Opinion
MOSK, J.
The principal question on this appeal is whether a witness may be allowed to testify after he has undergone hypnosis for the purpose of restoring his memory of the events in issue. The question is new to this court, but has been often litigated in our sister states and exten[23] sively studied by medical science, In accord with recent and persuasive case law and the overwhelming consensus of expert opinion, we conclude that the testimony of such a witness should not be admitted in the courts of California.
I
The record discloses a classic case of conflicting stories. There were only two witnesses to the principal events: the complaining witness, Catherine C., told the jury that defendant compelled her by threat and force to submit to sexual intercourse and to orally copulate him; defendant testified, however, that Catherine willingly participated in the act of intercourse, and there was no oral copulation. The jury believed part of Catherine’s story, as it convicted defendant of rape; but it also apparently found that she was lying when she described in detail the alleged act of oral copulation, as it acquitted defendant of that charge.1 The jury doubtless had a difficult task, since Catherine’s performance as a witness was far from exemplary: the record is replete with instances in which her testimony was vague, changeable, self-contradictory, or prone to unexplained lapses of memory. Indeed, on occasion she professed to be unable to remember assertions that she had herself made on the witness stand only the previous day.
In such circumstances it is particularly important that the testimony of the complaining witness be free of taint, lest a mistaken conviction result. Yet as we shall see, in the case at bar the prosecution contaminated Catherine’s testimony by subjecting her to a hypnotic experience on the eve of trial for the purpose of “filling the gaps” in her story. To allow her to testify against defendant after that experience was error; and in the light of the entire record, we are of the view that the error caused a miscarriage of justice requiring reversal of the judgment. (Cal. Const., art. VI, § 13.)
A
Catherine was a 32-year-old bartender at a saloon named Bud’s Cove, not far from the Camp Pendleton Marine base. The first prosecu[24] tian witness, Marine Sergeiant Charles Lockskin, testified that at 8:50 p.m. on January 25, 1979, he entered Bud’s Cove and approached Catherine, whom he had known for several months. She was off duty, and “looked like she was feeling kind of bad.” She had a half-consumed martini in front of her, was under the influence of alcohol, and staggered when she walked.
After talking with her for some 15 minutes, Lockskin offered to get her something to eat and take her home. They drove in his car to a take-out restaurant, purchased some food, and arrived at Catherine’s apartment house at 9:30 p.m. She vomited when she got out of the car; as this was happening, defendant came up to Lockskin and addressed him by name; Lockskin asked him to leave, and defendant did so. Lockskin then helped Catherine into the apartment and went into the kitchen to prepare some drinks. When he returned to the living room, however, she had passed out on the couch and was fast asleep. After failing to rouse her by shaking her, he covered her with a blanket, turned out the lights, locked the front door, and departed. It was shortly before 10 p.m.
The next witness was Catherine. She testified that on the evening in question she went off duty at Bud’s Cove at 6:30 p.m., ordered two martinis, and sat “relaxing” until Lockskin came in. Her testimony as to her activities with Lockskin generally corroborated his, and she admitted she could “feel” the alcohol she had consumed.
Catherine’s version of the, events occurring after she fell asleep was as follows: she testified that she awoke some time later, still lying on the couch fully clothed, and found defendant standing naked by the coffee table holding a butcher knife.2 Defendant assertedly took her into the bedroom, ordered her to remove her clothes, and compelled her to orally copulate him for several minutes. The witness admitted that she felt “like I was in a dream” and events were moving in “slow motion.”3
[25] Catherine then stated that defendant made her get on her knees, tied her hands behind her back and gagged her with nylon stockings, put her head down on the bed, and had intercourse with her in that position for up to half an hour. When she tried to turn her head to see who he was, he struck her with his hand and ordered her not to look at him; later he put a pillow over her head for the same purpose, and struck her on the hip. She claimed the latter blow sobered her so that she no longer felt the effects of her prior drinking.
Until this point the apartment had remained totally dark, and she could see the intruder only as “a shadow.” According to Catherine, however, defendant abruptly desisted from further intercourse, removed her bonds and gag, took her back into the living room, and turned on the lights.4 For the next half hour the two sat naked on the couch, she on his lap, and chatted. Finally he asked her if she liked beer, and she replied that she did; he volunteered to get some from his apartment, and told her where he lived.5 He dressed and left on this errand; on his return with the beer he took his clothes off again, she got back on his lap, and the conversation resumed.
