State v. Martin

684 P.2d 651, 101 Wash. 2d 713, 1984 Wash. LEXIS 1679

• Court: Washington Supreme Court
• Decided: June 7, 1984
• Docket: 49494-1
• Status: Published

Opinions

Dore, J.

Defendant Martin appeals his conviction of first degree statutory rape. The issue on appeal, one of first impression here, involves the admissibility of the testimony of the alleged victim after she was hypnotized because she could not remember anything about the alleged incident. In accord with recent and persuasive case law and the overwhelming consensus of expert opinion, we conclude that testimony by a witness as to a fact which became available following hypnosis is inadmissible in the trial of criminal cases in this state. We also hold, however, a witness may testify based on what he knew before hypnosis, provided the appropriate safeguards are present. We reverse and remand for a new trial.

I

Martin was charged with first degree statutory rape. He waived his right to a jury trial and was tried by the court. Martin and his wife, Shirene, had been living with Lesha, her 10-year-old daughter, and their 2 V2-year-old daughter. At about 4 o'clock one morning, Shirene got up to investigate the younger child's crying. She went into the girls' bedroom and found David on top of Lesha's bed with Lesha under the covers. David's pants were down to his hips, but his underwear was on. Shirene took the younger child into the living room, woke David up, and said, "I hope this isn't what it looks like". When Lesha sat up, Shirene asked her if David had done anything to her. Lesha answered that she did not know. David had become outraged by the accusation and asked Shirene if she was crazy and what she meant by her question. A violent argument ensued, which ended with Shirene taking the younger child to Shirene's mother's house and calling the police.

A King County police officer testified that he arrived at the Martin residence and met David in the front yard. David appeared to be intoxicated and was agitated about the accusation of sexual abuse. The officer stated that David wanted to take Lesha to the hospital immediately to prove his noninvolvement.

The next day Shirene took Lesha to the sexual assault center at Harborview Hospital where cultures were taken. The throat culture was positive for gonorrhea. A doctor testified that gonorrhea can be cured by antibiotics within a matter of days or, in men, by a spontaneous curing within a matter of weeks. There is no reliable test to determine whether or not a person has ever had gonorrhea. The doctor testified that transmission by kissing is possible, but unlikely.

During the following weeks, Shirene and Lesha stayed much of the time with Shirene's sister. During this time, Lesha maintained she had no memory of any sexual abuse. Shirene Martin testified, however, that on one occasion she asked Lesha "if it was David". Lesha told Shirene that she could not say it was David because that would not be true.

On June 21, 1980, Shirene met Norah Teeter, a lay hypnotist, at an open house party where Teeter worked. They discussed the possibility of Teeter treating Lesha. Shirene brought Lesha to Teeter's office at the Evergreen Hypnosis Center on June 26, 1980. Teeter allegedly hypnotized Lesha twice. These incidents form the basis of this appeal.

II

At trial, Teeter characterized herself as a clinical hypnotherapist. She said that her formal background consisted of 400 hours of training, and that she had worked 4 years in the field. The last 2 years were at Evergreen Hypnosis Center as a clinical hypnotherapist and associate director of the Center. The major part of her work involved "regressive hypnosis" to uncover repressed material. Her highest level of academic achievement was a bachelor's degree in philosophy and psychology. She was subsequently enrolled in developing her own program at Antioch College West for a master's degree in psychology, with emphasis on hypnotherapy. Thirteen months prior to this court experience, she had taken a 3-day course in forensic hypnosis and later received some additional training in this field. She had been involved in forensic hypnosis training of detectives for two local police departments. This was her first experience testifying in court.

During Teeter's testimony, the court viewed the videotape of a portion of Lesha's first session, in which she stated that David had put . his penis in her mouth on the night in question. Teeter conducted a second session, and the court listened to an audiotape of this portion of the second session which subsequently was transcribed for this court and placed in the record.

