State v. Iwakiri

primary election date further hav- P.2d 571 ing under Idaho, consideration various alternative Plaintiff-Respondent, STATE of motions for amendment of the cal- election endar, having Court considered the IWAKIRI, Defendant-Appellant. Juanita thereof, support motions and affidavits enters order as its follows: No. 14316. THEREFORE, NOW, IT IS HEREBY Supreme Court of Idaho. petition stay ORDERED for 7,May 1984. 22, 1984, May be, primary Idaho and the hereby, same is DENIED.

IT IS FURTHER ORDERED that

1984 Idaho election calendar is modified following respects:

April day filing Last for declarations 34-704, (§ Code) candidacy Idaho

April day Secretary 20 Last for certify legislative candidates dis- (§ 34-706, central

trict committees Ida- Code)

ho

April day legislative 24 Last for district

central committees fill vacancies exist political as a result of no (§ 34-714,

party filing candidate Idaho

Code)

April day legislative 27 Last for district

vacancy qualify candidates to bal- (§ 34-714, Code)

lot status Idaho

IT FURTHER IS ORDERED that

requirement procurring peti- filing pursuant

tions for candidates selected § 34-714, Code, be, provisions Idaho hereby,

and is WAIVED.

IT IS FURTHER ORDERED that absen- postmarked

tee ballots on or 8:00 before

p.m. May 1984, may on be counted appropriate county

received on clerk May 29, p.m. Tuesday,

or before 5:00

having viewing pic- Boise from ture investigators ran in The Idaho Statesman. investigation Further revealed place witnesses who could girls both appellant care of and led ultimately ap- pellant’s arrest in Boise in 1980. appellant’s At trial kidnapping charges the testimony Boyer of Rebecca presented. was Boyer hypnotized had been twice to trial in order to refresh her memory. The first session was conducted a detective with the Boise Department. Police present Also at that Boyer's session were attorney, Al- Robert dridge, detective, investiga- another two tors, operator an and recorder. Defense session, counsel was aware of part tape was recorded. The second ses- place shortly sion took before trial at the Hypnosis Boise Center and was conducted by a Dr. Streib. The existence of a second during session was not revealed discovery. key portion

The Boyer’s testimony consisted of having an account of seen the missing appellant’s two children in home. man, seeing She also testified to later Summers, Roy identified as in the house. testimony The attorney Robert Al- dridge, subpoena, who was under was also presented Boyer at In trial. had re- Toothman, Boise, defendant-ap- R.D. for appellant Aldridge, ferred and on two pellant. appellant occasions in the summer of 1977 Jones, Gen., Thomas, Atty. Lynn E. Jim Aldridge by phone had contacted to talk to Gen., Stahman, Myrna Deputy Sol. A.I. adoption questions him about had. she Gen., Boise, Atty. plaintiff-respondent. for Aldridge Both in- conversations resulted forming appellant that he not or could BAKES, Justice. Preparatory would not take her case. 30, 1977, On March Brandi and Summers trial, Aldridge appellant third and had a Tiffany disappeared Wise from their home conversation wherein she told him to tell Bernardino, California, after their San attorney, Wyman, any- her Mr. defense mother, Wise, Beverly was murdered. The trial, thing Wyman wanted to know. At Brandi, girl, daugh- the natural older was judge that the 1977 ruled communica- husband, Roy Beverly ter of and her first appellant Aldridge tions between and were Summers, Tiffany daughter while was the communications, privileged privi- but the Wise, Beverly Beverly’s and Claude hus- lege Aldridge had been waived. was or- dered, band at the time of the murder. objection appellant, over the testify to the content of the two conversa- subse- girls Roy Summers were tions. quently sighted in various locations in Ne- Appellant vada and the southwest. In 1980 Garden was convicted of second de- gree kidnapping City positively identified Brandi as and sentenced to an inde- resident attorneys the same client are She was tween years. five term of terminate attorney-client privilege in protected by the four months probation after granted See any showing of waiver. the absence of to a mis- was later reduced her conviction Annot., Attorney-Client Privilege As Affect- demeanor. By ed Communications Between Several At- contends appeal, appellant On (1966). 1420, 1424 torneys, 9 A.L.R.3d (1) by respects: in two trial court erred appel- nothing to indicate that being There who a witness admitting privilege, intended to waive lant her recol- to refresh hypnotized had been protected. subject communications were (2) appellant had lection; by ruling that improperly admitted privilege and attorney client waived Aldridge highly prejudicial. testified Aldridge testimony of Robert allowing the responded appellant’s statement the latter We will consider admitted. adoption question she that she had an allegation first. ask, by following statement: wanted to ATTORNEY-CLIENT I. OF WAIVER I black “Wait a second. don’t handle PRIVILEGE types under-the-counter of market or in rul was correct The trial court adoptions. are will handle them phone conversations be ing 1977 adoption or if type health and welfare of privi Aldridge were appellant and tween organiza religious or other there some attorney between leged. Communications child, has a but I don’t tion involved that profession in the course and client made counter, things take under the next of by the attor protected employment al Tr., 1617, p. lines kin or otherwise.” § 9-203(2). The privilege. I.C. ney-client made to communications privilege extends complet- It not until sometime after he was attorney employing the toward with a view down ed that statement that he turned client, or not actual whether by potential potential employment by appellant.1 It People Squitieri, v. results. employment scope within the of the attor- was therefore see 374, (1975); 124 375 N.Y.S.2d 49 A.D.2d ney-client privilege and should not O’Brien, 772, 388 v. 377 Mass. also Com. is ob- prejudicial been admitted. Its effect (1979). ruling The trial court’s N.E.2d 658 of the convic- vious and mandates reversal waived, had been how privilege Goodrich, 97 Idaho 472, v. See State tion. § ever, 9-203(2) pro was erroneous. I.C. White, (1976); 1180 97 546 P.2d attorney an cannot be examined vides that den. 708, (1976), cert. P.2d 1344 Idaho 551 regarding confidential communications 842, 118, 111. 429 97 S.Ct. 50 L.Ed.2d U.S. employment in course of “with made II. OF HYPNOTICALLY ADMISSION The consent of his client.” statute out the REFRESHED TESTIMONY it the client is the thus makes clear Accordingly, only privilege. holder of the assigns Appellant also as error the ad- privilege. waive the The the client can of a mission witness in in only possible ground for waiver memory hypnotically whose refreshed. appellant’s arises from di stant case this case for a new Because we reverse Wyman, Aldridge trial, that he tell give rections to must the trial court some we attorney, anything Wyman admissibility hypnotical- her defense direction on the purpose was ly testimony. to know. Her obvious This is an issue wanted refreshed Wyman prepar great to was as well received a deal of attention ensure that has such, years, articles possible for her trial. As in recent both law review ed as Beaver, See, e.g., judicial opinions. It is privileged. remained and communications by Hyp- Memory Restored or Confabulated that communications be- well established Bank, (Neb.1897); Aldridge Any McGrede v. Rembert Natl. between 1. communication Wigmore, subsequent (Tex.Civ.App.1941); refusal to handle her 8 Iwakiri to his 147 S.W.2d 580 privilege scope Evidence, (1961 ed.). case falls outside § 2304 Peebles, Farley v. 70 N.W. 231 is admissible. 622 Competent? Univ.Puget provide

nosis —Is example 6 further of the continued (1983);. Falk, Post-hyp Sound L.Rev. 155 general evolution of a rule competency Testimony notic Competency and by establishing reads, “Every a rule which —Witness Safeguards, Fulcrum of Procedural person competent except be a witness (1982); Testimony by St. John’s L.Rev. provided as otherwise these rules.” Previously Hypnotized Should Witnesses: Federal Rule of Evidence The rule It Be Admissible? Idaho L.Rev. Ill provides then an exception only judges (1982); Diamond, Inherent Problems in the jurors participating the trial at hand. Hypnosis Prospective Use of Pretrial commentary Federal Rule 601 Witness, (1980). See 68 Cal.L.Rev. 313 states, wholly “A capacity witness without also, Gonzales, People v. 415 Mich. imagine. question is difficult is one Patterson, (1982); 329 N.W.2d 743 State v. particularly jury suited to the one (1983); Neb. N.W.2d 500 weight subject and credibility, judicial Brown, State v. (N.D. 337 N.W.2d 138 authority sufficiency to review the 1983); Armstrong, State v. 110 Wis.2d Thus, evidence.”2 trend of the law (1983). 329 N.W.2d 386 jurisdictions general other in favor of a presented The issue in this is: case Does competency, rule of which leaves to the the fact hypnotized that a witness has been discretion the trial court determina- memory to trial to refresh render that tion of whether circumstances render the incompetent testify? witness This is a incompetent, evolving witness has been question impression jurisdic- of first in this century, resulting rejection the last over requires analysis. tion and our considered per se rule of incompetency. of The presented The basic is of com- issue one upon premise is based evolution petency hypnotized begin of a witness. We per se disqualify rules which witnesses analysis by noting our the evolution of the pertinent knowledge with of facts general competency rule on of witnesses. to case are serious obstructions the ascer- law, early At common certain witnesses truth, goal of tainment the ultimate in our incompetent per se were deemed to McCormick, Evidence, See system. legal they merely in a because were included § 71, (1972). p. 150 persons. group certain Groups of which hand, other are a On the there number of disqualified commonly were as witnesses generally recognized problems hypnot- with holding religious included those certain be- In ically testimony. early induced ex- liefs, persons insane, persons deemed to be crime, hypnosis general it was the perience persons convicted of a imma- of Later, belief, age. underlying assumption ture these modified as a basic rules were of general in favor of competency, memory a rule of hypnosis, of the use simi- giving to jury duty judging of machine, videotape merely lar a that it to However, credibility of some witnesses. perceptions the viewer and recorded per se disqualification exceptions were re- recall, away which stored them for could be tained, example, disqualification for hypnosis. through the use of enhanced witnesses. See I.C. competent children as however, suggest, recent studies More § § 9-201; I.C. assumption. may well be fallacious this a contemporary developing view of the adopted One recently

The Federal Rules of courts, Evidence, memory hypnosis applicable way reacts is best federal "(a) exceptions Incompetency allowed determined court. Per- 2. The rules also allow law, i.e., Man’s incapable under substantive state the Dead whom the court finds to be sons proposed 601. The Idaho Statutes. See F.R.E. receiving just impressions respect- of the facts general Rule creates a rule of examined, of Evidence also relating ing which or of up procedure allowing competency, but sets truly.” Proposed them Idaho Rules of Evi- incompetency. for the to determine trial court 601. dence "Every person competent to be a witness is except:

623 Mena, 226, State v. explained in Ariz. 128 The courts which have addressed this (1981). P.2d problem generally sepa- have taken three determining generally agreed approaches rate the admissi- “It is ais bility hypnotically testimony. su.te altered induced consciousness heightened suggestibility in which the per se rule of inad- approach is a first subject prone experience is distortions repre- missibility. approach That is well reality, memories, false fantasies and People Shirley, v. sented the case of (the confabulation ‘filling memory in of Cal.Rptr. 641 P.2d 775 Cal.3d gaps with false memories or inaccurate (1982). adopting approach gen- Cases information’).” bits of Id. 624 P.2d at erally an base their rationale on extension rule, Frye of what is known as the taken States, Frye v. United from 293 F. 1013 However, the videotape theory is still (D.C.Cir.1923). Frye rule “conditions upon by adhering relied those to the “inves- admissibility of evidence based on a tigative hypnosis” thought, school of such proof new Rieser, scientific method of on a as Dr. Martin show- Director of the Law Institute, ing Hypnosis technique generally that the has been Enforcement the vehi- through accepted many cle as reliable in the scientific com- law enforcement developed.” People munity officers their training hypnotism. receive in which it supra Shirley, 641 P.2d at 784. Cases subject hypnotized, is especially When the Frye applying approach generally hold eager a witness to a crime solving to aid in has not been shown crime, thought agree both schools of generally accepted as reliable in the subject especially is vulnerable to Thus, they adopt community. scientific suggestions “cueing” and/or hyp- from the that, generally rule until ac- notist. cepted by community, the scientific a wit- hypnotized subject may respond “The hypnotical- ness whose has been implicit unintentionally stimuli emanat- ly competent testify. enhanced ing hypnotist, unrecognized from the Court, Superior See also Collins v. by him. The please hypno- desire to (1982); State v. Ariz. 644 P.2d 1266 subject tist induce the to mirror the Mena, 226, (1981); 128 Ariz. 624 P.2d 1274 attitude detected in hypnotist's ques- the Juvenile, v. Commonwealth 381 Mass. tions Spector and his behavior.” & Fos- 727, (1980); People v. Gon- 412 N.E.2d 339 ter, Admissibility Hypnotic State- zales, Mack, supra; State v. 292 N.W.2d Suscepti- ments: Is the Law of Evidence (Minn.1980). However, 764 some of the 567, (1977). ble? 38 Ohio St.L.J. per se adopted courts that have the rule i.e., confabulate, subject may A also fill in testify still allow a witness to to facts memory, the in blanks his or her in an See Collins v. hypnosis. recalled to questions posed by effort to answer the Court, Superior supra; v. Patter- hypnotist. by hypnotist When asked the son, Gonzales, supra; People supra. v. there,” “imagine you subject may are the just “imagine.” that: sometimes do approach Another is to rule that such testimony admissible, always is not incom- perceived problem Another is that when petent, and the fact that a witness subject hypnotic a awakens from the hypnotically manipulated merely have been trance, he or she often believes that distor- goes credibility weight to the and of the memory cueing in tions due to and confabu- testimony, and as such is an issue for the part memory. lation a are or her own Brown, See State v. jury to decide. phenomenon allegedly This makes it diffi- (N.D.1983); Chapman v. N.W.2d 138 memory” cult to determine what is “true State, memory.” (Wyo.1982). Again, is “false It 638 P.2d 1280 what reasons, others, rule, per se among ques- these this line of cases establishes a admissibility hypnotically tion of admissibility opposed induced albeit a rule of as testimony inadmissibility. has become such a difficult one. authority