After another quarter of an hour, defendant suggested they take a shower together, and she agreed. As they entered the bathroom, however, the telephone rang. The caller was assertedly a “girlfriend” of Catherine named Mickie, who announced she was coming over to the apartment. Catherine relayed this fact to defendant, and told him that he could return at another time and she would cook dinner for him. According to Catherine, defendant then got dressed, wrapped the knife and screwdriver in an extra T-shirt he had brought, thrust them down the front of his pants, and left when Mickie arrived. Catherine testified she told Mickie she had been raped by a Marine, and Mickie gave her a strong sedative — a 100-milligram dose of a drug called Mellaril.6 Mickie stayed for half an hour, and immediately after she left Cather-[26] inc called the police. According to Catherine, it was 10 minutes before 1 a.m.
On cross-examination Catherine admitted that during their long conversation in the living room defendant told her numerous personal details about himself, e.g., that he lived in the next apartment building, that his name was Don, that he was 22 years old, that he was married and had a child, that he was a Marine but was not happy in the service, and that the next morning he had to go to Bridgeport, California, for cold-weather training.7 She claimed that she engaged defendant in the foregoing conversation only because she was afraid he would do her further harm; yet she conceded that when defendant went to get the beer he left the knife and the screwdriver on her living room floor but that she did nothing about them, and that while he was gone she remained sitting naked on the couch. Although she had a telephone she did not call the police or anyone else for help, nor did she dress and go to the nearby apartment of the building manager who was admittedly “a big guy,” nor did she even lock the front door. She also acknowledged that she did not know Mickie’s last name, address, or telephone number, or where she was at the time of trial, and indeed had never seen her since the night in question.8
On redirect examination Catherine testified that until defendant turned on the lights in the apartment, she thought the person having intercourse with her was an older man who resembled defendant and had flirted with her at the bar where she worked.9
Police Officer Russell Lane testified that the telephone call reporting the rape came at 1:45 a.m., an hour later than Catherine claimed. He went immediately to her apartment and found her under the influence of alcohol: her breath had the smell of someone who “had been drinking quite heavily,” her speech was slow and at times difficult to understand, and her walk was unsteady. She told the officer she had been brought home “very drunk” from Bud’s Cove at midnight, that she fell asleep on the couch, and that she awoke in her bed at 12:30 a.m. She gave the officer a physical description of defendant, and repeated the personal [27] information defendant had disclosed to her during their conversation. She then complained that her buttocks hurt, and the officer took her to a local hospital.
At the hospital she was examined by a physician. He testified that he found a bruise on her right hip and “crease marks” on her wrists. But although the latter were consistent with her hands having been tied by a fabric, he could not tell their cause and described them as the kind of marks one receives from sleeping on wrinkles in the bed linen. She reported to the physician that she used “occasional Mellaril and alcohol frequently.” He testified that Mellaril is “a major tranquilizer,” and that in doses of 100 milligrams or more per day it is prescribed primarily for psychotic states, schizophrenia, and manic-depressive cases.10
After the physical examination, Police Officer Leonard Goodwin took a statement of the evening’s events from Catherine. The next morning Officer Lane went to defendant’s apartment and arrested him as he was leaving to report for duty. When the officer announced the charges were burglary and rape, defendant became angry and said he had “picked up a drunk bitch at Bud’s Cove and took her home and fucked her,” and “now she wants to report that he raped her” and “that is all a bunch of bullshit.”
Defendant took the stand in his own defense. He testified that a few days before these events Catherine had waited on him at Bud’s Cove. On the evening in question he entered the bar and saw her sitting with Sergeant Lockskin, whom he recognized. When Lockskin went to the men’s room, defendant approached her and asked how she was feeling. They had a brief conversation; according to defendant, she told him her name was Cathy, identified the apartment house in which she lived, and invited him to “grab a six-pack sometime and come over.” When Lock-skin returned, defendant left the bar and bought some beer at a liquor store. After failing to locate a friend of his, defendant walked to Catherine’s apartment house. As he approached, Catherine and Lockskin drove up and defendant spoke briefly with the latter.* 11 Defendant then returned to his own apartment for a while, drank some beer, and went back to Catherine’s building. When asked why he did so, he explained, [28] “Well, my wife was back home in Indiana. I was by myself. Kind of lonely. And I had an invitation to come to her apartment.”
