Lemieux v. SUPERIOR COURT OF ARIZONA, ETC.

644 P.2d 1300, 132 Ariz. 214, 31 A.L.R. 4th 1231, 1982 Ariz. LEXIS 183

• Court: Arizona Supreme Court
• Decided: May 4, 1982
• Docket: 15769-SA
• Status: Published

Opinions

GORDON, Vice Chief Justice:

The issue presented in this special action is if persons who have been previously hypnotized concerning the matters of the litigation will be permitted to testify at a civil trial. We accept jurisdiction of this special action under Ariz.Const.Art. 6, § 5(1) and hold that persons who have undergone hypnosis and have been questioned on matters concerning the litigation are not permitted to testify at a subsequent civil trial.

On April 17, 1979 there was a collision involving respondent Rix and petitioner Lemieux. Emery, a witness to the accident, spoke with authorities on four separate occasions. Although Emery had given lengthy statements to the police she voluntarily agreed to undergo hypnosis to “refresh” her recall. The fourth interview of Emery three days after the collision was during hypnosis. Emery’s “recall” during the hypnotic trance was that the Rix vehicle was across the third line (the imaginary lateral extension of the curb line which defines the intersection) when the traffic light was yellow. The hypnotic memory is contrary to that recounted prior to the session.

Liability in the pending case turns on the precise location of the Rix vehicle at the moment the light turned red. A.R.S. § 28-645(AX3)(a). The relevant statute at the time of the collision stated that vehicular traffic facing a steady red signal is to “stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection.”¹

Petitioners filed a motion in limine requesting the exclusion of posthypnotic testimony by Emery. The trial judge entered an order denying petitioners’ motion in limine.

This Court has previously held that posthypnotic testimony is inadmissible in criminal trials. State ex rel. Collins v. Superior Court, 131 Ariz. 180, 644 P.2d 1266 (1982); State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); State v. LaMountain, 125 Ariz. 547, 611 P.2d 551 (1980). The concerns that this Court expressed in determining that posthypnotic testimony is unreliable in criminal trials are equally applicable in civil litigation.

In State ex rel. Collins this Court noted that subjects under hypnosis are susceptible to suggestion. The danger of implanting suggestion is present because hypnotists can suggest responses unwittingly. A subject may react to seemingly innocuous factors such as: the tone of voice and body language of the hypnotist; the status of the hypnotist; the environment in which the hypnotism takes place; and the mere fact of being hypnotized.

Experts in the hypnotism field acknowledge that hypnotized subjects will respond to questions, even if they do not in reality know the information. State ex rel. Collins, supra. This phenomenon of “filling in the gaps” is termed confabulation. The danger of confabulation is that after hypnosis a subject may be unable to discriminate between the pre- and posthypnotic memory. The “gap filler” is now part of the subject’s memory.

The art and/or science of hypnosis has not been shown to be scientifically reliable. The principles underlying hypnotic procedure must gain general acceptance as reliable among experts in the field before posthypnotic testimony is permitted during a civil trial in Arizona. See State ex rel. Collins, supra; Mena, supra; cf. Seales v. City Court of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979).

This Court must now consider whether the rule of law announced today is to have prospective or retrospective effect. “A state is free under the Constitution to make a choice for itself between the principle of forward operation of a ruling and that of relation backward.” State v. Gates, 118 Ariz. 357, 359, 576 P.2d 1357, 1359 (1978). We hold that the pronouncement of this case is to have prospective application. All persons hypnotized subsequent to the mandate of this opinion may not testify as to matters discussed under hypnosis. The posthypnotic testimony of Emery, therefore, is admissible in the upcoming trial subject to other evidentiary objections.

Petitioners’ prayer for relief is denied. We uphold the trial court’s order denying petitioners’ motion in limine and vacate the stay order.

STRUCKMEYER and CAMERON, JJ., concur.

1 . In 1980 A.R.S. § 28-645(A)(3)(a) was amended to read, “[v]ehicular traffic facing a steady red signal alone shall stop before entering the intersection * *