NOTES
HYPNOSIS AND THE RIGHT TO TESTIFY: AN EVIDENTIARY AND
CONSTITUTIONAL DILEMMA FOR CONNECTICUT
I.
INTRODUCTION
The notion of hypnosis' has mystified the American public
and stirred its imagination for decades.2 Psychologists and psychiatrists have often used hypnosis as an effective tool in the
diagnosis, therapy, and treatment of mental afflictions.3 Pretrial
hypnosis has also been employed by police investigators4 and
1. WEBSTER'S NEW COLLEGIATE DICTIONARY 593 (9th ed. 1985). Hypnosis is generally defined as a state that resembles sleep, but is induced by a person whose suggestions
are readily accepted by the subject. Id. According to BLACK'S LAW DICTIONARY 668 (5th
ed. 1979), hypnotism is the act of inducing an artificial state of sleep or trance by means
of verbal suggestions or by the subject's concentration upon some object. Id. Hypnotism
is generally characterized by extreme responsiveness to the hypnotist's suggestions. Id.
2. See Mickenberg, Mesmerizing Justice: The Use of Hypnotically-Induced Testimony in Criminal Trials, 34 SYRACUSE L. REV. 927 (1983). Mickenberg refers to the popular stereotype of the evil hypnotist who uses posthypnotic suggestions to commit crimes
by surrogates. Id. The theme appears often in television and movies, but also manifests
itself in nonfictional contexts. Id. In particular, some defendants have attempted, usually
unsuccessfully, to claim that their crimes were involuntary products of hypnotic suggestion and manipulation. Id. at 927 n.3.
3. CLEARY, MCCORMICK ON EVIDENCE 631 (3d ed. 1984); Packer, The Use of Hypnotic Techniques in the Evaluation of Criminal Defendants, 9 J. PSYCHIATRY & L. 313
(1981); Note, Hypnotically Refreshed Testimony and the Balancing Pendulum, 1985
No. 4 U. ILL. L. REV. 921 (1985). Packer notes that hypnosis techniques became prevalent
in the treatment of traumatic war neuroses during World War II. Packer, supra, at 313.
Hypnosis was a panacea for hysterical amnesias, catatonic conditions, and psychosomatic
disorders. Id. Today hypnosis continues to provide valuable medical benefits. Note,
supra, at 921. Physicians frequently employ it to calm nerves, reduce pain, cure multiple
personalities, and interpret dreams. Id.
4. Packer, supra note 3, at 314. See also Mattleman, Evidence: Scientific Techniques and Testimony, 1985 ANN. SURV. AM. L. 818 (1985). Mattleman states that hypnosis was initially viewed as a purely investigative technique which the police used to obtain leads when more traditional methods failed. Id. Because hypnosis saved time and
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prosecutors 5 to alleviate the amnesia and to enhance the mem-
ory recall of their witnesses. 6 The direct use of hypnosis on a
witness in the courtroom, however, has been prohibited. 7 Simi-
larly, courts have rarely admitted "hypnotic statements" into
evidence.8 Therefore, the current role of hypnosis focuses on
money and yielded excellent results, it was an invaluable device for discovering information. Note, supra note 3, at 935 & n.109. Extensive use of hypnosis for investigatory
purposes has prevailed, as evidenced by the publication of official police handbooks and
primers. Note, Admissibility of Hypnotically Enhanced Testimony in Louisiana, 44 LA.
L. REV. 1039, 1040 n.9 (1984) (citing examples such as H. ARONS, HYPNOSIS IN CRIMINAL
INVESTIGATION (1967); W. HIBBARD & R. WORRING, FORENSIC HYPNOSIS, THE PRACTICAL
APPLICATION OF HYPNOSIS IN CRIMINAL INVESTIGATIONS (1981); M. REISER, HANDBOOK OF
INVESTIGATIVE HYPNOSIS (1980)).
5. Belasic, Trial by Trance: The Admissibility of Hypnotically Enhanced Testimony, 20 COLUM. J.L. & Soc. PROBs. 237 (1986). Belasic explains that hypnosis is most
often used to "refresh" the blocked memory of a victim or key witness who is unable to
remember pertinent events. Id. At trial the witness will then testify, in a non-hypnotized
state, to his or her present recollection of past events. Id. Mickenberg, supra note 2, at
928-29 further confirms the increasing use of hypnosis for this specific purpose. He distinguishes it from "hypnotic statements," which refers to statements made by a witness
while under hypnosis. Id. at 928 n.5. The general rule is that a witness may not testify
while under hypnosis in the courtroom, and prior statements made by the witness during
hypnosis are also inadmissible at trial. Id. at 928; Mattleman, supra note 4, at 818; Belasic, supra, at 237 n.5.
Belasic notes that such hypnotic evidence has been nearly universally excluded on
the grounds of hearsay, lack of reliability, and its tendency to mislead the jury. Id. See,
e.g., People v. Shirley, 31 Cal. 3d 18, 33-34, 641 P.2d 775, 783, 181 Cal. Rptr. 243, 251
(1982) (hypnotic statements of witnesses are per se inadmissible); Strong v. State, 435
N.E.2d 969 (Ind. 1982) (evidence derived from a witness while he is in a hypnotic trance
is unreliable and inadmissible); Commonwealth v. A Juvenile, 381 Mass. 727, 412 N.E.2d
339 (1980) (hypnotic statements and testimony are generally held to be inadmissible);
Pavone v. State, 273 Ind. 162, 402 N.E.2d 976 (1980) (state precluded from introducing
any statements made by a witness while under hypnosis); Greenfield v. Commonwealth,
214 Va. 710, 204 S.E.2d 414 (1974) (defendant's hypnotic evidence excluded due to potential unreliability), aff'd, Greenfield v. Robinson, 413 F. Supp. 1113 (W.D. Va. 1976)
(habeas corpus action) (exclusion of unreliable evidence comports with due process).
6. Note, supra note 3, at 921. Courts recognize that the process of hypnosis can
provide useful testimony and function as a powerful recollection device. Id. at 921, 93435, 938. The use of hypnosis as a tool for retrieving lost information is not only effective,
but scientifically established. Id. at 934 n.104. Furthermore, courts admit that hypnosis
only marginally aggravates the problems already inherent in ordinary witness testimony.
Id. at 938. Any eyewitness testimony, with or without the aid of hypnosis, may be erroneous or unreliable. See Note, Hypnosis-Should the Courts Snap Out of It?-A Closer
Look at the Crucial Issues, 44 OHIO ST. L.J. 1053, 1077 (1983). Therefore, the trial court
must balance the potential risks against the benefits before excluding either normal or
hypnotically refreshed testimony. Id.
7. See supra note 5 for elaboration on the general rule prohibiting hypnotism of
witnesses in the courtroom during trials.
8. See supra note 5 for the definition of "hypnotic statements" as distinguished
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HYPNOTICALLY REFRESHED TESTIMONY
producing indirect, hypnotically "refreshed" testimony.9
The issue of the admissibility of this testimony is highly
controversial,10 and state courts across the nation have demonstrated marked divergence in their approaches to the problem. 1
While some courts find hypnotically refreshed testimony inherently inaccurate and unreliable,' 2 other courts view it as an effrom hypnotically enhanced or "refreshed" testimony. For cases barring the evidentiary
use of hypnotic statements, see supra note 5.
9. Belasic, supra note 5, at 237. See supra note 5 for a precise explanation of hypnotically refreshed testimony. Hypnosis occurs prior to trial for the sole purpose of aiding the witness' memory when he or she has forgotten crucial details. See Note, supra
note 3, at 921.
10. Id. See also Note, Hypnosis: UnderstandingIts Use in the Criminal Process,
11 TEx. TECH. L. REV. 113 (1979). Like all novel tools for scientific crime detection, hypnosis has been viewed with skepticism. Note, supra, at 127. The law moves slowly and
cautiously in accepting new techniques before granting them courtroom admissibility. Id.
Initially, the courts also criticized both fingerprints and voiceprints. Id. However, these
methods now enjoy general acceptance and admissibility as credible evidence. Id. at 128.
See also Behringer, Introduction, in Annual Meeting Program Preview: Proposalsfor a
Model Rule on the Admissibility of Scientific Evidence, 26 JURiMERICS J. 235, 238
(1986) [hereinafter Annual Meeting] (voiceprints are admissible in most states and federal circuits except Michigan, Pennsylvania, California, New Jersey, and the D.C. Circuit). Similarly, the courts still use a restrained approach with respect to evidence of
ballistics, bloodstains, and bitemarks, as well as hair and handwriting samples. See
Cleary, supra note 3, at 637-39.
11. Cleary, supra note 3, at 633; Ruffra, Hypnotically Induced Testimony: Should
It Be Admitted? 19 CRIM. L. BULL. 293-94 (1983); Note, supra note 3, at 921; Note, supra
note 4, at 1042. This Note identifies and analyzes four distinct judicial positions in section II. B. infra. For a comprehensive listing of cases and jurisdictions that follow these
views, see infra notes 84, 97, 103, and 131.
12. See People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243 (1982)
(hypnotically refreshed testimony is generally unreliable, unproven, unaccepted by scientists, and over-awesome and misleading to juries). See generally State ex rel. Collins v.
Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982) (hypnosis tampers with the memory
and dangerously jeopardizes the search for truth). See infra note. 103 for more cases. See
also Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective
Witness, 68 CALIF. L. REV. 313 (1980) (advocating the extreme view that hypnosis contaminates witnesses, taints their testimony, and renders them incompetent to testify
further).
According to one commentator, the unreliability of hypnotically refreshed testimony
derives from four major sources. Note, supra note 3, at 925-26. First, hypnosis creates a
state of extreme hypersuggestiveness where subjects incorporate the hypnotist's inadvertent cues into their own memories in an effort to please him or her. Id. at 926. Second,
the hypnotized subject may "confabulate," i.e., fill in conscious memory gaps with
fantasized, invented, or irrelevant details. Id. Third, a subject may deliberately lie under
hypnosis or even feign a hypnotic trance. Id. at 927. The subject thus has the potential
ability to manipulate the hypnotic session and to perpetuate a fraud. Id. Fourth, a subject cannot distinguish between old memories that occurred before hypnosis and new
memories that emerged afterwards. Id. at 928. The subject remembers the content, but
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fective and valuable tool for discerning the truth. 3 In the absence of any other evidence, hypnosis may be instrumental in
reviving the memories of eyewitnesses and victims traumatized
by heinous crimes. 14 Similarly, hypnotically refreshed testimony
is crucial when it provides the only means of exonerating a genuinely innocent defendant.1 5 The constitutional impact of this
not the source, of these memories which tend to harden under hypnosis due to an increased aura of confidence. Id. The subject may have fantasized details or absorbed the
hypnotist's suggestions, yet he or she will adamantly insist on the truth of the
pseudomemory. Id. Similarly, the hynotist may be unable to weed out all the inaccurate
memories, suggestions, lies and confabulations from the subject's hypnotically refreshed
testimony. Id. at 927-28. Ultimately, the jury may be deceived, because increased confidence may bolster the subject's credibility and mislead the jurors in assessing his or her
demeanor. Id. at 929. See also Ruffra, supra note 11, at 294-97 for a confirmation of the
four criteria contributing to unreliability in hypnotically refreshed testimony.
13. See Rock v. Arkansas, 107 S. Ct. 2704, 2713-14 (1987) (crediting hypnosis as
instrumental in obtaining investigative leads or identifications later confirmed by independent evidence). See also Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th
Cir. 1985) (rejecting per se exclusion rule as impermissibly broad, since it bars valuable
and accurate evidence in some cases); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981)
(criticizing the per se inadmissible view for excluding evidence which is as trustworthy as
other eyewitness testimony); Contreras v. State, 718 P.2d 129 (Alaska 1986) (Matthews,
J., concurring) (stating that hypnosis can play a crucial role in reviving a witness' memory so that his testimony may be extremely probative). For more cases, see infra notes
84, 97, 103, and 131. See also Note, supra note 6, at 1078, where the author concludes
that hypnosis can aid the fact-finder by providing probative and otherwise unobtainable
evidence. The author further suggests that courts have a duty to use every reasonable
means available to produce such evidence. Id. This duty follows from Federal Rule of
Evidence 102, which requires courts to promote the growth and development of the law
of evidence. Id. & n.220. Therefore, when appropriate, hypnotically refreshed testimony
can assist the trier of fact in arriving at the most correct and just result. Id.
14. See Ruffra, supra note 11, at 295 & nn. 10-11. Ruffra states that forensic hypnotists have reported dramatic improvements in the memories of witnesses and crime
victims subjected to hypnosis. Id. at 295. In a 1979 study by Kroger & Douce, ten out of
thirteen witnesses improved their recall, while in Schafer & Rubin's study in 1978, overall recall increased by sixty percent. Id. at n.10. Similarly, DePiano's 1980 study reported
improved recall by those subjects who had been hypnotized during questioning. Id. at
n.11.
See also Orne, The Use and Misuse of Hypnosis in Court, 27 INT'L J. CLINICAL &
EXPERIMENTING HYPNOSis 311 (1979). Professor Orne explains that hypnosis is an effective forensic tool because it results in the eliciting of more details. Id. at 326. Ultimately,
the use of hypnosis as a tool for retrieving lost information seems scientifically established. Spector & Foster, The Utility of Hypno-Induced Statements in the Trial Process: Reflections on "People v. Smrekar", 10 Loy. U. Cm. L.J. 691, 695 (1978-79); Note,
The Admissibility of Testimony Influenced by Hypnosis, 67 VA. L. REv. 1203, 1211
(1981).
