less than six additional he has no
prove complied *19 and insure “a adequate to furnish an record intended
quirements, 96-97.)21 (Id. at level reliability.” pp.
minimal of with these prereq in to “strict guarantee compliance” order
Finally, its
uisites, the must establish admissibility the proponent (Id. burden,” the and at “This said convincing” proof. “clear court, abuse potential hypnosis,
New “is the Jersey justified by error,
the and and the genuine of; suggestiveness consequent likelihood (Ibid.)22 the Because the court found that several of
risk of injustice.” Orne, requirements, suggested by pages set 96-97 21The six Dr. are out at (1) They may hypnotist psychiatrist as follows: the must be a or
A.2d. be summarized bias, (2) hypnosis; hypnotist to be psychologist experienced in the! use of avoid the must defense; (3) give independent prosecution police or all information the or defense the recorded; (4) subject the hypnotist before the must be before the session the session them, hypnotist hyp- and the must describe in detail to the the facts he remembers (5) influencing description; between the hypnotist notist must avoid all contacts examination, session, i.e., hypnotic post- the the and the prehjypnotic and the — recorded, (6) and no hypnotic interrogation preferably videotape; person be —must session, hypnotist subject may present during be or even other than the during posthypnotic interrogation. prehypnotic examination and the justices join opinion, believing refused that hypnotically 22Two to induced tes
timony should not be a criminal trial under circumstances: “To do so admittec] guilt speculating, depend jury’s would have the defendant’s innocence or on the on the conflicting testimony, basis of scientific-medical whether the identification was true Sullivan, implanted by hypnosis.” opn. J.].) recollection or [cone. Hurd,
listed had not been met on the record in procedural requirements testimony.23 affirmed order suppressing proposed
C consideration,
After careful we decline effort join to foregoing set of sufficient avoid the risks develop “safeguards” inherent with, induced To we
admitting hypnotically are not testimony. begin in Hurd and other cases will
persuaded requirements adopted Next,
in fact forestall each of the dangers which are directed.24 they
we observe that certain are dangers not even addressed by
the Hurd all of rules requirements: those are virtually designed pre
vent hypnotist from none exploiting suggestibility subject; Hurd,
will risks, avoid directly the additional elsewhere in recognized subject (1) will lose his critical to credit judgment begin unreliable,
“memories” that were viewed as will confuse formerly
actual recall with confabulation will unable to be be distinguish two,
tween the will exhibit an unwarranted confidence in the (432 93-94.)
validity ensuing recollection. A.2d at The Attor pp. General no
ney proposes to deal with “safeguards” these knotty prob
lems. even if could be devised that were
Lastly, requirements adequate we have doubts that could be administered in
theory, grave they prac-
tice without undue and confusion into the injecting delay judicial sure, be if
process. To it would be to determine usually hypno- easy
tist was an It appropriately psychiatrist might trained psychologist. pros- harder establish that he was sufficiently independent
ecution defense avoid And it would be certainly or to subconscious bias. Hurd demands—
far more difficult strict prove compliance to —which adopted 23TwoNew York courts pre- trial have an even more elaborate set of nine requisites admissibility testimony, to the unreported widely such derived from an but ruling (1980)
cited of a (People Wisconsin trial court v. 1979. Lewis 103 Misc.2d 177]; People 881 N.Y.S.2d v. McDowell Misc.2d [427 N.Y.S.2d 181].) example, 24For one requirements set forth Hurd all is that contacts between recorded, the hypnotist subject and the enabling must be for stated purpose the the
trial hypnotist may court to conveyed subject by determine what “cues” the have to the deed; word recordings. p. 93), encouraged and the opinion strongly videotape the use of to such make (432 p. 97.) (at opinion recognizes A.2d as the Yet same elsewhere unpredictability subject, “Because of the of what will influence a it is difficult expert examining even videotape for an to hypnotic identify possible of a session identification, expert confidently cues.” If even an cannot make that it is vain believe to layman judge that a such as a trial do so. can It exam credulity, strains
with each of the remaining “safeguards.” agree defense counsel would
ple, meekly to believe that a conscientious had bit of relevant information con every recorded prosecution session, or that had hypnotist
veyed hypnotist prior that information to the either while none of
conveyed absolutely version the facts or while question latter’s
extracting prehypnotic or that contact every single him both after
ing during hypnosis, innocuous, and the no matter how had subject,
between the hypnotist
been on preserved videotape.25 hand, that these and prescience little foresee
On the other takes There litigation. issues would fertile new field for provide
related wit- parades expert be elaborate demands for discovery,
would first
nesses, concomitant delays all with pretrial hearings, and special be expected trial courts would then questions our
expense. Among (See, experts. are so as to confound the
to answer scientific issues subtle 24, ante.) generate fn. would turn panoply Their resolution
e.g., be difficult appeal, including questions
new claims that could raised on standard of And proof. with the “clear convincing” compliance victim, the eye-
because the would frequently hypnotized subject defendant,
witness, or a similar source of crucial testimony against on of such could ruling admissibility easily errors of conviction. our
jeopardize unimpeachable judgments otherwise not worth the candle.
opinion, game reasons, number of courts that
For all these we instead a join growing devising “safeguards” workable pretense
have abandoned any induced is so widely
have held that simply hypnotically test. This dis- Frye
viewed as unreliable that it is inadmissible under course, with the above-discussed case law
position, of consistent of the truth of statements made under evidence
uniformly excluding see, rules, (See A, ante.) as we shall are sup- II And both
hypnosis. pt. contemporary consensus of scientific
ported overwhelming
opinion
hypnosis.
approach
People
from the
depart
Harding
first case
There,
after he had con-
Hangsleben supra,
fessed, the events recalled assertedly the defendant was hypnotized session, examination, hypnotic and the the requirement prehypnotic 25The that the difficult, moreover, to com- interrogation make it posthypnotic videotaped all be would completely hypnotist subject the alone requirement that the ply the further
during phases. each of those time, that a third was the true party
of the crime for the first stating He at trial that the had refreshed his sought prove ‘hypnosis to
culprit.
recollection, stand in order to bolster his on the witness and to ex story The court
plain police. inconsistent admission to prior Michigan was ex
distinguished Harding, and held that the evidence properly because the “failed to establish the reliability
cluded defendant (Id. 544.) as a His sole
hypnosis device.” memory-jogging showing refer hypnotist
was to assert to to the qualifications does memory restoration “That not demon
ory by hypnosis. Ruling acceptance”
strate scientific ver general required by Michigan Frye test,
sion of the the court the evidence for lack of rejected proof others, has been successful ei restoring testimony
ther their or that of experts.
In State v. La Mountain
551],
restore witness’ The recollection. defendant was convicted of sexually trial, in a
assaulting customer laundromat. At two prosecution wit-
nesses identified the defendant as the person who committed a similar
assault in earlier; the same laundromat fifteen months one was vic- assault,
tim of that and the other was a who seized the bystander witnesses, however,
assailant. Both had been unable to the de- identify
fendant from until photographic lineup their memories were “refresh-
ed” hypnosis. The hypnotist was a sheriff who deputy had attended
various law enforcement institutions instruction in giving hypnotism. He
used a so-called “TV technique,” asking visualize the
events the crime as if were they being back on a played videotape
machine.
On appeal, the Arizona Supreme Court held it was error to allow the
two witnesses to the assault to prior after had testify they been hypno- (at The
tized. court p. 555), reasoned “There no expert testimony
regarding the effect of hypnosis upon person’s memory, and we do not
know from the record what effect previous hypnotic identification
had on the later witness’s in-court and identification. testimony Al- we
though perceive hypnosis is a useful tool in the investigative we (or do not feel
stage, art) the state the science has been shown to
be such as to admit which may have been as a developed re-
sult hypnosis. A witness has who been under hypnosis, in the case
here, should not be when testify question allowed there is a that the have been may produced by hypnosis.” court never- *22 affirmed the from the evidence that the result judgment, finding
theless been the if these witnesses had not testified.
would have same in and La was Hangsleben in identified Mountain gap proof and filled case State v. Mack
quickly thoroughly leading
(Minn. 1980) met N.W.2d 764. that case defendant Marion bar,
Erickson in a took her to a motel on his eventually motorcycle.
Thereafter he an ambulance told the drivers he telephoned in intercourse when she started bleed-
and Erickson had been engaged drunk, unclear, was her was speech from the Erickson vagina.
ing At the a cut was found hospital single deep
she had difficulty walking. intern that had been inserted in fingers
inside her she told one vagina; had in a sexual and another that she been vagina during activity,
her did believe they the doctors advised her
motorcycle accident. After that she had been assaulted.
her she to the explanations, reported police not, however, much the events of the night
She could remember
question. a hypnotized to be lay
Six weeks later caused Erickson police her After professional training. placing deep without
hypnotist
trance, and another officer investigator invited the hypnotist police would recall the events as He then Erickson she them. told join Erickson ac- In the course of the session on a television sdreen.
though in the At the repeatedly vagina. defendant her stabbing
cused the her gave posthypnotic suggestion
end of the session hypnotist remember very clearly everything effect that she would able to The next she the same question. day gave on the night
that happened present as her mem- recounting a written statement
police investigator under hypnosis. she had related events
ory sexual as- charged aggravated was arrested and
The defendant testi- of Erickson’s admissibility proposed question
sault. The Following pretrial hearing. an extensive
mony litigated stayed the trial court procedure, to Minnesota pursuant
hearing, court the supreme question to the state and certified prosecution pro- in a criminal witness may testify previously hypnotized
“whether a at the pretrial hypnotic matter adduced
ceeding concerning (292 opinion In well-reasoned
interview.” N.W.2d holding unanimously negative, answered court high
Minnesota law. as a matter of inadmissible
such *23 court that no less than five on began by experts emphasizing retrieval had testified at the an
hypnosis memory hearing, making which to decide the issue. The court ob legal
extensive record on also
served that the record “demonstrates the truth Dr. Orne’s observa be
tion that a decision on the would case-by-case admissibility question and reveals the expensive, difficulty getting experts
prohibitively
qualified hypnosis about as an rather than a testify investigative (Id. 766.) at p. tool.”
therapeutic
The defendant in Mack contended that Erickson’s re hypnotically admission,
freshed recollection too unreliable to merit and that to
allow such would him the to effective deny right cross-exa
mination. The state contended that the should be admitted established, as certain
long can be “safeguards” relying Harding defendant, turn,
its progeny; invoked The state Frye. argued that is
Frye inapplicable to evidence that is not the direct product a me detector;
chanical device admissible, such as a lie and to be
testimony of a previously witness need be hypnotized true provided
it is based on what the witness actually perceived. Stressing poten
tially drastic effect of on a witness’ however, testimony,
court ruled that “Although hypnotically-adduced ‘memory’ is not strict
ly analogous to the results of mechanical we are testing, persuaded that
the Frye rule equally is (id. in this applicable context” 768).26 whether,
The court turned to the record to determine under Frye,
use to refresh a witness’ has been generally accept
ed as reliable the scientists by working field. The court found true, i.e., the exact opposite that the consensus informed ex
pert opinion rejects use of hypnosis for this purpose because it is
“not scientifically (Id. reliable as accurate.” at p.