The third line of allows for the line of interpreted This cases can also be as admissibility hypnotically testi- per induced se rule in the seem to cases mony safeguards if certain are safeguards followed to imply that if the proposed are reliability testimony. ensure the followed, See admissible; but Hurd, 86 N.J. State v. 432 A.2d 86 safeguards if the are not the testi- followed (1981); Beachum, State v. 91 N.M. 643 mony is inadmissible. (App.1981); Lewis, People P.2d 246 approaches While each of the three dis- (1980). Misc.2d N.Y.S.2d 177 The merit, they above cussed all advocate safeguards often relied on in these cases greater per to a or lesser extent a se rule safeguards developed by Dr. Martin admissibility inadmissibility or which is Orne, expert hypnotically an in induced tes- general inconsistent with the trend of wit- timony. safeguards These are: competency every person ness is com- “(1) hypnotic session con- should be petent to be a witness. While each of the by psychiatrist psy- ducted a licensed or approaches important on three focuses an chologist hypnosis. trained in use of by consideration to be evaluated a trial “(2) qualified professional conduct- determining competency, they court do ing hypnotic session should inde- be considerations, so exclusion of other pendent responsible of and not to the unnecessarily and thus tie a court’s trial prosecutor, investigator or the defense. determining competency hands of a “(3) Any given hypno- information testify. adopt witness to If we were to personnel prior law tist enforcement hypnotically rule that induced testimony hypnotic must session be in writ- should be left to cross examination ten so subsequently form that the extent impeachment, would there still be circum- subject information received stances where admitted under hypnotist may from the be determined. that rule had been rendered tainted “(4) hypnosis, hyp- Before induction of due unreliable to the methods used Thus, hypnotist subject should from per admissibility obtain nosis. se rule of description of a detailed the facts as would some circumstances allow for the them, subject carefully remembers avoid- testimony, unde- admission unreliable an ing adding any new elements to the wit- judicial system, sirable result in our where description ness’ of the events. only to reach verdicts we strive based hand, “(5) testimony. On the All reliable other hypnotist contacts between the per inadmissibility, rule of as subject se such and the should be so recorded above, would, permanent discussed some circum- that a record is available for stances, study testimony, comparison and disallow reliable thus establish thwarting truthseeking the witness has not received information of our function suggestion might system. Finally, judicial later re- line of third having ported authority safeguards been first adopting described to be used subject during hypnosis. Videotape sessions, hypnotic the represent could also a possible, be employed should but per interpreted rule if it to mean se were mandatory. followed, not be that, should safeguards if the were the admissible, testimony always is if the “(6) Only and hypnotist subject the and the safeguards were followed testimo- present during any phase be not the should of session, ny never We circum- hypnotic including pre- the is admissible. foresee the where, safeguards testing when hypnotic post-hypnotic and inter- stances even the followed, Hurd, strictly entirely a trial view.” State v. 432 A.2d at 89- are not or 90.3 could nevertheless conclude that the court possesses adopted judgment comprehension cases have also a and and of Some modified ness given expanded safeguards process, version six to of the devel- the and that consideration be Orne, oped adding requirements corroborating challenging by Dr. or informa- evidence hypnosis. People hypnosis during be examined to detect elicited See witness to tion Lewis, (1980). possible mental illness and assure that wit- 103 Misc.2d 427 N.Y.S.2d 177 the

Q25 safeguards, for testimony the Orne the sufficiently would still be reli- version of general guidance of the trial courts. example, able of for its admission. For one safeguards the Dr. proposed by (1) Orne hypnotic be session should con- subject only hypnotist the and the or psychiatrist psy- ducted a licensed chologist the present during any phase should of trained in the use of be However, hypnotic compli- possible and session. thus aware of its effects strict prevention as to in the of safeguard memory, so aid ance at all times with this would cueing suggestion. improper and seeking prevent a criminal defendant from protection presence (2) the of of his person conducting self the the session attorney, prevent person independent or a from from of the even should be either requesting psychiatrist parties or in the case. that his her own present In this be observe the session. (3) given hypnotist to the Information case, presence person the of a third would party concerning the case should either form, the protect rights subject, noted, preferably the of a but at so be written necessarily subject render the same time would not that the extent of information the Thus, merely hypnotist may be de- received from the entire unreliable. termined. safeguards was not because one of the (4) should not result in the automatic hypnosis, hypnotist followed should Before testimony. description of the entire of the facts exclusion obtain a detailed adding subject, avoiding new from the Accordingly, adopt own we our description. subject’s elements hypnotically admissibility rule on the of (5) so a The session should recorded testimony, rejecting induced each of permanent record is available to ensure adopt per rules out above. We se set against suggestive procedures. Video- guidance to giving rule the intent of with tape preferable of recorda- method judges grappling trial the difficult tion, mandatory. but question admissibility hypnotically of (6) Preferably, only hypnotist and testimony. There induced or enhanced during any subject present should be determining needs to be some method of session, hypnotic phase but other the admissibility type of this allowed to attend if persons should be protect against dangers will to be es- can be shown their attendance hypnosis, particularly dangers cue prevent steps taken to sential confabulation, ing yet allow for influencing results of ses- their recall receipt memory of the benefits of sion, (i. partici- e., they are not allowed Thus, produce. we can etc.). session, pate direct adopt a rule wherein trial courts are rule “totality This of the circumstances” ed, hypnosis has em in eases where been hypnotized applied whether the should be ployed, hearings on the pretrial to conduct or plaintiff de- produced by the witness is procedures during hypnotic ses used fendant. then question. judges sion in Trial should today is a rule set out The rule we test apply “totality of the circumstances” exclusionary rule competency, not an whether, in view and make a determination side another for punish one intended circumstances, proposed all manner perceived some misconduct sufficiently merit testimony is reliable to conducted, such in which memory If admission. seems witness’s exclusionary rule in v. United as the Weeks way altered such States, 58 L.Ed. 34 S.Ct. 232 U.S. unreliable, may it trial court render the Ohio, (1914), 367 U.S. Mapp or incompetent. rule to be We the witness (1961). 1684, 6 L.Ed.2d 81 S.Ct. safeguards feel out that some should be evidentiary prob- bring this give guidance what This rule will lined to trial courts on a similar of problems in other applying elements in lem line with should look for process hypnosis, of following adopt this test. We the modified nature. sometimes results in a modification hypnosis of of the sessions themselves. If memory, is not the only subsequent covered, event certain areas were not the trial that could serve to modify memory and may court determine the well witness render it untrustworthy. See F. Frankfurt- remains to to competent testify those mat- er, The of Case Sacco (1927) and Vanzetti Superior Court, ters. See Collins v. (“The identification of strangers prover- is (1982) (even Ariz. 644 P.2d 1266 under bially untrustworthy. The hazards of such per rule, se hypnosis does not render wit- testimony are established aby formidable incompetent testify ness to facts to demon- number of instances in Eng- the records of strably prior hypnosis). to recalled lish trials.”), and American quoted in Note, Eyes ability Did Your A who has the to Deceive You? Ex- witness pert observe, Psychological Testimony testify perceive accurately on the Unrelia- bility identification, of Eyewitness testify should to to those 29 Stan. be allowed facts (1977) L.Rev. (many 969-1030 variables af- relevant With to the case at hand. fect perception may of events and mind, result in general principle in trial courts con memory). distortion of An idle conversa- sidering question admissibility of the of tion with another witness the to same oc- testimony should hypnotically induced ex can, according currence to some of the surrounding amine the the circumstances experts, lead of modification a wit- hypnotic session, keeping the in mind safe memory. ness’s possibility While the of guards previously and deter mentioned memory through alteration of the use of if, circumstances, totality mine of the the hypnosis greater is much than other appears proposed it testimony is events, subsequent question only one sufficiently reliable to merit admission. Thus, degree. of placing evi- We note it would unusual be an case dentiary problem within the control of the where admission would be trial reliability court assures that will be safeguards allowed none of where men determined before submission the evi- tioned were followed. It would also be an jury, just dence to the as in other cases unusual case if all of the mentioned safe evidentiary problems presented. where followed, guards trial were but the court today gives Our rule also control over this nevertheless ruled that witness question experienced entity most competent testify. Upon still not retrial dealing evidentiary questions, the trial case, of this the trial court should deter court. admissibility hypnotized mine the testimony using guidelines

We should also note that the witness’s that, as a event a trial court finds result of set forth herein. session, hypnotic a witness’s set Because the rule we out is a tainted, particular matters has been competency, rule of once the determination

the witness has thus been rendered incom competency made the witness should matters, petent trial on those court testify as to on direct examination his or may is still com determine witness present indicating recollection without petent testify in areas where wit should hypnosis. the fact of A witness hyp ness’s recollection is unmarred testimony by stating be able to buttress his may may notic sessions. This not be or from present that his recollection resulted limited to situations where is clear that than a wit his or her more parts memory certain of a witness’s testimony by ness buttress direct events was in existence before he has made the same state existence, testifying that untainted, and thus is still passed detector test and has ments on a lie hypnotic after the session. To determine States, Frye v. United 293 F. the test. possible existence untainted testimo Cf. (D.C.Cir.1923). If wishes then party ny the trial can type, of this court examine witness, impeach competency witness made statements of hypnotized any videotapes recordings who because hypnosis, has been

627 Employ- Not Actual or Privileged Whether hypnosis, fact of of an inconsist- because argument por- In the P. 7. statement, Results. prehypnosis ent cross ment is brief, the contention concerning hypnosis, examine and both tion of the State’s however, “communications testify advanced, that parties may bring experts then to been has potential client dangers as and benefits made after assertions, or she attorney that he party’s by rebuttal of other informed case are in the experts accept employment which be rebutted. can then also will not spirit of or the letter not within the Reversed. attorney-client law statutory or common P. privileged.” not privilege and thus are McFADDEN, DONALDSON, C.J., and communi- argues “that the 13. The State J., Tern., Pro concur. privileged because not cations were I, SHEPARD, J., as to Part dissents Aldridge after from Iwakiri were received II. opinion, concurs as to Part without accept not he would that informed Iwakiri Justice, BISTLINE, concurring and dis- case,” “Iwakiri but that in the employment senting. Aldridge” to talk with continued —on upon us “that urges brief the State’s basis attorney-client privilege. I. The Aldridge establishes testimony of Aldridge agree of Mr. very early on that informed Iwakiri was case. prejudicial to the defendant’s attorney. act as her Aldridge not would only testimony set out in Not was there the Aldridge this, provided Despite Iwakiri majority opinion, state- but the further Pp. 14-15. information.” with additional informing Aldridge Mr. her ment problems she would encounter at- case consists in this The record tempting adopt the children that he rely right to has the This Court volumes. pole “wouldn’t touch it with a ten foot for a of counsel in the briefs upon statements Tr., preju- p. million dollars.” 1625. The made representation where remarks, dice inherent in such which seem by the substantiated those statements voluntariness, to have the flavor of is self- are made record, record and citations evident and It unneedful of discussion. State’s in the The statement in the brief. trial, was Mrs. Iwakiri not Mr. who was on communications telling that “the us brief Aldridge. ruling made trial court’s were trial ... Aldridge at testified to which Aldridge her statements to Mr. admissible Aldridge in- after from Iwakiri received against her. I fail Al- to see how Mr. accept not would that he formed Iwakiri dridge’s policy declaration of can his office no substantia- case” has employment in the any way her. attributed to supported from It is far in the record. tion he did her that remark to Although prefatory majority opinion seems or under-the-coun- market not handle black contending intimate that the State is excerpt of which adoptions, the types ter Aldridge Mrs. Iwakiri’s instructions to Mr. opinion. majority is set out fully that he discuss their conversation to Aldridge did not matter is Wyman waiver, truth of the Mr. amounted to a I do not adoption for an waiver, to handle so decline so read the State’s brief. As to fully conclud- interview had until the merely judge declares that the trial such, ed. suggests but for that found no basis