15. See Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986) (affirming manslaughter
conviction after barring defendant's hypnotically refreshed testimony under per se exclusion rule), vacated and remanded, Rock v. Arkansas, 107 S. Ct. 2704, 2714-15 (1987)
.19881
HYPNOTICALLY REFRESHED TESTIMONY
technique, however, demands intense scrutiny.16
(holding that Arkansas' per se exclusion rule impermissibly infringes on a defendant's
constitutional right to testify). See also People v. Shirley, 31 Cal. 3d 18, 67, 723 P.2d
1354, 1384, 181 Cal. Rptr. 243, 273 (1982) (adopting per se exclusion rule, but excepting
defendants so that pretrial hypnosis will not render their testimony inadmissible). But
cf. Greenfield v. Robinson, 413 F. Supp. 1113 (W.D. Va. 1976) (excluding defendant's
statements elicited under hypnosis due to lack of corroboration).
Historically, any leniency towards admitting hypnotically refreshed testimony has
clearly favored only the prosecution of criminal matters. State v. Mack, 292 N.W.2d 764,
770 (Minn. 1980); Belasic, supra note 5, at 237 n.4. However, several commentators argue
that the benefits of hypnosis should also accrue to the defense. See Note, supra note 10,
at 146, which says that according to due process, hypnotic statements reasonably related
to verifiable facts must be admitted into evidence if they are crucial to the defendant's
case. Cf. WEINSTEIN'S EVIDENCE § 804, at 884-90 (1972) (suggesting low standard of corroboration for defendant's hypnotic statements that ask whether a reasonable person
would believe them to be true). See also Note, supra note 4, at 1042, which advocates the
use of hypnosis to guide expert testimony as to the defendant's mental state or criminal
intent and to unearth any facts supportive of his or her innocence. For a general discussion of the defense's use of hypnosis, see Warner, The Use of Hypnosis in the Defense of
Criminal Cases, 27 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 417 (1979); Comment,
Hypnosis As a Defense Tactic, 1 U. TOL. L. REV. 691 (1969).
16. See Rock, 107 S. Ct. at 2705, 2714-15; Contreras,718 P.2d at 129, 138-39; Hurd,
86 N.J. at 525, 547, 432 A.2d at 86, 97. In Rock, the United States Supreme Court held
that per se exclusion of the defendant's hypnotically refreshed testimony violated her
constitutional right to testify. Rock, 107 S. Ct. at 2705, 2714-15. The Court chastised the
Arkansas state court for failing to perform the necessary constitutional analysis. Id. at
2712. The United States Supreme Court also mandated that such posthypnotic testimony be examined for reliability on a case-by-case basis. Id. at 2714. The Court encouraged active review and careful scrutiny under established guidelines because the
right to testify was guaranteed by the fifth, sixth, and fourteenth amendments. Id. at
2709-10, 2714.
In Contreras, the court fashioned a per se exclusion rule for hypnotically refreshed
testimony by witnesses. Contreras, 718 P.2d at 133. The court reasoned that hypnosis
was a valid investigative tool, but its evidentiary use deprived defendants of their constitutional right to confrontation. Id. at 137, 139. According to the Alaska Constitution, art.
I, §§7, 11, and the sixth amendment to the United States Constitution, this right encompasses two elements. Id. at 138. First, a defendant must have the opportunity to crossexamine the witnesses against him so as to test their honesty and memory. Id. Second,
the defendant should be able to show the jury the witness' demeanor when confronted,
so that the witness' veracity is either confirmed or impeached in the jurors' minds. Id.
Because pretrial hypnosis might create hypersuggestiveness, confabulation, and increased confidence, it can render cross-examination difficult, if not impossible. Id. Similarly, hypnosis can irreparably alter a witness' natural sincerity and demeanor so that
the jury's judgment is misled and frustrated. Id. at 138-39.
In Hurd, the court held that a witness' hypnotically refreshed testimony was conditionally admissible but subject to strict procedural safeguards. Hurd, 86 N.J. at 529, 547,
432 A.2d at 88, 95-97. The constitutional consideration was the defendant's fourteenth
amendment due process right to a fair and non-prejudicial trial. Id. at 547-48, 432 A.2d
at 97-98. In analogizing to eyewitness identification, the court said that admitting a witness' posthypnotic testimony would violate this right if the hypnosis had been "unnecessarily suggestive and conducive to irreparable mistaken identification." Id. at 547, 432
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In order to preserve defendants' due process right to a fair
trial,"7 many courts refuse to admit hypnotically refreshed witness testimony. 18 Any potential detriment to an accused's right
to confrontation and effective cross-examination of eyewitnesses" is thereby eliminated. Nevertheless, this per se exclusion rule20 frustrates a defendant's due process rights, because
the courts also uniformly reject hypnotically refreshed defendant testimony.2
A.2d at 97 (quoting Stoval v. Denno, 388 U.S. 293, 302 (1967)).
17. See supra note 16 for an explanation of the due process right. The relevant
clauses of the United States Constitution are the fifth amendment for federal courts and
the fourteenth amendment for state courts, which both mandate that no person shall be
deprived of "[1life, liberty, or property, without due process of law." U.S. CONST. amends.
V & XIV.
18. See infra note 103 for an extensive listing of cases which held that hypnotically
refreshed witness testimony was strictly inadmissible.
19. See supra note 16 for an explanation of this right under the Contrerasdecision.
The source of the right is the sixth amendment to the United States Constitution, which
reads: "[Iln all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial. . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor ....
" U.S. CONST. amend. VI.
20. See infra section II.B.3 for clarification of the per se inadmissible or exclusion
rule. The primary rationale for this view is the alleged inaccuracy and unreliability of
posthypnotic testimony due to risks inherent in the hypnosis process. For an explanation
of these risks, see supra note 12.
21. See generally Rock v. Arkansas, 107 S. Ct. 2704 (1987). In Rock the majority
held that per se exclusion of a defendant's posthypnotic testimony arbitrarily restricts
his or her guaranteed right to testify. Id. at 2714-15. Because of this constitutional violation, the court found it unnecessary to also address the due process issue. Id. at 2715 &
n.20. Nevertheless, the court relied heavily on due process precedents for guidance in
reaching its decision. Id. at 2709, 2716. The majority reasoned that "[t]he right to be
heard, which is so essential to due process in an adversary system of adjudication, could
be vindicated only by affording a defendant an opportunity to testify before the factfinder." Id. at 2709 n.8. Since procedural due process includes the right of an accused to
testify, a denial of the latter necessarily results in a denial of the former. See id. at 2709
& nn.8-9. Therefore, absolute exclusion of a defendant's posthypnotic testimony impliedly violates his or her due process rights, and separate consideration of a due process
claim is superfluous.
For other cases holding that due process incorporated the right to testify, see
Faretta v. California, 422 U.S. 806, 819 n.15 (1975) (the right to testify on one's own
behalf at a criminal trial is essential to due process); In re Oliver, 333 U.S. 257, 273
(1948) (the right to be heard and to have a day in court includes the right to offer testimony); Ferguson v. Georgia, 365 U.S. 570, 602 (1961) (Clark, J., concurring) (the fourteenth amendment guarantees that criminal defendants may testify in their own defense). Compare People v. Shirley, 31 Cal. 3d 18, 67, 641 P.2d 775, 804, 181 Cal. Rptr.
243, 273, modified, 723 P.2d 1354, 1384 (1982) (pretrial hypnosis renders witnesses incompetent to testify but does not prevent defendants from taking the stand) with Greenfield v. Robinson, 413 F. Supp. 1113 (W.D. Va. 1976) (exclusion of an amnesiac defend-
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HYPNOTICALLY REFRESHED TESTIMONY
The recent emergence of the defendant's constitutional
right to testify " adds still another dimension to the complex
analysis. By excluding an accused's hypnotically refreshed testimony, the courts may be denying him or her the privilege of
self-defense.2 3 Accordingly, some states have adopted a flexible
balancing approach to the admissibility of such testimony in orant's unreliable hypnotic testimony does not violate due process).
22. Rock, 107 S. Ct. at 2705, 2708-10. In Rock the Court held that criminal defendants have an unequivocal right to testify in their own behalf. Id. at 2705, 2708. The
majority cited Ferguson v. Georgia, 365 U.S. 570, 573-82 (1961), which traced the historical roots of the defendant's right to testify back to the late nineteenth century. Rock, 107
S. Ct. at 2708. Although Ferguson did not specifically address the issue of the existence
of this right, two concurring justices urged that the right be explicitly recognized. Rock,
107 S. Ct. at 2709 n.7 (citing Ferguson, 365 U.S. at 572 n.1, 600-602).
The Rock Court justified and clarified the right to testify by referring to three constitutional provisions. Id. at 2705, 2709-10. First, the majority designated the due process
clause of the fourteenth amendment as a source for the right to testify. Id. at 2705, 2709.
Second, the Court cited the compulsory process clause of the sixth amendment for additional authority. Id. Third, the majority declared that the opportunity to testify was a
necessary corollary of the fifth amendment's privilege against self-incrimination. Id. at
2705, 2710.
The constitutional text of the due process clause appears supra, at note 16. For the
text of the sixth amendment, see supra note 17. Generally, this latter provision protects
the criminal defendant's right to conduct a defense and to call witnesses "in his favor."
Rock, 107 S. Ct. at 2709. Since the most important witness for the defense is probably
the defendant, this clause reinforces his or her right to testify. Id. Similarly, the fifth
amendment buttresses the defendant's testimonial privilege by granting him or her the
right either to remain silent or to testify. Id. at 2710. The text of the amendment states
that "[n]o person . . . shall be compelled in any criminal case to be a witness against
himself ....
U.S. CONST. amend. V.
For further elaboration and case law on these three constitutional provisions, as well
as details on the evolution of the right to testify, see infra notes 170-186 and accompanying text.
23. See Rock, 107 S. Ct. at 2704, 2710-12, 2714. The Rock Court stated that the
privilege of self-defense was inherent in the sixth amendment. Id. at 2709-10. The defendant's constitutional right to testify also protected this guarantee. Id. See supra note
22 for a brief analysis of the privilege. In Rock the majority acknowledged that state
evidentiary rules could reasonably restrict unreliable testimony by defendants. Id. at
2710-11. The state, however, could not impose arbitrary exclusion rules without first
evaluating the risk of harm to the defendant. Id. at 2711-12. Since posthypnotic testimony may be trustworthy in certain cases, state courts cannot exclude it without a clear
showing of unreliability. Id. at 2714. The traditional devices of cross-examination, corroborating evidence, and cautionary jury instructions also temper the defects inherent in
such testimony. Id. If an accused's testimony is limited to prehypnotic memories, he or
she may be unable to present all the crucial facts. Id. at 2712. Such a result would substantially harm the defendant and. disable him or her from establishing an adequate defense. Id. at 2712, 2714. See also People v. Shirley, 31 Cal. 3d 18, 67, 723 P.2d 1354, 1384,
181 Cal. Rptr. 243, 273 (1982) (pretrial hypnosis does not impair the fundamental right
of an accused to testify in his own behalf).
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der to resolve these conflicts.2 4 Although the United States Supreme Court has traditionally deferred to the states in the development of their evidentiary rules, the Court has finally
intervened to censure the per se approach and to clarify the constitutional right to testify. 6
Although Connecticut has adopted a per se exclusion rule
for posthypnotic testimony,2 7 its adherence to this strict approach may already be vacillating.28 To avoid potential confu24. See infra note 131 for a listing of cases that apply a balancing test.
25. See Rock, 107 S. Ct. at 2716 (Rehnquist, J., dissenting) and Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973) (respecting states' rights to establish and to implement their own criminal trial rules). See also Marshall v. Lonberger, 459 U.S. 422, 438 &
n.6 (1983) (disallowing due process claims for federal scrutiny of state evidentiary rules);
Patterson v. New York, 432 U.S. 197, 201 (1977) (suggesting strict constitutional construction in order to minimize encroachments on state court procedures).
26. Rock, 107 S. Ct. at 2705, 2708-12, 2714-15. The Rock majority rejected the
state's per se exclusion rule and instead endorsed an ad hoc approach supplemented by
set guidelines. Id. at 2705, 2714-15. For a brief introduction to the court's treatment of
the right to testify, see supra notes 22-23. For further information on this right, see infra
notes 159-187 and accompanying text.
27. See State v. Atwood, 39 Conn. Supp. 273, 479 A.2d 258 (Conn. Super. Ct. 1984).
In Atwood, the majority concluded that Connecticut should uniformly deny admissibility
to hypnotically refreshed testimony. Id. at 283-84, 479 A.2d at 264. The court noted that
Connecticut had not yet directly addressed the admissibility issue pertaining to such
evidence. Id. at 280, 479 A.2d at 262. Accordingly, the majority reviewed precedents in
other jurisdictions and decided that they indicated a trend towards exclusion. Id. at 28082, 479 A.2d at 263. Because hypnosis "[had] not achieved general acceptance in the
scientific community," it was unreliable and due process did not require that the trial
court accept it. Id. at 284, 479 A.2d at 264-65. See infra notes 254-268 and accompanying
text for an analysis of this case.
28. See State v. Pollitt, 205 Conn. 61, 530 A.2d 155 (1987). In Poflitt the court
admitted the victim's posthypnotic testimony into evidence because it was "almost identical in content" to her prehypnotic statements. Id. at 61, 81, 84-85, 530 A.2d at 165, 167.