The court gave conclusion, number reasons for this each drawn (Id.
from the expert testimony 768.) First, before it. at p. “a hypnotized susceptible to highly even that suggestion, which is subtle and
unintended. Such suggestion may transmitted either during hyp it,”
notic session or before such persons as police officers or doctors. 26Echoing criticism, scholarly rejected Harding ground court on the that it was
the product gullible witnesses and courts uninformed about the scientific realities of hypnosis. pp. 770-771.) please natural “desire to subject’s
This is enhanced suggestibility *24 to who have asked hypnotist person hypnotized
either the or others that he she re urged important
remember and who have a The result is that can create “hypnosis
member certain events.”27 neither were nor could have been made” perceptions which
(id. to 769). And there is no determine p. significantly, way at “Most which of it are parts historically
from the content of the itself ‘memory’ fanciful, (Id.
accurate, are lies.” at which are and which entirely 768-769.)
pp. claim of denial also the defendant’s testimony supported
The expert unreliability, “In to its historical addition
of effective cross-examination: subject’s hardened in the becomes produced
a under ‘memory’ before the ‘story’ hypnotic A who was unclear about
mind. witness account he made of the absolute truth
session becomes convinced ‘indi- ordinary conviction is so firm that under This hypnosis.
while erased, to impossible ... It would be
cia are reliability’ completely (Fn. omitted; id. meaningful witness in any way.”
cross-examine such a 769.)
at p. the two but declined to perpetuate the court
Summing up, recognized B, II A and II discussed hereinabove (pts.
inconsistent lines of cases however, in
ante): authority, rejecting best scientific “We follow the distinction between hypnotically-induced
artificial and unprincipled by offered exculpate offered the defense to by is of of whether such evidence Regardless to make its case.
prosecution memory has a witness whose prosecution, the defense or by
fered testify to permitted must not be hypnosis ordinarily
been ‘revived’ under she ‘remembered’ under matters which he or
in a criminal proceeding (Id. 771.)28 at
hypnosis.” Supreme the Minnesota
Because the certified precise question previously hypno- of a the admissibility
Court in Mack was limited to subject’s psychological gaps.’ “need to ‘fill When by the asked 27It is also enhanced ‘I know.’”
question hypnosis, rarely respond, will he or she don’t under tool, investigative to be used as an 28The added that could continue court i.e., can serve as “leads” for further in- subject remember verifiable facts that help plate long as the material vestigation of crime —such as a license number —“as eyewitness’ subsequently part in court as of an during hypnosis is not used remembered testimony.” (Ibid.) however, warned, hypnotized that even when a witness is The court alone, safeguards investigative under purpose the session must be conducted for that suggestion” in the event the the utmost freedom from adequate “to assure witness (Italics hypnotic interview.” testify later called to added; to “recollections recorded before “notefdj, adopting,” the safe- ibid.) point court without In footnote 21, ante.) (See Dr. fn. guards Orne. recommended session, the hypnotic witness’ matter of
tized whether such a witness court did not resolve larger question to the crime that relating be allowed on other matters testify
should in the session were allegedly
were covered expressly hypnotic was soon an- question
recalled without the aid The latter hypnosis.
swered, again negative. N.W.2d 853], v. Tait People Mich.App.
defendant was Sheriff with in- charged assaulting Myers Deputy *25 to commit the
tent murder. At testified that preliminary hearing Myers him, defendant
the raised a and twice threatened to approached pistol, off; his head
blow when the defendant his orders to ignored stop nearer,
came At trial the same Myers shot him. told Myers story,
one difference: whereas at he had testified that preliminary hearing did not
he see the at trial attempt defendant to fire the he testi- pistol, that
fied before just he shot defendant he saw latter move his to the mistrial,
hand of top weapon. Defense counsel moved for a he had
stating not that been Myers’ learned had refreshed by
pretrial hypnosis until he so testified. The had been the hypnotist pros-
ecuting that attorney. Myers claimed at the session no one told hypnotic what
him trial say, that his was his own recollection of testimony
the incident. motion, The trial denied court and the defendant was
convicted.
Reversing the judgment, court Michigan began by its recalling
1978 decision in which Hangsleben, supra, held similar inad testimony
missible. The People that the argued rule was Frye inapplicable this
context because the witness’ recollection was “refreshed” merely as per
mitted by contention, law. The court this rejected that warning “Investi
gatory use of hypnosis on persons who are later called on to testify
court carries (Id. potential 856.) dangerous abuse.” The then
court held the case version governed by Michigan Frye
rule, wit, scientific “general be recognition established by [must] of
testimony disinterested or impartial disinterested experts scien
tists whose not livelihood was connected with the intimately technique.
[11] In the instant case the technique new, but we believe the same must
requirements be met are required for the introduction lie de
tector or voicewriter evidence evidence influenced them.” 857.) test, (ibid.) Applying court held that “Hypnosis has
not ‘achieved that degree general scientific acceptance’ which will introduction,” its inter alla
permit
citing
People Kelly
our decision
Cal.Rptr.
Cal.3d 24
court, failure to disclose before compounded by prosecution’s to restore his mem- the witness had been hypnotized
trial the fact that concluded, of the prosecutor’s improper then virtue “By The court
ory. case, Kirk been da- testimony sheriff has deputy Myers’
actions the case. In lieu used on retrial of to the extent that it cannot be
maged retrial, shall prosecution remanded for but the case is discharge, testimony deputy in any using any from absolutely prohibited way no adjured permit The trial court is Myers.
sheriff added; (Italics seen or heard.” kind as what have Myers may
N.W.2d at p. is a inference, however, pre- impropriety
Any prosecutorial a previously hypnotized
condition to exclusion of State v. Arizona case of in the recent was firmly dispelled
witness a bar three men. stabbed outside Koors was Stephen
Mena. There two doctors who officer to see went with a police later he
Sometime of the assault. his memory purpose improving him for
hypnotized *26 incident, his answers con- him about questioned
The doctors to the given he had previously statements
tained more details than the him that after he the doctors told the session terminating Before
police. to them what he had related he would remember
came out of hypnosis trial, to exclude Koors’ the defendant moved
in the trance. At of the event were own his memories
unless it could be shown that The of the hypnotists. implánted by suggestions
recollection and not was convicted. the defendant
motion was denied and affirmed the Appeal the Arizona Court of
At the first level of review its Harding the “respectable authority” on relying
judgment, (State 1980) v. Mena (App. error. to find no fundamental
progeny apply Frye in effect to 1294].) Declining
Ariz. 244 P.2d [624 adduced evidence cannot be
rule, that “hypnotically reasoned the court detector examination with, the results of a lie example,
equated the witness but cannot cross-examine can cross-examine
since one (Ibid.)
lie detector.” review, however,
On further the Arizona Supreme Court rejected
both the and the of the court of authority reasoning appeal, vacated the with of its and reversed the
portion opinion dealing hypnosis, assault (State
conviction.
v. Mena
heart of its decision is a careful into the scientific realities of inquiry its effect potential witnesses. In that the court
hypnosis inquiry
relied on a number of articles as for conclusions iden scholarly support i.e.,
tical to those drawn in Mack from under expert testimony: persons memories, fantasies, are false and con
hypnosis prone experience
fabulations; these distortions are aggravated by subject’s tendency desires, he believes the even without the respond way hypnotist either;
awareness of is unable to his true memo distinguish
ries from and after pseudomemories implanted during hypnosis; he will often be more convinced of the of the latter accuracy former,
than the cross-examination making ineffective. 1276-1278.) On these
pp. the court discredited and its grounds Harding and instead
progeny, quoted from the above-discussed approval
opinion Tail.
The court then reiterated the Arizona version of the rule Frye (citing
inter alla 24), stated, People Kelly 17 Cal.3d supra, “We
believe that the same standard should to the use of apply
produce testimony (624 by purportedly improving memory.” P.2d context, the rule in Applying the court found that al
though hypnosis uses, has certain approved its use therapeutic “to aid in
accurate recall is not yet (Ibid.) generally accepted.” Reaf Mountain,
firming the of its 1980 holding decision La supra,
court (ibid.): therefore concluded “The determination of the or in guilt
nocence of an accused should not depend on the unknown consequences
of a procedure used for the concededly purpose in some changing
away Therefore, witness’ memory. until hypnosis gains general accep
tance the fields of in. medicine and psychiatry as method which
memories are *27 distortion, without accurately improved undue of danger
delusion or we feel that fantasy, of witnesses which testimony has been
tainted by hypnosis be should excluded in criminal cases.”
In the course of its the court the opinion quoted published view of Dr.
Bernard L. Diamond that a witness who has been for the hypnotized of
purpose his improving so contaminated that he is there
after incompetent to In its testify. disposition the court that
adopted Tait, view and the of corresponding holding ruling
after Koors had been it was hypnotized error to allow him prejudicial to (at
testify 1280) at all. The court explained that “it will often be dif
ficult to determine whether proferred has been testimony produced by
hypnosis or has come from the witness’ own unaffected memory,
hypnotic suggestion. In order to ensure the against dangers of hypnosis,
therefore, this Court will consider from witnesses who have testimony
been questioned under hypnosis the of their regarding subject offered the time criminal trials inadmissible in to
testimony be from this (Italics added.) point In a footnote at session hypnotic forward.” the state place decision today may court that “our recognized testi witness’ particular to use a whether position choosing
difficult to as an witness subject hypnotism trial or to criminal
mony ability to at this time on state’s We do not pass tool.
investigatory of deposition.29 means testimony” by prehypnotic witness’
preserve series,
With the case in we full As we next come circle. have
seen, the with in 1968 the decision of the sequence began Maryland but in Polk State
Court Appeals Harding; Special
Md.App. A.2d the same court has now 1041], repudiated
Harding instead us. Frye governs question held before This coup
dramatic turn of events de to the appear grace would give precedent
moribund relied Attorney on here General. Polk the defendant was
In eight- an charged orally copulating
year-old boy Bobby, named his next-door Some five months neighbor.
after the Bobby police incident was taken the state barracks be White,
hypnotized police with minimal ex- by Sergeant investigator
perience the session White advised that hypnosis. began was Before was to determine goal whether could remember sexual Bobby
contact with this defendant. mother and the attor- Bobby’s prosecuting present were White’s
ney during the session. Under questioning, Bobby details of the misconduct. The moved be-
produced alleged defendant
fore trial to suppress ground White on Bobby
that it would “an product unproven be inexact and science” and
hence was also inadmissible á matter law. Counsel contended that questions
White as a qualified hypnosis expert, Bobby
were and there was an be- improperly suggestive, impermissible delay pair opinions. in a Supreme 29The returned to of later Arizona Court 7, 1982) (Col- (Jan Superior P.2d 1266 ex rel. Collins v. Court
State Arizona I) holdings that induced hypnotically in detail the Mena lins court reiterated right Kelly-Frye impairs the constitutional testimony is under the rule and inadmissible “safeguards” could procedural court also no amount of of confrontation. The held that admitted, use sufficiently but allowed the limited such reliable to make *28 granted Following investigative purposes. change personnel, a of the court hypnosis for (State Arizona rehearing “supplemental opinion” different author. and filed a a of 4, II).) 1982) (Collins 1279 the Superior (May 644 P.2d ex rel. Collins v. Court holdings length foregoing principal of at supplemental opinion the court reaffirmed the /, undergone pre- majority witness who has and but allowed a Mena Collins bare being hypnotized, investigative before hypnosis testify to facts he remembered trial 1295-1296.) (Id., The “safeguards.” pp. at compliance certain provided there is with practical of and point on for a number scientific author of Collins I dissented latter the 1297-1299.) pp. persuasive. that find at reasons we and the incident the session. The trial court denied the hypnotic
tween
motion, the goes weight that the fact rather asserting course, This,
than the the was the rule in admissibility of testimony.