finding. one member than for the fact Other ascertain important thought the Court Citing People Canfield, Cal.3d Aldridge in- point Mr. (1974), at Cal.Rptr. exactly P.2d what rep- statement, that he would Mrs. Iwakiri authority the State’s formed case, errone- her, in this resent a decision Person Seeks brief concedes that Where a out gone would have respect, in this Attorney with a View ous the Assistance of an of the State’s acceptance upon our Professionally, Any Him In- based Employing took conversation entire Attorney argument that the Acquired by formation place with Mrs. continuing Iwakiri to un- think that she they ages said that were two fold story her entire to Mr. after Aldridge five but I am not totally sure about he told had her that would her not be that. attorney on proposed adoption, which “Q. you question Did her further about only thing was the she had in when mind adoption? this she called on him to obtain his services. “A. I then her it prac- told was office Aldridge did testify “early that on” he past tice based on some occurrences that I represent her, to prose- refused but to the had been and I involved in had heard about question you cutor’s accept “So didn’t attorneys with other always investigate to point,” case at that only answered that he a case a little I I decided would further if point, had not—at point being that that take it. having any to his information whatev- she, potential client, er other than “Q. that you So accept didn’t this case at calling prospective adoption. about a point? that Aldridge’s testimony established “A. No. continued, conversation having there “Q. accept employment? You didn’t no declaring mention made in it of his unavailable, himself “A. No. I get so that he Further told her there could were you always the facts and her. times when advise He scotched the didn’t have to have her, attorney, an adoption idea of but did an advise that it turn out there’s nothing done; hearing her could Harvey out. As Paul she didn’t need after says, attorney. here is the an story: rest So we should examine that situation anything. we did before further “Q. And you jury can tell the how is this contact with the came “Q. you defendant question Did her or further did about? point? she volunteer information at that phone “A. call came my into office. point “A. At that time I remarked to phone; I answered the I don’t believe there messy her that it like a sounded situation secretary in was a between on that. And a sister involved. And then she said, person Tiny on the other end ‘This is stated, well, they really weren’t the sister’s Becky Boyer Iwakiri. me recommended children; actually they her I were you you. or referred me to Has she told boyfriend’s, the boyfriend’s, believe sister’s you me?’ about children, brought up and that he had them California; from That one was “Q. you say? What did wife’s, wife’s, one was his his California no, I said had person “A. she not. The prior marriage. said, ‘Well, got adoption I then have an “Q. Did she have occasion to make fur- I question you wanted ask I about.’ concerning ther statements the nature of said, I then ‘Wait a second. don’t handle legal problem? her types of black market or under-the-counter they adoptions. I them if are will handle I At that told I “A. time her that need- or type adoption health and welfare information, ed to have further religious organiza- some or other there is problems were there some that had to be child, tion but I don’t involved has judicial looked at. You had have a counter, things of kin take under the next rights termination of the natural or otherwise.’ all, only parents, way first of them you could that would be “Q. Did state- the defendant make voluntary them served to have do a you you ments after had told her that? writing, be in waiver had to nota- ‘No, responded, Yes. that is “A. She rized, and so forth. talking I’m about. The children not what They my “Q. already give are sister’s—’ Did have occasion to here. girls. parent? I she said were two advice about the natural I believe further yes. “A. told her there would have to be a “A. I told her that there were parents determination who the natural problems. through serious I ran rights. I were that still had asked her things you get have to do to a termina- the natural was still tion; alive you And that have to either serve father one child and would consent to an papers them with the and then have a court adoption. I believe I asked her also about proceeding you had to have volun- responded then the natural mother. She waiver, tary relinquishment rights of their no, the natural father still was alive always easy get. and that wasn’t I looking I and believe said that he was still again, I believe then asked her because I for children. And I think she said mind, vague my was still own was the looking authorities in California were also alive, natural father was the natural moth- for the children. point er respond- alive. At this in time she no, ed that the natural mother wasn’t alive “Q. anything say Did she about the nat- very vaguely and alluded to the fact she ural mother? was dead in some manner. point “A. I At that the conversation Well, Honor, “MR. don’t believe she did. referred GUHIN: Your I am She going object natural very mother several times in the total to the use of the word vaguely. conversation we I speculation had. think it calls for part jury. of the If he can relate what “Q. Did she have occasion to make fur- him, jury she said to should be able to ther concerning comments at this time vaguely, you know, determine if she in- these children? something. ferred I get- But think arewe me, “A. Yes. again She told ting a conclusion from the witness when he sequence in which this occurred is a little very uses the vaguely. words I think he vague my bit Tiny mind. tended to hit should use the word that was told to him points go points off to other and then memory. the best of his come back to them. I Nevertheless think rephrase “MR. I’ll ques- BOWER: point conversation, at this in the she stated tion. that she was concerned about the two chil- dren because she did not think the sister BY MR. BOWER: boyfriend and the good would take care of “Q. youDo recollect you what she told them. very The sister wasn’t I remem- —if about the mother? ber her words—consistent or concerned Now, “A. throughout this varied with their care. She also felt conversation. Her initial indications at the boyfriend tendency had to be violent and beginning of simply the conversation were might physically children; even harm the that the natural mother was the first wife also, she was concerned about that. She at boyfriend and was in California. approximately point in the conversa- Later in the conversation the natural moth- tion, indicated girls that the one of the two er was dead in some I manner. believe her problems. had medical were, words dead.’ ‘She’s Towards the end “Q. Did she indicate what kind of medi- conversation, she stated that problems? cal natural mother had in fact been killed. No, “A. sir. She did indicate that it don’t remember whether she used the word something was get that would worse with event, killed or murdered. But in had age required an extensive amount of killed, had not died a natural death. medication and that she was concerned She also stated boyfriend had been about that. She didn’t think the sister and killing. involved in this boyfriend adequate would take care of “Q. did? She problem. that medical Yes, “A. sir. “Q. anything Did tell her about all “Q. this? How did she state that? “A. I believe her words were at that wouldn’t touch it pole with a ten foot

point conversation, that the natural a million Secondly, dollars.’ that she boyfriend was half crazy about and that he going was to have to very careful of had murdered or killed the California wife what she did because I didn’t think there and that she was concerned might that he any way get was she could a termination physically also harm the children or circumstances, under those again and I her, might physically Tiny. harm problems. described IAnd told her I also very she should take a close look “Q. Tiny was concerned about that? felt at what she doing possi- terms of “A. Yes. great She indicated a deal of involvement, ble criminal might that she concern several times in the conversation be getting right into the middle herself boyfriend physically would harm accessory, aiding an and abetting, or a her. She indicated at approximately this conspiracy situation as to at least the one point in the conversation that she wanted child, appeared that that to me to be a proceed adoption they while possible kidnapping; case she should of gone. Apparently were boyfriend and take a look at it. careful gone. sister was say She didn’t where. And proceed she wanted to adop- “Q. with this you any Did make arrangements they tion while gone were letting without with her point at this for further contact? they them know so that when came back it “A. I sorry, told her I was that there through would be all they done and do, nothing was I could I’d happy be anything couldn’t do about I it. told her questions had, answer other she if she problems. that there were two Number any, had but I anything didn’t see that one, again get adop- order to an could be I done. told her that she should tion, you had to parental terminate the out, watch doing, careful what she was rights required and that either a service I asked her she would let me know what on them appropriate papers or she was, her decision that I was interested in supply them appropriate with the papers, ,what happened, what she decided to do.” either one of which they would have to be Tr., 12, pp. (emphasis added.) Vol. 1617-26 And, two, aware of. number there way you was no foregoing could do If the perfect exemplifi- all is not a period in the time she talking attorney was about. cation interviewing poten- of an Simply long wasn’t enough. I looking also told tial client possibility toward the point her at this that she had representation, to be con- then I have never seen one father, cerned about the natural that he expect and never to see In order one. was there in looking was see, context, the interested reader can California Obviously going them. he was not portion interview set out consent going to waiver and was not to majority opinion, it necessary has been be deemed to have abandoned the children provide some of the conversation probably and all this meant that she could thereto, subsequent. and some my For get a termination. part, I do majority’s quoted not see the excerpt Aldridge’s testimony from Mr. as a “Q. How did respo.nd to that ad- proper anything answer to Mrs. Iwakiri vice? had said at that time. Of that it was “A. again She reiterated that she was highly prejudicial to her there can be no very children, concerned about doubt, but it was not her statement. It done, she wanted to see this and at this Aldridge, was the statement of Mr. and a point proceed time in time she wanted to which, view, my statement he had no again she could at all do so. But I told if her I could see no legitimate right to make. way. I told there were one, problems. being testify two Number Prior to his allowed to in terms court, case It was not a case I would district voir dire in aid of an itself. evidence, my objection, take. I exact believe words were allowed considerable leeway evidence, considerable my memory “A. To the best of Mrs. touching upon particu- the issue of Iwakiri and I never the existence discussed that question, lar no. privilege possibility and the of a waiver privilege. Aldridge Mr. took the “Q. You never called her and even let stance that there had privilege existed no you going there, her know were down did Iwakiri, him between and Mrs. although he you? had right been well informed that the why should, I “A. saw no reason I privilege being claimed Mrs. Iwaki- my since she was not client I and was ri and her defense counsel: acting subpoena. under a “Q. through everything, you So to cut “Q. you If saw no reason because she didn’t want to Wyman you talk to Mr. until client, your why you wasn’t did claim the got permission; Mrs. Iwakiri’s is that cor- attorney-client privilege got when rect? California? “A.

“A. Because I indicated Or order of the to the court court. don’t necessarily that I hearings was not permission know if is correct or not. The —in Judge before in hearing Morris and words I have used were unless she waives before grand jury, I indicated to them that I any potential privilege.” client myself did not there attorney- was an feel client privilege. Nevertheless before I “I then told Mrs. Iwakiri that I was not proceed further, would I question felt that going to reveal that any- to by should be settled the court because of information one except save and under actual court potential question arising. of such I order or Tiny would waive whatever myself however did not there was if feel privilege might client I exist. then asked such a privilege.” her, Wyman, Jon, ‘Did Mr. you talk to Tr., 11, pp. added). Vol. 1561-62 (emphasis answered, ‘Yes, about that?’ And she “A. I also contacted attorneys two okay did. you It’s for to tell Jon whatever I judgment knew whose I might felt he wants to know. You do whatever he appropriate question, on the and I contact- says said, ‘Now, to I do.’ then I want to judge ed one I knew who I also felt clear, you make it don’t have to do this. I might have some— your am not attorney, legal this is not you, you advice to nonetheless don’t have “A. 1 briefly had obtained services this; your said, to do ‘No, it’s choice.’ She of a attorney fellow to advise me on the

you ahead, go you whatever Jon wants question of attorney-client privilege. I do, you said, do.’ I you.’ then ‘Thank I I believe discussed it with him.” don’t recall if she said anything in the Tr., 11, pp. Vol. goodbye, nature of but we then terminated I conversation. then went in back “Q. conversation, And in that did she Wyman, ‘Tiny told Mr. okay said it was present you a situation in which she was you, me to you seeking your talk to legal do whatever said advice? ” to do.’ sense, very “A. In a yes. broad Tr., 11, pp. added). Yol. (emphasis 1555-57 “Q. And, your words, to use in a very sense, you give broad did any her advice?

“Q. right. All Mrs. Iwakiri never said you it was fine for Becky Boyer, to tell did by “A. If you give— ‘advise’ mean did I she? “Q. no, Yes or sir? words,

“A. In those no. Sir, “A. I you don’t know if mean you legal word ‘advice’ mean advice or “Q. Mrs. you you Iwakiri never told you what mean that word. permission testify had her grand at the California, jury in did she? “Q. you Did question? answer a Yes, “A. I questions. answered a number of “A. sir. propounded I things also number “Q. your very And first answer to her regard questions. you was that don’t deal black market

“Q. you questions And did adoptions; answer as a is that correct? lawyer? My “A. particular answer to that state- Again, “A. I think you hers, are ask- yes, explained ment of I sir. to her ing— dealing thing, yes, about not in that sort of sir.

“Q. Yes or no? “Q. you Because were concerned about “A. I cannot yes answer that one or no. problem you some past, had had in the “Q. You don’t know? getting something you involved in weren’t Well, know, sir, “A. I my what answer for, really ready right, more or less? ambiguous question will be. That is an No, “A. sir. I believe that’s in refer- my correctly. own mind if I understand it point ence to a later in the conversation time; lawyer point I was a at that there- telling when I was I her that would not give, give fore answer I I would in a take the case until I had examined the physical attorney. status as an I had de- point you At facts. that initial are case, clined to her I take and had told her I to, referring thinking adop- as as far about my would not take her case. In own mind tion, I attorneys and other that I was I answering questions was not those Idaho, aware of in the had been attorney, if your question. that’s approached by person ap- who at first Sir, “Q. I you you didn’t ask were her peared legitimate having in terms of some attorney. quite you It’s obvious that service, adoption my form and at least in was, you not. What I asked when she own mind I later determined in fact proposed problem, legal problem she trying very to black market babies. was had, did answer her and tell her thought per- I concerned about that and your opinion what she should do? Yes or haps spread that word had been that those no? were and that that’s what that available phone call was about. asked, questions “A. Some of she I an- form; legal yes, swered in a sir. “Q. yourself You had been involved later, your lady you with a at least in “Q. you you Did ever tell her what mind, go through trying own felt was thought she should do? you; black market babies with isn’t Yes, “A. Ibut think most of those were correct? nonlegal in a sense.” “A. I had not been involved. I had had Tr., 11, pp. Vol. 1586-88. phone lady, one call from that an initial against After the trial court ruled the claim phone nothing contact I done call. had client-attorney privilege, and after the whatsoever with her other than have the prosecutor Aldridge, had examined Mr. phone one call.” Aldridge cross-examination Mr. was asked Tr., 13, pp. Vol. concerning his statement about black-mar- having He made no claim ter- ket babies. This revealed that Mrs. Iwakiri whatever leading po- nothing minated the conversation to a had said whatever to him about representation, adoptions, anything tential and conceded his vol- black-market what- adoption unteered statement as to what he ever the nature of his volunteered re- premature: didn’t want was marks as to what he did not handle: Well, term, “Q. “Q. phone using your In that first conversation I’m ‘black Iwakiri, you you Mrs. told that she market babies.’ Would consider the she adoption you Mrs. in- had an situation she wanted conversation had with Iwakiri about; you volving is that blackmarket talk to correct? babies? “Q. you were conceal- out, no, you Didn’t think simply sir. I “A. As it turned kidnapping then? ing murder and a a beginning so