The trial court was apparently unaware that during another part of this second session Teeter "regressed" Lesha back to the time before she was born, while she was in the womb. Lesha described, in some detail, thoughts which she claimed to have had while a fetus, as well as her mother's and others' conversations while she was in the womb, including a discussion of terminating her mother's pregnancy. Teeter then had Lesha recount some of the significant events in her life, including when she learned to crawl and her parents' separation.

After the hypnotic sessions, Lesha made a tape recording for her mother at her aunt's suggestion. In this tape, Lesha stated that she had the feeling that it was not David, but her grandfather, who was responsible for what had happened to her. Lesha later stated that what she said in the tape was not true. Apparently, her mother had begun a reconciliation with David, and Lesha made the tape so that she would not be separated from her mother. The grandfather testified for the State that he had never molested Lesha.

Early in the trial, Martin filed a motion in limine to exclude Lesha's testimony. The trial court ruled that the prosecutor had to lay a proper foundation by establishing "proper credentials of the hypnotist, proper recreation of the scene, the tests, [and] the hypnotic trance" before Lesha's testimony would be heard. Report of Proceedings, at 77-78. The prosecutor then called Teeter to testify. Apparently at no point during this testimony did defense counsel question Teeter's qualifications as an expert. No objection was made when the videotape of the hypnotic session was shown or when the audiotape of the second session was presented. Much later in the trial, the State moved that both the video- and audiotapes be marked and admitted. Defense counsel had no objection to the admission of these tapes.

Teeter testified concerning an "ideomotor" signal response system she used to verify Lesha's verbal communication. While Lesha was under hypnosis, Teeter instructed her that raising the index finger of her right hand would represent to her deep in her mind the answer "yes". Moving the little finger of Lesha's right hand would mean "no," and the thumb would represent "I do not want to tell you." Report of Proceedings, at 93. Teeter then checked Lesha's muscular reaction, which she labeled as automatic and spontaneous, during questioning while Lesha was under hypnosis.

After Lesha and Teeter testified, the court denied the motion in limine and admitted Lesha's testimony. Lesha testified that she did not remember the alleged offense prior to the time she was first hypnotized by Teeter, but that she remembered it afterward. She also testified on cross examination that she was aware before the hypnotic session that her mother, her aunt and her grandmother were concerned that David might have sexually molested her on the evening in question.

In his testimony, Martin denied the charged sexual offense. He said that on the evening in question he got off work at about 10:45 p.m. and then went drinking. Shortly after returning home at about 12:30 or 1 a.m., he started to feel nauseated from his drinking, so he took a pillow and went into the bathroom. He heard the younger child crying and went into the bedroom, comforted her, and then lay down on Lesha's bed, just "looking for a place — any place to lie down". Report of Proceedings, at 265. The next thing he knew, his wife, Shirene, came into the bedroom.

Martin further testified that he first learned that Lesha had gonorrhea on a Friday in the beginning of July. He immediately called the hospital to find out about being tested himself. He was tested the following Monday and such tests for gonorrhea were negative.

After hearing of Lesha's hypnotic sessions, Martin called Teeter so that he, too, could be hypnotized. Teeter referred him to Marguerite Hodder, another lay hypnotist. Hodder testified that she hypnotized Martin and regressed him to the evening in question, which he experienced under hypnosis as a revivification. It appeared from this revivification that he committed no sexual offense whatsoever. This hypnotic session was audio taped and the court heard the tape as an offer of proof with respect to the defense motion in limine regarding Lesha's testimony. Defense counsel had this tape marked and put into evidence.

The trial court found Martin guilty as charged, and entered findings of fact and conclusions of law. The judge at trial was thereafter appointed to the State Supreme Court. Martin was sentenced by another judge who denied the motion for a new trial. In his oral ruling, the judge said, " [T]he remedies that the defendant is applying for are ones that are available in the Appellate Court at this juncture". Court's oral decision, at 2.

Martin's appeal from this ruling was consolidated with his other appeal and the Court of Appeals affirmed in an opinion filed December 27, 1982. The appellate court said Teeter was shown to be well qualified, and that it was apparent from viewing the videotape that Lesha was in a deep trance and related the details of her being sodomized "with great difficulty and with simple truth".