The majority mentioned Rock, but distinguished it as pertaining only to criminal defendants. Id. at 78-79 & n.6, 530 A.2d at 164 & n.6. Surprisingly, no reference was made to
Atwood. Perhaps the court ignored this case because it focused on defendant testimony
rather than witness testimony. Another possibility might be that Atwood was a lower
court, thus creating only non-binding precedent.
A more likely reason, however, involved the content of the posthypnotic evidence. In
Atwood, the court ruled generally and prospectively on hypnotically refreshed testimony
that presents new facts. Atwood, 39 Conn. Supp. at 273, 283-84, 479 A.2d at 259-60, 26465. In Pollitt, the testimony at issue was posthypnotic, but arguably not hypnotically
"refreshed," since hypnosis did not reveal any new details. Pollitt, 205 Conn. at 61, 81,
84-85, 530 A.2d at 155, 165, 167. The court merely ruled that the experience of hypnosis
did not render the victim incompetent to testify. Id. at 81, 530 A.2d at 165. The majority
also instructed the jury to consider hypnosis as a factor in judging the weight and credibility of the testimony. Id. at 84, 530 A.2d at 165-66.
The impact of Pollitt is difficult to assess. On the one hand, the decision seems
superfluous, but it may also indicate greater leniency and a willingness to depart from
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HYPNOTICALLY REFRESHED TESTIMONY
sion, Connecticut trial courts may need special legislative guidance in order to judge hypnotically refreshed testimony more
effectively and consistently.29 This Note recommends that Connecticut reevaluate its evidence rules and consider adopting a
more flexible balancing test supplemented by appropriate
safeguards.3 0
Additionally, this Note will review historical authorities, including federal and Connecticut rules of evidence, as well as major case law. Although the article examines and compares sixth
amendment 3 1 witness-hypnosis cases with right to testify32 defendant-hypnosis cases, the focus will be to resolve the conflicts
within the latter group. The juxtaposition of the issues of hypnosis and the right to testify are novel and problematical for
the broad dictates of Atwood. The Pollitt court seems to endorse an ad hoc evaluation
approach towards posthypnotic testimony. In any case, the Pollitt decision posits a narrow exception to Connecticut's per se exclusion rule. A Connecticut court may except
and admit posthypnotic testimony only if it is consistent with prehypnotic statements.
Pollitt, 205 Conn. at 85, 530 A.2d at 167. For a full report of the Pollitt case, see infra
notes 269-282 and accompanying text.
29. See supra notes 27 and 28 for a summary and comparison of Connecticut's
primary case law pertaining to hypnotically influenced testimony. These holdings seem
inconsistent and may confuse, rather than guide, the lower trial courts. In light of the
United States Supreme Court's terse decision in Rock, cited supra note 26, Connecticut
might benefit by employing legislative means instead of waiting for the next case to
arise. For example, Oregon has addressed the controversial hypnosis issue by adopting
statutory guidelines. See OR. REV. STAT. § 136.675 (1984). Oregon state courts may admit
hypnotically refreshed testimony that complies with the procedural safeguards enumerated in the statute. Id. Specifically, hypnosis sessions must be videotaped or mechanically recorded in their entirety. Id. Unless the tapes are made available to opposing
counsel, they will be deemed inadmissible evidence. Id. Connecticut can provide similar
guidance for its state courts or even amend its present procedural and evidentiary rules.
In any event, the issue of admissibility of hypnotically refreshed testimony will need to
be fully addressed in the future.
30. See Rock, 107 S. Ct. at 2705, 2712, 2714. The United States Supreme Court
also favors an ad hoc approach, particularly with respect to posthypnotic testimony submitted by criminal defendants. Id. This note agrees with the Rock court and further
examines the options posed by courts in other jurisdictions. See infra section B for analysis of these options under the four entrenched positions. The balancing test incorporates Federal Rule of Evidence 403, cited infra note 46, by weighing the risks of hypnotically refreshed testimony against its probative value. The "appropriate safeguards"
include, at a minimum, those guidelines contemplated by both Rock, 107 S. Ct. at 2714,
and State v. Hurd, 86 N.J. 525, 545-46, 432 A.2d 86, 96-97 (1981). For a description of
these guidelines, see infra note 88 and the text accompanying note 219.
31. See supra note 16 for an analysis of the constitutional right and supra note 19
for the text of the amendment.
32. See supra note 22 for a concise overview of this right.
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Connecticut 3 3 as well as for many other states.'
[Vol. 9:359
In fashioning a
remedy, courts should concentrate on due process as the desired
goal and overwhelming rationale.
II.
A.
BACKGROUND
The Origins of Hypnosis Evidence Law
The issue of admissibility of evidence derived from hypnosis
began almost one century ago.35 Labeling the controversial procedure as an "illegal defense," a California court then held that
"[tihe law of the United States does not recognize hypnotism." 3 6
Similarly, a North Dakota court in 1950 still viewed such evidence with skepticism and hastily rejected it.3 7 The overwhelm-
ing rationale was that no case in any jurisdiction within the
United States had ever permitted hypnotic evidence to be introduced.' Furthermore, hypnosis was considered only part of a
proliferation of dubious new techniques that the scientific community was developing.3 9 The recurring question was whether or
33. State v. Atwood, 39 Conn. Supp. 273, 279-80, 479 A.2d 258, 262, 264-65 (Conn.
Super. Ct. 1984). The Atwood court acknowledged the novelty of the issue by declaring
that Connecticut had not yet addressed the admissibility problem posed by posthypnotic
testimony. Id. at 280, 479 A.2d at 262.
34. See Note, supra note 3, at 925 & n.36. According to R. UDOLF, FORENSIC HYPNOS's 4, 63 (1983), in 1982 the general issue of hypnotically refreshed testimony was entirely new in forty percent of the states. By 1985, only thirty-five states and four federal
circuits had even addressed this problem. Note, supra note 3, at 925 n.36. Because some
of the decisions were cases of first impression, they may not be entrenched, but subject
to reversal. See, e.g., Atwood, 39 Conn. Supp. at 273, 479 A.2d at 258 (admissibility of a
defendant's hypnotically refreshed testimony was new issue); State v. Contreras, 674
P.2d 792 (Alaska Ct. App. 1983) (new question of posthypnotic testimony by a witness
was resolved by ad hoc balancing), rev'd., Contreras v. State, 718 P.2d 129 (Alaska 1986)
(per se exclusion of hypnotically revived testimony adopted). Since more hypnosis cases
involve witnesses than defendants, the availability of possible precedents is even more
diminished. See State v. Mack, 292 N.W.2d 764, 770 (Minn. 1980) (stating that admissibility of hypnotically refreshed testimony clearly favors the prosecution's witnesses). All
of the above factors contribute to and compound the problem.
35. See People v. Ebanks, 117 Cal. 652, 49 P. 1049 (1897) (first reported American
case to address the hypnosis issue).
36. Id. at 652, 665-66, 49 P. at 1053. The Ebanks court refused to admit exculpatory statements made by the defendant under hypnosis. Id. at 652, 49 P. at 1053.
37. See State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950) (excluding tape recording of an interrogation made during a hypnotic session).
38. Id. at 860, 46 N.W.2d at 508.
39. See, e.g., United States v. Williams, 583 F.2d 1194 (2d Cir. 1978) (voice spectrographs); State v. Anderson, 379 N.W.2d 70 (Minn. 1985) (graphology); People v. Allweiss,
48 N.Y.2d 40, 396 N.E.2d 735, 421 N.Y.S.2d 341 (1979) (microscopic analyses of hair);
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HYPNOTICALLY REFRESHED TESTIMONY
not most forensic experts would be willing to vouch for the reliability of hypnosis.4 0 This "general acceptance" standard was the
classic test for all scientific evidence.4 Although it preceded the
State v. Chatham, 156 N.J. Super. 35, 383 A.2d 440 (1978) (atomic absorption tests for
gunshot residue); People v. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (1975)
(bitemark analyses); People v. Leone, 25 N.Y.2d 511, 255 N.E.2d 693, 307 N.Y.S.2d 430
(1969) (polygraphs); State v. Olivas, 77 Ariz. 118, 267 P.2d 893 (1954) (breathalyzers);
River v. Black, 259 Ala. 528, 68 So. 2d 2 (1953) (drunkometers).
40. See, e.g., People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775, 798, 181 Cal. Rptr. 243
(1982) (noting that "major voices" in the scientific community oppose the use of hypnotically refreshed evidence since it is unreliable); State v. Mena, 128 Ariz. 226, 624 P.2d
1274 (1981) (reviewing and relying on articles by scientific experts doubting the reliability of hypnosis); State v. Mack, 292 N.W.2d 764 (Minn. 1980) (stating that the best
expert testimony indicates that no forensic expert can determine whether or not hypnotic results are reliable). See also Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d
170 (1981) (encouraging periodic review of the scientific community to see if the consensus has changed).
41. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the defendant
appealed his murder conviction, seeking to introduce into evidence the results of a systolic blood pressure test, an early lie detector technique. Id. The court refused to admit
the evidence, because the test had not gained "[sitanding and scientific recognition
among physiological and psychological authorities." Id. at 1014. Although the test results
were arguably relevant and helpful to the trier of fact, the court rejected them and formulated a new standard:
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.
Id. at 1013-14.
The Frye test requires a jurisdiction to determine a new technique's reliability by a
consensus of the specific scientific community in which it was developed. Ruffra, supra
note 11, at 301. The courts then apply this determination per se to all similar, subsequent cases, until the consensus changes, requiring a new determination. Id. This approach may be superior to the often wasteful, time-consuming ad hoc process because it
promotes uniformity, predictability, and administrative convenience. See id.
Many commentators, however, have criticized the "general acceptance" standard as
being too vague, if not confusing. See Cleary, supra note 3, at 608. The real problem
arises in defining the scope of generality contemplated by the general acceptance standard. Id. The various subtle interpretations can change the meaning of the rule. See, e.g.,
United States v. Baller, 519 F.2d 463, 465-66 (4th Cir. 1975) (advocating that substantial
acceptance should replace general acceptance); Latin, Tannehill & White, Remote Sensing Evidence & EnvironmentalLaw, 64 CALIF. L. REv. 1300, 1380 (1976) (proposing reasonable acceptance standard); Note, Expert Testimony Based on Novel Scientific Techniques: Admissibility Under the Federal Rules of Evidence, 48 GEO. WASH. L. REV. 774,
787 (1980) (suggesting preponderance of experts standard within five-part test
articulated).
Some scholars have urged that a panel of scientists, rather than trial courts, should
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applicable Federal Rules of Evidence,4 2 this early test still retains a healthy following.4'
The Federal Rules of Evidence do not specifically address
the issue of hypnosis, although they may be applied generally to
aid in the determination of admissible evidence."" In particular,
one may derive guidance from Rules 601-602 on the competency
and personal knowledge of witnesses,' Rules 401-403 on the adscreen new principles and techniques for acceptance. Cleary, supra note 3, at 608. See,
e.g., Martin, The Proposed "Science Court", 75 MICH. L. REv. 1058 (1977) (supporting
the advisory use of scientific panels by Congress or the Executive for assistance in determining global policy issues); Talbott, Science Court: A Possible Way to Obtain Scientific
Certainty for Decisions Based on Scientific "Fact?" 8 ENvTL. L. 827 (1978) (suggesting
that scientific tribunals review new developments for the legal community).
Since general scientific acceptance is a factual condition supporting judicial notice, it
may be unsuitable as a basis for determining the admissibility of scientific evidence.
Cleary, supra note 3, at 608. Any relevant, useful conclusion corroborated by a qualified
expert witness should be admitted unless it unduly prejudices or misleads the jury. Id.
42. See FED. R. EvD. 702, 703. The text of these rules appears infra, at note 47.
The Federal Rules of Evidence were officially adopted in 1975 and have been incorporated in many state codes. Behringer, Introduction, in Annual Meeting, supra note 10,
at 235, 237. The Frye test was promulgated in 1923 by the Court of Appeals of the
District of Columbia. See supra note 41 for an analysis of this test.
43. See Cleary, supra note 3, at 608 & n.24. Cleary notes that the Federal Rules of
Evidence do not distinguish between scientific, technical, and other specialized expert
testimony. Id. at 608; FED. R. EVID. 702. Furthermore, the federal rules permit experts to
consider facts or data otherwise inadmissible into evidence. Id. at 608; FED. R. EVID. 703.
The only restraint on the factual data or evidence is that it be "reasonably relied upon
by experts in the particular field." Id. at 608; FED. R. EvID. 703. Clearly, "reasonable
reliance" does not equate with "general acceptance," so the question arises as to whether
or not the federal rules have preempted the Frye test. Id. at 608 & n.24.
Cleary explores the answer to this conflict by citing authorities such as Contreras v.
State, 718 P.2d 129, 136 (Alaska 1986) (Frye standard survives), United States v. Downing, 780 F.2d 1017 (3d Cir. 1985) (although the standards are inconsistent, Frye and the
federal rules coexist), and Barmeyer v. Montana Power Co., 657 P.2d 594, 598 (Mont.
1983) (Frye negates the flexibility inherent in the new federal rules). See also United
States v. Williams, 583 F.2d 1194, 1200 n.11 (2d Cir. 1978) (Frye standard abolished); 22
C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5168 (1978) (Frye test
eliminated); Note, supra note 41 (Frye test survives with surgery).