brought up right at the mind, something it was she had I was con- No, I didn’t think “A. sir. if thing right there. stop could the whole anything. point we in time cealing At that attorney-client I probably interjected early. my understanding a touch I was that I could not privilege as it existed question asked her the first.” should have any con- anybody about say anything to added). Tr., (emphasis pp. Vol. 1720-21 me; therefore, she had had with versation Nevertheless, notwithstanding his voir doing affirmatively I was barred from forth, and now dire examination above set anything about that.” jury, testifying judge but to the not to the added). Tr., pp. (emphasis 1721-22 Vol. prolonged inter- he said effect that importance of the misstatement The view, have cut off at could over-emphasized. cannot be State’s brief by merely clicking the receiver time down miscarriage led to a very It well could have phone, curiosity: on his was out of disturbing factor is that justice. reading upon purports to be based a “Q. enough in this You were interested record, contrary. Taken but the record is called conversation to make sure she hardly clear- totality, there could be a in its back, right? interviewing attorney poten- a er case of an did, she “A. I was curious as to what client, of that only at the close tial was, she had what her decision because sorry, that telling her that “I was interview she was indicated she didn’t know what do, nothing I didn’t there was I could ... done____” thought going her that I to do. also told Tr., anything that could be see in- should take a look at the criminal she is there in p. Vol. volvement, he was aware of and I was curious as to whether white that black and sought out in- attorney-client privilege, and something going do there. she was attor- from three dependent advice thereon least “Q. also told us that at You have Notwithstanding all of judge. neys and your your- mind she was never own that, testimony displays flavor of his client? court willingness testify ready procedure, my “A. In terms of office so. A court only him to do would order him,1 no, oblige regard readily a client in that I did not her as would California did likewise. County district court the Ada sense. any particular case. a severe lack grand jury proceedings “There is which Mr. Al- 1. The top Supreme reports only Court testimony, at the dridge, "Idaho district court in his Idaho level, to, magistrate’s court the district or voluntarily supra, Vol. none at taken from referred 1562, privilege level. p. did mention that the not one, cases, client, number a 1908 relevant belongs potential and not "The two client or to the privi- for, establishing of this that the burden having, Iwakiri, having of Mrs. case lege the consent or asked attorney whenever he obliging superior on the to establish easily is convinced an two, relat- privilege; a case the number judge to reveal was invokes that what he was there court saying: invoking ing portion the client of it the to and he was not not confidential privilege. " relationship to exist at the time ‘If the ceases communication, privilege.’ there is no the of Aldridge, will tell the Mr. “THE COURT: interpretation "Secondarily, of rules as far as regard any knowledge you Court to relating the one hand and to evidence on attorney-client privilege as exists in the other, general on the the State criminal law in State of Idaho? the State general looked first to of Idaho has in statutory relevant "MR. ALDRIDGE: of our law comes of much California since privileged listing of of a series scheme is a California. almost verbatim from communications. two, they do Rules to the Federal "Number attorney-client portion as far as "The relevant happen apply to to the area. reads as follows: " three, Digest juris- to other Pacific "Number attorney consent of his cannot without 'An dictions. any communication be examined as to client sir, fact, invoking you in "THE COURT: Were given to or his advice the client him made attorney-client privilege the Grand before the employ- professional of in the course thereon guidance? Jury seeking the Court’s or ment.’ error, in agree But it in all ty, was which but remands. Where the record is before Shepard. agree Justice While I with the us, and the testimony where of Mr. Al- majority opinion on as far this issue as that dridge thoroughly displayed has been to opinion goes, go enough. it does not far In appellant’s this Court both brief and short, it all does rule out of Mr. Al- opinion, my drafts of a strange it is dridge’s testimony, should which be the appellate practice that the Court avoids its main, probably holding only, in this point responsibility any testimony to appeal. hypnotized Unlike witnesses Aldridge Mr. will which be admissible. The issue, us apply where State asks is, course, answer there none. doctrine, harmless error does not testimony, Without especially but say still that it can make out a case without testimony without that and the tainted tes- testimony Aldridge. of Mr. On that timony Boyer, hypnotized Mrs. there Bakes, writing basis Justice for the against is insufficient evidence Mrs. Iwaki- Court, very position takes unusual indeed go ri to jury. let the case to a Burks v. refusing to enter into his considerations States, United 437 U.S. 98 S.Ct. important that both determinable and is the (1978). L.Ed.2d 1 the jury verdict of precise Aldridge at which Mr. time declined convicting Mrs. Iwakiri should be set aside represent Mrs. Iwakiri in contem- judgment and the of conviction thereon plated adoption. Shepard In what Justice should be reversed. Other than for the arabesque,” as often describes a “lateral proceedings fact that in Bakes, court the majori- district acquiescing Justice with an ty, neatly sidesteps by observing imposed days sentence issue reduced to only served, that “It was not until sometime after already of time at the time same completed that statement volun- judgment [the the district court reduced the to a interjection] teered black market that he misdemeanor, thereby terminating the potential employment by ap- turned down case, properly this Court would direct a pellant.” Nor is this corrected in omission dismissal. Here there is no need to. While opinion majority footnote 1 of the justice appellate ground the wheels of inex- blandly “Any states that: communication though orably slowly, finely, Judge District Aldridge subsequent between and Iwakiri Newhouse meanwhile terminated the has to his to handle case falls out- refusal by doing much for Iwakiri case Mrs. as scope privilege side the and is admis- It is the law allows his office to do. be- although majority, sible.” Where the yond hinged al- cavil that the State’s case readily acknowledge preju- that there was Mr. Al- entirely most on reversal, necessitating are in- dicial error attorney dridge, giving appearance an sisting on can remand there be a sec- per- being compelled testify against trial, strongly disagree, a number ond length by son who had been interviewed at grounds, that there can should be sought employ him him for an when she trial, being ground one that in the another adoption. Any attorney of even limited which it takes to examine and ten minutes recognize devastat- experience trial will Aldridge’s transcript of Mr. evaluate the have. The ing effect such would inescapable none of testimony, it summa- prosecutor no words in his minced the trial the should have admitted at jury: tion to the review, of which and none proceedings we Aldridge. brings “That us to Robert admitted retrial for of it can be at the you and Bakes, Aldridge took the stand speaking majori- for a Robert which Justice advisory ruling seeking gives the I the Court’s “The Court therefore "MR. ALDRIDGE: was you you that guidance. that reveal the conversation should during days Mrs. with my that I in had the summer "In mind I’m not convinced own privilege. Tiny attorney-client Iwakiri. into an fact did enter Nevertheless, you." being what the Califor- "MRS. Thank not sure of ALDRIDGE U-3, Jury regard, thought Proceed- might be I it best Exhibit No. ings, pp. California Grand nia law in that ruling. to obtain a her, ‘Well, to evaluate “He can’t do adequate indicated to we opportunity had I just work. way. that It doesn’t him. nobody for can’t do can do that that and days spent couple of on the “He you. you you want to do this? Are sure you telling his involvement stand about father, Is the the of these natural father you his evaluate in this case. Before children, them?’ looking for man, carefully at testimony, that look Yes, said, is, the “She he so are ‘Yes. he comes from carefully consider where police.’ California world, carefully bias this his consider think “He her that she should told case, what prejudice consider or in this this, seriously very seriously very about lose, gain he has he has to consider notifying about authorities. the gain spending from anything or lose “She and had a second called back in three and four parts of his short life some weeks later. She conversation day testifying in courtrooms blocks trip talked that she involved about a was and California in Boise. had where the children been retrieved. you telephone con- “He told about two Aldridge, going “She ‘I’mnot told Bob had with de- versations that he had the recall, police.’ you to call And as she the fendant She had called Juanita Iwakiri. him, said to ‘I’m afraid one child is that, Tiny, ‘My him and told name is him difficulty sick. There is some with that Juanita Iwakiri.’ He had written medicine there.’ down. that “He to her at that time indicated McKinney “He recalls Street ad- she take care of the matter should teliing initially dress and he recalls her doing something with assist in this boyfriend had about her sister and her said, ‘No, police anonymously. She brought up from some children Califor- I’m not do that’ going to nia, looking father was natural fact, ef- “In he recalled words to the for the children and so were Califor- him, going ‘I’m to find fect she told that police. nia a hole in it.’ And that’s what and crawl “She then him told children did, she that’s what she did. actually kidnapped ultimately had been Aldridge you “Bob the stand told from during phone of that conver- course about that he searched conscience has long sation that he he indicates was that, done about what should have about you told about. obli- if he hadn’t taken his fact that that, T finally “And he told her attorney-client obligation se- gation as an touch this case with ten foot riously something point wouldn’t done at that pole.’ the summer of time back in girls might with their little be those her, indicated to her “He talked to father now. important she consider the it was my your “I thank attention doing. He criminality of what she was opportu- argument. have another will her that knew what she said told if she matters nity discuss this afternoon knew, you that she ram- and he told she Wyman brings up you. with that Mr. not, he whether or questioned bled and you.” Thank much changed so as she story since during conjure image of this conversa- told it the course It would difficult to tion, exactly was jury what it convicted wasn’t sure of a which would telling, hearing he recalls that the she was but Mrs. Iwakiri after that summation Aldridge’s testimony proved his wife and actually man had murdered of what Mr. she knew against and that defend- her. It established that taken two kids ant, Iwakiri, kidnapped, proceed wanted to that the children had Juanita he, de- Aldridge, attorney, had Mr. adoption while the sister As the criminally clared her involved. gone. urges, State it not testimony does need the Boyer ability affected her to testify, the of Boyer Rebecca when had the it of testimony admission her simply was —not testimony Aldridge. of Mr. error,” Brief, harmless p. by State’s this by

II. Court is to tampering asked declare Recollection tainted issue, her testimony persuaded with witness’s mind. That this absent arewe be- of impression, captioned one first yond has been a reasonable that even doubt with her by Hypnot- Justice Bakes as “Admission of excised, testimony remaining the evidence ically Testimony” good Refreshed is in- is such that on a retrial fair-minded dicator of the direction in which he would jury would convict Mrs. Iwakiri. That as- like to take succeeding the Court—and is by request sertion is followed the that we doing however, passing strange, so. It is conviction, her affirm which has been re- particular that this case has been chosen as to a Brief, duced misdemeanor. p. State’s prim- the vehicle on which to ride down the majority, my concurrence, 31. The with path. by rose often As has been remarked admitting reverses for. error in the testimo- Court, important ought this issues not to ny Aldridge, but, my reading of Mr. from be decided without full brief- adversarial opinion, pass of upon fails to the as- ing. Although majority opinion the cor- signment of acknowledge error which rectly assigned observes that error is “the ignore. why and then I do not understand testimony admission of the of a witness majority opinion the does not decide the memory hypnotically whose was re- raised, why proceeds issue and instead it freshed.” from the Aside fact that re- announce a new rule which is said to be misleading, freshment is somewhat and necessary “Because we reverse this case “probed” or “induced” would better suit ____” trial, logically for a new This is issue, the briefing the which we have only If Boyer’s memory unsound. Mrs. has received on this issue is that found tainted, appellants’ been the brief—un- behalf brief submitted on of Mrs. Iwakiri. overwhelmingly answered the State — thoroughly The issue is briefed refer- so, then, convincing according that such is testimony Boyer, of ence the Rebecca announces, majority to the new rule the hypnotized prior the witness who twice was Boyer’s testimony cannot Mrs. be ruled giving testimony, her and fortified with competent. It is the majority absurd for testimony experts reference to the of who does, say, unblushingly itas that “we must light ample analyzed testified—all of give the trial court some direction on the authority legisla- judicial of decisions and admissibility hypnotically refreshed tes- other tive enactments of states. The dis- timony.” Aldridge, Just as with Mr. there encompasses pages, cussion each is no excuse for this to not determine Court every page germane assign- being Aldridge either Mr. Boyer whether Mrs. testimony ment of Mrs. error that testify. can At the same time the Court Boyer should not have been admitted. The keeping that as should mind to Mrs. respond. brief That brief State’s does prac- Boyer, State has conceded for all any authority submits no statement testimony purposes tical that her is not Acknowledging issue. gaining essential toward a conviction. testimony, object Boyer’s trial was made Clearly under the new rule the Court’s trial trial merely mentions that the erred; equally court clear it that under the issue not the court had stated that rule, testimony whatever value the admissibility of but Boyer prosecutor’s of Mrs. adds to proper weight which is a case, has tainted nevertheless function, deter- jury could jury Another ab- two sessions. hypnotized memo- accuracy mine the say surdity, opinion goes on to near the Brief, state- pp. only 2-3. The ry. State’s case, “upon end the trial resembling any retrial of Brief ment the State’s “assuming admissibility determine argument is that court should on the issue hypnotism hypnotized testimony using deciding that witness’s without guidelines set forth herein.” It would tive who had received the same formal seem that promulgates Court which training hypnosis Anderson, Detective guidelines, doing those reviewing so in a Detective Stan Wood. In addition there which, briefing, record with excellent dem- operator was an and a recorder for the guidelines onstrates that those were not session. The tape session was recorded followed, way there is no to rehabilitate a taped. Rptr. p. but not video Tr. 867. Not improp- witness whose mind has thus been all of the tape session was Rptr. recorded. erly tampered then, Perhaps, with. it be- p.Tr. 868. painfully acquaint comes in order that I Detective Anderson was cross-examined majority appellants’ with the documenta- concerning qualifications his to conduct the explanation tion and the manner hypnosis Rptr. session. p. Tr. V. 873 et memory which the Boyer of Mrs. has al- seq. ready been established as tainted. As I read the rule today recog- new advanced it Rossi, Doctor Donald expert state’s “protect against nizes the need to the dan- hypnosis was called to the stand. Dr. confabulation,” gers and, “If the wit- Rossi was taken on voir dire the defense memory ness’s seems to have been altered concerning and testified the behavior under way unreliable, in such a as to render it hypnosis “cueing”. known as trial court rule the witness to be in- “Cueing is behavoir may give ____ competent hypnotic The session the individual information which is not a should conducted psychia- a licensed part memory of their system. All this is psychologist trist or trained in the use great importance not of such in its clini- hypnosis____ person The conducting the uses, cal investigative its uses it is independent par- session should be extremely important.” Rptr. p. Tr. V. 6 Majority Opinion, ties in the p. case.” 11. 926. majority adamantly Because the refuses to Dr. Rossi also testified that “confabulation lay public out for previously view the cast- process is a natural filling mind for setting in-concrete factual to which its new gaps memory” between and that confa- applies, rule notwithstanding that bulation fully can occur in a conscience as readily appellant’s brief, available in I must hypnotized well as a Rptr. state. Tr. V. 6 do so. p. 926. Dr. Rossi hypno- also testified that present hypnosis The case involves the Rptr. sis is not a test of p. truth. Tr. V. 6 key state witness to refresh her recollec- 927. During tion. the trial Detective Lance An- key portion derson Department Boyer’s Boise Police of Rebecca testi- called testify mony as a State reportedly seeing witness about was her the two hypnosis session missing that he conducted children at the Iwakiri home. The Boyer February with Rebecca reliability veracity reported these objected any testimony by defense sightings point was a critical in the case. concerning hypno- Detective Anderson Dr. Rossi was asked whether he knew of Boyer grounds sis of Rebecca on the Boyer interviews with Rebecca con- qualified Detective Anderson was not hypnosis ducted session in session, conduct the but the court which reported seeing she the children in testimony, Rptr. p. allowed his Tr. V. replied Iwakiri home. He that he thought Rptr. that he had. p. Tr. V. 7 1014. Apparently there were no inter- Present at the session were Re- views, or at least no record of them with Boyer, attorney, becca Robert Al- Boyer prior Rebecca to her ses- dridge, requested who she had to be Anderson, reported sion in which seeing she present, Detective Lance the miss- ing children in investigators primarily two had been who Iwakiri home which case, Worley prompted working on the Detective Dr. testify Rossi to that “all McNichols, Specialist, repeat and another detec- can do is what I already said to (an Q. If I saying right during the court. that information inter- it is the am trance prior hypnosis view or interviews to the itself. Boyer reported in which session Rebecca Okay. saying. A. That’s what I If am seeing missing the in the children Iwakiri trance, induction, if it during post the is home) factual, procedure is not then the improper.” Rptr. p. then it Tr. V. question is