Maryland since Harding. at trial was the
Bobby’s testimony same as answers substantially
he under On he gave cross-examination stated he had rec- hypnosis. no
ollection the incident and “forgot until he nasty part” spoke White, however,
White. The did not call prosecution did not intro-
duce evidence of For that reason hypnosis. the court refused to expert
allow defense testify hypnotically refreshed recollection
is unreliable and White’s hypnotic procedure was The improper. defen-
dant’s motions to strike and for Bobby’s testimony acquittal or mistrial denied, he
were was convicted.
The court appellate acknowledged Bobby’s would have testimony
been admissible under its 1968 decision but held Harding, that deci
sion had been undermined 10
later
years
when Maryland first adopted
rule in the
Frye
case
Reed v. State
A.2d 97 A.L.R.3d The court in effect distinguished away 201].
Harding on following rationale: “In we did Harding, assess
Frye principle, the rule there enunciated not been having applied in this State until nor did we have occasion probe the question Reed\ —here
directly raised of Reed —of authority the general acceptability of
hypnotism as a reliable technique memory retrieval within rel
evant (Fns. scientific omitted; community.” 1047.)30 A.2d at p.
To answer question, the court quoted from both Mack length (and accord), cited Mena Tait as being their reliance stressing
on the rule Frye judging admissibility hypnotically refreshed 1048): (id.
recollection. The court then reasoned “Reed speaks,
course, of expert based testimony upon use a scientific technique. scientific, technique
The of hypnosis is but the itself of the
witness is the product end of the administration of the technique.
induced recall of the dependent witness is be upon, cannot disasso from,
ciated scientific underlying method. we Accordingly,
conclude, as did Courts, the Minnesota and Arizona that the test Frye case, i.e., be
must applied instant before Bobby’s can admitted,
be there must a determination gen of whether
erally acceptable in the relevant scientific for the community purpose retrieval.” year i.e., 30OnIy rejected argument, before the same court had the same that the (State Reed-Frye Harding. Temoney (1980) Md.App. rule undermined 569 [414 240, 244].)
A.2d *29 the below refusal precluded by had been determination
Because that court of the hypnosis, the unreliability
to the to prove allow defendant the trial to rule in to the judge and with directions
reversed remanded as by of this shown acceptability technique the general instance on
first Mena the Finally, adopting publications. scholarly
expert contaminated, the court witness thus of
rule total disqualification under Frye, is found inadmissible technique if the
also directed that “since the boy all the retrial to at on testify must be allowed not
Bobby to the charges incident rise alleged giving of the
had no recollection Mena, (Id., supra” State the v. prior to hypnosis. the
against appellant 1049.)
472 A.2d
at p.
170], the Su-
Nazarovitch
In Com. the line only joined foregoing not
preme Pennsylvania Court of but refused testimony, expressly induced hypnotically
decisions barring procedural its to sanitize such evidence follow Hurd attempt by
to with defendants Nazarovitch were murder charged The
“safeguards.” had to police a witness whom the caused
on the basis statements by to in an to her
be three trial effort refresh prior occasions hypnotized enforcement officials were present during of the events. Law
memory session, asked of the questions some
each furnished hypnotic testi- suppress motion the witness’ pretrial
witness. defendants’ granted, prosecution appealed. and the
mony held testi the court such opinion, Pennsylvania high
In a unanimous the order. The court suppression began inadmissible affirmed
mony the must ruling admissibility challenged test, i.e., Frye hypnotically-refreshed testimony “whether
judged by community yielding reasonably scientific generally accepted Mena, As in answered the
reliable results.” court views
question examining published leading representatives concluded, as From studies the court in both such community. Mack,
Mena has community “grave misgivings” the scientific use, for a of reasons reliability
about forensic number itself; i.e., inherent in “the phenomenon heightened suggestivity, confabulate,
increased satisfy tendency desire hypnotist, state the fact
and the in one’s from inability distinguish waking (id. “Furthermore,” observed, 174). the court “the
fantasy” hyp with
notic is often imbued a confidence and subject, upon awakening,
conviction as to his which was before. present Prehypnosis molded, in
uncertainty experienced becomes additional recall light certitude, into of any sugges-
under unaware hypnosis,
51 tians he acted upon confabulation in which he The engaged. firm belief in the
subject’s veracity of his enhanced recollection is hon ” held, estly and cannot be undermined through cross-examination.
(Ibid.)
The court then reviewed the of its carefully holding reasoning Hurd, state in refused to to the urging prosecu
sister but accede of the Rather, that it an adopt
tion such approach Pennsylvania. court
explained, “we remain unconvinced that the trier of fact could do any more than as to the
thing speculate reliability accuracy The Hurd court’s rationale that
hypnotically-refreshed memory. hyp
notically-refreshed recollection as well be since might admissible ordi eyewitness are
nary accounts also vulnerable to error and inaccuracies
does do full fact ‘the justice traditional guaranties
trustworthiness as well to view demeanor of the jury’s ability
witness are wholly ineffective to reveal distortions of memory induced
by the It hypnotic process.’ unchallenged can jury [Citation.] remember,
more a witness’ critically analyze perceive, ability
articulate his such recollections when has not been- hypnoti
cally-refreshed. The worth probative hypnotically-adduced
evidence cannot overcome the serious and fundamental inher handicaps 176-177;
ent accord, (1981) therein.” State v. Palmer 210 pp. 648,
Neb. 206 N.W.2d Hurd [rejecting holding hyp [313 653-655]
notically induced general inadmissible lack scientific (1981)
acceptance]; Mich.App. v. Gonzales 108 145 N.W. People [310 306,
2d [same].) 308-314]
Ill
From the foregoing cases that the appears correct analysis
problem before us is to determine whether recalled testi- hypnotically
mony rule, so, to the California Frye version and if
whether it meets the test that rule. We to such proceed an analysis.
A Frye rule is ingrained the law of this It deeply state. has re
peatedly been invoked our courts to determine the admissibility based,
evidence for example, on polygraph examinations v. (People (1950) 124,
Wochnick 98 Cal.App.2d 70]), 127-128 P.2d “truth [219 636,
serum” v. 52 (People Jones Cal.2d P.2d 577]), [343
Nalline testing Williams (People Cal.App.2d Supp.
860-862 (Hun- P.2d 251]), experimental of blood systems typing *31 254, Cal.Rptr. 647, 653-656 (1966) 64 Cal.2d [51 v. Crowley
tingdon (1976) 17 Kelly supra, v. analysis (People 382]), voiceprint
414 P.2d (1978) 76 Cal.App.3d Slone v. (People marks 24), human bite
Cal.3d identification microscopic and 61]),
611, Cal.Rptr. 623-625 [143 239, (1978) Cal.App.3d 80 Palmer particles (People residue
gunshot reviewed recently 466, 1056]). We 1 A.L.R.4th Cal.Rptr.
250-255 [145 31-32), (17 pp. Cal.3d at Kelly in for rule
the several reasons (id. at our conclusion here; to note enough is them repeat
need not of, our alle and reaffirm the wisdom 32) “we persuaded that are which rule acceptance’ the ‘general to, decisión the Frye
giance mandates.”
that case is the rule Attorney Frye inapplicable General contends context, in essence the The rule is
present making following argument: (1) limited cases which an witness his
assertedly expert gives opin to (2) technique
ion the results of new for scientifically interpeting evidence, (3) that direct goes or
testing analyzing physical opinion fact, is to the existence or which often the
ly disputed nonexistence contrast, issue in in cases such as the litigation. By present
ultimate the testifies; (i.e.,
it is the expert not the who the hypnotist) ordinarily proc (i.e.,
ess of a to his potential improve involved the witness hypnotizing evidence;
recall) has to do with if the nothing testing physical expert he tech
does should not be asked results testify, interpret (i.e., his on whether the revived memories of
nique give opinion (i.e., true) are but to discuss its
hypnotized subject simply methodology conducted); how the session and the latter testi explain hypnotic or
mony disputed does not to the fact ultimate issue evidently go (e.g., Rather, is the of the case witness identity culprit). typical who the event that is the
person perceived litiga actually
tion, witness, i.e., and his is same as that of other any lay
he that to the best of ability. states his recollection of event present been that
It is true that his recollection has refreshed hypnosis, But does truthful or accurate recall. neither not guarantee That as with all guarantee,
does other method of reviving memory.
witnesses, cross-examination, which the trier of fact permits comes from
to determine truth and refreshed accuracy hypnotically
testimony.31 assumption Frye inapplicable, Attorney 31On the that General contends
only
suggestive
impermissibly
in this case was an
issue whether the use
citing
pretrial procedure
testimony,
the Wade-Neil
subsequent
that tainted Catherine’s
1149,
(United
1926];
388 U.S.
L.Ed.2d
rule.
States v. Wade
S.Ct.
375].) Finding
de-
L.Ed.2d
93 S.Ct.
Biggers
Neil v.
The argument the Frye invoking of the opinions reading narrow unduly
ceeds from an “de evidence applies the rule example, Kelly, as we said
rule: (17 Cal.3d techniques. scientific new “based upon”
veloped by” to manipulation limited necessarily those techniques Nor are new sci based on a if we do not doubt evidence:
physical were to be evidence psychological on purely
entific process operating stan Frye to the courts, subjected likewise it would
offered our case, salutary purpose its the rule serves *32 In either
dard of admissibility. and ultimately unproven misled being by from
of preventing jury 31-32.) at (Kelly, pp. methods.
unsound scientific the case at bar
Moreover, unchallenged expert from the into the that have inquired the jurisdictions
and the uniform findings is
matter, improve memory a witness to appears hypnotizing recollection. method” of witness’ refreshing
not in fact like other “any more than permit does hypnotic process
These sources reveal that memories; it contrib actively
the witness to retrieve real but repressed belief abiding the witness’
utes the formation of pseudomemories, (or else) to anyone of the witness inability
in their and to veracity, above, circumstances, as noted between the two. In these
distinguish be disas and cannot recall of the witness “is
resulting dependent upon, (Polk supra, v. State
sociated from” the underlying hypnosis. thus as reliable 1048.) only
427 at And if the is A.2d standards of itself, the same by it must hypnotic process judged
admissibility. In People
The event been decided in California. question has the court Cal.Rptr. 386], Cal.App.3d
v. Diggs the same reasoning: context on applicable essentially
held in this Kelly demeanor which generally
“In view of the modification of memory that posthypnotic we are persuaded
follow from treatment by hypnosis, product instances be termed properly
testimony may many a new scientific upon of evidence based admissibility
technique. court was The Kelly .... Kelly
technique governed by People [¶] tendency lay dangerous with and sought mitigate
concerned to scientific evidence and often undue weight considerable
jurors give (17 Cal.3d, 31.) at p. with credentials.
presented experts impressive of certainty with a aura ‘“misleading
Such are invested procedures ex- currently its obscuring a new scientific envelops process,
which often (17
perimental nature.”’ Cal.3d at p. This is true of certainly (112 530-531.)
hypnosis.” Cal.App.3d pp. We ap Diggs.32
prove this portion accord, therefore, Minnesota, with the courts of Michigan,
Arizona, we hold that in this state the tes Maryland, Pennsylvania,
timony purpose of witnesses who have undergone hypnosis their of the events in issue cannot be received in evi
restoring Frye
dence unless it satisfies the standard of admissibility.