44. Note, supra note 3, at 948. See also Cleary, supra note 3, at 608.
45. FED. R. EvID. 601 states that "[elvery person is competent to be a witness ex... The rule specifies no special mental
cept as otherwise provided in these rules.
qualifications for testifying as a witness. FED. R. EVID. 601 advisory committee's note.
Discretion is regularly exercised in favor of allowing testimony, because a witness wholly
without capacity is difficult to imagine. Id. The question is one particularly suited to the
jury as one of weight and credibility subject to judicial review for sufficiency of the evidence. Id. Although highly relevant to credibility, mental capacity requires no special
treatment to render it admissible along with other matters bearing upon the perception,
memory, and narration of witnesses. Id. Rule 601 seems to imply that pretrial hypnosis
will not render witnesses incompetent to testify, nor will it prevent their testimony from
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HYPNOTICALLY REFRESHED TESTIMONY
missibility of relevant evidence,4 and Rules 702-703 on scientific
being weighed by the jury. See, e.g., United States v. Valdez, 722 F.2d 1196, 1201 (5th
Cir. 1984) (witnesses are still competent to testify after hypnosis). However, other evidentiary rules may still contravene this liberal position. See, e.g., FED. R. EVID. 602 (personal knowledge requirement for witnesses).
FED. R. EvID. 602 provides that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of
the witness' own testimony . . . " This rule reflects the common law insistence upon
reliability, and requires witnesses to actually observe the facts to which they testify. FED.
R. EVID. 602 advisory committee's note. However, "personal knowledge" is not absolute,
but may consist of what the witness thinks he knows from personal perception. Id.
Therefore, certainty is not required, and witnesses may testify to equivocal "impressions" such as posthypnotic memories. See Note, supra note 3, at 949 n. 194. Arguably,
the suggestiveness of the hypnotic session could taint or invalidate the witness' personal
knowledge, but the courts have acted liberally and ignored this issue. Id. Rule 602 is also
subordinate to Rule 703, which allows experts to express opinions based on facts of
which they lack personal knowledge. FED. R. EvID. 602 advisory committee's note.
46. FED. R. EvID. 401 states that " '[rlelevant evidence' means evidence having any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence."
FED. R. EvID. 402 provides that "[all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible."
FED. R. EVID. 403 states that "[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentations of cumulative evidence."
Generally, all three rules work in conjunction with one another. See advisory committee's notes accompanying each rule. Rule 401 determines whether evidence is relevant
by applying a lenient and seemingly subjective standard, which employs a low threshold
level of probability that considers any tendency as to any fact to be proved. FED. R. Evil.
401 advisory committee's note. The fact to be proved may be ultimate, intermediate, or
evidentiary, and it need not be a disputed matter. Id. For example, evidence that is
essentially background material is universally offered and admitted, since it is helpful
and aids the fact-finder's understanding of the case. Id. The only limitation on relevancy
is that the item be related to a matter properly "provable" at trial, rather than simply
"inherently" relevant. Id. Any more stringent requirement would be unworkable and unrealistic. Id. Therefore, a posthypnotic testimony would be deemed relevant evidence
where it tends to show the accused's identity, guilt, innocence, or other "provable" facts.
Rule 402 then mandates that all relevant evidence is admissible. FED. R. EVID. 402.
Therefore, after the proponent of the evidence convinces the trial judge that posthypnotic testimony is relevant, the judge will rule in his favor to admit it. The only
restriction on this admissibility would follow from specific legislative or judicial rules, as
well as certain constitutional violations. Id. See, e.g., Katz v. United States, 389 U.S. 347
(1967) (excluding evidence wrongfully seized after an unlawful search that violated the
fourth amendment); Miranda v. Arizona, 384 U.S. 436 (1966) (suppressing an accused's
confession taken in violation of his fifth amendment privilege against self-incrimination);
Massiah v. United States, 377 U.S. 201 (1964) (excluding defendant's incriminating
statement obtained in violation of his sixth amendment right to counsel).
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and expert testimony. 7 The inadequacy of these rules to provide
Rule 403 is the most crucial of the three rules, because it excludes evidence of unquestioned relevance under more speculative grounds. See FED. R. EvID. 403 advisory
committee's note. These bases for exclusion entail risks that range from inducing a verdict on purely emotional grounds, to the minimal harm of merely wasting time. Id. The
trial judge exercises discretion on an ad hoc basis to balance probative value of and need
for the evidence against the harm likely to result from its admission. Id. Important factors in the judge's determination include the probable effectiveness or ineffectiveness of
a special jury instruction, as well as the availability of alternative means of proof. Id.
Some scholars analogize posthypnotic testimony to ordinary eyewitness statements, noting that the latter are often unreliable, yet highly useful to the legal system. Note, supra
note 3, at 951. Under this analysis, posthypnotic testimony could be useful and relevant
evidence that similarly passes the rule 403 balancing test. Id. at 949-50. In any event, the
judge may still exclude such testimony if he or she finds that present dangers outweigh
its usefulness or probative value. Id. at 951 n.209. The key to the rule 403 balancing test,
then, is its flexibility, because unlike per se exclusion or a "general acceptance" test, the
judge exercises complete control of the admissibility issue. Id. at 951 & n.209.
47. FED. R. EVID. 702 provides that "[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise."
FED. R. EvID. 703 states that "[t]he facts or data . . . may be . . . perceived by or
made known to the expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences . . . the facts or data
need not be admissible in evidence."
Both rules address the viability of scientific or specialized evidence which is relayed
through expert witnesses. Rule 702 acknowledges that intelligent evaluation of facts may
be difficult or even impossible without the aid of skilled experts. FED. R. Evil. 702 advisory committee's note. Although experts generally testify in the form of opinions, nonopinion testimony is preferable when the expert can adequately convey a scientific principle, so that the jury can apply it to draw inferences. Id. The rule is broadly phrased to
encompass any helpful, specialized knowledge or qualified, skilled expert. Id. This rule
thus allows testimony by skilled forensic scientists and hypnotists who may either explain a hypnotic technique or give opinions and inferences as to the reliability of a particular hypnosis session or posthypnotic testimony. See FED. R. EvID. 702.
Rule 703 posits three possible sources for facts and data upon which expert opinions
may be based. FED. R. EVID. 703 advisory committee's note. First, the expert may be a
treating physician who has already observed the witness. Id. Second, the expert may
hear the witness' or defendant's testimony at trial, or counsel may instead pose hypothetical questions for the expert to answer. Id. A third source involves the presentation
of data to the expert outside of the court. Id. This last source allows experts to consider
facts and data which they have not perceived themselves. Id. The justification for this
view is to broaden the basis for expert opinions and to encourage jurisdictions to follow
current trends and practices in wide use by experts outside of court. Id. Since the expert's validation is professional and subject to cross-examination, his opinion or other
testimony suffices for judicial purposes. Id.
Accordingly, psychiatrists, psychologists, qualified hypnotists, and forensic specialists may witness or comment on posthypnotic testimony which may or may not be legally
admissible. See FED. R. EVID. 703. The rule only requires that the hypnotic process be of
a type "reasonably relied upon" by such experts. Id. By contrast, the Frye test dictates a
stricter standard of "general acceptance" rather than mere "reasonable reliance." See
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HYPNOTICALLY REFRESHED TESTIMONY
uniform clarity is aptly demonstrated by the presence of conflicting case law pertaining to hypnosis evidence. 8 Similarly, the
1986 annual American Bar Association meeting highlighted numerous proposals to amend Rule 702 and to formulate a new
model rule on the admissibility of scientific evidence.49
Cleary, supra note 3, at 608 & n.24. For a brief listing of authorities that address this
conflict between rule 703 and the Frye test, see supra note 43.
48. See infra notes 84, 97, 103, 131 for an extensive listing of cases that reach different results.
49. See Annual Meeting, supra note 10, at 235-65, which includes an introduction
by attorney-chairman Behringer and four proposals by law professors Lederer of Marshall-Wythe School of Law at the College of William and Mary, Berger of Brooklyn Law
School, Starrs of the National Law Center at George Washington University, and Giannelli of Case Western Reserve University. See supra note 47 for the text of FED. R. EvID.
702.
According to chairman Behringer, the current case law dealing with admissibility of
scientific evidence revealed a lack of uniformity or clear direction. Annual Meeting,
supra note 10, at 238. The recorded proceedings of recent conferences and symposiums
also indicated an urgent need and desire for a rewriting of the Frye test and a drafting of
a model rule. Id. The four proposals were presented to provoke comment and evaluation
by a panel of distinguished practitioners and "Frye-ologists" attending the August, 1986
American Bar Association annual meeting. Id. at 238-39. None of the proposals represented completed or final drafts. Id. at 238. Therefore, the present status of Rule 702
remains substantially unchanged, although an "auspicious beginning" has been forged.
Id. at 239.
Lederer stated that most commentators viewed the Frye test as flawed, unclear, difficult to apply, and possibly preempted by the adoption of the Federal Rules of Evidence. Id. at 240-41. He suggested that adding a more demanding reliability requirement
to Rule 702 would be preferable to either the Frye test or the Rule 403 balancing test as
applied to novel scientific evidence. Id. at 240-43. He argued that neither test guaranteed
reliability, because Rule 403 stresses mere relevancy and probative value, while Frye requires only general scientific evidence. Id. at 242-43. Arguably, general acceptance can
provide some measure of reliability by providing an index for current scientific endorsement. Id. at 242. But what is "generally accepted" may not always reflect the latest and
most accurate scientific developments. Id. at 242. Therefore, the trial judge should determine reliability in addition to relevancy and probative worth before admitting the evidence. Id. at 243. Although Lederer failed to articulate a specific test for reliability, he
noted that such ad hoc determination would be ancillary to a normal Rule 403 balancing
approach and would effectively incorporate the Frye view into a new, single standard. Id.
at 243-44.
Berger proposed an amendment to Rule 702 that endorsed the Rule 403 balancing
process, but implicitly rejected the Frye test. Id. at 245, 247. She stated that the latter
was too vague, restrictive, and incongruous with the more liberal scheme for admitting
relevant evidence under the Federal Rules. Id. at 246. She also advocated a reversal of
the usual burden of proof, so that the proponent of the evidence would be required to
show that the item's probative value outweighed the dangers enumerated in Rule 403. Id.
at 245. Usually Rule 403 admits relevant evidence unless the opponent demonstrates
that the dangers substantially outweigh the probity. Id. at 248. A reversal of the burden
thus provides added protection to the party against whom the novel scientific evidence is
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Another influential source for recommendations relevant to
hypnosis law is the American Medical Association (AMA). In
1958 hypnosis became officially accepted and scientifically recognized by the AMA.50 The American Psychological Association
also lent credence to the science of hypnosis."' The theory of
hypnosis, however, remains somewhat obscure because no concensus about a single definition exists.2
being offered. Id.
Starrs suggested an amendment to Rule 702 which required a court to find that the
scientific theory or technique at issue was "[sicientifically valid for the purposes for
which it [was] tendered." Id. at 249. He began by acknowledging that scientific evidence
could unduly impress a jury or judge into unjustified obeisance and deference. Id. at 250.
He buttressed his plan for a special rule on the admissibility of scientific evidence by
noting that Rule 702 qualified the experts, but not the scientific methods which they
used. Id. at 251. Starrs rejected the notion that the Frye test would unduly handicap the
courts and deprive them of legitimate scientific evidence. Id. at 252. However, he preferred to supplant the general acceptance and implied reliability standard with a "scientific validity" test. Id. at 255-56.
Although the mechanics of his test were not defined, Starrs anticipated an ad hoc
determination based on such factors as the rate of error of the technique, the existence
of standards controlling the technique's operation, and the care with which the testing
was performed. Id. at 256-57. He further proposed that his new rule be applied to all
scientific evidence rather than just the novel type, because constant evolution might
render old methods less effective or obsolete. Id. at 253.
Giannelli's proposal did not address the issue of whether the Frye general acceptance test should be retained, modified or discarded. Id. at 263. Instead, his amendment
to Rule 702 provided that a proponent must give sufficient written, advance notice to
opposing counsel of his or her intent to use expert testimony. Id. at 260. Such notice had
to further describe the nature of the expected testimony, the tests used, and the qualifications of the individual testifying. Id. This requirement paralleled the American Bar
Association's Criminal Justice Standards, which stated that the "[n]eed for full and fair
disclosure is especially apparent with respect to scientific proof and the testimony of
experts. This sort of evidence is practically impossible for the adversary to test or rebut
at trial without an advance opportunity to examine it closely." Id. at 261 (quoting Standards Relating to Discovery and Procedure Before Trial 66 (approved Draft 1970)).
Similarly, Giannelli noted that a successful challenge to scientific evidence would be unlikely unless the opposing party had an opportunity to obtain its own experts and to
conduct its own tests. Id. Therefore, the notice requirement was essential, particularly in
cases involving the admissibility of novel scientific methods. Id. at 265.
50. Council on Mental Health of the American Medical Association, Medical Use
of Hypnosis, 168 J. A.M.A. 186 (1958).
51.
See E. HILGARD,
HYPNOTIC SUSCEPTIBILITY
4 (1965). In 1960 the American Psy-
chological Association formally acknowledged hypnosis as a branch of psychology. Id.