that incorrect. If the informa- 1026-27. procedure is factual then the tion is cor- sug- possible tainting Another area or or Rptr. Tr. p. proce- rect.” 1016. The V. responses given by gestibility is the the have dure would been incorrect because of hypnotist subject. to the “tainting.” Question Dr. Rossi Question to Dr. Rossi “Q. (re- you say But would that if it “Q. agree You with me would with the sponses hypnostist subject by the tendency is hypnosis there more have a session) during hypnosis affects the tainting than real life. subject, degree can taint or that it to some get- another the information that we are Yes, heightened A. because of state ting subject. out of the suggestibility. I just change A. the word would Q. you agree And would with me that “taint.” It reinforces the individual memory may create a new rather may It may what has been said. or not an refresh old one. than you taint. would mean that now Taint Depending A. on how individual is something is production have may happen.” Rptr. Tr. interviewed not real. p. 1017. V. 7 is, Q. you may you saying What Aldridge, presence of Mr. Rebecca The something you that is real and attorney, during Boyer’s ses- not, you but don’t know. tainting also the risk of sion increased A. correct. That’s suggestibility. Q. suggestibility many times will And Question to Dr. Rossi as com- push us into the confabulation area Now, “Q. happens during what pared to not. attorney begins adding state her trance Rptr. Tr. V. 7 A. It could.” It could. dates, telling telling information p. suggestive, it? is isn’t circumstances. That proposed tes- objected defense A. Yes. timony Boyer grounds Rebecca on the . that to be im- Q. you And would deem by De- session conducted proper? did' not the stan- tective Anderson meet ex- the state’s own dards established use, yes. that I practice From the A. Rptr. p. Tr. pert, Dr. Rossi. V. 7 by anyone involvement There should trance when individual else Boyer’s ruled Rebecca court composite it’s artist. unless state observing: testimony would be admissible “Now, of first I realize this is a case in the interview Q. you Did see that Idaho, impression it’s a rath- here Aldridge had in during trance that Mr. a lot and I have done question, er novel Boyer. Mrs. added facts to fact days searching in few the last of soul that he said some My A. recollection and I have various briefs with all these the induction. things but working stan- clerk my had own law Q. like to— Would dards. opinion that is of the If But this Court word. it comes your I will take A. represented by these jury as the modern induction, accept that I will past the then law is people, I think trend it is. where that’s going keep- in all way kinds of these will this evidence to be submitted to allow ing away can things jury jury. from the as easily accu- as this Court determine how opinion Again, this Court is of the Boyer given by rate the Miss jury just easily as the modern this Court had is after she has her mind refreshed can how accurate this determine hypnosis. Boyer is after she had her Mrs. has mind Now, hypnotic all the attacks on the allegedly by hypnosis. refreshed used, methods which I for listened here hypnotic the And all attacks on the meth- hours, go

the last three to two or seemed by ods these used various witnesses and weight jury to the evidence to the corroborating testimony, at least that by its admissibility rather than to this brought by has Anderson been Lance Rptr. p. Tr. Court.” V. 1044. Rossi, Doctor Officer McNichols and gave opinion hyp- weight jury Dr. to the go Rossi this will to the rather by admissibility by nosis An- than Court. session conducted Detective this Boyer, February derson with Rebecca enlightened I think the more view is that acceptable to did conform standards memory by refreshing this should conducting such an Rptr.Tr. interview. be allowed to be utilized. I think it would p. V. 7 1047. say be foolish this Court to this science keep is so inaccurate that should it all objection defense renewed its out. against Boyer’s the admission of Rebecca grounds testimony on the that: 1. Judge, you MR. understand WYMAN: testimony incompetent had been rendered that corroboration is not corroboration be- hypnotic virtue of the she trances that It forehand. is corroboration her testi- through, testimony had been 2. that her mony or statements made under independently had not been verified as is occur. that has to required and, expert own 3. State’s Well, I I THE think understand COURT: allowing testimony the foundation for her very well from Doctor Rossi’s testimo- conducting showed that the standards for ny. session had not met. been any question I there is that I don’t think Rptr.Tr. p.7 1143. Y. testimony. Doctor And understood Rossi’s again objection defense renewed its feel, just help from I but Mr. can’t Boyer’s proposed testimony to Rebecca em- Wyman, given jury. should phasizing that the standards for admissibil- Now, may be I hear this witness it when ity Rptr. p. met. had not been Tr. 7V. testimony from her mouth how this and her 1148. things, might I happened, and various objection The court observ- overruled give you But I change my mind. want ing that: my— Well, “THE as I indicated Well, COURT: MR. I think the Court WYMAN: I if there had suffi- thereto that felt my point thing one misunderstands Court, I am cient foundation shown has to other than here. There be evidence may. willing to allow this Boyer independently Miss corroborate testimony prelimi- I be that after hear says. example— things she For witness, I Boyer, Miss nary on this Well, THE I know what COURT: don’t opinion. different say. way hedg- I’m going she is That’s little, Wyman. opinion ing Mr. I don’t have But I am still going given by idea to be sufficient foundation what she Boyer, anticipate apparently I other the fact saw through Miss than statement, although got I out I some children. That’s the best from counsel’s this, be, then that there it. haven’t heard Well,

MR. WYMAN: Exhibit 23 illus- his wife and took two children and that the brought children were to Iwakiri’s home. saying. saying I’m I’m trates what What Rptr.Tr. p. Boyer reportedly V. 7 1163. is, got proof. they have to have some If Aldridge, an at- referred Iwakiri Robert said, she T saw children on such and such a possible adoption torney, for of the children 1981,’ day, on March 1st of and that came Aldridge. decided not to use but Iwakiri through hypnosis, going up she’s to have to Boyer reportedly Rptr. p. Tr. V. witnesses, ‘Yeah, there, I have some missing girls in the saw the two Iwakiri too.’ Rptr.Tr. in her V. 7 home and also home. THE COURT: No. don’t think so. p. reportedly 1174. Iwakiri said that the Overruled. girl older had some kind of disease which That’s what the MR. WYMAN: cases (which got progressively would be worse say. fibrosis). cystic Rptr.Tr. consistent with V. brought p. reportedly Iwakiri 1176. Well, your logic, I follow THE COURT: girls pickup from California in a two back Wyman, I realize this is a novel Mr. p. Boyer camper. Rptr.Tr. V. impression here in Idaho and that’s what I reportedly Roy saw Summers the Iwaki- clear, to make how felt about the want reportedly by told Iwakiri ri home and was matter. Iwakiri’s brother. that Summers was And understand that MR. WYMAN: arrest, p.7 1184-5. After her Rptr.Tr. V. that, Rossi said too. Doctor Boyer reportedly told that she had Iwakiri Well, I realize there has THE COURT: kept missing children her home but the peoplesaying everything. a million So I been just drop on a in basis. that it had been Rptr.Tr. is mine.” guess the final decision Rptr.Tr. p. V. 7 1190. pp. 1148-51. V. 7 Boyer reported cross examination Under Boyer to the stand Rebecca was called Roy seeing dark haired ladies with two her af- that Iwakiri contacted and testified Rptr.Tr. home. V. 8 in the Iwakiri Summer by first interviewed ter Iwakiri was haired 1224. One of the dark women p. Boyer told that she police and that Iwakiri re- heavy and attractive and was set was going truth which was that was to tell the Boyer as the wife of portedly introduced to missing chil- Iwakiri’s sister had had Roy Boyer as Sum- man identified who man, Roy presumably Sum- dren and that reportedly introduced to and who was mers mers, Rptr.Tr. killed five or six wives. had as Iwakiri’s brother. by Iwakiri her However, heavy that she pp. Boyer p. 7 1157-58. continued Rptr.Tr. V. V. 8 1262. Molly in fact by police February was interviewed dark haired woman set sister, Casner, Boyer had who photo- two Iwakiri’s and that she identified by Iwakiri as introduced to reportedly been being that she had seen graphs as children mother, Rptr.Tr. Bertha Estess. p. Iwakiri’s Rptr.Tr. V. 7 1159. in Iwakiri’s house. knew the Boyer said she p. 1287-90. V. 8 calling practice Boyer commenced Roy as Summers she identified person who McNi- Whorley or Officer either Officer brother, than that he “Tiny’s” rather something thought of whenever she chols to her as Iwakiri’s introduced had been Rptr.Tr. might helpful in the case. However, Rptr.Tr. p.8 1238. V. brother. 16, 1980, February Offi- p. 1160. On V. 7 Roy had Boyer repeated that Summers in re- Whorley Boyer’s house came cer Iwakiri’s brother. introduced to her as from her to hear telephone call sponse to a see- Boyer reported p. 1269. Rptr.Tr. V. remembering that Iwak- reported about her a total of five missing children ing the missing girls adopt the two iri wanted to p. 1302. Rptr.Tr. V. 8 six times. subject case and who who were ses- hypnosis reported in the Iwakiri that her reportedly Boyer been seen had through the see p. “trying 1161. Boyer. Rptr.Tr. Y. 7 involved sions home Boyer said p. 1209. Rptr.Tr. V. 8 Boyer her sis- clouds.” reportedly told Iwakiri say what she" always does not that she who beat a man California ter lived with person hyp- means and that this can make easier for a under sometimes causes Rptr.Tr. p. 2444. Rptr.Tr. p. be misunderstood. V. 8 1251. nosis to lie. V. example possible An of this misunderstand- expert hypnosis, The defense’s second on ing Boyer’s Roy identification of Sum- Rhodes, Bishop Dr. Basil was called to the being Rptr.Tr. mers as Iwakiri’s brother. heightened stand. He testified that p. previously V. 8 1258. And the men- phrase, suggestability, to use Dr. Rossi’s by Boyer tioned confusion Bertha between height susceptibility, or the to use Dr. Estess, Casner, Molly Iwkiri’s mother and phrase, hypnosis Rhodes associated with example. Iwakiri’s sister is another danger of sessions makes the manufac- one, very especially tured evidence real Boyer hypnotized had herself a second following just immediately to and Hypnosis time at the Boise Center a Dr. Rptr.Tr. p. 2933. session. V. January Streib in of 1980 before the first trial, Boyer prosecutor informed the presence Dr. Rhodes testified that the Rptr.Tr. p. that session. V. 1446. Boyer’s attorney Rebecca and the numer- persons session, ous other at the expert hypnosis, The defense’s first only conducting rather person than Hannebaum, Richard was called to the subject being present, session and the vio- that, opinion, stand. He testified accepted hyp- lated standards for a forensic pre-hypnosis Boyer sessions with Rebecca Rptr.Tr. p. nosis session. V. taped taped. should have been if not video Dr. Rhodes continued that Rptr.Tr. p. Concerning Y. 17 persons during the room regard people being “A. In to several hypnotist sessions other than the and the present, probably hypno- we find that subject, he testified that: conducting group hypnosis, tist was even person “A hypnosis in is in a state of though he was not aware of this as such. susceptability suggestabil- accelerated or Q. doing What’s the effect that?