B course,
It is the of such who has the burden proponent testimony, i.e., dem making Frye, necessary showing compliance
onstrating qualified means of and disinterested new experts as reliable in the relevant scientific
technique generally accepted 36-40.) (Kelly, In the case at bar the did
community. pp. prosecution *33 burden,
not take that and made no such On this up showing. ground
alone we would be testi ordinarily justified holding challenged inadmissible. But while such a
mony dispose would of ruling appeal us,
before it would the bench and bar with provide little guidance Moreover,
other the same litigation presenting questions. in the particu
lar circumstances of this case the had little if prosecution to make the We
opportunity required therefore reach the showing.33 however, hold, Diggs 32ln Appeal the Court of went on to that on the record it before showing
“there an adequate admissibility was to establish the posthyp- of [the witness’] (id. 531). testimony Kelly” p. notic appears misreading under at This to be a of the the requirements Kelly, psychiatrist testimony by Frye. of According of Appeal, therefore to the Court of gave hypnotized opinion who the witness as his hypnotically that enhanced reliable, gave is while Dr. Bernard Diamond contrary opinion, “bolstered corroborating by experts the introduction of several affidavits other in the field." 530.) immaterial, at reasoning The court nevertheless deemed this conflict that pre- testimony “Dr. sented Thus the contrary, Diamond’s to the it seems that the lower court here was reliability (id. p. 531). with sufficient evidence of the method used” at apparently Kelly-Frye court believed that is satisfied whenever there is “suffi- cient evidence” from which hypnotic the trial court could find that enhancement is proof testimony reliable —and under normal rules of of one witness enough Code, is purpose, despite contradictory (See 411.) for this testimony. Evid. § Kelly-Frye requirement Yet the merely by is not fulfilled expert evidence that one reliable; personally that the in challenged procedure believes is the court must be able to find procedure generally accepted larger is as community reliable scientific 30-32, originated. (Kelly, 37.) it finding which It is obvious that no such could pp. extent, Diggs. accordingly, be made on the record in To that the decision is disapproved. (June 1979) 33At the time Diggs of trial neither leading nor the out-of-state cases
applying Frye yet in this prevailing context been decided. The juris- had! rule in other i.e., Harding progeny, dictions was still that of hypnosis “goes and its the fact of to the merits, reasons of and consider- precedent its both for issue on
Frye
ations of fairness. follow, claims, Attorney
Yet it does not General
record a decision on the inadequate support general admissibility is the issue raised by aided Here de hypnotically testimony. fully did he this ground,
fendant. Not make a motion on only timely pretrial
but he into the pur on cross-examination of Catherine probed critically method,
pose, experience. and results of her hypnotic By testimony Schafer, defendant exposed using Dr. then risks multiple hyp
nosis restore a witness’ and he elicited from Dr. Schafer an memory; is not as a truth-seek
unequivocal expert opinion that reliable
ing technique. sure, a single
To whether the be we doubted Kelly
witness, an if to establish the views of entire qualified, even is sufficient (17 Cal. 3d
scientific as to the of a new community reliability procedure. however, will Schafer’s appear, supported, As Dr. the subject. a substantial treatises and articles on body scholarly evidence,” General that “literature is not Attorney complains among this court to and choose improper “pick would betrays
literature to decide issues scientific fact.” The remark a fun- the task before us: our duty
damental misunderstanding is reliable as
decide whether induced recall witnesses hypnotically *34 fact,” whether accepted
matter of “scientific but it is simply generally in community.
as reliable the relevant scientific We by recognized Kelly
(ibid.) of the issue would “Ideally, general acceptance resolution the scien- of the views of a cross-section of
require typical consideration such,
tific if of those there are community, including representatives, of judi-
who But considerations question technique.” the new oppose to be impractical require presented
cial make it those views economy out in as in open pointed each scientist court:
personally by testifying (292 766), such a would be procedure prohibitively
Mack N.W.2d difficulty event
expensive, and would frustrated seen,
weight, admissibility” testimony. As we the trial court ex- have posthypnotic motion exclude the pressly denying on that rule in defendant’s relied issue, only Believing credibility was in complaining witness. open up hypnosis in its prosecution court refused to allow case-in-chief.
56 local
finding experts qualified on as an testify hypnosis investigative
rather than a therapeutic tool. this limited
Accordingly, for scientists have purpose long been per
mitted to speak to the courts their through published writings 35; treatises and
scholarly journals. (Kelly, v. Huntingdon Crowley
(1966) 647, 656; (1978) 64 Cal.2d v. supra, Palmer 80 People supra, 239, 252-254;
Cal.App.3d 69, v. Law People Cal.App.3d (D.C. Cal.Rptr. 708]; 1974) United States v. Addison Cir. 741, 744-745.)
F.2d “evidence,” The courts view such as writings not of
the actual new reliability scientific but of its technique, accep
tance vel non in the scientific Nor community. do the courts “pick
choose” among for this On writings purpose. many topics —includ
ing hypnosis scientific literature is so vast that no court could —the so, absorb it But possibly all. there is no need to do because the burden
is on proponent of the new technique to show a scientific consensus use; its if a fair
supporting overview of the literature discloses that sci
entists either in significant number or expertise that use publicly oppose unreliable, the court may conclude there is safely no such
consensus at the present time.
That is the case us. On the topic before aided hypnotically
recall we have reviewed scientific treatises and numerous articles in From this review it
scholarly journals.34 clearly appears major
voices in the scientific use of to restore community oppose witnesses, potential with or without safe memory procedural
guards, on the of its intrinsic This ground unreliability. unreliability
due both to certain human properties of and to factors inherent former,
in the nature of We with the which hypnosis. begin have been
little mentioned in the cases. reviewed, to, given weight topic 34We have also but little law review articles legal exclusively profession. authors who are members of the A number of such arti 765, 4,
cles supra, are cited State Mack 292 N.W.2d footnote and are Diamond, Hypno *35 discussed and criticized Inherent Problems in the Pretrial Use of 313, Prospective (1980) (hereinafter sis on a Witness 68 Cal.L.Rev. 327-331 cited as Diamond, concludes, Problems). Inherent Dr. generally As Diamond the articles suffer using from an hypnosis underestimation of the scientific risks in to restore a witness’ memory, ability legal (e.g., and an expert overestimation of the of traditional devices cross-examination) testimony, appears to those risks. It as true of as of avoid scientist, voiceprint analysis may regu only that “This area be one in which another field, colleagues competent express lar communication with other to such an opinion community].... considering to the view of position scientific [as community, (Kelly, speak the scientific a court is bound to let scientists for themselves.” Cal.3d.) pp. at 39-40 of 17
C is a aided recall de police principal proponent hypnotically Reiser, Ed.D.35 to his According Martin
partment psychologist, on the belief that human mem Dr. Reiser
published operates writings, records, (1) film, as is like if on
ory faithfully machine that videotape witness, (2) stores
every experienced permanently perception level, at
such recorded in the brain a subconscious perceptions them in form when the witness is original their
accurately “replays” (See, Reiser, e.g., under and asked to remember them.
placed 40; Reiser, (1980), Investigative
Handbook of ch. Hypnosis Hypnosis 36, a Tool The Police Chief
as in Criminal Investigation 1976] [Nov.
40; Reiser, as an Aid in a Homicide Hypnosis Investigation variations,
Am.J. Clinical With minor this belief —or Hypnosis
assumption shared apparently police psychologists “hypno —is enforcement,
technicians” at all levels of law and serves as the theory which such base personnel potential their practice hypnotizing
witnesses to their recall of crime-related improve events. literature, however,
The professional this belief: the rejects scientists
who work that, in the field testified generally agree Dr. Schafer
trial, recorder, does not act like videotape but rather is influences numerous that continuously alter its content. This
view has been at least expressed since of Sir pioneer Frederic study Bartlett
C. of Cambridge published a University, half-century ago.
(Bartlett, (1932, Remembering 1964).) reprinted Using a different era,
simile that pretelevision Bartlett critically examined conven
tional belief of his time that “traces” event were laid down every
the mind and permanently stored until were they “re-excited” aby
stimulus and as memories. Bartlett reappeared began analysis by out
pointing that “there are obvious difficulties. The traces are general
ly supposed Hence, to be of individual and events. specific normal every
individual must about an carry with him incalculable number of indi
vidual traces. Since these are all in a stored single organism, they are in another, bound
fact to be one related and this recall its inevi gives (id.
tably 203). associative character” 35Dr. Reiser is the Angeles director behavioral science services of the Los Police Department. Institute, He is also the director of the Enforcement Hypnosis pro- Law
prietary Angeles school in Los hypnotism police teaches courses in and other personnel. law enforcement *36 Bartlett’s more now-famous important
Less obvious but even work,
conclusion, memory that is produc- drawn from his experimental rid is “The first notion of that reproductive: get
tive rather than ... In or primarily literally reduplicative, reproductive. is or
memory
fact, evidence rather than presupposition, remembering if we consider to be more an affair of construction rather than decisively far
appears (Id. 204-205.) at had of mere As often been reproduction.” pp.
one
shown, “condensation, elaboration and invention are common features (id. 205). p. point, at on latter ordinary remembering” Expanding shown us all manner of
Bartlett that “our studies have that reported which
changes constantly every per- detail occur instances normal remembering.
son admit to be instances of There are genuine would direction,
changes complexity in order of sequence, changes
structure, (Id. 312.) ...” at In “Remem- p. summary, significance, fixed, of innumerable lifeless and
bering is not re-excitation construction, reconstruction, It is an or
fragmentary imaginative traces.
built of our attitude towards whole active mass of out the relation 213.) .. . .” reactions
organized past experience p. re-made, “the is recon- being
Bartlett’s insight past continually (id. 309) due prevailed in the interests of the present”
structed view of accepted
course among generally now colleagues, view, we shall dis- profession. support Of the works that many “permanent memory”
cuss two In his examples. analysis but even L. Hintzman observes that “Before Douglas Professor
hypothesis, data, for think- relevant we can see a number of reasons
considering brain does our adult lives Throughout true occur.
ing forgetting Even survive contin- undergo
cells die and those that replaced. are the chemicals that make
ual There is a constant ‘turnover’ of change. as we deal with in other And parts body.
them as there is up, just we new ex- environment, many encode likely
our seems changing to deal developed originally trace structures
periences by modifying (Hintzman, Memory Psychology Learning The old ones.” cited two most often phenomena He then examines the
as “evidence” for the permanent hypothesis. Penfield, per who has Wilder neurosurgeon first the work of cases of with advanced
formed numerous brain patients operations discovered that Penfield operations the course of those
epilepsy. electric probe, in the brain with an
when he stimulated various locations ex patients during procedure reported were conscious —who — events them of reminding vivid and detailed “flashbacks” periencing *37 To these explain reports, occurred their childhood. assertedly the “videotape a similar to re memory very
Penfield model proposed Professor police psychologists.36
corder” theory espoused by
Hintzman out several serious to Penfield’s conclusions. points objections
First, on not a patients report they experience some occasions hallucination, feeling or a a of deja but dream
“memory” simply 301.) (Id. at It difficult if not between impossible distinguish
vu. is Next, is
these “There never verification phenomena. any independent to indicate is reported nothing experience
of the really ‘memories’ —
an event from the There is patient’s past. only subject’s statement familiar,
that it seems and therefore must something happened (Id. see, 301-302.)
at an earlier time.” we pp. As shall this lack of in
dependent verification infects most of the claimed “evidence” of reliable
hypnotic recall. “such have not Finally, reports been obtained from non- (id. 302), and
epileptic patients” hence form a scientifically inad basis
equate for the memory conclusions about drawing processes
large majority population.