52. See Note, supra note 3, at 921 (quoting Council on Scientific Affairs of the
American Medical Association, Scientific Status of Refreshing Recollection by the Use
of Hypnosis, 253 J. A.M.A. 1918 (1985)). See also Mattleman, supra note 4, at 819 (scientists disagree on which theory of memory explains the effect of hypnosis); Mickenberg,
supra note 2, at 933 (a single, precise definition of hypnosis has not been established).
According to Mattleman, there are two conflicting theories of memory that support
1988]
HYPNOTICALLY REFRESHED TESTIMONY
Judicial acceptance of hypnosis as a legitimate, scientific
technique has been predictably slow and cautious. 3 California
was the first state to permit pretrial examination of the accused
by a hypnotist.54 Although the California court did not address
the issue of admissibility of hypnotically refreshed testimony,"5
it acknowledged hypnosis as an effective and medically recognized investigative tool. 5" The court reasoned that the constitutional right to effective counsel 57 included the right to prepare
an adequate defense, which in turn necessitated the use of hypnosis to ascertain crucial facts. 58 California also developed a
novel procedure which allowed into evidence expert testimony
regarding hypnotic sessions." Although the tape recording of
different admissibility standards for hypnotically derived evidence. Mattleman, supra
note 4, at 819. The imprint theory of memory analogizes the human mind to a videotape
recorder which accurately stores permanent records of every observation and experience.
Id. (citing Mickenberg, supra note 2, at 933-34). Memories are never lost, but simply
"misplaced" or forgotten due to trauma, illness or passage of time. Mickenberg, supra
note 2, at 933. A properly administered hypnotic session can retrieve these memories and
produce accurate, conscious recall. Id. The proponents of this theory thus support liberal
admissibility of hypnotically refreshed testimony. Mattleman, supra note 4, at 819.
The reconstructive theory of memory, however, justifies a more restrictive approach
to posthypnotic evidence. Id. This theory suggests that the brain automatically restores
memory gaps and reconciles inconsistencies to create coherent, but not necessarily accurate, recollections. Id. Because of hypersuggestiveness and an unconscious desire to
please, the hypnotized subject may be prone to create false or "confabulated" memories.
Id. See supra note 12 for elaboration on the notions of hypersuggestiveness and confabulation. Although recent studies have lent credence to the reconstructive theory by discrediting the imprint theory, scientists still cannot agree on which theory is correct. Id.
(citing Mickenberg, supra note 2, at 934 and Orne, supra note 14, at 452).
53. Note, supra note 10, at 127.
54. See Cornell v. Superior Court of San Diego, 52 Cal. 2d 99, 338 P.2d 447 (1959).
In Cornell, the attorney for the accused petitioned the Supreme Court of California for a
writ of mandamus ordering the trial court to permit him to examine his client with the
aid of a hypnotist. Id. at 100, 338 P.2d at 447-48. The record indicated that the accused
had been intoxicated during the time of the alleged murder, and he was unable to remember his whereabouts or activities. Id. at 101, 338 P.2d at 447-48. Therefore, hypnosis
was required to induce the defendant's memory recall. Id. at 101, 338 P.2d at 447-48.
The California Supreme Court held that the trial court had abused its discretion by
denying the attorney's request for examination, and so it granted mandamus to remedy
the situation. Id. at 100, 103-04, 338 P.2d at 447, 450.
55. Id. at 102, 338 P.2d at 449.
56. Id. at 102-03, 338 P.2d at 449.
57. Id. at 102-03, 338 P.2d at 449. The majority cites the CAL. CONST. art. I, § 13,
which parallels the U.S. CoNsT. amend. VI and guarantees criminal defendants the assistance of counsel for their defense. Cornell, 52 Cal. 2d 99 at 102, 338 P.2d at 449.
58. Id. at 100, 102-03, 338 P.2d at 447, 449.
59. See People v. Modesto, 59 Cal. 2d 722, 382 P.2d 33, 31 Cal. Rptr. 225 (1963). In
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hypnotic statements was inadmissible substantively, the court
admitted it to show how the expert's opinion had been formulated. 0 Using a balancing test, the court determined that the
probative value of the tape outweighed the risk that the jury
might consider it as independent proof. 1
In addition to scrutinizing the cogency of the hypnosis process, 2 the nation's judiciary has fashioned minimal safeguards
to prevent the entry of tainted hypnotic evidence into the factfinding process.6 3 The earliest protective device was the rule reModesto, the accused sought to mitigate a murder charge by alleging that his acts had
been unconscious. Id. at 732-33, 382 P.2d at 39, 31 Cal. Rptr. at 231. For corroborating
evidence, he presented the testimony of a psychiatrist who had both hypnotized and
evaluated him. Id. at 732-33, 382 P.2d at 39, 31 Cal. Rptr. at 231. According to the
psychiatrist, the pretrial hypnotic examination revealed that the accused lacked intent to
kill. Id. at 732-33, 382 P.2d at 39, 31 Cal. Rptr. at 231. The defense buttressed this
opinion by presenting tape recordings of the hypnosis session together with the expert's
description of the procedure used. Id. at 732-33, 382 P.2d at 39, 31 Cal. Rptr. at 231. The
trial court automatically rejected the evidence, but the California Supreme Court reversed, holding that the recordings might be helpful to the jurors evaluating the expert's
opinion. Id. at 732-33, 382 P.2d at 39-40, 31 Cal. Rptr. at 231-32. Therefore, per se exclusion was erroneous, and admissibility should have been determined by balancing usefulness against prejudicial risk. Id. at 733, 382 P.2d at 40, 31 Cal. Rptr. at 232.
60. Id. at 733, 382 P.2d at 40, 31 Cal. Rptr. at 232.
61. Id. at 733, 382 P.2d at 40, 31 Cal. Rptr. at 232. The Modesto doctrine focused
on the narrow use of expert testimony for professional opinions and specialized information. The recordings and procedural details were merely explanatory and ancillary to the
evidence. Such a function must be distinguished from an expert's testimony that simply
reports or describes the otherwise inadmissible hypnotic statements of the subject. See,
e.g., Rodriguez v. State, 327 So. 2d 903 (Fla. Dist. Ct. App. 1976) (prohibiting hypnotist
from testifying as to statements made by defendant under hypnosis); State v. Pierce, 263
S.C. 23, 207 S.E.2d 414 (1974) (rejecting hypnotist's presentation of defendant's hypnotic
statements); State v. Harris, 241 Or. 224, 405 P.2d 492 (1965) (excluding doctor's testimony of the defendant's statements made while hypnotized).
62. See supra note 12 for a summary of the risks commonly associated with the
hypnosis process. See supra note 52 for a brief analysis of current theories of memory
that control and explain the effects of hypnosis.
63. Note, Hypnosis-Its Role and Current Admissibility in the CriminalLaw, 17
WILLAMETTE L. REV. 665, 681-88 (1980-81). The primary cause of tainted hypnotic evidence and inaccurate recall is undue suggestion, influence and manipulation on the part
of the hypnotist. Id. at 681. See supra note 12 for elaboration on other factors which
contribute to inaccuracies in the hypnosis process.
The minimal safeguards are adequate notice and full disclosure of evidence as derived from Brady v. Maryland, 373 U.S. 83, 86 (1963). Although the Brady court dealt
with exculpatory statements rather than hypnotic evidence, its holding significantly affected the use of hypnosis in criminal trials. Id.; W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 19.5(b) at 755-56 (1985); Note, supra, at 683. In Brady the United States Supreme Court established a constitutional rule which provided that "[tihe suppression by
the prosecution of evidence favorable to an accused upon request violates due process
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HYPNOTICALLY REFRESHED TESTIMONY
quiring disclosure of hypnosis sessions or hypnotically derived
testimony to opposing counsel prior to trial."' Various courts
have held that the prosecution has a duty to disclose regardless
of the defense's failure to make specific requests, or to show any
bad faith on the part of the prosecutor.6 5 One court advocating
this rule reasoned that nondisclosure violated the defendant's
sixth amendment right to confrontation. 6 Unless the defense
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Several courts applied the
Brady rule to cases involving nondisclosure and destruction of hypnotic evidence. See
infra notes 64-69 and accompanying text for brief summaries of these cases. See also
infra note 88 for a listing of additional judicial safeguards that some jurisdictions presently employ.
64. See United States v. Miller, 411 F.2d 825 (2d Cir. 1969). In Miller the prosecution's key witness had undergone two pretrial hypnosis sessions to refresh his memory.
Id. at 828. The prosecution failed to inform the defense of these sessions, which were
conducted in part by one of the government's trial attorneys. Id. at 828. Although he
possessed a "very limited knowledge of hypnotic techniques," the investigating attorney
asked the witness "searching" questions and uncovered more details. Id. The court noted
that the attorney acted in apparent good faith in conducting the session. Id. at 829. Also,
the prosecution made no use of the evidence obtained from the hypnotic interview. Id.
Nevertheless, the defense argued that repetition under hypnosis of the witness' original
story tended to "imprint" it on his mind, so that his identification of the accused was
unshakable and immune to correction and cross-examination. Id. at 829-30.
Judge Friendly reasoned that proper disclosure of the hypnosis might have helped
the defense to induce a reasonable doubt in the minds of enough jurors to avoid a conviction. Id. at 832. The possibility of an acquittal or even a hung jury was therefore
significant, even though the record convinced the trial judge of the defendant's guilt. Id.
at 831. The court stressed adherence to legal rules devised to insure fairness in criminal
trials. Id. at 832. Because the prosecution failed to fulfill its duty to disclose the hypnosis, the majority granted the defense's motion for a new trial. Id. at 830, 832-33. The
court stated that even if this decision led to the escape of a guilty man, rather than the
vindication of an innocent one, it was willing to "pay the price." Id. at 832.
65. See id. at 829-32. See also Emmett v. Ricketts, 397 F. Supp. 1025-26, 1040-42
(N.D. Ga. 1975). In Emmett the prosecution repeatedly hypnotized a primary witness to
revitalize his memory, Id. at 1036-37. Finally, the witness produced testimonial evidence
which conflicted with his original story. Id. at 1038. The defense knew that several of the
hypnosis sessions had been taped, so it requested an in camera inspection during the
trial. Id. The trial court rejected this request on the basis of the doctor-patient privilege.
Id. After the defendant's murder conviction, but before his appeal, the prosecution "inadvertently" destroyed the tapes. Id. at 1037. The federal district court reversed and
granted the accused's petition for habeas corpus relief. Id. at 1048. The court invoked
the Brady rule and held that the prosecution had a duty to disclose the tapes and to
make them available for inspection. Id. at 1043.
66. See Miller, 411 F.2d at 832. In Miller, the undisclosed hypnosis had arguably
placed an obstacle in the way of this valuable constitutional right. Id. The defense might
have focused on the fact of hypnosis in attacking the crucial witness for the prosecution.
Id. Effective cross-examination might have then persuaded the witness to recant his
identification of the accused or at least to admit doubt. Id.
[Vol. 9:359
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monitored the hypnotic session or inspected recordings of it, the
hypnotist might be tempted to manipulate the subject with undue suggestions. 7 Such abuse followed by nondisclosure would
frustrate the defendant's due process rights and hinder the
search for truth.6 8 It would also reflect negatively on the integrity of the adversarial system and possibly require a new trial.6 9
B.
Current Judicial Treatment of Hypnotically Refreshed
70
Testimony: The Four Entrenched Positions
1.
The Credibility Approach
The first decision to address the admissibility of hypnotically refreshed testimony directly was Harding v. State.7' The
Harding court apparently viewed the victim's testimony as relevant evidence rather than hearsay 72 because the witness testified
as to present recollection of events revived by hypnosis.7 3 Since
67. See Note, supra note 63, at 681, 684-85. In addition to manipulation and
hypersuggestiveness, unregulated hypnosis falls prey to other risks. See supra note 12 for
an explanation of these additional risks.
68. See Brady, 373 U.S. at 87; Emmett, 397 F. Supp. at 1040-42.
69. See Miller, 411 F.2d at 831-33; Note, supra note 63, at 684.
70. This Note identifies four approaches to hypnotically refreshed testimony. The
first three are established in certain jurisdictions, while the fourth or "relevancy" approach is somewhat new and still evolving. Arguably, this last approach is still entrenched, because its basis derives from Federal Rules of Evidence 401-403. See supra
note 46 for the text and analyses of these rules. Therefore, this Note classifies all four
positions as entrenched.
71. 5 Md. App. 230, 246 A.2d 302 (1968). Mickenberg, supra note 2, at 952, refers
to Harding as the "first reported case." Similarly, the author of Note, supra note 3, at
938, calls it the "first decision on point." In Harding, the defendant appealed from convictions from assault with intent to rape and assault with intent to murder. Harding, 5
Md. App. at 231-32, 246 A.2d at 302-04. The victim had apparently been in shock and
was unable to recall all the details of the crime. Id. at 233-34, 246 A.2d at 304-05. After
hypnosis these details, including identification of the accused, were effectively recalled.
Id. at 234-35, 246 A.2d at 305-06.
72. See Ruffra, supra note 11, at 298 & n.33. For a definition of "relevant evidence" as well as a discussion of the applicable federal rules, see supra note 46. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted." FED. R. EVID.
801(c). "Hearsay is not admissible except as provided by these rules or by other rules
prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."
FED. R. EVID. 802. According to C. McCORMICK, CASES AND MATERIALS ON EvIDENCE, § 9 at
14-19 (1972), when a witness' memory is merely refreshed by some stimulus, the resulting testimony is not hearsay, but admissible evidence. Ruffra, supra note 11, at 298 n.33.