Ill

The standard governing the admissibility of testimony based on scientific experimental procedures at a criminal trial was enunciated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). There, the court ruled that evidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community. The Frye court held lie detector results inadmissible, stating:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

This court has explicitly adopted the Frye standard for determining the admissibility of scientific evidence such as retesting of Breathalyzer ampuls and polygraph examinations. See State v. Canaday, 90 Wn.2d 808, 812-13, 585 P.2d 1185 (1978); State v. Woo, 84 Wn.2d 472, 527 P.2d 271 (1974). Scientists in the field must make the initial determination whether an experimental principle is reliable and accurate. State v. Canaday, supra at 813.

We believe the reasoning behind the Frye rule applies to hypnotically aided testimony. We are concerned not so much with whether the process is scientific as with whether a jury can realistically evaluate the effect of hypnosis. Absent general scientific acceptance of hypnosis as a reliable means of refreshing recollection, the dangers and possibilities of prejudice should preclude admission of evidence based upon it. Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983); see also State ex rel. Collins v. Superior Court, 132 Ariz. 180, 198 & n.3, 199 & n.4, 644 P.2d 1266 (1982).

We could adopt a rule which allows each party to offer expert testimony on the effects of hypnosis in each particular case, provided specific procedures are followed. The New Jersey Supreme Court would allow the admission of hypnotically induced testimony where the following procedures were met:

(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 extent of the information the subject received from the hypnotist may be determined.

(4) Before induction of hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding adding any new elements to the witness' description of the events.

(5) All contacts between the hypnotist and the subject should be recorded so that a permanent record is available for comparison and study to establish that the witness has not received information or suggestion which might later be reported as having been first described by the subject during hypnosis. Videotape should be employed if possible, but should not be mandatory.

(6) Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and post-hypnotic interview.

State v. Hurd, 86 N.J. 525, 533, 432 A.2d 86 (1981), quoted in State v. Long, 32 Wn. App. 732, 736-37, 649 P.2d 845 (1982).

We believe the Hurd procedural standards would only be time consuming and expensive, and would inject unnecessary confusion into the judicial process. People v. Shirley, 31 Cal. 3d 18, 39, 641 P.2d 775, 181 Cal. Rptr. 243, cert. denied, 459 U.S. 860, 74 L. Ed. 2d 114, 103 S. Ct. 133 (1982). We decline to mire the judicial process with individual determinations unless there is general acceptance by experts in the field that hypnosis is both reliable and accurate. A substantial majority of courts that have dealt with the issue recently have applied the Frye test in determining the admissibility of hypnotically aided testimony. See State ex rel. Collins v. Superior Court, supra at 199-202; People v. Shirley, supra at 40; Commonwealth v. Kater, supra, 447 N.E.2d at 1196; Polk v. State, 48 Md. App. 382, 394, 427 A.2d 1041 (1981); State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980); People v. Hughes, 88 A.D.2d 17, 452 N.Y.S.2d 929 (1982); Commonwealth v. Nazarovitch, 496 Pa. 97, 101, 436 A.2d 170 (1981). It is this standard which we now apply to the admission of the evidence obtained through the use of hypnosis in the present case.

Rather than showing a general acceptance of the reliability of hypnotically induced testimony, the views of experts in the field indicate it is an unreliable means of enhancing recall. A hypnotic state produces hypersuggestibility and hypercompliance in the subject, making the subject 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). See also Comment, Hypnosis: A Survey of Its Legal Impact, 11 Sw. U. L. Rev. 1421, 1442 (1979). The hypnotized subject is particularly prone to indulge in confabulation, the filling in of gaps in memory to please the hypnotist. Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 335 (1980).