ity, and if there going is a conversation ' doing A. The effect in this was fact on, they pick up could pieces bits and and everyone placed in the room in a was believe this apply- conversation be readily accepting state of all that was said ing very possibly to them and react to it fact, acute, will, you as a a state of if or I’ll or, dramatic, even develop post- more ” suggestibility.’ use the terms ‘acute hypnotic something reaction to that was Rptr.Tr. p. 21V. 2940. said that wasn’t even meant for them.” Dr. Rhodes testified that Rptr.Tr. p.17V. 2421. my professional “I found that it was Mr. Hannebaum continued that if Rebec- opinion, my findings were that the reliabili- Boyer all, ca hypnotized was at the trance ty investigation hypnotic standards for light

was too Rptr.Tr. to be effective. V. p.21 decidedly Rptr.Tr. were in error.” V. p. hypnosis 17 2444-45. He continued that 2941. gathering technique, an information not getting technique. Rptr.Tr. a truth V. 17 that, opinion, Dr. Rhodes testified his p. 2427. He testified normally a sub- Boyer Anderson coerced Detective Rebecca ject hypnosis please under wants to by suggesting intelligent that the more hypnotists and will confabulate to do so. person capable they more is the are of Rptr.Tr. p. V. 17 2428. Mr. Hannebaum achieving Rptr.Tr. the desired V. results. testimony by noting continued his that Re- p. 21 2941. Dr. Rhodes also testified that Boyer’s post-hypnotic becca state was un- “cueing” being if there was or information anything like Rptr.Tr. he had ever seen. supplied Boyer, to Rebecca whether inten- Also, p. V. 17 2431. he testified that Re- not, tionally impossible or it would be Boyer’s reported becca flashes poor tape were quality tell because of the of the post-hypnotic due to suggestion. Rptr.Tr. Rptr.Tr. p. session. V. p. repeated V. and 2448-49. Mr. Hanneb- 2943. Dr. Rhodes by testifying aum concluded presence people that the of other room influenced the Rptr.Tr. Well, results. instance, Y. A. she moved from p. place. time and used “I She think we saw. suppose,” I and “I don’t remember” which explained Dr. Rhodes the basis of his entirely would be out of character. opinion session with Re- Boyer becca was not reliable in the follow- goes were, And she on “They she is.” ing exchange: specific She was not on dates. con- She “It my opinion was that she was in a pickup gener- fused cars and trucks which very light hypnosis, state of any state ally extremely would be unusual. hypnosis. very It’s difficult fully Q. people hypnosis, When are under do evaluate, say but I would she in very they specific specific have a event light hypnosis. state of thought, specific detail? my I base opinion on following: They A. Yes. can very recall detail viv- voice spoken intonation. The tense would idly. actually picture You can in your indicate there was a lack of depth. place mind. person hypno- You can The clearing, clearing constant time, sis specific spot, at the place, and so throat, part this could subject’s forth, are They seeing there. are personality However, trait. it it not usual- acting it or taking it out or part an active ly hypnosis. did note it to and words, it. In other actually being it’s re- immediately following the session on the lieved. tape.

However, type of physiological Q. reac- In you this situation finding gen- are tion we usually people find in showing ex- place shifted; eralities and being and time treme anxiety, insecurity. We even find it you is that saying? what are very much process so in the where there is place A. Yes. being Time and were taking place a lie presence or in the of a shifted as she felt she wanted to. An falsehood. hypnosis, individual in any specific without There was no indication that she was safeguards, beautifully, convincing- lie truth; is, motivated to tell ly quite glibly, and it’s done willfully. using pride using versus a lie and the ideo- Q. When “willfully,” you mean responses motor I had referred to talking about their own volition? earlier. A. Their own volition. words,

In other she could be confabulat- ing beautifully moving ahead and this Q. And techniques hypno- one of the becomes absolute fact and there was no sis is to move from their volition conscious question about it being fact. to another in you working state which are

Q. I you' noticed solely made some with memory? remark their about tense. We are talking past, about Solely memory, A. with their that which present, or response, future tense in verbal indelibly imprinted is on the subconscious are we not? mind, if you will. A. We are. I used to use “everything the term Q. you? What does that indicate to seen, you heard, put have or done was Oh, specific I’ll A. make a reference microfilm.” here, may. Usually if I the tense is clients, I discussing my now when I with changed speaking in the time in frame to a have to use the term “it’s the same as particular person hypnosis. in feeding computer, bringing material into a Boyer changed Mrs. time frames and up Everything it to date. that has taken tenses, past present readily, which is life, place your in everything you hypnosis. not done in seen, done, heard, touched, felt, your all of

Q. emotions, How did that come virtually about? everything is recorded least, recall, depth, at is a medium hypnosis can For subconsciously,” and this true recalled, time, always subject speaks in specific place. required, and past tense. Q. Now, person if in this lessened is you you state of have here and Q. here? That didn’t occur shifts, geographically and see the both age For re- A. It did not occur here. volition, time-wise and the use of willful required in these gression, which is what credibility does this affect the of the re- cases, of identification and aware- a loss sults? necessary, you because are deal- ness are indeed, A. It does because false memo- ing only memory. com- You were accompanied by subjective ries then are from, pletely consciously we’ll removed they conviction that what have said actual- courtroom, say, or in this instance ly reality, by the and we are convinced room, we where we are the consultation signs outward that it must be true. room. You ac- are not in the consultation will, place, you if are false What takes tually to the time and regress them back accompanied by subjective memories are place. it, They and then conviction. believe we it, Q. reliving in a sense? They are it, say they they believe because it is so and reliving it. level, They A. are act this out at a conscious of course. unconsciously, hypnotic Even if the Now, ses- Q. you find here right. did All controlled, hypnosis delayed sion is not time? they particular to a went back recall, instance, for that she has had is words, tech- appropriate In there other was completely unheard of. nique get particular her to a time working either order to focus and start Q. you talking When delayed are about point from that forward or backward recall, you talking are episodes about the pattern? follow a 12th, August example? example, certainly, A. That would be an A. No. very easy particular

It’s for her in this you Q. you should do Must do that? Or state, say, very light and as I it’s a state that? safeguards and there were no present at A. should indeed. You very easy, all. It would be quite and felt sure, present there were for her to have that? Q. happens you if don’t do What fantasy and confabulation. I think this don’t, you getting a false you A. If are quite obvious. verification, will, actually you of what Q. part problem Does that we obtaining place. without took You are seeing improper are stem from tech- in a placing of recall or them a state niques terminologies, there are two —and regression, regression or time age state of age regression? versus time only that receiving them from recall, accomplish A. In full order to you.” produce for wish to necessary age regression or to use time Rptr.Tr. pp. V. 21 daily I regression. use it almost with the question In whether or response to the to subjects interesting I deal with. It’s to that Re- anything not he found to indicate perhaps bring your I it here can to note— Boyer suffering becca was from some sort you clearly. can see it more attention so respond- problem, of emotional Dr. Rhodes going told that she is to remember She’s ed that deal, does, again but there great a and she my professional “Yes I did. It would be itself, safeguards in the session so were no opinion extremely that she was an emotion- much she remembers or no matter how ally person, quite unstable confused. remembers, accepted what she to her it is you specialist and on if she me a in fact and it rolls on were Had come to as reading good obligated every a book. I hypnosis, would feel respect to refer to varying degrees. her a health A. mental To Some would practitioner. complete in a hypnosis. state of Some light would be in a very hypnosis, state One of the striking notes —at least it and merely some would be in a state of rang quite a bell in my head as far as I was suggestibility. material, concerned in reviewing the was the fact obviously Q. that no you individual would I believe have indicated that person leave her child with lighter hypnosis a who has al- these state that ready stated that —at suggestibility least on one occasion individual suffers from ato person baby-sit. right. higher degree? she used this to All put person So she the child there and that A. Yes. kidnapped had children there and had al- Q. Now, right. All if person has been of, ready possibility quote, discussed the hypnotized along subject with the to some killing,’ something ‘murder or or to this degree, you indicated us you effect, you if will. will see a mirrored effect? any person I don’t feel that right in their A. Yes. mind, mother, or any place would a child Q. you What do mean that? there, with someone which would be indica- instability tive a form of in itself.” give going A. I’m example, an p. Rptr.Tr. V. 21 may, believe, I I picked only, and I four or five illustrations. There were numerous explained Dr. opinion Rhodes his illustrations —this is reference to Mrs. room, others in particularly Mr. Al- Boyer attorney, and her Aldridge,— Mr. dridge, hypnotized during also were and I my opinion based for the mirrored following exchange session in the phrases on what she had said at the hyp- phenomenon “A. Yes. There is a plus notic he session what had said in tran- phraseology is referred to as identical or script session, following hypnotic and phrases, people mirrored in which within phrases. are almost identical Some taking the room where place phrases, indicating actual mirrored often, quite will state will or make identical in hypnosis had been at the time the statements. hypnotic session was conducted. Q. for, possible, Is it let say us we are illustration, give you I’ll and then sitting here at the table with Mrs. Iwakiri perhaps you question will have a or two Guhin, Bower, myself and Mr. Mr. can point. answer on it at going session is on in close stated, Boyer instance, us, Mrs. for proximity for or of us one more session, killed, ‘had been had been within mur- fall the trance the technician? dered.’ Certainly. A. Aldridge says Mr. fol- well, Q. And if this is strike done — killed, lowing ‘had been had been mur- happen any frequency?

that —does it dered.’ happens continually. profes- It Any A. Boyer ‘boyfriend Mrs. stated or hus- hyp- sional seminar where we demonstrate Aldridge says ‘boyfriend band.’ Mr. or nosis, instance, or we where are teach- husband.’ hypnosis to ing group physicians or attorneys, Boyer if I Mrs. ‘But even were demonstrate stated it was either her here, per people neighbor lady.’ sister Aldridge cent of the Mr. room, percent thought sister, perhaps than stated T within better neighbor.’ a hypnosis, of the time be would under not only working specif- I’m individual with Boyer my jail, Mrs. ‘in stated under- ically, everyone present. but standing.’ Aldridge ‘Very says vague Mr.

Q. varying degrees? charge, To about jail.’ not sure. He’s in Boyer heard,

Mrs. said “I tried to recall reality he knows and the that he or name police but cannot. The have men- supposed reality that he heard. institution, tioned to me a Christian such as event, really In either he not would be day Aldridge says school.’ Mr. T don’t feeling aware that this was his and this specific recall a institution. It anwas insti- why stating he was it. He would tution-type Christian home.’ hypnotic associate this with a session at Q. Does he also use the term ‘Garden Rptr.Tr. pp. all.” V. 21 City’ testimony? in his only hypnotist, Not was the first Detective Anderson,

A. Yes. Those are a Lance few. There are a member of law enforce- there, ment, one or hypnotist, two others that are but I but the second Dr. Streib think give you picture that will Boyer memory of what saw Ms. had al- after attempting say I’m as far as almost ready tampered under with. Even phrases images identical rule, mirrored totality the Court’s new it would be subject hypnosis. what the said in impossible Boyer to conclude that Ms. competent could witness on a retrial. be a Now, normally, people no two will this— course, puzzlement, why the full give might identical You once. answers. so, membership saying Court avoids full twice, possible probable you might It is knowing well that for a number of reasons certainly but no more than that. At most there a retrial. will not be you might give it would twice an identi- answer, primarily you cal because are fa- impropriety III. The of the Court’s something, miliar with the tone or or it governing admissibility. Even new rule particular your struck a chord with larger puzzle- than the aforementioned thinking. own ment, majority if the feels that it must provide make a rule to for the use of However, case, Aldridge’s in Mr. he was witnesses, hypnotized is: present at the session and he does show a very close correlation with the fact that it (1) case, Why particular so in does this phrases was almost identical or mirrored which not and will not be should retried? phrases, indicating hypnosis. that he inwas (2) Why it does so in the face of over- Q. Now, isn’t it kind of the acid test of documentation, whelming respectable vagueness? that if use words of In states, neighboring decisions of words, vague,’ other ‘I’m not sure’ or ‘I’m hypnotized witnesses is not phraseology? and use that same reliable? very A. That If would be indicative. (3) Why it does so in the face of the just vague subject were as as the as he general’s solicitor considered view that the was on—I specific didn’t make a notation state of the science of is not that it, really, except particular on point. competent- far advanced that the can Court just vague subject, Where he was as as the govern ly admissibility make a rule to very definitely it would indicate that that of witnesses whose minds picked up was material that he had tampered have been thus with? hypnotic session and that which he believed Discussing propounded questions the three to be true. order, part the first is in an- somewhat Q. person When the has been under observing swered the third. The solici- trance, Aldridge, like Mr. and has re- Thomas, general, Lynn tor the Honorable material, know, ‘Oh, hey, ceived the will he by many making who is seen an eminent hypnosis,’ just this came from or will this handling appeals career the criminal part memory become a in which he is General, Attorney the Office of the neither distinguish reality now unable to from that argued orally in wrote the brief nor which he had heard? argued case. This case was to the Court No, 16, 1984, Monday, January it and he Boise A. he will not be aware of reality (retired) distinguish sitting would not it between the Justice McFadden for Jus- 646 Huntley. previous Friday, hypnotism significantly

