Topics: Appellate Review

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STATE V. MORENO Hypnotized witness (rape victim)

68 Haw. 233, 709 P.2d 103 (1985)

[Defendant was convicted of rape in the first degree. The Supreme Court, Padgett, J., held that sexual assault victim's testimony that defendant had sexual intercourse with her was inadmissible where such testimony was an hypnotically induced recollection. Reversed and remanded.]

The admissibility of hypnotically refreshed memory testimony by prosecution witnesses has been the subject of much legal debate. ... At least four rules, however, have been laid down in other states.

(1) Some states have ruled that the testimony is admissible, with the weight for the trier of the facts. (Md 1968 since overruled).

(2) In New Jersey, a variant rule was adopted, under which the testimony was admissible provided that certain stringent criteria laid down by the court were met. State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). ...

(3) The courts in certain states have permitted the witness to testify as to those facts which can be shown to have been recalled prior to hypnosis. (... N.Y. Mass. Ariz...)

(4) Finally, certain courts have ruled a witness incompetent to testify as to any matters covered during the hypnotic sessions regardless of prior recorded memory with respect thereto. People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982).

It would serve no point for this court, inexpert as it is, to enter into a long discussion on the subject of the reliability of hypnotically induced testimony. Suffice it to say, the consensus of modern opinion is that such testimony is unreliable and, therefore, inadmissible.

... We are unwilling to follow Shirley, supra, and adopt a bright line rule, which would require either, that the victim of such a crime forego the use of hypnotherapy for therapeutic purposes until the trial, or, that the State abandon the use of the victim's testimony in attempting to prosecute the crime.

As the New York court said in Hughes, supra: A criminal trial for rape or assault would present an odd spectacle if the victim was barred from saying anything, including the fact that the crime occurred, simply because he or she submitted to hypnosis sometime prior to trial to aid the investigation or obtain needed medical treatment. ...

We have no trouble ... in affirming the refusal of the court below ... to hold that the victim was incompetent to testify as to all matters dealt with in the hypnotherapy sessions. However, it is apparent, in this case, that the victim's testimony that appellant had sexual intercourse with her, was an hypnotically induced recollection, and we therefore hold that that testimony was, per se, inadmissible.

[3] We adopt the rule that a witness may testify as to matters which can be shown to have been recollected, by that witness, prior to hypnosis. ... Reversed and remanded.

ROCK v. ARKANSAS, 483 U.S. 44, 107 S.Ct. 2704 (1987) Hypnosis

Justice BLACKMUN delivered the opinion of the Court.
Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. A dispute had been simmering about Frank's wish to move from the couple's small apartment adjacent to Vickie's beauty parlor to a trailer she owned outside town. That night a fight erupted when Frank refused to let petitioner eat some pizza and prevented her from leaving the apartment to get something else to eat.... When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. Petitioner urged the officers to help her husband, and cried to a sergeant who took her in charge, “please save him” and “don't let him die.”...
Because petitioner could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis in order to refresh her memory. Petitioner was hypnotized twice by Doctor Bettye Back, a licensed neuropsychologist with training in the field of hypnosis....
When the prosecutor learned of the hypnosis sessions, he filed a motion to exclude petitioner's testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted....
On appeal, the Supreme Court of Arkansas rejected petitioner's claim that the limitations on her testimony violated her right to present her defense.
Petitioner's claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense. This, of course, is a change from the historic common‑law view, which was that all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial....
... The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony:
“A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense‑‑a right to his day in court‑‑are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” (Emphasis added.) ...
The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,” a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment.... Logically included in the accused's right to call witnesses whose testimony is “material and favorable to his defense,” ... is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant
The Arkansas rule enunciated by the state courts does not allow a trial court to consider whether post hypnosis testimony may be admissible in a particular case; it is a per se rule prohibiting the admission at trial of any defendant's hypnotically refreshed testimony on the ground that such testimony is always unreliable. Thus, in Arkansas, an accused's testimony is limited to matters that he or she can prove were remembered before hypnosis. This rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it
Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross‑examination more difficult.... Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence....
We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant's testimony that the defendant is unable to prove to be the product of prehypnosis memory. A State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post hypnosis recollections....
In this case, [t]he tape recordings provided some means to evaluate the hypnosis and the trial judge concluded that Doctor Back did not suggest responses with leading questions.... Those circumstances present an argument for admissibility of petitioner's testimony in this particular case, an argument that must be considered by the trial court. Arkansas' per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his own behalf.
The judgment of the Supreme Court of Arkansas is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Chief Justice Rehnquist dissented; Justice White, Justice O'Connor, and Justice Scalia joined.

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