The second often cited as evidence phenomenon permanent for mem which,
ory “hypnotic age This is regression.” procedure by under
hypnotic suggestion, appears regress in mental until an age life,
earlier date in his then seems to “relive” the events he experienced
on that date and their accompanying emotions. Professor Hintz Again
man finds little persuasive demonstrations, value in such stressing that
the subject’s claim to recall individuals or specific events from his child
hood if ever corroborated rarely because of obvious difficulties so. He
doing also notes studies in which hypnotized have in subjects stead undergone age “progression” i.e., have made been to believe —
they are 10 or living more years have reported their future —and future “memories” with equal conviction and verisimilitude. “Good hyp
notic subjects,” author explains, “will go great lengths comply
with the hypnotist’s and this requests, includes apparently constructing
realistic scenarios them acting out.” at p. Professor
Hintzman concludes that while the permanent memory hypothesis is Reiser, value, example, accepts 36Dr. Penfield’s evidence at face and relates with- question
out extravagant the latter’s somewhat conclusion that “the brain functions recorder, high were, fidelity putting much like tape, every as it experience from birth, birth, possibly time even experiences that these and associated before feelings are for replay today available they vivid a form as when first occurred.” added; (Italics deleted.) (Reiser, fn. Investigative Hypnosis (1980) Handbook of p. 8.) *38 is weak offered in its support in its the evidence
tantalizing simplicity, (Id. 304.)37 p. incorrect. at
and the is hypothesis probably Loftus, Ph.D., experienced investigator a highly
Elizabeth F. number her articles similar conclusions a memory,
field of reaches Loftus, & On the Permanence Stored Loftus
(e.g., Information 409) her and in valuable Psychologist Human Brain Am. simile,
treatise, (1979). she a different Adopting Eyewitness Testimony an event and a wit that time between “During in the latter
explains called the ‘retention period
ness’ recollection of that event —a often through that were acquired
interval’ —the bits and of information pieces to be out waiting pulled reside in
perception passively memory do Rather, numerous influences.
like fish from water. are to they from the outside can intrude into provided
External information and can dramatic
witness’ his both cause memory, thoughts, as can own (Id. 86-87.) this at Her reasons for
changes pp. in his recollection.” of her research Dr. Loftus
view deserve close attention. On basis cause memory
identifies number of the influences that can a a witness’ interval without the awareness:
change retention during with a learned but
witness “compromise” memory subsequently may (id. 56); into the p. may “incorporate” memory
inconsistent fact at he a third party, e.g.,
nonexistent event mentioned object casually (id. 60); p. postevent may change at information questioning
later incident, affect e.g., may the witness “feels” about the
way original (id. 70-72); at be pp. how or how violent was
impression noisy and complete is great pressure
cause witness under social thereafter in his may memory by guessing,
accurate he fill gaps if the sub witness is part memory;38
“recall” those guesses early statement he made any erroneous
jected repeated questioning, (id. at later as a fact reappear be “frozen into” the may moreover, tell, 84-86). whether detail any given There no toway
pp. or from ex from his original perception
recalled the witness comes (Id. 78.) p. he at acquired.
ternal subsequently information al., (O’Connell Regression: Hypnotic Age et leading study is in 37A scientific accord. 1970) J.Abnorm.Psych, (mono- (Dec. Methodological Analysis Empirical and
An 2).) graph supp. pt. inducing language particularly hypnotically recall 38In relevant to the risks guess through “videotape recording” technique, Loftus “while an initial Dr. adds: later, confidence, guess for a may be with low the witness mistakes the offered when level rise. seems to occur because witness memory, real the confidence can This memory.” ‘seeing’ he constructed
now an item that himself has exper- has no doubt postevent
From these studies Dr. Loftus but subtly irreversibly. alter memory,
iences can witness’ rejects permanent memory hypothesis.
author then considers and evidence to support
Observing “People cling highly suspicious (id. critical “evidence” 115), she is particularly belief’ be- age regression: “many investigators
allegedly provided by hypnotic and is as likely
lieve that is unreliable unpredictable, just (Ibid.) to recover And because
to create new memories as old ones.” *39 unverifiable,
such are “Vivid memories bemay pro- accounts ordinarily
duced, but who can whether these have or have not been altered say by (Ibid.) been to which a has Dr.
subsequent experiences person exposed.”
Loftus concedes it will be that a possible “prove” conclusively never to event,
witness does not have an of a for it given unaltered trace memory
can be that the inade- always objected technique for it was unearthing (Id.
quate i.e., 117.) that “we did not p. at dig deep enough.” — Nevertheless, author, after careful investigation reports “My and I have
colleagues used a number of different to techniques try to
induce such witnesses to reveal evidence traces any of the in- original cases,
formation. In all of we these have been unable provide any (Italics added;
evidence an intact original remains.” id. at memory 118.)
The “videotape recorder” of law enforcement also theory hypnotists wit,
lacks empirical third of its support assumptions,
upon unlocked being witness’ are by hypnosis repressed memories without
“replayed” further he modification as recalls the original
event.39 more Once the research results are otherwise: in this stage final “retrieval,”
of the known as process, of the accuracy witness’ mem be
ory may affected adversely by outside factors even as he recalls it.
Again Dr. Loftus identifies some those influences as the wit follows:
ness his may subconsciously tailor recall to conform to expectations
implied him; by person questioning expectations those be con may not,
veyed, or intentionally by either such of the conduct as questioner voice,
tone of emphasis, facial pauses, and other expression “body lan (id. 72-74), at
guage” pp. or particular method of interview i.e., theory support 39The also lacks for its assumption, initial that the is ca- witness pable “recording” in the instance of every perception original first of the event complete fidelity. memory Loftus) investigators (including Extensive work Dr. dem- stage process, “acquisition” “encoding,”
onstrates that in this known as or witness is likewise to external and internal influences that tend to distort his however, perceptions very experiences present moment he For purposes, them. further; witness, we phenomenon need not potentially every discuss it occurs counterpart procedure has no immediate hypnotically aided recall. (id. 90-94); and- the at pp. asked41 of question form precise
used40 is a questioner such cues if respond likely
witness be more may official) if he is than a law enforcement doctor or figure (e.g.,
status (id. 97-98). at pp. what happened inquiring
merely passerby between the clear correlation warns there is no Dr. Loftus
Lastly, its in fact: accuracy of his recall and in the accuracy
witness’ confidence can be circumstances
indeed, “people shown that in some studies have than their ones. To right their answers wrong confident about
more absolute
cautious, guarantee take confidence high one should not final influence on distorting
of anything.” in then, people, “Most
retrieval, phenomenon: is a well-documented correct, desire to be to be aby are motivated
cluding eyewitnesses, answer, an
observant, foolish. want to People give to avoid looking this at the risk of incorrect. Peo being will do many
to be helpful, done, and this desire may solved and justice want to see crime
ple *40 is warranted their by meager more than
motivate them to volunteer fabrication is valid retrieval and unconscious The line between
memory. 109.)42 (Id. p. crossed.” at
easily
D current research into the operation We have dwelt of reports on First, seen, reasons. as we have that research
of human for two memory which undermines the recorder” on most “videotape theory
convincingly Second, witnesses is potential premised.43
law enforcement of (“Did gun?”) of interrogatory you produces see a recollections lower 40The method saw.”). (“Tell you
accuracy greater method me what but detail than the narrative witness, asking you gun?” “Did 41The classic distinction is between see and him, gun?” significant
asking you “Did see the Other semantic differences with effects Loftus, (See, e.g., Hilgard accuracy reported been in the literature. & on have Effec- Eyewitness Experimental 27 Internal. J. Clinical & Interrogation tive of 342, 346-351.) Hypnosis course, may powerful, be all the more of when the witness to the 42Such motivation “justice may that event the natural desire to see done”
crime is also its victim. In yearning vengeance. by deeper fueled for research, flatly rejects example, “videotape” 43On the basis of that for Dr. Orne say any currently accepted theory it that a view is counter to model: “Suffice such (Orne, memory supported by scientific data and is not Use Mis- [citations].” Experimental Hypnosis Hypnosis use in Court 27 Internal. J. Clinical & 311, Orne, Misuse].) cited as Use and While he concedes that [hereinafter useful, working hypnotic subject “videotape” imagery may at times be he with the would, competent hypnotherapist using metaphor, such a confuse it
explains that “no memory organized.” fn. with the manner in which is such to contribute to the un by
each found research phenomena in a more form when reappears of normal extreme
reliability purpose improving
the witness is recollection.44 hypnotized turn, then,
We professional topic. literature the latter For we add to
present purposes already need not discussion lengthy by detail; literature in it will be if we set
analyzing enough simply conclusions,
forth its relevant citations principal representative to a
sample of studies. The will be over supporting necessarily conclusions but full
simplified, of each can be found in the cited explanations point
authorities and similar works.45
1. is Hypnosis by its nature a process of and one of its suggestion, effects is
primary that the person hypnotized becomes extremely recep-
tive to suggestions he perceives emanating hypnotist. from the
The effect is state, intensified another characteristic the hypnotic wit, that the attention of the is subject wholly focused on direct- (432 44For this we theory 92) reason cannot to the subscribe Hurd A.2d be, untrustworthy may however hypnotically induced recall is at no worse than least ordinary memory “safeguards.” if it is accompanied six listed explain (pt. We above C, ante) “safeguards” II why we find inadequate such both and impractical. appear, persuasive spokesmen 45Aswill the most for the relevant communi- scientific Diamond,
ty are Drs.