73. Harding, 5 Md. App. at 234-36, 246 A.2d at 306.
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HYPNOTICALLY REFRESHED TESTIMONY
all relevant evidence generally goes to the jury for assessment,",
the court mandated that the testimony was automatically admissible.7 5 This liberal approach thus dictates that pretrial hypnosis affects the weight and credibility, but not the admissibility, of testimonial evidence. 76 The underlying rationale is that
traditional legal devices such as cross-examination, expert testimony on the inherent risks of hypnosis, and cautionary jury instructions will adequately protect the fact-finding process.7 7
Some critics, however, argue that this nearly exclusive reliance on the jury function is fundamentally misplaced. 78 As laymen, the jurors may lack the technical expertise to detect subtle
distortions, improper suggestions and inaccurate recall in the
testimony which they may evaluate.79 Therefore, the jury must
concentrate on the expert's opinion as to the credibility of the
subject's hypnotically refreshed testimony, provided such opinion is actually given.8 0 The potential dangers of collusion and
74. See FED. R. EVID. 402. The text of this rule appears supra, at note 46.
75. Harding, 5 Md. App. at 230, 236, 246 A.2d at 303, 306. See also Ruffra, supra
note 11, at 299. The trial judge, however, gave a precautionary instruction to the jury to
weigh the testimony carefully. Id. at 244, 246 A.2d at 310,. The hypnotist also appeared
to testify as an expert witness. Id. at 237-44, 246 A.2d at 306-10. He substantiated the
reliability of the hypnotic procedure and asserted that it had not been overly suggestive.
Id. at 240, 243-44, 246 A.2d at 308, 310.
76. Id. at 230, 236, 246 A.2d at 303, 306.
77. Ruffra, supra note 11, at 298-99; Note, supra note 3, at 939.
78. Note, supra note 3, at 940. See also Ruffra, supra note 11, at 314 (stating that
the jury is not the best arbiter of a hypnotized witness' credibility).
79. Note, supra note 3, at 939-40. But see Note, supra note 63, at 681 (it is generally recognized that jurors are sophisticated and can differentiate and properly weigh
fine distinctions in evidence). Cross-examination of hypnotized witnesses may also prove
futile as an aid to the jury's analysis, because hypnosis hardens the memory and bolsters
the confidence of the witness in his or her own testimony. Note, supra note 3, at 939-40.
The witness' demeanor is thereby unshaken. See supra notes 12 and 16 for clarification
on these points. But see Note, supra note 63, at 681-82 (intense cross-examination adequately detects undue suggestion or manipulation) (citing Spector & Foster, Admissibility of Hypnotic Statements: Is The Law of Evidence Susceptible? 38 OHIO ST. L.J. 567,
593 (1977).
Similarly, hypnosis, as a scientific process, may be awe-inspiring to laypersons, and
posthypnotic testimony may thus command undue weight. Ruffra, supra note 11, at 314
& n.134 (citing Commonwealth v. Nazarovitch, 496 Pa. 97, 102, 436 A.2d at 170, 173
(1981) for same proposition). See also Note, supra note 3, at 939.
80. However, expert opinions on these matters may be of little help to the jury.
Note, supra note 3, at 940. Sometimes even the experts have difficulty determining the
credibility and accuracy of their subject's testimony. See supra note 12 for a discussion
of the problems associated with the analysis of hypnotic testimony. Furthermore, when
presented by experts with impressive credentials, jurors may give too much weight to
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subterfuge make such testimony unreliable and subject to scrutiny.8 1 The critics also challenge the credibility approach as being too insensitive to the special problems of hypnosis.8 2 Accordingly, some view the Harding test as too "costly," since it
provides no check on abuse beyond the jury's deliberations."3
Regardless of criticism, however, the credibility approach remains viable, and many courts still endorse it. 4
2. The Procedural Safeguards or Conditional Admissibility Approach
Concern over the jury's ability to accurately assess the credibility of hypnotically refreshed testimony gave rise to the procedural-safeguards approach. 5 The courts began to devise new
their testimony. Ruffra, supra note 11, at 314 n.134 (citing Chapman v. State, 638 P.2d
1280, 1290 (Wyo. 1982)).
81. See supra note 12 for clarification and analysis of the risks inherent in hypnotically refreshed testimony. "Collusion" pertains to a conspiracy between the accused and
his hypnotist or expert witness to deceive the trier of fact, so that the defendant's case or
innocence appears more convincing.
WEBSTER'S NEW COLLEGIATE DICTIONARY
260 (9th ed.
1985). "Subterfuge" pertains more to the individual's own trickery. Even skilled clinicians and researchers may be unable to detect whether or not an individual is feigning
hypnosis. M. ORNE, D. SOSKIS, D. DINGES, E. ORNE & M. TONRY, HYPNOTICALLY REFRESHED
TESTIMONY: ENHANCED MEMORY OF TAMPERING WITH EVIDENCE?
1, 11 (1985).
82. See, e.g., Note, supra note 3, at 939. See supra note 12 for a summary of these
special problems.
83. See, e.g., Note, supra note 3, at 940.
84. See, e.g., State v. Little, 674 S.W.2d 541 (Mo. 1984) (hypnotically refreshed
testimony found relevant and per se admissible); State v. Wren, 425 So. 2d 756 (La.
1983) (same); Chapman v. State, 638 P.2d 1280 (Wyo. 1982) (same); State v. Glebock,
616 S.W.2d 897 (Tenn. Crim. App. 1981) (same); Clark v. State, 379 So. 2d 372 (Fla.
Dist. Ct. App. 1979) (same).
Many states thus follow the Harding approach and routinely admit posthypnotic
testimony, even though Maryland later changed its position and overruled Harding.See
Collins v. State, 52 Md. App. 186, 205-06, 447 A.2d 1272, 1273, 1283 (1982) (overruling
Harding and finding posthypnotic testimony inadmissible), aff'd, State v. Collins, 296
Md. 670, 682 n.1, 680-81, 702-03, 464 A.2d 1028, 1034-35 n.1, 1044-45 (1983) (regretting
denial of certiorari in Harding and reverting to per se exclusion rule); cf. Polk v. State,
48 Md. App. 382, 427 A.2d 1041 (1981) (remanding to determine admissibility by applying a general scientific acceptance test).
Similarly, many federal courts admit hypnotically refreshed testimony so that the
finder of fact may weigh its credibility. E.g., Clay v. Vose, 599 F. Supp. 1505, 1520 (D.
Mass. 1984), aff'd, 771 F.2d 1 (1st Cir. 1985) (hypnosis increased eyewitness' confidence
in identifying the defendant from eighty to one hundred percent). See also United States
v. Awkward, 597 F.2d 667 (9th Cir.) (weight and credibility approach), cert. denied, 444
U.S. 885 (1979); Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975) (same); United
States v. Waksal, 539 F. Supp. 834 (S.D. Fla. 1982) (same).
85. Ruffra, supra note 11, at 299.
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HYPNOTICALLY REFRESHED TESTIMONY
tests that limited the admissibility of posthypnotic testimony
and alleviated the jury's burden. 6 The most well-known precedent for this view was State v. Hurd, 7 which featured and ex86. See United States v. Adams, 581 F.2d 193 (9th Cir.), cert. denied, 439 U.S.
1006 (1978). The Adams court applied the Harding approach, but recognized that posthypnotic testimony presented a "dangerous potential for abuse." Adams, 581 F.2d at
198. To offset the possibility of undue suggestiveness, the majority proposed that the
hypnotic session be fully documented by stenographic records as well as audiotaped or
videotaped. Id. at 199 n.12. Presumably, these records would assist the jury's
determination.
87. 86 N.J. 525, 432 A.2d 86 (1981). In Hurd a woman was attacked and stabbed
repeatedly while sleeping in the bedroom of her ground floor apartment. Id. at 529, 432
A.2d at 88. The two primary suspects for the crime were the woman's present husband
and her former husband. Id. at 530, 432 A.2d at 88. Although at the time of the assault
they had been divorced for seven years, the victim and her ex-husband continued to
disagree over property matters and child visitation rights. Id. at 530, 432 A.2d at 88.
Since the woman was unable to describe or to identify her assailant, the prosecutor suggested that she undergo hypnosis to enhance her recollection of the incident. Id. at 530,
432 A.2d at 88. The woman agreed and allowed a trained hypnotist-psychiatrist to hypnotize her. Id. at 530-31, 432 A.2d at 88-89. During the hypnotic session, she responded
to the doctor's questions and described the facial features of her assailant, as well as his
clothing. Id. at 531, 432 A.2d at 89. Upon direct questioning by a police detective, the
woman also positively identified her ex-husband as her attacker. Id. at 531, 432 A.2d at
89. After the session, the woman expressed mistrust with regard to this identification,
but the hypnotist and the detective encouraged her to accept it. Id. at 531, 432 A.2d at
89. The detective was especially persistent in his efforts to persuade the woman, who
later officially identified her ex-husband to the police as her attacker. Id. at 531-32, 432
A.2d at 89.
Thereafter, the ex-husband was indicted and charged with assault with intent to
kill, atrocious assault and battery, assault with a deadly weapon, possession of a dangerous knife, and breaking and entry with intent to assault. Id. at 532, 432 A.2d 89. The
accused moved to suppress the identification, arguing that the testimony was inadmissible because (1) hypnosis was not "generally accepted" under the Frye test and (2) the
hypnotic procedure used was impermissibly tainted by coercion and suggestion. Id. at
532, 432 A.2d at 89. The trial court declined to hold that hypnotically refreshed testimony was per se inadmissible. Id. at 532, 432 A.2d at 89. Nevertheless, it suppressed the
testimony at issue because the hypnotic procedure employed had lacked effective safeguards and the victim had been pressured into giving the identification. Id. at 533, 432
A.2d at 90.
The state appealed to the New Jersey Supreme Court, which granted review in order
to address the novel issue of admissibility of hypnotically refreshed testimony in state
criminal trials. Id. at 529, 533-34, 432 A.2d at 88, 90. The New Jersey Supreme Court
affirmed the order of the trial court suppressing the identification because the state had
failed to show that the hypnotic procedure used was reliable. Id. at 529, 432 A.2d at 88.
The court then held that post-hypnotic testimony subject to strict safeguards to ensure
reliability would be admissible. Id. at 529, 432 A.2d at 88.
The Hurd majority also found that such testimony satisfies the Frye standard in
certain instances. Id. at 538, 432 A.2d at 92. The purpose of hypnosis is not to obtain
truth, but to overcome amnesia and to restore a witness' memory. Id. at 537, 432 A.2d at
92. If properly conducted in appropriate cases, hypnosis is "generally accepted" to
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plicitly adopted the proposals of Dr. Martin Orne, the defendant's expert."
The Hurd court refused to admit the
posthypnotic testimony to the jury automatically. 9 Instead, the
court ordered a pretrial hearing or ruling out of the jury's presence, where the trial judge had sole discretion to decide admissibility.9 0 The hearing focused on determining whether the use of
hypnosis was appropriate and whether the procedure followed
was a reasonably reliable means of restoring the witness'
memory. 9 '
achieve such results. Id. at 537, 432 A.2d at 92. The fact that hypnosis might possibly
produce inaccurate recall is irrelevant, because ordinary witness recollections are similarly flawed, yet admissible. Id. at 537-38, 432 A.2d at 92. Therefore, the Frye test does
not require general acceptance of hypnosis as a means of reviving truthful or accurate
recall. Id. at 537-38, 432 A.2d at 92. Rather, the test is general acceptance of hypnosis as
a reasonably reliable device for yielding recollections as accurate as those of ordinary
witnesses. Id. at 538, 432 A.2d at 92.
88. Id. at 545-46, 432 A.2d at 96-97. Dr. Orne's suggestions became the following
official procedural safeguards:
First, a psychiatrist or psychologist experienced in the use of hypnosis
must conduct the session. This professional should also be able to qualify as an
expert in order to aid the court in evaluating the procedures followed ...
Second, the professionals conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense. This condition will safeguard against . . . bias . . . leading questions,
unintentional cues, or other suggestive conduct.
Third, any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in
writing or another suitable form ...
Fourth, before inducing hypnosis, the hypnotist should obtain from the
subject a detailed description of the facts as the subject remembers them. The
hypnotist should carefully avoid influencing the description by asking structured questions or adding new details.
Fifth, all contacts between the hypnotist and the subject must be recorded. . . . The use of videotape, the only effective record of visual cues, is
strongly encouraged but not mandatory.
Sixth, only the hypnotist and the subject should be present during any
phase of the hypnotic session, including the pre-hypnotic testing and the posthypnotic interview . ...
Id. at 545-46, 432 A.2d at 96-97.
89. Id. at 547, 432 A.2d at 97.
90. Id. at 543, 432 A.2d at 95.
91. Hurd, 86 N.J. at 543, 432 A.2d at 95. The appropriateness of hypnosis depended on the kind of memory loss encountered. Id. at 544, 432 A.2d at 95. For example,
if a witness' inability to remember was attributed to pathological reasons, such as traumatic neurosis, hypnosis was appropriate as a reasonably reliable means for reviving normal recall. Id. at 544, 432 A.2d at 95.