On his arrival, defendant knocked twice on Catherine’s door; there was no response, but he thought he heard someone inside who was moaning as if ill. When no one answered further knocking, he called her name through the window and lifted off the screen. He testified that he believed someone inside was sick.12
At that point Catherine opened the front door and defendant asked, “Are you okay?” He handed her the screen; she put it next to the front door, went back to the living room, and lay down on the couch. Defendant sat next to her and Repeated his question, “Are you okay?” Her reply was to put her arms around his neck and begin kissing him. He responded, and at his suggestion they soon moved to the bedroom. There she cooperated in helping him remove her clothes; defendant returned briefly to the living room for his cigarettes, stripped down, and rejoined her on the bed. They proceeded to have intercourse in the “missionary position,” then turned so that he entered her vaginally from behind. She abruptly asked defendant to stop and he did so. He inquired what was wrong, and she replied that she “couldn’t be emotionally turned on by men.”
Defendant’s testimony as to the ensuing events was substantially the same as Catherine’s. They sat unclothed on the living room couch talking for half an hour, and he told her all about himself. In turn, she told him that she too was from Indiana, that times were hard for her and she was having problems, and that she had seven children in Knightstown Home for Children. She became upset and began to cry, saying that nobody loved her. As Catherine had testified, defendant went home to get some beer and then suggested they take a shower, but the evening ended when Mickie called on the telephone. He dressed and waited for the latter to arrive, feeling that Catherine “was just in a wrong state of mind to be left alone.” After some minutes Mickie entered carrying a six-pack of beer under her arm, and defendant left.
[29] Defendant acknowledged the angry denial he made when Officer Lane accused him of rape the next morning; and he further denied that he broke into Catherine’s apartment, or threatened her with a knife or screwdriver, or tied her up or struck her, or had intercourse with her without her consent, or engaged in any act of oral copulation.
Finally, a number of Marine officers, including defendant’s platoon commander, his company first sergeant, and his company commander, testified in his behalf. On the basis of their experience they unanimously expressed high personal regard for defendant’s truthfulness and honesty, and reported that he had a good reputation for those traits of character. His first sergeant further testified that he was made aware of any altercations occurring in the company, and that defendant had no history of engaging in aggressive or violent behavior.
B
We relate next the evidence bearing on the issue of hypnosis. Prior to trial, counsel for defendant moved to exclude all testimony of the complaining witness that was the result of her having been hypnotized. He offered to prove that the case was originally set for trial on May 1, 1979, but was trailed because of the unavailability of an adequate jury pool; that in the evening of April 30, 1979, i.e., more than three months after the events in question, the deputy district attorney assigned to the case, Richard Fulton, had Catherine hypnotized by another deputy district attorney, Richard Farnell, at the courthouse and in the presence of Mr. Fulton and one Terry Moore; and that Catherine made certain statements under hypnosis which would cause her testimony at trial to be significantly different from her testimony at the preliminary hearing. Counsel then identified one such discrepancy, and argued that “this is an improper use of hypnosis” because “it is not in fact refreshing a witness’s recollection” but “it is in fact manufactured evidence.” He distinguished those cases in which hypnosis has been used for such purposes as helping an eyewitness to remember a license plate number. He denied that any court in this state had ruled the use of hypnosis permissible in all cases, and charged that here the People were attempting “to expand hypnosis into an area [in] which they cannot lay adequate foundation for its reliability” as a tool for refreshing recollection.
The trial court denied the motion, ruling that prior hypnosis of a witness affects the weight but not the admissibility of the testimony. Accordingly, the court directed that if Catherine gave evidence that she [30] could not remember — or that did not exist — before she was hypnotized, the fact and circumstances of that hypnosis should be put before the jury.