Dr.
professor
Diamond and Orne.
is both
who
clinical
California,
psychiatry
professor
University
of law at
known to
well
the
the
legal profession.
psychiatry
He
the author of numerous
in the area of
articles
*41
law,
(See,
(1975)
and we
often
e.g., People
have
relied on his views.
v. Burnick
14
306, 327,
488,
Cal.3d
Cal.Rptr.
352],
328 & fn. 19
P.2d
we
535
where
describe
[121
field.”)
Dr.
nationally
specialist
Diamond as “a
known
in this
Orne, M.D., Ph.D.,
equally
segment
Martin T.
respected by
well known and
of
profession specializing
practice
the medical
in
theory
hypnosis.
the
and
of
He is at
clinician,
investigator,
Experimental
once an
an
of
and
educator: director
the Unit for
Psychiatry
Pennsylvania Hospital,
at The Institute of
one of the
most
nation’s
active
research,
attending
hypnosis
psychiatrist
laboratories of
hospital
he is also
at the
senior
same
addition,
Pennsylvania.
and
Psychiatry
University
Professor of
the
of
Dr.
president
Society Hypnosis,
Orne is the
national Journal Clinical
of the
of the
International
of
the editor
Inter-
the
Experimental Hypnosis,
of
and
senior author
article
15,
hypnosis
(see
ante),
on
Encyclopaedia
in the
and
Britannica
fn.
the author of lead-
ing
hypnosis
scholarly journals.
articles on
research
the
He
testified
in
has often
as an
expert
published opinions.
hypnosis,
repeatedly
recognized
and
in
his eminence
the field has
been
764, 766;
(See,
e.g.,
(1980) supra,
v.
State Mack
292 N.W.2d
291,
(1980)
296];
Hughes
State v.
N.J.Super.
People
Hurd
333
A.2d
[414
(N.Y.
643,
1979)
County
646].)
Ct.
ed by hypnotist. inferred by or be
requests by hypnotist; they may or predictions to or during acquired prior hypnotic from information he session,
session, cues as the known purpose or from such or the by or comments made the hypnotist,
form of asked questions and nonverbal conduct. suggestions demeanor other
hypnotist’s indeed, unperceived hypnotist
can be entirely unintended — —
himself.46 desire experiences compelling under person
2. The and suggestions, to these positively
please hypnotist by reacting he believes are responses expected produce
hence to particular either when asked to recall an event compulsion, Because
him. mem heightened suggestion
while in or under direct “age regression” he cannot do so unwilling he is to admit that
ory (“hypermnesia”), Instead, he will produce or incomplete.
that his recollection is uncertain (1) relevant actu compounded of the event that “memory” may facts, (2) prior facts from an unrelated
al irrelevant actual taken (“confabulations”) un (3) fantasized material
experience of the subject, and conscious lies—all to fill in
consciously story, invented gaps likelihood of such as he can.47 The
formulated as realistic a fashion i.e., it sig hypnosis, is increased another effect
self-deception give causes him to critical and impairs subject’s judgment
nificantly would not have so and that he
credence to memories vague fragmentary them before being hypnotized.48
relied on 333; 46Diamond, Problems, Orne, Misuse, 322-327; pages page Use Inherent
Orne, Quasi-Control Simulating Subject Group Hypnosis as a Research: On the What, How, (Fromm Why, Hypnosis: Developments Perspectives Research Orne, 1972) Research]; pages & edits. as Hypnosis Schor 400-403 cited [hereinafter Soc.Psych. & Hypnosis: The Nature and Essence J.Abnorm. Artifact 280-286, 297; Hilgard, (1965); generally Hypnotic Susceptibility see Weitzen- hoffer, Hull, Objective Study (1953); Hypnotism: Suggestibility Hypnosis An (1933). Suggestibility case, example, complaining 47In a recent underwent no less California witness *42 improving pretrial hypnotic purpose memory
than four sessions for the her of the by physician experienced hypnosis, crime. The sessions were in the use conducted hypnotized the in and he was convinced that witness was fact on each occasion. He was however, opinion, produced by of the that the entire the witness while in recollection explained person the state He “is able to hypnotized trance was a deliberate lie. that lie, (People lie would nonhypnotic and will for the same reasons he lie in a condition.” 1010, (1980) 378].) Lopez Cal.App.3d Cal.Rptr. Ap- 1017 The Court peal accepted “the were not explanation, hypnotic this and concluded that sessions throughout refreshing memory. contrary, the On the those ses- instrumental Victim’s repeat she á tale.” sions continued fabricated Misuse, 337-338; 335, Orne, pages 48Diamond, Problems, and pages Use Inherent 316-320; Testimony (1979) 'll Inter- Putnam, Eyewitness Hypnosis and Distortions in session, nor the the the During subject hypnotist
3. neither hypnotic true and of various pseudomemories
can between memories distinguish recall; the that recall repeats
kinds in the and when reported subject trial), witness lay
the state in a neither an nor a ob waking expert (e.g., each
server the or can make a similar distinction. In (e.g., jury) judge
instance, if or verified wholly the claimed is not cannot be memory by means, it no one can tell whether is an accurate
independent reliably
recollection or mere confabulation. Because of the foregoing pressures the with a and subject complete to present hypnotist logically event, detail, coherence, neither the nor
satisfying memory prior
plausibility of the recall is of its resulting any guarantee veracity.49
4. Nor is such furnished guarantee by confidence which initially reported related: witness who is subsequently
uncertain of his recollections before will being become con hypnotized by
vinced that he process told under and story hypnosis is true
correct in This every respect. effect is enhanced two com techniques used
monly before lay hypnotists: being hypnotized (or
told believes) that hypnosis will him to help “remember very clearly event, everything happened” trance prior during and/or
he is given he sugggestion after awakes he will “be re able to
member” that event equally Further clearly comprehensively.50
enhancement of when, this effect often occurs after he to the returns state, the
waking subject remembers content of his new “memory” i.e.,
but source, its forgets he forgets that acquired during the hypnot
ic amnesia”); session source (“posthypnotic can arise phenomenon
spontaneously from the subject’s expectations as to nature and ef
fects of hypnosis, or can be unwittingly suggested by hypnotist’s
instructions. effect Finally, only persists, but witness’ convic 437, 446; nat. Experimental Gibson, J. Clinical & Hypnosis Hypnosis: Its Nature 58-59; Shor,
Therapeutic (1977) Uses pages Hypnosis Fundamental Problem in Research, 37-39; Research as Viewed Historic Perspectives, Hypnosis From pages Hilgard, 9; Hypnotic (1965) Hull, Susceptibility page Suggestibility Hypnosis and (1933) pages 111-115. 49Diamond, Problems, 340; 333-335, 337-338, Orne, Misuse, pages Inherent Use and 317-318, 320; pages Spiegel, Hypnosis (1980) Help Evidence: or Hindrance? 79; 73, Douce, Kroger
Annals N.Y. Acad. Hypnosis Investigation Sci. & in Criminal Experimental 27 Internat. J. & Hypnosis Clinical 365-367. suggestions Reiser, 50Such are by police hypnosis (e.g., recommended manuals Hand- Investigative book 40), Hypnosis given ch. and were cases several of the Mack, (e.g., Harding, Mena).
discussed herein *43 grows induced recollection of his
tian of the truth hypnotically absolute trial, the time of by the story; he is asked repeat each time
stronger le mind traditional in his be so fixed may
the resulting “memory” be ineffective may largely as cross-examination techniques such
gal its
expose unreliability.51
IV of Dr. supports literature thus professional fully Mack, Mena, in and and of the courts findings Schafer the similar present doubt that at the
Nazarovitch. It also demonstrates beyond of a witness memory potential
time the use to restore the of hypnosis scientific community. as reliable the relevant generally accepted
not
Indeed, as within that are on record community representative groups reasons, technique many foregoing for
expressly opposing law enforcement employed by hypnotists.52 when
particularly test has it is obvious that the Frye admissibility
these circumstances hold, with dis been We therefore in accord the decisions satisfied. C, ante), has II that the of a witness who
cussed above (pt. restoring for
undergone purpose hypnosis events, in matters relating
events issue is inadmissible to all to those Problems, 339-340; Orne, Diamond, Misuse, pages 320, pages Use Inherent Amnesia, Research, 332; 223-231; 327, Hypnosis Cooper, Hypnotic pages in Cooper, Posthypnotic Suggested Source Amnesia
Spontaneous and 14 Internal. J. 180; Thorn, Experimental Hypnosis Types Evans & Two Posthypnotic Clinical & and Source Recall Amnesia Amnesia Internal. J. Amnesia: Clinical & Ex- 162; Hilgard, Hypnotic Susceptibility (1965) perimental Hypnosis pages 182. Society Experimental Hypnosis adopted Clinical and 52Thus October 1978 reading part: a resolution Society Experimental Hypnosis tendency views “The for Clinical and with alarm the training professional police for background officers with without a broad minimal healing employing presumably recall of arts facilitate recognize privy to the occurrence of some crime. we witnesses victims Because may produce may memories facili- hypnotically aided recall either accurate or at times memories, accepted by subject that are pseudo tate the creation of and the certainty or fantasies as real alike, among hypnotist deeply technique the utilization of this we are troubled way distinguishing police. emphasized It that there is no known must by independent memories pseudo except between actual recall
verification. training typically have had limited technical and lack the broad un- “Police officers derstanding psychopathology. Their orientation is to obtain the the psychology focusing protecting solve a crime rather than a concern information needed to
67 from the time of the hypnotic session forward. It fol
lows that the trial court erred defendant’s denying motion to exclude
Catherine’s testimony.53 First,
We certain on briefly discuss limitations the rule. a pre hypnotized witness is strict sense of
viously incompetent unable to himself
being express comprehensibly or understand his duty (Evid. Code, 701),
to tell the truth or of the general lacking capacity § (Jefferson,
both to perceive remember Cal. Evidence Benchbook 26.2, 351). if should wish to Accordingly, prosecution § a unrelated to the events that
question such witness on wholly topic session,
were the of the subject hypnotic testimony his as that topic
would not be rendered inadmissible by rule. present
Second, when is the defendant himself —not a defense wit- merely
ness—who submits to pretrial hypnosis, the will experience not render inadmissible if he case, elects to take the In stand.
the rule we adopt herein is subject to im- necessary exception avoid
pairing fundamental of an right accused to testify his own behalf. v. Robles
(People 205, 2 Cal.3d 214-215 Cal.Rptr.
P.2d 710].)