Conversely, hypnosis was somewhat inappropriate when used to refresh memory
concerning details where there was no recollection at all or to verify one of several con-
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HYPNOTICALLY REFRESHED TESTIMONY
The Hurd majority established a strict test for admissibility. The state or other party seeking to introduce the testimony
had the heavy burden to show reliability and compliance with
the safeguard standards by clear and convincing proof.92 The
state did not have to provide clear and convincing evidence that
neither the hypnotist nor attending police officials were coercive
or impermissively suggestive in their conduct.9 3 The court, however, requested audio or video recordings of the hypnosis session, which effectively deterred such behavior.9 4 If the witness'
hypnotically refreshed testimony satisfied the "reasonably reliable" test, the trial judge would admit it into evidence. 5 At this
point, the defendant could still discredit the testimony at trial
by introducing expert testimony or proof of improper suggestiveness by a preponderance of the evidence. 6
Many courts subscribe to the procedural safeguards approach,97 since it promotes uniformity through set guidelines
and limits admissibility to the most germane cases." Similarly,
flicting accounts given by a witness. Id. at 544, 432 A.2d at 96. In evaluating the specific
hypnotic technique employed, the trial court considered the manner of questioning and
the presence of cues or suggestions during the trance and the post-hypnotic period. Id. at
544, 432 A.2d at 96. Both sides presented expert testimony on these two issues. Id. at
543, 432 A.2d at 95. The object of the pretrial review was not to determine accuracy, but
to establish "reasonable reliance." Id. at 543, 432 A.2d at 95.
92. Id. at 546-47, 432 A.2d at 97.
93. Id. at 548, 432 A.2d at 97-98. The New Jersey Supreme Court was more lenient
than the trial court. The latter had adopted this element as the second prong of its two
part test. Id. at 532-33, 432 A.2d at 89-90. In light of the stringent standard established
for reliability, the Hurd majority considered this element to be superfluous and abandoned it. Id. at 548, 432 A.2d at 98.
94. Id. at 546, 432 A.2d at 97. This request was embodied in the fifth procedural
safeguard endorsed by the court. See supra note 88 for the text of this safeguard.
95. Hurd, 86 N.J. at 543-47, 432 A.2d at 95-97.
96. Id. at 543, 547-48, 432 A.2d at 95, 98.
97. See, e.g., State v. Seager, 341 N.W.2d 420 (Iowa 1983) (supporting pre-trial
admissibility hearings and strict procedural safeguard requirements); State v. Brown, 337
N.W.2d 138 (N.D. 1983) (same); State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386
(1983) (same); Pearson v. State, 441 N.E.2d 468 (Ind. 1982) (same); State v. Long, 32
Wash. App. 732, 649 P.2d 845 (1982) (same); State v. Beachum, 97 N.M. 682, 643 P.2d
246 (N.M. Ct. App. 1981) (same); See also State v. Iwakiri, 106 Idaho 618, 682 P.2d 571
(1984) (totality of circumstances test). For an example of a federal court using this approach, see United States v. Adams, 581 F.2d 193 (9th Cir.), cert. denied, 439 U.S. 1006
(1978), detailed supra, at note 86. Recently, one state also statutorized this approach.
See OR. REV. STAT. § 136.675 (1984) (requiring videotape or mechanical recording of hypnosis section).
98. See Ruffra, supra note 11, at 314, and Note, supra note 3, at 941. Both commentators state that by focusing on the particular hypnotic procedure used, this ap-
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any inconsistencies generated by juror confusion may be effectively eliminated. 9 Nevertheless, critics still attack this approach, claiming that the guidelines are inflexible and possibly
ineffective.10 0 They also worry about the wisdom of relying solely
on the trial judge, who seems to be usurping the traditional jury
function of weighing the evidence.10 1 Finally, some critics denounce the approach of the Hurd court as wasteful, inefficient,
10 2
and impractical.
proach excludes only unreliable evidence and thus retains valuable and useful testimony
for the jury's determination. Ruffra, supra note 11, at 314, and Note, supra note 3, at
941.
99. See Note, supra note 3, at 943. The jury is absent when the court determines
reliability and admissibility of the post-hypnotic testimony. Id. Once the court admits
the evidence, no need exists to inform the jury that hypnosis was used unless the opponent does so by cross-examining the witness to impeach his testimony. Id. & n.156. The
jury will thus be relieved of the burden to assess the credibility of the testimony if the
opponent fails to raise the issue at trial. Id. at 941 & n.138.
100. See, e.g., United States v. Valdez, 722 F.2d 1196, 1203 (5th Cir. 1984) (finding
posthypnotic testimony inadmissible, regardless of procedural safeguards, when it is used
to identify known suspects); People v. Shirley, 31 Cal. 3d 18, 39, 641 P.2d 775, 787, 181
Cal. Rptr. 243, 255 (1982) (noting that Hurd requirements do not address certain dangers of hypnosis). In Alsbach v. Bader, 700 S.W.2d 823 (Mo. 1985), the court "[was] not
persuaded that the procedural safeguards [were] sufficient to avoid the risks inherent in
admitting hypnotically induced testimony." Id. at 826. Similarly, in Commonwealth v.
Kater, 388 Mass. 519, 530 n.8, 447 N.E.2d 1190, 1198 n.8 (1983), the majority noted that
the Hurd guidelines were "acceptable," but "should not be applied inflexibly." One commentator suggested that the safeguards could not fully address the risks of hypnosis,
because they dealt with the symptoms rather than the causes of those risks. Note, supra
note 3, at 943. Ruffra also viewed the Hurd court's reasoning as flawed since it failed to
differentiate between hypnotically influenced testimony and ordinary eyewitness testimony. Ruffra, supra note 11, at 315.
101. Cf. Note, supra note 3, at 927-28. Even trained hypnotists cannot infallibly
determine whether or not a subject is lying or fantasizing. Id. & n.58. Therefore, a trial
judge may be no more qualified than the jury to assess the reliability of the posthypnotic
testimony. It is also generally recognized that jurors are sophisticated enough to weigh
fine distinctions in evidence. Note, supra note 63, at 681.
102. See, e.g., Shirley, 31 Cal. 3d at 39, 641 P.2d at 787, 181 Cal. Rptr. at 255. The
Shirley court reasoned that even if the safeguards were adequate, they could not be
administered in practice without creating undue delay and confusion. Id. at 39, 641 P.2d
at 787, 181 Cal. Rptr. at 255. Furthermore, demands for elaborate discovery, parades of
expert witnesses, special hearings and appeals could escalate, adding time and expense to
the judicial process. Id. at 39, 641 P.2d at 787, 181 Cal. Rptr. at 255. In this respect, the
Shirley majority decided that the "game [was] not worth the candle." Id. at 39, 641 P.2d
at 787, 181 Cal. Rptr. at 255. See also Mattleman, supra note 4, at 821 (Hurd view
escalates litigation by requiring case-by-case determination of admissibility); Ruffra,
supra note 11, at 316 (ad hoc approach encourages hopeless disharmony in the lower
courts); Note, supra note 3, at 944 (Hurd position might create practical hardships for
courts).
1988]
HYPNOTICALLY REFRESHED TESTIMONY
3. The Frye Per Se Exclusion Approach
A number of jurisdictions have rejected the reasoning of
both the credibility and the procedural-safeguards approaches. 0 3 Instead, they view hypnotically refreshed testimony
as the product of a scientific procedure which must be legitimized in accordance with the Frye test. °4 Because these courts
find such testimony to be dangerously inaccurate and consistently unreliable,0 5 they hold that hypnosis fails to pass the Frye
test.0 6 Accordingly, posthypnotic testimony is not "generally accepted" as reliable and is thus strictly excluded. 0 7 This ruling of
103. See, e.g., Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986) (posthypnotic
testimony held strictly inadmissible), vacated and remanded; Rock v. Arkansas, 107 S.
Ct. 2704 (1987) (rejecting per se exclusion rule vis-a-vis defendants). Some courts refuse
to accept the notion that hypnosis is synonymous with ordinary memoranda that refresh
a witness' memory and affects only the credibility of his or her testimony. See, however,
supra note 72 and accompanying text for references that accept this notion. Similarly,
some jurisdictions reject the analogy of pretrial hypnosis to eyewitness identification as
posited by the procedural safeguards view. See supra note 87 for a review of this analogy.
Ultimately, these courts apply a per se exclusion rule towards hypnotically refreshed
testimony. See Bundy v. State, 471 So. 2d 9 (Fla. 1985) (per se exclusion); Bobo v. State,
254 Ga. 146, 327 S.E.2d 208 (1985) (same); State v. Haislip, 237 Kan. 461, 701 P.2d 909
(1985) (same); State v. Atwood, 39 Conn. Supp. 273, 479 A.2d 258 (1984) (same); State v.
Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984) (same); Robison v. State, 677 P.2d 1080
(Okla. Crim. App. 1984) (same); Peterson v. State, 448 N.E.2d 673 (Ind. 1983) (same);
Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983) (same); People v.
Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983) (same); Burnett v.
State, 642 S.W.2d 765 (Tex. Crim. App. 1983) (same); State ex rel. Collins v. Superior
Court, 132 Ariz. 180, 644 P.2d 1266 (1982) (same); People v. Quintanar, 659 P.2d 710
(Colo. App. 1982) (same); Collins v. State, 52 Md. App. 186, 447 A.2d 1272 (1982) (same);
People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982) (same); State v. Blanchard,
315 N.W.2d 427 (Minn. 1982) (same); State v. Palmer, 210 Neb. 206, 313 N.W.2d 648
(1981) (same); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981) (same);
State v. Mack, 292 N.W.2d 764 (Minn. 1980) (same); Greenfield v. Commonwealth, 214
Va. 710, 204 S.E.2d 414 (1974) (same); aff'd, 413 F. Supp. 1113 (W.D. Va. 1976) (habeas
corpus action).
104. People v. Shirley, 31 Cal. 3d 18, 53-54, 641 P.2d 775, 796, 181 Cal. Rptr. 243,
264-65 (1982); Note, supra note 3, at 944. The Frye standard requires that a scientific
procedure, such as hypnosis, must be viewed as reliable and endorsed by a consensus of
the scientific community in which it was developed. See supra note 41 for a detailed
analysis of the Frye case.
105. See, for example, State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980) which
states that "[n]o expert can determine whether memory retrieved by hypnosis . . . is
truth, falsehood, or confabulation. . . . Such results are not scientifically reliable."
106. See supra note 103 for a listing of these cases under the per se exclusion rule.
But see Hurd, 86 N.J. at 538, 432 A.2d at 92 (hypnosis satisfies the Frye standard when
it is shown to be a reasonably reliable means to restore one's memory).
107. Ruffra, supra note 11, at 301.
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inadmissibility applies to every posthypnotic testimony offered
into evidence."' 8 Therefore, individual case determinations are
effectively precluded. 10 9
The most widely cited case for this view is People v. Shirley,110 which mandated that "[tihe testimony of a witness who
[had] undergone hypnosis for the purpose of restoring his memory of the events in issue [was] inadmissible as to all matters
relating to those events, from the time of the hypnotic sessions
forward.""' The Shirley court held that a previously hypnotized
witness was incompetent to testify, except as to matters wholly
unrelated to the events of the hypnotic session. " 2 Although it
108. Id.
109. Id.
110. 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243, cert. denied, 459 U.S. 860
(1982). In Shirley the accused was a marine who had been convicted of raping an intoxicated female bartender. Id. at 23-24, 26, 641 P.2d at 776-78, 181 Cal. Rptr. at 244-46.
The record reflected a classic case of conflicting stories, vis-a-vis the victim and the defendant. Id. at 23, 641 P.2d at 776, 181 Cal. Rptr. at 244. After being hypnotized at the
courthouse by a district attorney with "some training," the bartender made statements
contrary to those submitted at the preliminary hearing. Id. at 29-30, 641 P.2d at 780-81,
181 Cal. Rptr. at 248-49. The defense moved to exclude these statements, claiming that
hypnosis had been improperly used to "manufacture" rather than "refresh" the evidence. Id. at 29, 641 P.2d at 780, 181 Cal. Rptr. at 248. The trial court denied the motion
and ruled that prior hypnosis affected the weight, but not the admissibility of the testimony in accordance with prevailing authority at that time. Id. at 29, 641 P.2d at 780, 181
Cal. Rptr. at 249. The jury then convicted the defendant, who appealed to the Supreme
Court of California. Id. at 22-23, 641 P.2d at 776, 181 Cal. Rptr. at 244.
On appeal the defense presented a certified psychiatrist and clinical professor who
warned of the grave risks of relying on the accuracy of memories recalled through hypnosis. Id. at 30-31, 641 P.2d at 781, 181 Cal. Rptr. at 249-50. The prosecution failed to
discredit or cross-examine this expert opinion or to call any expert witness of its own. Id.
at 32, 641 P.2d at 782, 181 Cal. Rptr. at 250. The majority applied the Frye test and
ruled that the prosecution, as proponent of the evidence, had failed to meet its burden in
establishing compliance with the Frye rule. Id. at 54, 641 P.2d at 796, 181 Cal. Rptr. at
265. The prosecution failed because it did not rebut the defense witness with qualified
and disinterested experts testifying to general scientific acceptance of hypnosis as reliable. Id. at 54, 641 P.2d at 796, 181 Cal. Rptr. at 265. The majority agreed with the
defense that the victim's testimony was vague, contradictory and contaminated by a
hypnotic experience designed to "fill the gaps" in her story. Id. at 23, 641 P.2d at 777,
181 Cal. Rptr. at 245. Accordingly, the Supreme Court reversed, holding that the posthypnotic testimony had been erroneously admitted and had caused a miscarriage of
justice and a wrongful conviction. Id. at 23, 67, 70, 641 P.2d at 777, 806, 808, 181 Cal.
