State v. Long

Swanson, J.

(concurring) — After reviewing the voluminous literature on hypnosis, the recent cases on the admissibility of hypnotically induced recollection, and the record of the instant case, I am persuaded that the hypnosis induced testimony of Rena Potter was inadmissible. I therefore concur in the majority opinion; however, some additional discussion is warranted due to the novelty of the question.

Hypnosis is a state of altered consciousness, resembling deep sleep or a trance, which produces heightened suggestibility in the subject in response to the commands of the hypnotist. The hypnotic state is characterized by the hypersuggestibility and hypercompliance of the subject. Consequently, a hypnotized subject is prone to sheer fantasy, willful lies, or a mixture of fact with gaps filled in by fantasy. Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J. of Clinical & Experimental Hypnosis 311, 317-18 (1979). While hypnotized, a subject suspends critical judgment and responds to the hypnotist's demands for exact, photographic recall even when the subject's memory is vague or doubtful. Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. L. Rev. 313, 340 (1980). Because the hypnotized subject feels a need to fill gaps of memory, the subject will rarely respond to questions, "I don't know." State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980). Thus, the experts agree that hypnosis does not ensure the accuracy of a subject's recall. Diamond, at 335; Orne, at 317-18; Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St. L.J. 567, 584 (1977). In fact, once a subject has been hypnotized, neither the subject nor an expert can separate true memories from fantasy. Diamond, at 348. How then can a jury as trier of fact be expected to determine the credibility of hypnotically induced testimony?

The hypnotically enhanced recall of a witness carries a dangerous potential for abuse. United States v. Adams, 581 F.2d 193, 198-99 (9th Cir.), cert, denied, 439 U.S. 1006 (1978). To ensure a minimum level of reliability and to provide an adequate record to evaluate the hypnotic procedure employed, the New Jersey Supreme Court recently suggested that the proponent of hypnotically induced testimony must satisfy six requirements which are set forth in the majority opinion. See State v. Hurd, 86 N.J. 525, 432 A.2d 86, 96-97 (1981). Other courts follow the standards announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), where the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the extent that experts in the field widely share the opinion that the results are scientifically reliable and accurate. Because the use of hypnosis to aid in accurate memory recall is not generally accepted, these courts reason that the results (hypnotically induced testimony) of this scientific process (hypnosis) are neither scientifically reliable nor accurate and therefore are inadmissible. State v. Mena, 128 Ariz. 244, 624 P.2d 1292 (1980); People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243 (1982); Polk v. State, 48 Md. App. 382, 427 A.2d 1041 (1981); People v. Gonzales, 108 Mich. App. 145, 310 N.W.2d 306 (1981); People v. Tait, 99 Mich. App. 19, 297 N.W.2d 853 (1980); State v. Mack, supra; Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Chapman v. State, 638 P.2d 1280 (Wyo. 1982) (Brown, J., dissenting). Either of the above approaches would be preferable to the trial court's decision to let the jury weigh the credibility of hypnotically induced testimony.

Under the requirements of State v. Hurd, supra, Rena Potter's testimony would be inadmissible. Potter's hypnotic session was conducted by an amateur hypnotist who was also a deputy sheriff. Although the deputy sheriff recorded the hypnotic session, no one recorded the information about the crime, which he received prior to the hypnosis. In addition, the record contains no description of the incident by the witness prior to her hypnosis. Thus Potter's hypnotically induced recollection is fraught with possible inaccuracies.

Washington has adopted the Frye standard for evaluating scientific testing. State v. Canaday, 90 Wn.2d 808, 812-13, 585 P.2d 1185 (1978). Potter's testimony would also be inadmissible under this standard.

Moreover, the jury could not fairly evaluate Potter's testimony concerning the crucial issue of self-defense because Potter's recall of the facts was not susceptible to cross examination. Following hypnosis, Potter was subjectively convinced of the veracity of her hypnotically enhanced memory.² See State v. Mack, 292 N.W.2d at 770. Because Potter's unshakeable assertion at trial that the victim was unarmed may well have persuaded the jury, the admission of her testimony cannot be considered harmless error.

Further, I cannot find adequate justification for the decision to hypnotize Ms. Potter prior to her interview with defense counsel. It doesn't appear that the defense had an opportunity to interview Ms. Potter without the taint of hypnosis. Through the hypnotic session without safeguards, Ms. Potter's recall became unalterably tainted, thereby rendering her testimony inadmissible. I therefore concur in the majority decision to reverse and dismiss.

2 On direct examination, the prosecution questioned Rena Potter as-follows:

Q Are you sure today that Greg [the victim] had nothing in his hand?

A Yes, I am.

Q Why are you sure?

A I was hypnotized..