tice On the has been limit argument in full Court heard the case of authority ed. Three lines of have been Bainbridge, State v. pend- No. still concerning, developed admissibility Bainbridge ing compan- in this Court. is a hypnotically testimony. enhanced Sivak, v. State ion case to 105 Idaho approach expressed strictest is best in (1983), capital 674 P.2d 396 case wherein People Shirley, v. Cal.3d Cal. [31 penalty imposed the death and that (1982), Rptr. 641 P.2d 775 where 243] penalty upheld in this Court. Mr. Thomas Supreme California Court held that until both authored the State’s brief in Bain- has it can be established bridge, presented argument. the oral gained general acceptance in the fields of surmise, As sheer it would seem that psychiatry by medicine and as a method may proponent of the Court's new rule accurately improved, memories are which under that the labor the belief views have un testimony of witnesses who general solicitor which were made known dergone to facilitate recall is Bainbridge argument in brief and oral also, v. per se inadmissible. See State promulgating need not be considered in a Mack, (Minn.1980). 292 N.W.2d auspices rule under the of the Court’s deci- However, adhering a number of courts case, Iwakiri. Respectfully, sion this concept upon the basic which such a rule beg to differ. The first of these two eases by premised impact modified its have Bainbridge, and Bain- presented to us was allowing hypno who has been a witness bridge also very much revolves around testify regard to those mat tized to here, i.e., question same which we have was able to recall ters which he or she testimony of witnesses whose memories See hypnosis. relate to the hypnotically tampered have been with. Ct., Super. rel. v. e.g., State ex Collins my part, was on a For where Court (1982); ac P.2d 1266 Ariz. 180] [132 Friday given the benefit of the views of the cord, Taylor, v. Pa. Commonwealth [294 issue, important general solicitor on this (1982). Super. 439 A.2d 805 171] ensuing Monday, speak, so to is then on the authority, and one “The second line of discourtesy judicial and unsound both a ground’ with re- representing the ‘middle completely ignore those views— practice to issue, exemplified by the gard to this undoubtedly single not those of a which Hurd, v. N.J. holding in [86 525] comple- person but of the entire office (1981), the court con- A.2d 86 where attorneys Department in that ment of testimony previously of a cluded Branch of Government. the Executive may be admissible hypnotized witness views, however, do not accord with Those that the risks state can demonstrate Justice Bakes now the direction which in- admitting hypnotically inherent Court, and it majority takes testimony been avoided have duced But, ignored. even reason are be for that ‘safeguards’ through of certain the use that those views majority disagrees if the hypnotic pro- during the procedures deference, those to the utmost are entitled cess. especially views should be considered — soundly ac- approach, those views have been ulti- finally, when a third “And every high nearly adopted court in upon by claimed and the trial mately relied his Bain- In considering issue. bar, put forward court at has been the case brief, succinctly in- bridge Chap- Thomas Mr. Supreme Court Wyoming the other courts State, (Wyo.1982). formed us where P.2d 1280 man the law: gone in this area of the fact Chapman, the court held that In does hypnotized has been that a witness recognizes that a substan- “That State incompetent witness render developed under body of case law has tial credibility testify instead looks but of wit- the admission weight of the and the the witness re- have been whose recollections nesses determined to be through the medium prompted freshed or —issues Further, the fact finder. the court did reached the same result had the evidence require as foundation for been excluded. such testi- mony showing procedural of the safe- recognizes although “The State guards set forth in identify Hurd. The court neither witness could both co-de- fendants, found that while compliance with such the effect of the cumulative safeguards may testimony Leyden placed enhance of Chilton and credibility the witness, appellant the and the many there co-defendant the were too vari- station victim at with the the time the hypnotism ables in to mandate such re- occurred, ap- murder and identified the quirements.” pellant rummaging as the individual 14544, Respon- Bainbridge, State v. No. through register thereby nega- the cash Brief, pp. dent’s — ting appellant’s defense that he was Having nicely helpful analysis laid this be- non-participant in the crimes. How- us, candidly points fore out that under ever, the State submits that such testi- both the first and authority, second lines of mony was not essential to its case.” appellant there would have us hold that Id. 24-26. testimony previously hypnotized wit- May The brief was filed this Court on Bainbridge’s nesses at improperly trial was argument January 13, 1983. At oral beseeching admitted. Rather than us to 1984, Mr. Thomas was still of the same adopt ignoble Wyoming rule—for Repeatedly view. asked from the Bench which he is to be commended: go what considerations should into rule submits, however, “The State make, might which the Court Mr. Thomas court should not reach the issue of what steadfastly advised us that a rule was not applied standard is to be in Idaho courts required why a rule should not be determining whether hypnotically en- made: hanced should be admitted. dispute MR. THOMAS: ... We don’t Even those finding courts that such testi- hypnosis poten- fact that of witnesses is a mony may not be admitted have held that tially problem____ urge serious We error in its admission is not reversible hypnosis Court not to reach the issue ... se, per but rather its effect must still be really, given the lack of full informa- judged prejudicial under the error test. good hypnosis, try tion on is a time not to See, People Shirley, supra. v. The State hypnosis____ to fashion a rule about contends that the admission of the testi- mony of the two witnesses who had been

hypnotized in the instant case constituted JUSTICE BISTLINE: ... Has the office error, case, harmless improperly attorney general, prior and even if to this magni- admitted was not error ever made a recommendation or authoriza- of such require suggestion prosecutors through- tude as to tion or reversal of the convic- hyp- out the state or law enforcement tion. nosis be used or not used? applied “The standard to be when de- termining improper whether the admis- MR. THOMAS: ... I’ve never heard of er- sion of evidence constitutes reversible suggesting our office the use of appellate ror is whether the court is con- anybody____ beyond a reasonable doubt that vinced the same result would have been reached MR. THOMAS: ... You don’t have to properly had the evidence been excluded. issue and reach shouldn’t be- LePage, 102 Idaho 630 P.2d

State v. legal complications cause of the in formu- LaMere, (1981); 103 Idaho rule____ lating hypnosis (1982). Assuming 655 P.2d 46 with- conceding out that the of Glo- improp- argument Leyden Gary

ria Chilton was JUSTICE HUNTLEY: ... admitted, erly jury credibility would have is made that mat- it’s not a argument people ter nothing up against is that when therein stands hypnosis they very suscepti- are under weight authority. suggestion they ble to when come out principle “Just when a scientific of dis- they hypnotic receive the covery crosses the line between ex- suggestion they believe. And as sit perimental stages and demonstratable testify then the stand and about it difficult to define. Somewhere in this they’re going very to be credible because twilight zone the evidencial force of the Now, part memory. that’s now of their principle recognized, must be and while jury supposed how is to sort that out in go long way admitting courts would in credibility?

terms of expert testimony adduced from a well MR. THOMAS: ... I don’t believe that’s recognized principle scientific of dis- record____ the character of the covery, thing from which the deduc- sufficiently

tion is made must be esta- gained general accept- blished have I MR. THOMAS: don’t know what the particular in ance field in which it parameters possibility of that are. And I U.S., belongs.” 1013, Frye v. 293 F. any empirical is don’t think that there evi- (D.C.Cir.1923). 1014 enough good dence that is for this Court to point. fashion a rule about that at this adopted Frye Jurisdictions have stan- my understanding of the state of That’s dard on the rationale: science. that field of testimony may permit- expert “That be only

ted to reach a trier of fact when the reliability of the underlined scientific suggesting I’m MR. THOMAS: ... accepted by principles been the sci- empirical you that evidence about the (citations omitted). community, entific hypnosis effect of on witnesses is suffi- words, in the field In other scientists ciently incomplete that neither the state initial determination of must make the position should take a on that nor Court experimental principle is reli- whether an aspect juncture. this at Canaday, v. able and accurate.” State 1185, 808, 585 P.2d 1188 90 Wash.2d saying All I’m is MR. THOMAS: ... (1978). enough along far in our that we’re not Supreme Court has held The California knowledge of this area to be able to formu- witness who has of a absolutely necessary. late a rule unless it’s his or her recol- hypnotized to refresh 14942, No. Oral Ar- Bainbridge, v. is not ad- particular event lection about gument. concerning events because those missible it, Basically, I see Mr. Thomas has as reliability measured of lack of requested our Ba- frankly wisely acceptance in the scientific general lack of spring- not be used as the inbridge decision community noting that: rule, especially for another board here are the “Particularly relevant I understand the By area. doubtful evidence on excluded this cases that have recogniz- legal department of the State as Frye rule.” ground of the well known that, used as a ing while 18, 181 Cal. 31 Cal.3d People Shirley, as Detec- investigation, even proper tool (1982). 775, A Rptr. 641 P.2d 783-84 testified, the incalcula- Anderson also tive testify topic wholly “on a un- witness can on a witness’s unknown effects ble and subject were the the events that related to incompe- memory will render the witness People v. hypnotic session.” Shir- wholly unrelated except as to some tent P.2d at id., Cal.Rptr. at ley, Mr. fully agree memory. field of original). (emphasis Thomas, persuasive on find his views held Supreme has Arizona Court Nothing is found the issue. who had been testimony of a witness convincing, and opinion is more majority questioned hypnosis regarding under subject cannot differentiate subject contemplated testimony is not fantasy between a true recollection and a Mena, admissible. State v. Ariz. suggested or a detail. Neither can (1981). 624 P.2d 1274 expert or the trier of fact. This risk is so generally agreed

“It is great, view, my hypno- that the use of a state of altered consciousness and by police potential sis on a witness is heightened suggestibility in which the tantamount to the destruction or fabrica- subject prone experience distortions Diamond, supra, tion of evidence.’ at memories, reality, false fantasies and (the ‘filling memory confabulation in of reported Few cases have addressed the gaps with false memories or inaccurate issue admissibility information’), omitted). (citations bits of offered witnesses who have under- example, Foster, Spector supra, For & gone hypnosis attempt in an to increase state, page at 578: concerning their memories events about hypnotized subject may ‘The respond they may testify. which As the Court of implicit unintentionally stimuli ema- noted, Appeals correctly most courts nating hypnotist, unrecog- from the and question which have considered the by nized please him. The desire to the prior hypnosis concluded that neither hypnotist may subject induce the to mir- incompetent renders a witness ren- nor ror hypno- the attitude detected in the testimony ders a witness’ inadmissible. questions tist’s his behavior. (Citations omitted). example, For subject might a confess The first of this series of cases which to a hypnotist’s questions crime testimony previously hypno hold of a unintentionally implied guilt.’ admissible, Harding, tized witness addition, In person may assimilate 230, Maryland Appeals 5 246 A.2d 302 distortions, delusions and confabula- (1968) cert. denied 395 U.S. 949 S.Ct. [89 tions develops hypnosis under part as 2030, 468], 23 L.Ed.2d handled the admis of memory. his own hypnotic After the sibility question cursorily, relying solely ended, session has subject would on the witness’ declaration that she was perceive then hypnotically those induced testifying from her own recollection: impressions to be reflections of his actual (quotation omitted). past Encyclopedia observations. Bri- The court then considered the suffi- tannica, supra. subject may actu- [T]he * * * ciency hypnotized of the testi- witness’ ally remembering believe he is on mony support the verdict. own, reality ‘memory’ when in early following None of the cases Har- implanted by hypnotist. Dilloff, ding approved supra, admission of at 4. testimony previously hypnotized from A recent by law review article an au- any analysis witnesses contain of the ef- thor professor who is both a of law at acknowledge fects of or even University of Berkeley California at power memory. its to distort Most of professor and a clinical psychiatry at Harding’s those cases instead follow University of California at San Fran- lead, citing authority it as following opinion: cisco contains admission testimony, rely generally of such T potential believe that once a witness (1) the witnesses’ statements that hypnotized purpose has been for the testifying were from their own recollec- enhancing memory his recollections have tions, Kline, supra; Wyller, supra, see been so contaminated that he is rendered (2) assumption effectively incompetent that cross-exami- testify. Hyp- jury nation would persons, being extremely sugges- notized enable to make an tible, graft adequate onto their memories fantasies determination as to the credibil- suggestions deliberately unwitting- ity or testimony, Wyller, supra; see ly by hypnotist. Creamer, communicated Brom, After supra; supra; Jorgen- Mena, id., sen, v. supra.” State Pennsylvania 624 P.2d The Supreme Court has 1276, p. held that gained has not sufficient acceptance to allow testimony by one who However, Mena has been modified to hypnotized had been prior to trial to re- testimony allow of a witness who has been fresh their recollection. Commonwealth hypnotized subject if the Nazarovitch, v. by 97, concerns events that were recalled 496 Pa. 436 A.2d 170 by to and (1981). witnesses and related recorded hypnosis. the authorities Maryland was the first State to allow the Court, Superior ex rel Collins v. 132 Ariz. hypnotically use of testimony. enhanced 180, (1982). This 644 P.2d 1266 exclusion State, Harding v. Md.App. 246 A.2d testimony by previously hypnotized (1968). However, Maryland has recent- reliability witness is of lack of because ly adopted the Frye standard and has re- acceptance in measured the scientific manded to the trial court ruling for a as to community. whether or meets the Frye Michigan Appeals has held Court State, Polk v. standard. 48 Md.App. hypnotically refreshed recollection ren- (1981). 427 A.2d 1041 ders because of lack inadmissible reliability accept- Supreme as measured lack Judicial Court of Massa- community. People ance in the scientific chusetts Frye recently suggested has Tait, Mich.App. 279 N.W.2d 853 standard and remanded to the trial court

(1980). ruling for a on whether meets that standard: Gonzales, 145, People v. Mich.App. 108 (1981) testimony 310 N.W.2d 306 held may conclude, “It be that we will as a only hypno- about incidents recalled under law, matter procedures that no are Wallach, inadmissible; People v. sis’ and (to adequate.” hypnoti- allow the use of 37, (1981) Mich.App., 110 312 N.W.2d 387 cally testimony). enhanced Footnote: A testimony held about incidents recalled argument forceful has been made that only after inadmissible. hypnotically enhanced testimony is not Supreme The Minnesota Court has held and cannot be reliable and must be ex- previously hypnotized witness Diamond, cluded as a matter of law. testify concerning not in a criminal trial Inherent Problems in the Use of Pretrial subject pretrial hypnosis matter of a be- Hypnosis Prospective Witness, on a 68 reliability by cause of lack of as measured (1980). Commonwealth Calif.L.Rev. 313 community. acceptance in the scientific Juvenile, 727, v. A 381 Mass. 412 N.E.2d Mack, (Minn., State v. 292 N.W.2d 764 339, (1980). 343 1980). Mack is of particular interest be- following The cases have also refused to cause of the excellent record before the hypnotically admit aided on the only testify court. A witness can to matter reliability. People Busch, v. grounds 56 “previously unequivocally by disclosed 868, 898, Cal.Rptr. Cal.2d 16 366 P.2d 314 Peo- hypnosis.” him to authorities State, (1961); Rodriquez v. 327 So.2d 903 Koehler, 108, (Minn. ple v. 312 110 N.W.2d (Fla. (Fla.App.) 1981). cert. den. 336 So.2d 1184 State, v. 1976); 110, Emmett 232 Ga. 205 Supreme has held Nebraska Court (1974); People Harper, v. S.E.2d 231 111 previously has been witness who 204, (1969); State Ill.App.2d 250 N.E.2d 5 testify questioned hypnosis may under Harris, v. 224, (1965); 241 405 P.2d 492 Or. concerning subject mat- a criminal trial Commonwealth, 214 v. Va. Greenfield pretrial hypnosis because of the ter of the Corpus 710, (1974); Habeas 414 204 S.E.2d reliability by accept- lack of as measured Commonwealth, v. Green- v. State community. ance in scientific for Greenfield Robinson, (D.C. Palmer, v. F.Supp. 206, 413 1113 N.W.2d 648 210 Neb. 313 fied (1981). Va.1976).