Third, (fn. 28, ante) court Mack like the we do not undertake to
foreclose continued use of police investi purely
gative purposes. We occasions in the recognize past
has been apparently helped by hypnosis to remember a verifiable fact
—such a license plate police number —that did not previously
know and then were able to use as a “lead” for further investigation It crime. is neither nor us appropriate necessary for to enter the de to, of, the subject Finally, health of police who either witness or victim a crime. of- understandably strong likely ficers guilty have views as to who is to be of a crime and may easily inadvertently hypnotized subject’s bias the memories even without them- being (27
selves Experimental Hypnosis aware their actions.” Internal. J. Clinical & (1979) 452.) August Society an adopted identical resolution was the International Hypnosis. govern principles opinion admissibility 53The stated in this will pretrial hypnosis witness who submits to after the date of this decision. We take position application principles no at this time as to the those hypnotized witnesses before the date of this decision. *45 its reliability.55 or technique,54
bate as to the need this investigative for who reiterate, however, above any person for the reasons stated
We allowed to will not be purposes
has been for investigative hypnotized the hypnotic that were the of subject as a witness to the events
testify course, is not an by investigation,
session. Evidence discovered such facto the prior hypnosis. rendered inadmissible
ipso by
Fourth, testimony previously hypnotized of a in admitting error se; be under the must still judged is reversible its effect per
witness Watson (1956) 46 Cal.2d People test in adopted error
prejudicial 40 17 (See at v. Kelly, supra,
818, p. People P.2d 243]. for however, in the reasons
Cal.3d.) light is applied, The test to be
our herein. holding harmless, General as Attorney the error was
Arguing record limited to those
sumes that the inadmissible evidence is that she asserted were af portions directly
few of Catherine’s ante.) B, (See as have I Yet we by experience. pt.
fected her hypnotic
seen, no opinion it is scientific today the consensus informed reli can his recollection previously hypnotized improve
case a person item of his testimony originates determine whether unverified
ably any Diamond, example, hypnosis investigative 54Dr. “the for believes that value of greatly exaggerated purposes by irresponsible has been overstated claims books and ago, by long hypnosis As can articles. Freud discovered whatever can be done also be merely longer greater it hypnosis; requires patience.
done without takes skill and recall, My own experience convinces me that safe and effective enhancement of suggestion testimony, accomplished hazard be less without and contamination future can Problems, (Diamond, gimmicks such as and ‘truth serum.’” Inherent 332, 93.) fn. p. objective apparently plate as a license 55Experiencehas shown that even such an fact (Orne, accurately Use and Mis- easily can be as remembered.
number as confabulated reason, Putnam, 48, use, 318; 444-445.) supra pp. For this even op. fn. at cit. against relying “fact” re- practice without verification proponents of the warn expect legitimately “The one by hypnosis: as most can a result called data, for more conven- interrogation may further which serve leads hypnotic from through by deserve low or no gathering. elicited itself tional evidence priority p. Data 49, op. supra cit. fn. they (Spiegel, data.” supported until are other “hypnotically related evidence Kroger and conclude that And Douce likewise short, investigation or is useless! In through independent careful must validated (Kroger deception.” & designed from modality to determine truth hypnosis Douce, not a Rubio, 371; accord, Hypnosis to & Aid fn. Schafer op. supra cit. 81, 83.) Hypnosis Experimental Clinical Internat. J. & Recall Witnesses or confabulation induced own is instead confusion It would in the face of that consensus fly hypnotic experience. witness of which of his were portions
allow a to be judge produced by hypnosis.
actually
The General that we at least Attorney suggests can determine which
of the Catherine’s recollections were of product hypnosis, potentially by device of her comparing at trial the ver testimony prehypnotic
the her
sions of in her interview the story given police station and her at the
testimony But Dr. preliminary hearing. Schafer’s testimony
the literature that the professional agree effects of to pretrial hypnosis
restore a witness’ recollection the bare go beyond production of pseudo- trance;
memories the the will during experience tend to clothe the
witness’ entire in an artificial but testimony impenetrable aura of cert
ainty,56 distort the witness’ recall of related may events occurring
both before and Moreover, after the hypnotic session.57 it would be im in
possible most cases for an court to appellate undertake kind General,
comparative analysis proposed by Attorney because such
materials as station-house interviews police or hear preliminary
ing testimony are not part of the ordinarily record.58 56There is evidence some agencies hypnotize appropriate that law enforcement pro-
spective fill gaps memory merely credibility witnesses not to in their but to bolster their 332; Orne, Misuse, (See, and make them “unshakeable” on stand. e.g., Use and (1980) supra, State v. Mack [reporting testimony by 292 N.W.2d fn. 10 769 & effect].) Dr. to the Orne same example, something 57For Dr. Diamond reports police may “the tell witness a
just awakes, hypnotize before and then he him. When his ‘source amnesia’ may him lead to believe that the police product memory. statement was a of his own patient Sometimes communications made may retroactively to the after in- tegrated into the hypnotic may recall. The recall a fact with no awareness that it the product was not of his own Or he may being mind. recall told the fact but insist prior knowledge that he had happens subjects of it. often when are photo- This shown graphs line-ups just just hypnotic for identification before or after sessions.” Problems, (Diamond, 336.) Inherent observes author that these distortions time, strengthened passage tend to be by the pretrial concludes that hypnosis of a “appreciably subsequent testimony ways witness influences all in difficult, that are outside the impossible, consciousness of the witness and if de- to added; ibid.) (Italics tect.” 58Indeed, Attorney successfully at bar the opposed case General a motion augment Appeal preliminary
defendant the record in the Court include Although hearing transcript. ultimately lodged transcript we court over Attorney opposition, successfully objected General’s he lodging our a addition transcript police interview Catherine’s at the station. error the Watson prejudicial
We conclude that application proper court to determine requires appellate
test context present result more favorable to
whether reasonably probable hyp- have if previously
defendant would occurred the events of the crime had
notized as to all relating witness matters Apply- This we followed in analysis Kelly.
not been admitted. us, record we find the error same to the before
ing analysis at trial it constitut- prejudicial Catherine’s to be
admitting To
ed the sole evidence defendant. incriminating against virtually such tainted conviction
prevent miscarriage predicated justice, (Cal. Const., VI, art.
evidence be allowed to stand. cannot § V *47 contentions, we need address one only remaining Of defendant’s of retrial. At the close the question prosecution’s on the of bears
case-in-chief, acquit for a unsuccessfully judgment defendant moved Code, (Pen. the insufficiency evidence.
tal the ground trial that mo 1118.1.) contends the court erred denying He now
§ her
tion, as a witness because that Catherine was arguing incompetent her remember impaired ability perceive
intoxication had her was so as to testimony
events of the and that inconsistent evening, intoxication, however, was for the The effect of her
be unbelievable. determine; it falls short of as a incompetence on this record far
jury was and self-contra vague
matter of law. And her although when taken as a whole it not on a number of
dictory points, have “substantial incredible and would constituted least
inherently (1979) (See v. Blair su guilt. People
evidence” to verdict support (1979) 199, 640, 666; 24 210 25 v. Pierce Cal.3d Cal.3d
pra, People 657, 91].) 595 P.2d Cal.Rptr.
[155
It is that we now inadmissible true hold Catherine’s legally experience.
because her But circumstances of pretrial hypnotic The holding pur-
this case the does not justify judgment acquittal. as of a motion under section 1118.1 is to weed out soon as
pose possible prima
those few instances fails to make even a prosecution which (1979) 516,
facie v. case. Belton 23 Cal.3d 520-521 (People [153 195, 591 P.2d It to “the evidence then
Cal.Rptr. 485].) speaks therefore i.e., 1118.1), to the (§
before the court” evidence the trial court has
71 as of motion properly admitted the time the is determined. As noted (fn. 33, ante),
above none of the cases we now follow had been herein,
decided as of the time of motion and hence trial court
applied rule the fact of Catherine’s then-prevailing general pre-
trial went to hypnotic experience weight, “the admissibility”
her testimony. reason,
For the same retrial is not the federal prohibited dou
ble under the (1978) clause rule of Burks v. United jeopardy States 437 1,
U.S. 1 2141], L.Ed.2d 98 S.Ct. and Greene v. Massey [57
437 15, U.S. 19 L.Ed.2d 98 2151], S.Ct. followed this state [57 Pierce,
(People pp. 209-210). Cal.3d at That rule supra, forbids
retrial after a reversal ordered because evidence introduced at trial (See,
was insufficient support verdict. In re e.g., G. Johnny 543, Cal.3d 548-549 Cal.Rptr. 601 P.2d It 196].) [159 however,
is inapplicable, to the situation here presented. rule i.e.,
achieves its the defendant the harass protecting against aim —
ment and risks of trials on the unnecessary repeated same charge by—
the device of giving prosecution a incentive to make powerful
best case it (Burks, can at its first L.Ed.2d at opportunity. here,
pp. 9-10].) when, But the incentive serves purpose no the pros
ecution stood; did make such case under law as it then having so,
done had no prosecution little or reason to other evi produce *48 sure,
dence of guilt. To be we now hold error to admit Catherine’s defendant; error,
testimony against but “reversal trial distin
guished from does evidentiary not constitute decision to insufficiency,
the effect that the has to government prove p. failed its case.” 15 Rather, 12].) L.Ed.2d at p. the matter is the settled governed by
[57
rule the double clause does not retrial after a re jeopardy prohibit (Ibid.; accord,
versal premised on error of v. law. United States Tateo
(1964) 463, 448, 450, 377 465 U.S. L.Ed.2d 1587], S.Ct. [12 cited.)59
cases
It follows on these there is no bar defendant legal retrying course, above Catherine cannot be al
charges. Of for the reasons stated
lowed to the events that were the subject in such trial on testify
of her the prelimi her hypnotic experience; prehypnotic testimony 59We do not whether decide the same result would follow in a in which case the evi-
dence held appeal inadmissible on had also been inadmissible at time of trial. The (437 United Supreme expressly question open States Court left this in Greene. U.S. at 26, 22].) fn. 9 L.Ed.2d at [57 Whether a in lieu thereof.60 however, be admissible may hearing,
nary for the prosecutor of this case is circumstances
retrial is justified determine.
The is reversed. judgment Tobriner, J.,* Broussard, J., concurred. J., Newman, J.,
Bird, C. the circum- Under
RICHARDSON, J. judgment. concur in the J. —I case, testimony subject objection prosecutrix’ in this
stances aby deputy session conducted of a product hypnotic
because it was who was wholly professional than a trained by
district rather attorney with law enforcement.
unaffiliated inadmis- unable, however, rendering absolute rule an support
I am to the regard without
sible all hypnotically induced with recent occurred. Consistent the hypnosis under which
safeguards admissible should be such coimmentary, and critical
authority (1) including requiring adequate safeguards
if elicited under trained, psychol- psychiatrist independent is conducted background factual sufficient supplied only writing who
ogist or oth- session; (2) videotaped the hypnosis to conduct the
necessary review; (3) other persons no of subsequent
erwise recorded for purposes ob- the hypnotist are present; and his hypnotist
than of the event description prior description subject’s
tains a written Hurd N.J. 525 State (See
for comparison purposes. Admissibility Testimony Note, 86,
A.2d 96-97]; Influenced 1230-1232.) If the procedures (1981) 67 Va.L.Rev.