Pursuant to this ruling, Catherine was allowed to testify to a number of matters that she assertedly had been unable to recall on two occasions prior to hypnosis, i.e., when she gave statements to the police on the night of the events in question, and when she testified at the preliminary hearing. For example, on those occasions she stated that after falling asleep in her clothes on the couch in her living room, she awoke in her bedroom and found herself lying naked on the bed, gagged and bound. At trial, as noted above, she testified instead that when she awoke she was still on the couch and fully clothed, and defendant then forced her to go into the bedroom and get undressed. Again, prior to hypnosis she stated that defendant had sexual intercourse with her before as well as after the alleged act of oral copulation, while at trial she testified that the oral copulation preceded any intercourse whatever. Prior to hypnosis she stated that her hands were tied during the oral copulation, while at trial she denied this claim. Finally, prior to hypnosis she stated that the first time she saw the knife in defendant’s hand was when they returned to the living room after the sexual intercourse, while at trial she testified she saw it when she awoke on the couch before entering the bedroom.
Both counsel explored the nature and effect of Catherine’s hypnotic experience. According to Catherine, before being hypnotized she recalled the events of the evening in question only “vaguely.” She discussed the gap in her recollection with Deputy District Attorney Fulton, and consented to be hypnotized “for the purpose of going back over what occurred that nighj;.” She verified that she was hypnotized on April 30, 1979, in the courthouse, by Mr. Farnell; although the latter had “some training,” he was not a psychiatrist or even a physician. She had not been hypnotized before, but she “just knew” that it enables a person to “remember mote than normal.”
Apparently she was not disappointed in that expectation. She agreed that the hypnosis at least partly “cured” her recollection as to “this sort of dreamlike period that we’re talking about.” She credited the hypnosis with causing her to “fill in the gap” in her memory, and also to recall that certain events took place in a different sequence. In particular, she specifically ascribed to the effect of hypnosis each of the above-listed changes between her testimony at trial and her pretrial statements to the police and testimony at the preliminary hearing.
[31] The defense called Dr. Donald W. Schafer as an expert witness to testify on the subject of hypnosis. Dr. Schafer is a board-certified psychiatrist with 16 years of private practice and 10 years on the staff of the University of California at Irvine, where he is a clinical professor of psychiatry. He has had extensive training in hypnosis, and has used it in his practice for two decades.13 Dr. Schafer acknowledged that hypnosis has certain valid medical uses, such as pain control and relief from various psychosomatic symptoms. In appropriate cases it can also be used for the treatment of neuroses, e.g., by assisting a patient to recover repressed memories of traumatic events, including rape.
Dr. Schafer warned, however, that there are grave risks in relying for other purposes on the accuracy of memories recalled under hypnosis. He explained that while no one knows exactly how the human mind stores information, it does not act like a videotape recorder, i.e., a machine capable of “playing back” the exact images or impressions it has received. Rather, “there are many things that alter the storage of exact memory.” There is therefore no assurance, the doctor testified, that a memory recalled in hypnosis is correct. On the contrary, a person under hypnosis can be mistaken in his recollection, or can hallucinate, or can “confabulate,” i.e., create a false or pseudomemory, or can even deliberately lie. Indeed, it may be easier to lie under hypnosis, because from the viewpoint of the person in the trance “the hypnosis would put the responsibility on the shoulders of the hypnotist.”
Dr. Schafer made four additional important points. First, when a person is put under hypnosis and asked to recount an event, no one is able to determine whether he is telling the truth.14 Second, when a person has a subconscious motive to distort the truth, e.g., in order to make himself look better in the eyes of others, that motive will usually operate even under hypnosis; indeed, “hypnosis would in a sense give [him] permission” to engage in such distortion. Third, the effect of hypnosis on a preexisting memory is usually additive, i.e., it may permit the recall of additional details; if instead the person remembers the event [32] differently under hypnosis, the discrepancy implies either that his statement describing the preexisting memory was a lie or that the memory under hypnosis was a confabulation. Fourth, when a person has been asked to recall an event while under hypnosis, and after hypnosis is asked to remember the sqme event, the effect of the prior hypnosis is to remove all doubt he may have had about the event; such persons would be “convinced that what they had said in hypnosis was the truth.”
