State v. Long

649 P.2d 845, 32 Wash. App. 732, 1982 Wash. App. LEXIS 3094
CourtCourt of Appeals of Washington
DecidedAugust 4, 1982
Docket9500-5-I
StatusPublished
Cited by29 cases

This text of 649 P.2d 845 (State v. Long) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Long, 649 P.2d 845, 32 Wash. App. 732, 1982 Wash. App. LEXIS 3094 (Wash. Ct. App. 1982).

Opinions

Williams, J.

The defendant, Charles E. Long, was charged by information and convicted by a jury of first degree assault. His appeal from the judgment entered on the verdict principally concerns the reliability of a hypnotized witness. We reverse.

The facts are these: On August 5, 1980, in Snohomish County, Long, in the presence of two witnesses, repeatedly stabbed Gregory Freeman with a knife partially severing his jugular vein, collapsing a lung and lacerating his heart. The police arrived shortly thereafter, Freeman was taken to the hospital, Long said that he acted in self-defense and the two witnesses prepared written statements of what happened. One of them, Rena Potter, reported that Free[734]*734man was sitting in a chair, may have had a knife in his hand, and lunged at Long.1

Two months later on the eve of the day set for trial, the witness, Potter, at the request of the prosecutor, was hypnotized and questioned by a deputy sheriff who had learned investigative hypnotic technique in a, 3-day course at Edmonds Community College. During the interview, Potter recalled that Freeman did not have a weapon, was sitting in a chair when attacked and rose after being stabbed. This recollection formed the witness' remembrance at the trial held, following a continuance, about 1 month later. Thus, Long's self-defense position was struck a damaging blow, because the other eyewitness was looking elsewhere at the critical time.

Although examined in detail in some other jurisdictions, counsel advises that the question of the hypnotized witness is new in this state. Uniformly, the primary objection to permitting a person whose memory has been enhanced by the hypnotic process to testify is the danger of new material being planted or true memory altered by the hypnotist. Correlative to this is that when called as a witness, the person may not be able to differentiate between a true recollection and a fantasy or suggested detail. See generally State v. Mack, 292 N.W.2d 764 (Minn. 1980). Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. L. Rev. 313, 340 (1980). The primary benefit of hypnosis is that the witness' memory of an event may be revivified while in a hypnotic state. The technique is particularly helpful when recall is blocked by a dramatic occurrence or trauma. United States v. Awkard, 597 F.2d 667 (9th Cir.), cert. denied, 444 U.S. 885 (1979); Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St. L.J. 567 (1977).

It is argued that the hypnotic session contaminated [735]*735Potter's memory to such a degree that she was, in effect, rendered incompetent to testify. Although there appears to be some valid reason for disqualifying every witness hypnotized in connection with the case, Diamond, the general rule of competency in this state is: "Every person is competent to be a witness except as otherwise provided by statute or by court rule." ER 601. CrR 6.12(c)(1) defines incompetent persons as "[t]hose who are of unsound mind, or intoxicated at the time of their production for examination". The evidence at the trial including the testimony of two experts, psychologists, gave no indication that Potter's mind was unsound because of the hypnotism. Nor is there any general understanding that would be the case. Accordingly, Potter must be considered competent.

It is further argued that Potter's testimony, coming from a scientific process not established as reliable, was inadmissible. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Canaday, 90 Wn.2d 808, 585 P.2d 1185 (1978). There has been no precise scientific formulation of hypnosis nor is there likely to be for some time to come, if ever. But hypnotic phenomena are commonplace in the legal realm particularly with autosuggestion if not through the influence of another. Fallibility in perception and recall because of psychological factors as well as attitudes, preferences, biases and expectations of a witness are well known to court and counsel. As has been observed:

Perception and memory are the product of an intricate blend of neurological, psychological, and physiological processes. Both perception and memory are profoundly affected by behavioral and motivational factors that distort the raw data to be perceived and remembered.

(Footnote omitted.) Spector & Foster, at 587. An example is the "logical completion mechanism" by which a person unconsciously fills in the gaps in his recollection of an event that he has partially forgotten or did not totally perceive initially. Selective perception also contributes to the phenomenon whereby two honest citizens swear under oath to diametrical versions of the same occurrence. Though not [736]*736"scientific”, hypnosis as an aid to memory may under proper circumstances contribute to the truth-seeking task of the court.

It is also argued that the case should be dismissed because the jury could not determine whether Potter's testimony at trial was based upon what she actually saw of the conflict or upon the image developed under hypnosis. The act of the prosecuting attorney in arranging for the hypnotic interview and the amateur psychologist in conducting it extends the question of the reliability of the witness beyond the breaking point. Even in those jurisdictions which have not adopted a per se exclusionary rule extreme caution is required. For example, see People v. Gonzales, 108 Mich. App. 145, 310 N.W.2d 306 (1981); State v. Mack, 292 N.W.2d 764 (Minn. 1980); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); United States v. Adams, 581 F.2d 193 (9th Cir.), cert. denied, 439 U.S. 1006 (1978).

Judge Eugene A. Wright in United States v. Adams, supra at 198-99, said:

We are concerned . . . 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.

(Footnote omitted.)

A comprehensive set of standards for the admissibility of hypnotically induced recollection appears in State v. Hurd, supra at 533:

(1) The hypnotic session should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis.
(2) The qualified professional conducting the hypnotic session should be independent of and not responsible to the prosecutor, investigator or the defense.
(3) Any information given to the hypnotist by law enforcement personnel prior to the hypnotic session must be in written form so that subsequently the [737]*737extent of the information the subject received from the hypnotist may be determined.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Washington, V. Paul Rafael Dervin, Iii
Court of Appeals of Washington, 2025
Burral v. State
724 A.2d 65 (Court of Appeals of Maryland, 1999)
State v. Echols
793 P.2d 1066 (Court of Appeals of Alaska, 1990)
Zani v. State
767 S.W.2d 825 (Court of Appeals of Texas, 1989)
Rock v. State
708 S.W.2d 78 (Supreme Court of Arkansas, 1986)
Contreras v. State
718 P.2d 129 (Alaska Supreme Court, 1986)
People v. Guerra
690 P.2d 635 (California Supreme Court, 1984)
United States v. Harrington
18 M.J. 797 (U.S. Army Court of Military Review, 1984)
State v. Martin
684 P.2d 651 (Washington Supreme Court, 1984)
United States v. Joe Corona Valdez
722 F.2d 1196 (Fifth Circuit, 1984)
State v. Contreras
674 P.2d 792 (Court of Appeals of Alaska, 1983)
State v. Collins
464 A.2d 1028 (Court of Appeals of Maryland, 1983)
State v. Brown
337 N.W.2d 138 (North Dakota Supreme Court, 1983)
Key v. State
430 So. 2d 909 (District Court of Appeal of Florida, 1983)
State v. Underwood
658 P.2d 50 (Court of Appeals of Washington, 1983)
State v. Martin
656 P.2d 526 (Court of Appeals of Washington, 1982)
State v. Long
649 P.2d 845 (Court of Appeals of Washington, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
649 P.2d 845, 32 Wash. App. 732, 1982 Wash. App. LEXIS 3094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-long-washctapp-1982.