651 Other simply hypnot- by cases have re- declared locked witnesses ically se, per pressed ‘replayed’ e.g., inadmissible memories with- People Ebanks, v. 117 Cal. 49 P. 1049 out he further modification as recalls event, (1897); Pusch, (footnote 39) State v. original (footnote N.D. (1951); Pierce, N.W.2d 508 v. omitted). re- more the research Once (1974). S.C. S.E.2d stage sults are otherwise: this final process, ‘retrieval,’ as known ac- Mena, supra; People State v. Shirley, v. may be curacy memory of the witnesses supra; Court, Superior v. Collins adversely by outside factors effected supra, explored have thoroughly the scien- it— even as he recalls opinion reliability tific communities “Lastly, Loftus warns Doctor hypnosis by examining the relevant liter- there is no correlation between clear ature because: accuracy witnesses confidence (admissibili- purpose “For this limited in- accuracy in fact: recall and its ty) long permitted scientist have deed, shown that in studies have some speak through pub- their courts can ‘people circumstances be more confi- writings scholarly lished treatise and wrong than dent about their answers omitted). (citations journals. ” right People Shirley, their ones.’ courts writings viewed such as ‘evi- 269-70, Cal.Rptr. supra, 181 at 641 P.2d dence,’ reliability not of the actual at 801. technique, new scientific but of its ac- ceptance vel non in scientific commu- Shirley points also out that: nity. ‘pick Nor do the courts and choose’ “1) Hypnosis process its nature a among writings purpose. for this On primary and one suggestion, of its many topics including hypnosis — —the person hypnotized effects is that the be- scientific literature is so vast that no extremely receptive sugges- comes court possibly could absorb it all. But emanating perceives tions that so, there is no need do because the hypnotist. from the The effect is intensi- burden is on proponent of the new hyp- fied another characteristic of the technique to show a scientific consensus to-wit, state, notic that the attention of use; supporting its if a fair overview of subject wholly the focused di- is on and the sig- literature discloses scientists by hypnotist.— rected expertise nificant either in number or 2) person hypnosis experi- under publicly opposed hypnosis use of compelling please desire ences a unreliable, may safely the courts con- hypnotist by reacting positively to those clude there is no consensus at the such (hy- memory, suggestion heightened of present supra, time.” People Shirley, v. particular responses he ex- believes are Cal.Rptr. 181 at 641 P.2d at 797. pected Because of compul- of him. this People supra, points Shirley, v. out that sion, when asked recall an event either memory: ‘age regression, while in or under direct tape “Does not act like video record- suggestion heigthened memory, (hy- of er, subject but rather is to numerous peramnesia)’, unwilling is to admit continuously influences that alter its con- that he do so or that cannot his recollec- (emphasis original) tents.” in the —and Instead, or incomplete. tion is uncertain memory productive “that rather is than produce ‘memory’ he will of event reproductive.” People Shirley, supra, v. compounded (1) that will be of relevant Cal.Rptr. at 641 P.2d at 798. facts, (2) actual irrelevant actual facts In addition: prior experience taken from an unrelated theory (3) recorder’ tape

“The ‘video subject, fantasized material (‘confabulations’) unconsciously law also lack em- invent- hypnotist enforcement pirical (4) support gaps story, for third of its as- ed to fill con- sumptions, to-wit, upon being un- scious lies—all formulated as realistic (footnote 47) (foot- a fashion as he can. “The principal question appeal on this omitted).— note is whether a witness be allowed to 3) During session, testify hypnotic undergone after he has neither for subject purpose hypnotist restoring nor the memory can distin- guish between true events in pseu- question memories and issue. The is court, new to domemories of various kinds in the but has been re- often recall; litigated ported our sister subject when the states and re- exten- peats sively by recall studied waking medical state science. In trial), accord (e.g., in a with expert persuasive neither an recent and witness case law nor lay (e.g., overwhelming observer judge or consensus of jury) expert opinion, can make a we similar conclude distinction.— that the tes- timony of such a witness should 4) not be guarantee Nor is such by furnished admitted in the courts of California.” the confidence with memory which the is People Shirley, supra, v. Cal.Rptr. initially reported subsequently related: at 641 P.2d at 776. a witness who is uncertain of his recollec- being hypnotized tions before will be- As Brown J. and Rose C.J. observed in process come convinced their dissent Wyoming Supreme story he told under is true and approval Court’s recent hypnotically re- People v. every respect.” correct testimony: freshed Shirley, supra, 271-72, Cal.Rptr. at disagree “I majority’s with the disposi- p. 641 P.2d at 802-03. tion veneer, of this case. Stripped of its Superior Courts, this case Collins v. police holds that a supra, officer who Mena, People occasionally plays supra, drawing around hypno- sum- tism can manipulate the unreliability marizes the recall of under a wit- ness and following headings: blessing receive the of this court. Suggestion The admission in evidence hypnoti- Confabulation cally enhanced testimony developed by Incorrect Recall experts suspect, even under correct Purposeful Lying procedures. scientific The admission of Weight Jury Undue Given hypnotically enhanced testimony devel- Hypnotic Scientifically Inducement not oped by a rank amateur absent sci- Reliable procedure entific totally unreliable. Safeguards Post-Hypnotic cannot Insure majority totally has failed to rec-

Testimony is Reliable ognize, or potential even consider the Court, Superior Collins v. supra, abuse and the unreliability hypnotical- p. P.2d ly testimony.— enhanced Supreme provides The California Court —Poorly usually conceived law sur- examples why safeguards of cannot insure vives puny its maker. Its existence is reliability opinion, “in observes our mainly by sustained sentiment. I believe game (providing adequate safeguards) that this court will retreat from its hold- People v. Shirley, not worth the candle.” ing here. This placed case should be in a 256, supra, 181 Cal.Rptr. at 641 P.2d at object interest, museum as an but 787. Chapman v. precedent.” no value as a State, 1280, 1286-87, 638 P.2d 1992 acceptance by Because of the lack of (Wyo.1982). community given scientific for the reasons Mena, supra; People in State v. v. Shir- a.) Similarity relia- between and lack of supra; ley, Superior and Collins v. bility hypnosis, truth serum and Court, supra, and summarized above, polygraph testing noted. Supreme opening California Court’s for the Shirley case should provide a beacon for Washington The Supreme Court refused this court. permit to psychiatrist testify defense to

653 Mack, State v. appellant preme expressed in by made while Court statements supra, by holding State under the of truth serum in that: influence White, 551, v. 60 Wash.2d 374 P.2d 942 “Summing up, recognized the court 154, (1962) den., 883, cert. 375 U.S. 84 S.Ct. perpetuate declined but the two incon- Washington 11 L.Ed.2d 113. The Court lines of cases sistent discussed herein- reasoning part relied in on the of the Cali (Parts B, above ante): II A and II ‘We Supreme dealing with the in fornia Court authority, follow the best scientific how- admissibility hypnotically testi induced ever, rejecting unprin- as artificial and Busch, 868, People mony v. 56 Cal.2d 16 cipled any hypnotical- distinction between 898, (1961). Cal.Rptr. 366 P.2d 314 ly-induced testimony by offered the de- Virginia Supreme exculpate by

The Court noted the fense to and that offered similarity prosecution between and truth se- to make its Re- case. Commonwealth, v. 214 rum gardless of whether such evidence is of- Greenfield 710, (1974). Va. S.E.2d The Okla- by by fered prosecu- defense or Supreme homa Court and the Florida Court tion, memory a witness whose has been Appeals similarity. have also noted the hypnosis ordinarily ‘revived’ under must State, (Okl.Crim. v. Jones 542 P.2d 1316 permitted testify not be in a criminal State, 1975); Rodriquez supra. v. proceeding to matters which he or she ” hypnosis.’ “remembered” under Peo- Supreme The Arizona noted the Court ple v. Shirley, supra, Cal.Rptr. at similarity hypnosis, polygraph tests 258, 641 P.2d at 790. allowing truth serums in its recent decision testimony hyp- of a witness who has been Fundamental fairness and the constitu- concerning notized events recollected and guarantees process require tional of due v. Collins Su- hypnosis. recorded that this court do the same. Court, perior supra, 644 P.2d 1272. legally IV. The defendant cannot following by observation the Minne- part submitted to a second This trial. Supreme point. Court is on sota should not be confused with the other as- interesting “It to note Dr. Orne’s case, pect of the majority errs in that, opinion, a witness’ remanding for a retrial where the State ‘memory’ retrieved under testimony to a will be unable to make a without the case as an ‘infinitely less reliable’ hypnosis is testimony of Mr. Aldridge and without the truth than the results of a indicator of Boyer. of Ms. Here a concern Mack, supra, v. test.” polygraph which have voiced to deaf ears is that the 7. footnote court, acting district jurisdiction within its powers and under the vested district Supreme has recited

The Nebraska Court by legislature, already courts acted has Doctor Orne. State v. this observation of bring prosecu- down the curtains on the Palmer, supra, 313 N.W.2d undoubtedly tion of Mrs. Iwakiri —which is Supreme has noted The California Court viewed her and her children and similarity hypnosis and truth between perse- husband as more in the of a nature People Shirley, supra, serum. very expensive cution —and a experience in Cal.Rptr. 641 P.2d 775. Cal.3d bargain. kidnapping of which she charged ransom-type, was not the but b.) excluding lines of Inconsistent cases — merely allegation tht she was at least a hypnotically testimo- use of aided knowledgeable participant wrongful allowing ny for the and defendant par- seclusion of two children from their hypnotically use of aided ents. by Mrs. Iwakiri made a livelihood prosecution. for the children, babysitting a number of small and Supreme pictures The has when missing California Court two children were adopted position published locally, Minnesota police Su- were informed thought

that it was that those children had confinement cannot be erased nor remedied been seen at her home. legislators unless benevolent would decide that there be occasions when victims jury guilty, After the found her as little prosecution of criminal compen- should be else it could do with the admitted sated. Aldridge Boyer, Mr. and Ms. the district court, sentencing her All five years, agreed to five re- members of the Court are jurisdiction 120-day tained her conviction to further con- cannot stand. All that case, appeal gained her could by sider her as is for her allowed I.C. was § 19-2601(4). overturning kidnap- her convictionof majority opinion notes ping children, two little which charge that within four she period month the dis- all has at times denied. Mrs. Iwakiri here- custody trict court removed her from and living eked out tofore her babysitting placed probation, her on also notes children, but since her conviction she has her conviction later was reduced a mis- doing had turn to for housework others. majority demeanor. The opinion would judge presided trial, The trial who at her impression leave the that Mrs. Iwakiri is making and was faced with two crucial and probation, still on and will now have to rulings difficult on the admission of evi- endure misleading. a retrial. This is On dence, and happen, as could often commit- recommendation of the Senior Probation judge ted error. That has since declared Office, being objection regis- there no owe, satisfied the debt did that she not prosecutor’s office, tered from she was paid probation which with a successful completely discharged and released from days incarceration. probation January 26, 1983, on order Judge Newhouse. It was in this same or- reason, only For whatever and the rea- Judge der that Newhouse reduced con- surfacing son is the Court’s formation of a felony viction from a to a misdemeanor— new rule this case rather than in Bain- But, majority does note. what bridge, the Court to make note refuses majority put opinion refuses to paid its she her dues in full for an has errone- Instead, that the same order also her sen- reduced ous conviction. it declares to the years tence from five that that rule can be indeterminate whole world new used days kidnapping already charge which Mrs. Iwakiri at her retrial on the had —a everyone served in will confinement at the she was trial which knows never take time placed probation! place. All of this was done § 19-2604, provisions under the of I.C. en- respectfully can I but dissent? How only acted in and not did object Judge leniency, Newhouse’s but it appealed has not from it. What this 26, 1983, means January is that on Mrs. Iwakiri, society debt for the she owed un- der today the conviction which this Court 682 P.2d 607 reverses, fully paid has nonetheless SUCHAN, Carmen Estelle penalty imposed upon yet, her. And Plaintiff-Respondent, majority sending that it her declares case back for a trial. indeed new This should SUCHAN, George A. judge startle the district who turned Defendant-Appellant. ago. completely year free now well over a A correct from Court is No. 14890. decision undoubtedly important a most item Mrs. Supreme Idaho. Court of appeal brought Iwakiri’s life. Her was not May in order opportuni- that the Court have the ty to a new rule the fu- manufacture ture, but to vindicate and eradicate a kid- napping conviction. four months

Case Details

Case Name: State v. Iwakiri

Court Name: Idaho Supreme Court

Date Published: May 7, 1984

Citation: 682 P.2d 571

Docket Number: 14316

Court Abbreviation: Idaho