On cross-examination Dr. Schafer testified that although the hypnotic induction in the case! at bar was excellent from the viewpoint of technique, the hypnotist did not take into consideration Catherine’s possible motivation to distort the truth under hypnosis; one of the factors leading Dr. Schafer to question that motivation was the above-discussed discrepancies in her testimony.
Summing up, Dr. Schafer had no doubt as to the unreliability of hypnosis for discovering the truth of a particular matter. He warned that “hypnosis in no way is a¡ truth serum-like experience,” and concluded “there is no way of assessing the reliability of something produced in hypnosis, as such.”
The prosecution neither discredited Dr. Schafer’s opinion on cross-examination, nor called anjr expert witness of its own.
II
While passing through periods of vogue and of disrepute, hypnosis has been practiced in one form or another for centuries.15 Its use in legal proceedings is a relatively recent phenomenon, however, and the rules governing the admissibility of evidence induced by hypnosis are mainly found in the case' law of the past two decades. The question of such admissibility has arisen primarily in two contexts: (1) efforts by the defendant to introduce, for the truth of the matter asserted, exculpatory statements made while under hypnosis; and (2) efforts by the prosecution to introduce! incriminating testimony of a witness whose memory has assertedly been refreshed by hypnosis. As will appear, the law is well settled as to the former but in a state of flux as to the latter.
[33] A
We begin with a brief discussion of the cases excluding evidence of the truth of statements made under hypnosis, because the reason for their rule bears closely on the present inquiry. The point has recently been adjudicated by our court. In People v. Blair (1979) 25 Cal.3d 640, 664 [159 Cal.Rptr. 818, 602 P.2d 738], the defendant sought to introduce, over objection, tape-recorded statements favorable to him that were made by an eyewitness while she was under hypnosis during a pretrial interview. The trial court excluded the evidence, ruling that the statements were not admissible as past recollection recorded. On appeal the defendant conceded the latter ruling was correct,16 but contended the statements should have been admitted in any event because they were critical to the defense and were likely to be trustworthy, citing Chambers v. Mississippi (1973) 410 U.S. 284, 298-302 [35 L.Ed.2d 297, 310-312, 93 S.Ct. 1038].
We unanimously rejected this contention, explaining that “the trial court’s ruling did not elevate a fastidious adherence to the technicalities of the law of evidence over the right to a fair trial. For here, unlike Chambers, there was no solid assurance that the hearsay statements were reliable. It appears to be the rule in all jurisdictions in which the matter has been considered that statements made under hypnosis may not be introduced to prove the truth of the matter asserted because the reliability of such statements is questionable. While in California such statements — and those made under the influence of truth serum — may be used to establish a basis for expert opinion, the cases either state specifically or assume that they are not admissible to prove the truth of the matter therein contained. [Citations.]” (Italics added; 25 Cal.3d at p. 665.) We further rejected the defendant’s claim that the circumstances of Blair made it likely the witness was telling the truth: “The fact that she was a neutral person and had no reason to falsify her statements under hypnosis and that she intended to tell the truth are obviously insufficient to establish reliability, especially in the light of expert testimony that there is no way to determine if a person under hypnosis is relating actual facts.” (Italics added; id. at pp. 665-666.)
As we observed in Blair (id. at p. 665), “The rule is the same in other jurisdictions.” Indeed, no court has held otherwise. Thus in the leading [34] case of Greenfield v. Commonwealth (1974) 214 Va. 710 [204 S.E.2d 414, 92 A.L.R.3d 432], a defendant who had no memory of the events surrounding the crime nevertheless made statements relating to those events while hypnotized. In holding the statements inadmissible, the Virginia Supreme Court stressed that “Most experts agree that hypnotic evidence is unreliable because a person under hypnosis can manufacture or invent false statements. [Citations.] A person under a hypnotic trance is also subject to heightened suggestibility. [Citations.]” (Id. at p. 419.) In subsequently denying habeas corpus relief to the same defendant, the federal district court stated that “the very reason for excluding hypnotic evidence is due to its potential unreliability.” (Greenfield v. Robinson (W.D.Va. 1976) 413 F.Supp. 1113, 1120.) Other courts have rejected hypnotic evidence expressly because of its lack of reliability,17 while still others have simply declared such evidence inadmissible per se.18
Particularly relevant here.are the cases that have excluded this evidence on the ground of the well-known Frye rule. (Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) That rule conditions the admissibility of evidence based on a new scientific method of proof on a showing that the technique has been generally accepted as reliable in the scientific community in which it developed. (Id. at p. 1014.) Finding that no such showing had been made with regard to hypnosis, the Oklahoma court held in Jones v. State (Crim.App. 1975) 542 P.2d 1316, 1326-1327, that expert testimony as to the truthfulness of statements made by the defendant under hypnosis was inadmissible for the same reason that the results of lie detector and “truth serum” tests are excluded, i.e., because such tests “have not attained sufficient scientific and psychological accuracy nor general recognition as being capable of definite and certain interpretation.” (Id. at p. 1326.)