Many of the problems associated with hypnotically induced testimony make its use in trial particularly dangerous. After hypnosis, neither subject nor expert observer is able to distinguish between confabulations and accurate recall in any given case, absent corroborating evidence. See Beaver, Memory Restored or Confabulated by Hypnosis— Is it Competent?, 6 U. Puget Sound L. Rev. 155, 199 (1983). The subjective conviction in the truth of the memory after hypnosis eliminates fear of perjury as a factor ensuring reliable testimony. Additionally, effective cross examination is seriously impeded, as the witness cannot distinguish between facts known prior to hypnotism, facts confabulated during hypnosis to produce pseudomemories, and facts learned after hypnosis. Finally, jury observation may be adversely affected, as the witness, as a result of the hypnosis, will have absolute subjective conviction about a particular set of events, whether or not his perceptions are objectively accurate. Beaver, at 200-01. It is this tendency toward immunization from meaningful cross examination in particular that leads us to conclude that a person, once hypnotized, should be barred from testifying concerning information recalled while under hypnosis. Hypnosis in its current state simply does not meet the Frye standards of reliability and accuracy.

IV

Our holding today, however, does not bar witnesses from testifying as to facts recalled prior to hypnosis. So long as the trial court is careful to limit testimony to the witness' prehypnotic memory of events, and opposing counsel has the opportunity to demonstrate to the jury that the witness has been subjected to hypnosis, the danger of prejudice is minimized. A detailed record of the witness' prehypnotic memory should be preserved, as the party offering the testimony will have the burden of establishing what the witness remembered prior to the hypnosis. Any uncertainties should be resolved in the opponent's favor. If the judge admits the testimony, the opponent must be given the opportunity to show the possible effect of the hypnosis on the witness' testimony, and the manner in which the hypnosis was conducted. Special jury instructions¹ regarding the hypnosis may also be warranted. This approach, taken by the Supreme Judicial Court of Massachusetts in Commonwealth v. Kater, supra, most effectively prevents the possibility of prejudice always present with a witness who has been hypnotized. See also Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974); State v. Mack, supra.2

We recognize our decision here will substantially reduce the likelihood of the use of hypnosis to develop evidence against a criminal defendant. In the future, the police officer or prosecutor considering hypnotizing a potential witness must proceed with caution and weigh the risk of losing that witness' testimony against the possibility of obtaining corroborative evidence. Absent some independent verification that the witness' testimony consists of prehypnotic memory, the propriety of its admission is questionable.

We next apply the principles announced above to the case at hand. As Lesha was unable to remember anything regarding the alleged incident prior to hypnosis, her testimony regarding the identification of the defendant and the act which allegedly occurred on the night in question is inadmissible. Without Lesha's testimony as to the details of the incident, the evidence against the defendant was, at best, circumstantial. It may be possible to draw reasonable inferences from the other evidence presented, but the State's case is severely handicapped by the loss of Lesha's testimony. While a retrial may be costly and time consuming, the record before us, absent Lesha's testimony as to the defendant's criminal actions, compels us to order a new trial.

Conclusion

Hypnosis does not meet the Frye test at this time³ as a means of accurately restoring or improving memory. We hold that hypnotized witnesses may not testify in criminal trials as to facts not remembered by witnesses prior to hypnosis. They may, however, testify as to facts recalled prior to hypnosis. The burden of establishing what the witness recalled prior to hypnosis is on the party seeking to admit the testimony.⁴

We reverse the defendant's conviction and remand for a new trial.

Williams, C.J., and Rosellini and Pearson, JJ., concur.

1 Such instructions might caution the jury that in assessing the credibility of a particular witness, they may consider the fact that the witness underwent questioning while hypnotized and the circumstances under which the hypnotic session was conducted.

2 The procedural safeguards suggested in State v. Hurd, 86 N.J. 525, 533, 432 A.2d 86 (1981) present reasonable guidelines for conducting any hypnotic session involving a person whose prehypnotic memory may be offered into evidence at a later date. As was suggested in United States v. Adams, 581 F.2d 193, 199 n.12 (9th Cir.), cert. denied, 439 U.S. 1006 (1978), an audio or video recording of the interview would be helpful.

3 This holding does not preclude the admission of hypnotically induced testimony in the future, when techniques used may become more reliable.

4 See also People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983) wherein, in a rape case, testimony was barred based on a witness' hypnotically refreshed recollection.