Hypnosis *49 Code, (Evid. testifying to the matter” “Disqualified from Catherine is now 60Because meaning of the former- 240, within the (a)(2)) as a witness” she is “unavailable subd. § 1291, (a)), preliminary her (id., subd. hearsay rule
testimony exception to the § “right op- defendant had the given proceeding in which hearing testimony was in a that he now has and motive” the same “interest portunity” to cross-examine her with a disqualification as (a)(2)). that Catherine’s (id., can show subd. Unless defendant proponent of wrongdoing of the procurement brought by about witness “was testifying” attending or from preventing purpose for the statement [her] [her] under the testimony therefore admissible (b)), hearing is (§ preliminary her subd. Evidence Code. * assignment sitting under Supreme Court Associate Justice of the Retired Chairperson of the Judicial Council. court, trial of the and, discretion free of
used are suggestion potential is its outweighed by value of the
probative I would admit it.
prejudice, Hurd, “we believe
As New Court Supreme stated Jersey re- and will se inadmissibility unnecessarily
that rule of broad per a trustworthy that as other
sult exclusion evidence (P. accord, supra, 94; Note, I share
eyewitness testimony.”
that belief. in the reversal of the but feel
KAUS, I concur judgment, compelled J . of the
to dissent from several conclusions to de- majority unnecessary
cide this appeal. us,
On the record a before this is At case. relatively simple outset trial, defense counsel objected portion that a of the testimony Catherine was about a of time give concerning period which during —
she had testified previously that she had been the result of asleep —was use of improper hypnosis, that “it is not in fact refreshing witness’ recollection . .. but that it is ... italics.) evidence.” (My manufactured
The trial court overruled the objection on the basis that the hypnosis went to
only the weight of Catherine’s testimony.
That ruling was even patently wrong, if there been may have some
out-of-state case law to support it. Section of the Evidence Code
demands that the witness, an except expert, be based
on personal knowledge and provides that “[a]gainst objection of such
party, personal must be knowledge shown before the may witness
testify concerning matter.” Defendant clearly objected the wit-
ness was about to from testify other than personal knowledge she —that was about to give “manufactured This evidence.” placed burden that the
showing witness would testify from knowledge on the personal
prosecutor, who did People nothing except Colligan argue
(1979) 91 Cal.App.3d Cal.Rptr. “indicated 389]
did not as matter of law render inadmissible the subsequent identifi-
cation of a by defendant the witness.” the Obviously citation of a case
not a that showing particular a witness is to about from testify personal fact, re and, purport decision does not Colligan
knowledge, the personal of demonstrating
lieve a burden prosecutor witness to a response proper hypnotized a
knowledge previously
objection.1 record,
Thus, the trial court should have ad- this state ambiguities Given the and challenged testimony.
mitted Catherine’s and the substantial testimony, Catherine’s additional
inconsistencies of was defense, prejudicial the error clearly presented by
evidence This is all we need to decide in this the judgment. reversal of
requires
case. course, hypno- have about dozen additional
I we recognize, of us, chosen to use this majority and that the has
sis cases before pending some of by broader issues deciding presented as a vehicle for
appeal view, however, is a mistake adopt point In
the others. my virtu- proposes excluding rule that the sweeping, majority se” “per — undergone hypnosis— witness who has pretrial all of a
ally the varied which more contexts carefully considering
without affect may factors which both may place many take
hypnosis in a potential particular and the potential utility hypnosis danger
instance. consider the admis- upon we have been called
This is first time means and it is no clear testimony, of a witness’ posthypnosis
sibility general. cases in that the case are typical
to me facts this number post- factors render Catherine’s
There are obviously Because was at least she some- particularly suspect.
hypnosis testimony offense, is a there alleged good at the time of the
what intoxicated hypnosis, to be has no clear refreshed she
possibility “mem- simply
and instead that she has constructed “confabulated” Com. Nazarovitch (Cf., while e.g., under
ory” hypnosis. addition, at the time she was 177-178].)
Pa. A.2d she a number of somewhat different ac- already given had
hypnotized the academic literature question, suggests
counts of evening robbery Colligan, hypnotized shortly help 1In a witness to the crime á after plate robbery, during a car
her recall license used in the
75 there is under such circumstances a particularly that strong danger that to fix one particular will serve simply version —not
hypnosis necessarily the
the accurate one—in mind and historically subject’s render the wit- (See Orne, to cross-examination. The impervious
ness Use and Misuse & Hypnosis Court Internat. J. Clinical Experimental 311, 332-334.) course, Hypnosis Finally, the in this case hypnosis not performed
was a impartial an calculated to by hypnotist setting
minimize potential but district a suggestiveness, deputy attorney presence
the facts, of the Given all investigating police officers. these I that, retried,
can agree if this Catherine majority case not
should permitted testify. think, however,
I we that should be wary about very a establishing
broad, generally applicable rule all exclusionary posthypnosis for testi-
mony on the basis of rather facts of this egregious case alone. In instances,
other hypnosis may as, arise a different completely setting, example, when a victim or a witness to a crime hypnotized shortly
after the offense police to aid a artist sketch a of the compose suspect. case,
In such a none of the participants to the hypnosis may have any bias
preconceived which would a pose special danger suggestiveness,
and in some cases the witness’ posthypnosis statements not differ may
at from statements, all his or her prehypnosis suspect may be lat-
er caught with incriminating evidence corroborating of at reliability If,
least some of the witness’ posthypnosis case, in such a memory. an
adequate record of the session exists and demonstrates the ses- fairness, basic
sion’s it is clear to me the mere that fact that
victim or witness has time been at one hypnotized necessarily mandates
the total exclusion of the at potentially crucial a later trial. trial, gave
witness also witness identified the defen description robber. At robber, appeal the defendant objection, dant as the without on apparently but suggestion by was so substantial that the possibility hypnotist contended tainted, reversal of the conviction. necessarily warranting in-court identification was contention, People v. Colligan rejected “In Johnson explaining: court Cal.App.3d identification will not be improper pretrial 1 ... we held that claim of court, appeal objection because trial court has considered absent an in the trial witness if the issue is not inquire independent no reason to recollection of the into case, here, 6.) faulty (38 identification was at the Cal.App.3d before it. subjected vigorous, detailed cross-examina defense and the witness heart hypnotic suggestions defendant does not contend that on that issue. Furthermore tian were depart identification; which affected her thus no actually made to reason to witness] [the to hold in Johnson exists. We decline that the use of expressed from the view per a license number se invalidates the identifica help a witness remember (91 Cal.App.3d person of a seen and heard witness....” tion *52 conclusion, I not believe that faithful do to the
Contrary majority’s ex- se all-encompassing per standard compels to the Frye
adherence last in State v. Hurd year, in its Just opihion. rule
clusionary adopted Court, in a
(1981)
Supreme
the New
86],
Jersey
thoughtful that “a rule of se per and concluded testimony
standard to posthypnosis of and will result in the exclusion broad unnecessarily
inadmissibility (432 eyewitness testimony.” as other trustworthy
evidence that is as Hurd, in the field 94.) of authorities preeminent a number p.
A.2d at evi- pretrial at a person Orne —testified including Dr. — court, after both reviewing On the New appeal, Jersey dentiary hearing. academic literature discussed by and much of the same
this testimony case, while the had made experts in this out that
the majority pointed can in the ac- way guarantee is not tool which
clear that hypnosis \a recall, had at same they historical “truth” of a subject’s
curacy cases and where conducted properly
time indicated “that in appropriate to or- comparable reliability to refresh
the use of hypnosis 95; added.) (432 italics A.2d at recall.”
dinary of “confabulation” the potential problems aware of keenly
Although posed by hypnosis, with cross-examination interference possible research has demon recent psychological recognized court
Hurd testimony general, inhere in eyewitness that similar problems
strated , witness has been re often the case —a when —as is very
particularly several testimony has recounted proposed interrogated
peatedly 94.) Indeed, own ren (Id., given majority’s at p. times before trial. 2 fallibility the nature and views concerning of modern
dering 57-62, (see, ante), it not be entire may pp. human memory
unhypnotized un to exclude eyewitness if we are facetious to suggest
ly reliable, but to have little choice we scientifically may to be
less shown ordeal. trial combat or
return to as a “historical accuracy never required courts have
Observing court conclud- the Hurd testimony,” admitting
condition eyewitness should properly that, aided under Frye, hypnotically ed al., Question and At- Kind Marshall et regard, the court cited 2In this Effects Testimony (1971) Accuracy Completeness Interrogation on
mosphere Psychology Criminal 1620; Tapp, Levine & Harv.L.Rev. Identification Psychological Tes- Eyes Expert You? 1079; Note, Your Deceive Did 121 U.Pa.L.Rev. Stan.L.Rev. 969. Unreliability Eyewitness timony on the Identification demon- the evidence the party proffering trial if in a criminal
admitted 97) use (id., “that the at evidence” convincing clear and
strates “by in re- to result likely reasonably case was in the particular
of (Id., at p. memory.” human to normal accuracy
call comparable e.g., various in some detail to discuss
The court then went on factors — *53 encountered, motivations the apparent loss
the kind of which the under witness, safeguards the procedural
hypnotized the reliability to affect likely are session was conducted —that 95-97.) (Id., pp. case. in a testimony given
of posthypnosis ad view, question general if we are to reach broad my time, this we should adopt
missibility testimony posthypnosis decision, than the Hurd rather pronounce
more cautious approach posthypnosis testimony regardless rule all
general excluding virtually future, we more
the facts of a case. Perhaps gain particular area, is so will find that in this we
experience posthypnosis 40, (see p. unreliable that “the is not worth the candle” game
often broad, At
ante) rule is warranted. prophylactic exclusionary and that a however, is I think such point, judgment premature.3 correct, then it seems to me that if the is
Finally, majority opinion for previously hypnotized which the establishes exception opinion
defendants who wish to Whether the testify unsupportable. right (1970) v. Robles 2
testify one’s defense is “fundamental” (People (cf. 205, 166,
Cal.3d 215 466 P.2d or constitutional Cal.Rptr. 710]) [85 14, 1019, v. 388 20-22 L.Ed.2d
Washington Texas U.S. [18
1023-1025, offer testimony 87 S.Ct. there can be no 1290]), right
which suffers from all vices which have potential triggered total ban witnesses. While I
majority’s on the hypnotized
have tried to much too explain why, my opinion, majority goes majority expansive exclusionary 3I note that the rule in this case is fashioned
considerably decisions on which the adopted broader than the rule the out-of-state majority rely. explained very recent purports Supreme As the Court of Arizona in its 4, II) (Collins (May Superior in State ex rel. v. Court decision Arizona Collins 1279, 1295, 1982) virtually jurisdictions have 644 P.2d all of the which announced general excluding by hypnosis, have testimony memory rule “refreshed” or “created” hypnotized witness appropriate previously nonetheless held that under is not ported circumstances a re precluded testifying from about events which the witness remembered and II, (See, e.g., supra; undergoing hypnosis. before Collins State Koehler 110; (Minn. 1981) Mich.App. v. Wallach 37 N.W.2d State
far, correct, I except- if the can see no basis for reasoning majority’s the defendant on trial.
ing 4, 1982, and for a was denied June
Respondent’s rehearing petition J., did not was modified read as above. opinion printed Reynoso, Richardson, J., Kaus, J., were of the opinion therein.
participate should be petition granted. *54 387, 805, (1982) 404-405]; Taylor Pa.Super. N.W.2d 808]; A.2d 806- Com. [439 1041, 1048-1049]; Md.App. A.2d State v. cf. Polk v. State 382 [427 648, (cone. opn. signed by equal num- N.W.2d
Palmer
ber of
the