Again, the Michigan court so held in People v. Hangsleben (1978) 86 Mich.App. 718 [273 N.W.2d 539, 543-544], declaring that the defendant’s attempt to prove the reliability of statements made in hypnosis [35] by showing the qualifications of the hypnotist “is an inadequate foundation for scientific evidence” under the Michigan version of the Frye rule. (Id. at p. 544.) And in Rodriguez v. State (Fla.App. 1976) 327 So.2d 903, 904, the Florida court excluded such evidence under its version of Frye, i.e., that the reliability of a new method of proof must be generally accepted by scientists or “‘have passed from the stage of experimentation and uncertainty to that of reasonable demonstrability.’” Applying this test, the court held the evidence inadmissible because it was “unconvinced of the reliability of statements procured by way of hypnosis.”
B
With this unanimous body of law in mind we turn to the second group of cases mentioned above, i.e., those addressing the admissibility of the testimony of a witness whose memory has assertedly been refreshed by hypnosis. The seminal case was Harding v. State (1968) 5 Md.App. 230 [246 A.2d 302], There the prosecuting witness, Mildred Coley, was found wounded by the roadside, the apparent victim of an aggravated sexual assault; she was in a state of shock and could not remember anything that had happened after being shot by the defendant, who had been riding with her in a car. Several weeks later she was taken to the police barracks to be hypnotized by a psychologist from the state hospital. The police furnished the hypnotist with the details of the case, and he informed Coley he was going to “get her memory back.” After he put her under hypnosis he invited two state troopers in, and directed her to tell him “everything that happened” on the day in question. She related certain events incriminating the defendant, with occasional prompting by the hypnotist. He denied suggesting to her any answers to his questions, but did give her the suggestion that after she awoke she would relate the same events. He then brought her out of the trance, and under questioning by one of the state troopers she duly gave the same answers she had given while hypnotized; the hypnotist conceded that his posthypnotic suggestion had made her “want to do so.” He testified that in his opinion her story under hypnosis was reliable because certain of her statements were corroborated, because “her recall afterwards was essentially the same,” and because she had “no reason” to lie. On the witness stand Coley gave the story a third time, claiming that “When I was asleep it all came back to me.”
On appeal from his conviction of assault with intent to commit rape, the defendant urged that the pretrial hypnosis rendered Coley’s testimo[36] ny inadmissible. Affirming the judgment, the Maryland Court of Special Appeals summarily dismissed this contention on the single ground that the witness believed her memory of the events was accurate: “The admissibility of Mildred Coley’s testimony concerning the assault with intent to rape case causes no difficulty. On the witness stand she recited the facts and stated that she was doing so from her own recollection. The fáct that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide.” (Id. at p. 306.)
In the ensuing 10 years these few sentences spawned a series of similar decisions permitting witnesses to testify to recollections that were assertedly refreshed by pretrial hypnosis. The Attorney General, naturally, relies heavily on those decisions in the case at bar. But an examination of the opinions discloses a significant evolution in the approach of the courts to this issue. In the earlier cases, as in Harding, the courts engaged in little or no analysis of the issue, and merely reiterated the general proposition that the fact of hypnosis “goes to the weight, not the admissibility” of the evidence. If they discussed the point at all, the courts simply noted that the witness believed he was testifying from his own memory and that his credibility could presumably be tested by ordinary cross-examination. (See State v. Jorgensen (1971) 8 Ore.App. 1 [492 P.2d 312, 315]; Wyller v. Fairchild Hiller Corporation (9th Cir. 1974) 503 F.2d 506, 509-510; Kline v. Ford Motor Co., Inc. (9th Cir. 1975) 523 F.2d 1067, 1069-1070; State v. McQueen (1978) 295 N.C. 96 [244 S.E.2d 414, 427]; Clark v. State (Fla.App. 1979) 379 So.2d 372, 375.)
As the decade drew to a close, however, the courts began to take notice of the dangers inherent in using hypnosis for this purpose, and developed increasingly complex procedural “safeguards” in the hope of forestalling those dangers. Thus until 1978 the Ninth Circuit Court of Appeals had applied the Harding rule only in civil cases (see Wyller and Kline, supra); in extending the rule in that year to criminal cases, the court warned: “We are concerned, however, that investigatory use of hypnosis on persons who may later be called upon to testify in court carries a dangerous potential for abuse. Great care must be exercised to insure that statements after hypnosis are the product of the subject’s own recollections, rather than of recall tainted by suggestions received while under hypnosis.” (United States v. Adams (9th Cir. 1978) 581 F.2d 193, 198-199.) In a footnote at this point the court proposed sever[37] al safeguards that it apparently believed would eliminate such “potential for abuse.”19
In People v. Smrekar (1979) 68 Ill.App.3d 379 [24 Ill.Dec. 707, 385 N.E.2d 848, 853], the Illinois Court of Appeals followed the Harding rule but recognized that “the use of hypnosis is not without problems. ‘Asking a patient to recall only real events, or to verify aspects of the material as true or false, reduces but does not remove the element of fantasy’ [citation]. The hypnotized subject is also subject to suggestion by the hypnotist.” Accordingly, the court held admissible the identification testimony of a previously hypnotized eyewitness only because of a number of factors in the record which the court impliedly viewed as guaranteeing reliability.20
In subsequent cases the required safeguards became very elaborate indeed. Thus in State v. Hurd (1981) 86 N.J. 525 [432 A.2d 86], the eyewitness-victim was unable or unwilling to identify the defendant as her assailant, and did so only after being hypnotized three weeks later. The defendant moved before trial to suppress her proposed in-court identification, and extensive expert testimony was taken on the subject of the reliability of hypnotically induced recollection. The trial court ordered the testimony suppressed.
On appeal, the New Jersey Supreme Court held that the admissibility of hypnotically induced testimony must be judged by the Frye standard, but immediately qualified the rule to require only that in any case the hypnosis produce a recall that is, in effect, no more inaccurate [38] than that of the average witness who has not been hypnotized. (Id. at pp. 91-92.) The court recognized a number of dangers inherent in the hypnotic process which “explain why hypnosis, unless carefully controlled, is not generally accepted as a reliable means of obtaining accurate recall” (id. at p. 93); the dangers included the subject’s extreme suggestibility, loss of critical judgment, tendency to confabulate, and excessive confidence in his new “memories.” The court nevertheless declined to hold such testimony inadmissible per se, asserting that “the reliability of ordinary eyewitnesses reveals similar shortcomings.” (Id. at p. 94.)
Yet to minimize if possible the admitted risks of hypnosis, the court went on to adopt an intricate set of procedural prerequisites to its use. First, the trial court should “evaluate both the kind of memory loss that hypnosis was used to restore and the specific technique employed, based on expert testimony presented by the parties.” (Id. at p. 95.) The court should then inquire into “the amenability of the subject to hypnosis,” because persons capable of entering deeper trances may be more suggestible. (Id. at p. 96.) In turn, the party offering the testimony must prove he has complied with no less than six additional procedural requirements, intended to furnish an adequate record and insure “a minimal level of reliability.” (Id. at pp. 96-97.)21
Finally, in order to guarantee “strict compliance” with these prerequisites, the proponent of the testimony must establish its admissibility by “clear and convincing” proof. (Id. at p. 97.) “This burden,” said the New Jersey court, “is justified by the potential for abuse of hypnosis, the genuine likelihood of; suggestiveness and error, and the consequent risk of injustice.” (Ibid.)