Rptr. at 245, 273, 275.
111. Id. at 66-67, 641 P.2d at 804, 181 Cal. Rptr. at 273.
112. Id. at 67, 641 P.2d at 805, 181 Cal. Rptr. at 273. The court, however, in a
modified opinion, carved out a special exception for defendants. Id. at 67, 723 P.2d at
1384, 181 Cal. Rptr. at 273, and Ruffra, supra note 11, at 309. The majority declared that
posthypnotic testimony by defendants would be admitted into evidence in order to
19881
HYPNOTICALLY REFRESHED TESTIMONY
endorsed the investigative use of hypnosis, 1 3s the majority ruled
that the evidence " supported a finding of noncompliance with
the Frye standard of admissibility." 5 The court reviewed the
relevant case law"" and expressly rejected both Harding"7 and
Hurd."8 In particular, the majority distinguished hypnosis as a
unique method of refreshing memory"' and abandoned the
"pretense" of devising workable safeguards to control its use.2 0
The primary function of the Frye rule is to insure reliabil"avoid impairing the fundamental right of an accused to testify in his own behalf." Id.
at
67, 723 P.2d at 1384, 181 Cal. Rptr. at 273, and Ruffra, supra note 11, at 309-10.
113. Shirley, 31 Cal. 3d at 67, 641 P.2d at 805, 181 Cal. Rptr. at 273.
114. The evidence consisted primarily of professional literature supporting the testimony of the defendant's expert witness. Id. at 55-56, 641 P.2d at 797, 181 Cal. Rptr. at
265-66. Due to judicial economy and prohibitive expense, the court accepted opinions
relayed through scholarly treatises and journals in place of a parade of experts to prove
the prevailing consensus of scientific authority. Id. at 55-56, 641 P.2d at 797, 181 Cal.
Rptr. at 265-66.
115. Id. at 66, 641 P.2d at 805, 181 Cal. Rptr. at 272-73. The reliability of hypnosis
as a matter of scientific fact was not the issue. Id. at 55, 641 P.2d at 797, 181 Cal. Rptr.
at 265. Rather, the question was reliability vis-a-vis the relevant scientific community's
opinion. Id. at 55, 641 P.2d at 797, 181 Cal. Rptr. at 265. The court found that not only
was the use of hypnosis to restore memory not generally accepted as reliable by this
group, but several leading scientists directly opposed it. Id. at 56, 66, 641 P.2d at 798,
804, 181 Cal. Rptr. at 266, 272.
116. 641 P.2d at 782-86. See, for example, State v. Mack, 292 N.W.2d 764 (Minn.
1980), upon which the majority laid much emphasis. Shirley, 31 Cal. App. 3d at 42-45,
641 P.2d at 788-90, 181 Cal. Rptr. at 256-58. In particular, the Shirley court cited the
following proposition from Mack:
[R]ejecting as artificial and unprincipled any distinction between hypnoticallyinduced testimony offered by the defense to exculpate and that offered by the
prosecution to make its case. Regardless ... , a witness whose memory has
been "revived" under hypnosis ordinarily must not be permitted to testify in a
criminal proceeding to matters which he or she "remembered" under hypnosis.
Shirley, 31 Cal. App. 3d at 44, 641 P.2d at 790, 181 Cal. Rptr. at 258 (quoting Mack, 292
N.W.2d at 771).
This proposition, however, was later undercut by the court's leniency pertaining to a
defendant's posthypnotic testimony. See supra note 112 for elaboration.
117. Shirley, 31 Cal. App. 3d at 48, 641 P.2d at 792, 181 Cal. Rptr. at 261. The
majority referred to Polk v. State, 48 Md. App. 382, 427 A.2d 1041 (Md. Ct. Spec. App.
1981), wherein the same court that decided Harding repudiated their previous ruling.
Shirley, 31 Cal. App. 3d at 48, 641 P.2d at 792, 181 Cal. Rptr. at 261.
118. Id. at 39-40, 641 P.2d at 787, 181 Cal. Rptr. at 255-56.
119. Id. at 53, 641 P.2d at 795, 181 Cal. Rptr. at 264. The majority noted that
hypnosis does more than merely retrieve repressed memories, because "it actively contributes to the formation of pseudomemories, to the witness' abiding belief in their veracity, and to the inability of the witness (or anyone else) to distinguish between the
two." Id. at 53, 641 P.2d at 795, 181 Cal. Rptr. at 264.
120. Id. at 40, 641 P.2d at 787, 181 Cal. Rptr. at 256.
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ity. 1 ' The requirement of general acceptance in the scientific
community shifts the burden of assessing reliability from the inexperienced juror to the qualified expert scientist. 22 Per se application of the rule minimizes confusion and delay and promotes judicial efficiency and uniformity. 123 Ad hoc balancing of
the risks and benefits of hypnosis is therefore circumvented in
order to assure administrative convenience. 2 4
Unfortunately, the valuable benefits of this approach are seriously undercut by certain inherent flaws. First, the per se rule
is overly broad and restrictive, for it may exclude relevant and
reliable evidence. 2 5 In this respect the rule disregards the American trend towards liberal admissibility as embodied in the Federal Rules of Evidence. 2 This conflict is intensified by the presence of authority that holds that the federal rules have impliedly
abolished the Frye standard. 27 Second, this approach undermines the role of the trial judge who usually maintains discretion on matters of admissibility. 2 Third, the Frye per se view
unjustifiably excludes evidence that is as reliable as ordinary
eyewitness testimony. 29 Arguably, this approach seems to handle the difficult and novel issue of hypnosis evasively by refusing
to confront it in individual cases. Fourth, the notion of uniformity is belied by the existence of case law that applies the Frye
rule, but with entirely different results. 3 0
4.
The Relevancy Approach
Dissatisfied with the three traditional approaches, several
121. Note, supra note 3, at 945.
122. Ruffra, supra note 11, at 318; Note, supra note 3, at 945.
123. Ruffra, supra note 11, at 316-17; Note, supra note 3, at 945-46.
124. See Ruffra, supra note 11, at 317 n.152; Note, supra note 3, at 945 n.171.
125. Ruffra, supra note 11, at 318; Note, supra note 3, at 947.
126. Ruffra, supra note 11, at 318-19; Note, supra note 3, at 947-48. The most
pertinent rules are 401-403. See supra note 46 for the text and a detailed analysis of
these rules.
127. Ruffra, supra note 11, at 318, 319 n.164; Note, supra note 3, at 946-47 &
nn.178-79. For a listing of relevant cases, holdings and a notable commentary, see supra
note 43. For a reporting of various scholarly proposals on the subject, see supra note 49.
128. Ruffra, supra note 11, at 318; Note, supra note 3, at 948.
129. Ruffra, supra note 11, at 318; Note, supra note 3, at 947.
130. See Note, supra note 3, at 946 & n.174 citing Hurd, 86 N.J. at 538, 432 A.2d at
92 (hypnosis passes the Frye test) and State v. Beachum, 97 N.M. 682, 643 P.2d 246
(N.M. Ct. App. 1981) (applied Frye and held hypnosis admissible in some cases).
1988]
HYPNOTICALLY REFRESHED TESTIMONY
jurisdictions began to formulate new standards for determining
admissibility of hypnotically refreshed testimony."3 ' One of the
earliest cases was State v. Contreras,"13 which relied on the Federal Rules of Evidence1 3' to hold that the posthypnotic testimony at issue was admissible.1 4 The majority developed an ad
hoc balancing of equities analysis.1s5 In weighing the probative
value of the testimony against its possible prejudicial effect,"36
the court placed particular emphasis on the independent corroboration 7 and usefulness of the identification." s8 Additionally,
the majority deferred to expert testimony asserting that the witness was unlikely to "confabulate,"' "1 9 and the hypnotic session
131. See, e.g., House v. State, 445 So. 2d 815 (Miss. 1984) (FED. R. EVID. 403 balancing test and mandatory safeguards); Brown v. State, 426 So. 2d 76 (Fla. App. 1983)
(same). See also Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985)
(ad hoc balancing test); United States v. Valdez, 722 F.2d 1196 (5th Cir. 1984) (same);
United States v. Charles, 561 F. Supp. 694 (S.D. Tex. 1983) (same).
132. 674 P.2d 792 (Alaska Ct. App. 1983). In Contreras,the Alaska Court of Appeals reversed the decision of the superior court, which had barred admission of the
prosecution witness' hypnotically refreshed identification testimony. Id. at 819. The defendant had been indicted for kidnapping, assault in the third degree, and three counts
of sexual assault in the first degree. Id. at 794. A police investigator trained in hypnotic
techniques had hypnotized the alleged victim to assist her in identifying the suspect. Id.
at 797. The victim later identified the accused as her assailant and the perpetrator of the
crimes charged in the indictment. Id. at 798. Thereafter, the defense filed a motion for a
protective order excluding this testimony. Id. The trial judge applied the Frye test, rejected the procedural safeguards approach, and granted the motion. Id. at 794, 818-19.
His rationale was that hypnosis failed the Frye test and impaired the accused's sixth
amendment right of confrontation and cross-examination. Id. The appellate court, however, applied FED. R. EvID. 403, finding that the probative value of the identification
outweighed its prejudicial effect. Id. at 819.
133. FED. R. EvID. 403 on relevancy and Rule 601 on witness competency. For the
pertinent text and analysis of both rules, see supra notes 46 and 45, respectively. Contreras held that hypnosis did not render a witness incompetent to testify, and hypnotically generated statements or recollections could pass the Rule 403 balancing test. Contreras, 674 P.2d at 819.
134. Id.
135. See Contreras v. State, 718 P.2d 129, 137 (Alaska 1986) (Supreme Court discussing and rejecting the appellate decision in State v. Contreras).
136.
FED.
R.
EvID.
403.
137. State v. Contreras, 674 P.2d 792, 819 (Alaska Ct. App. 1983). The victim's
identification of the accused was corroborated by another witness who was similarly assaulted, as well as by the defendant's girlfriend who testified that Contreras had told her
about the assault. Id. at 818. After identifying the victims from their stolen driver's license, the defendant's girlfriend had called them to apologize for Contreras's actions. Id.
138. Id. at 819.
139. Id. at 812. The court described confabulation as a process whereby an individual under pressure to recall a perception, such as details of an assailant's appearance,
will unconsciously manufacture them from his or her imagination or past experiences if
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was regulated by protective, procedural safeguards."'
Although the Contreras decision was later reversed,"" other
no prior perception exists. Id. at 792; Contreras v. State, 718 P.2d at 132 n.8. Confabulation, then, may be complete fantasy.
140. State v. Contreras, 674 P.2d at 812. Although the relevancy position does not
require the use of procedural safeguards, compliance with them adds another factor to
the Rule 403 balancing analysis.
141. See Contreras v. State, 718 P.2d at 129. The Supreme Court held that the
prejudice/probity balance weighed in favor of exclusion per se because the degree of
prejudice to the defendant was extremely high. Id. at 138. The majority was "not convinced that corroboration [was] a panacea, even if strict procedural safeguards [were]
observed." Id. Similarly, expert testimony was insufficient to overcome the likelihood
that a jury might be misled by a posthypnotic testimony. Id. The court cited United
States v. Valdez, 722 F.2d 1196, 1200-03 (5th Cir. 1984), wherein a balancing analysis
also yielded exclusion per se for uncorroborated personal identifications. Contreras v.
State, 718 P.2d at 138 n.26 and Valdez, 722 F.2d at 1203.
The Valdez court, however, made exceptions to this per se rule. Valdez, 722 F.2d at
1203. In cases not involving personal identification, corroborated posthypnotic testimony
could be admissible if adequate safeguards were followed. Id. Although the majority acknowledged the probative value of hypnotically aided identifications, it rejected them
along with the procedural safeguards rationale, stating: "[Wihen ... a hypnotized subject identifies for the first time a person he has reason to know is already under suspicion, the posthypnotic testimony is inadmissible whatever procedural safeguards were
used to attempt to sanitize the hypnotic session." Id.
Additionally, the Supreme Court in Contreras held that the defendant had been
deprived of his constitutional right of confrontation under the Alaska Constitution, art I,
§§ 7 and 11. Contreras v. State, 718 P.2d at 139. Given the potential danger that a witness' demeanor could be altered by hypnosis, the accused would be deprived of two fundamental guarantees. Id. at 138-39. These included (1) the opportunity to cross-examine
the prosecution's witnesses so as to test their sincerity, memory, perception and the factual basis of their statements, and (2) the chance to display the witness' demeanor and
veracity to the jury during confrontation in the "crucible of the courtroom." Id. at 138
(quoting Lemon v. State, 514 P.2d 1151, 1153 (Alaska 1973)).
The majority concluded by qualifying their per se exclusion rule. Contreras v. State,
718 P.2d at 139. They stated that the rule did not apply to the use of hypnosis in criminal investigations. Id. (quoting State v. Peoples, 311 N.C. 515, 534, 319 S.E.2d 177, 188
(1984)). The procedure, however, had to be executed with care. Id. (same). Ironically, the
majority also suggested that the procedural safeguards that it had attacked as impractical and ineffective, be employed. Id. at 137-38, 140 & n.32.
Justice Matthews concurred with the majority's result, but not with its reasoning.
Id. at 142. He stressed that "total admissibility and total inadmissibility ...
[were] not
the only alternatives." Id. at 140. He then cited Hurd for its "reasonably reliable" test
and urged that Alaska adopt this "middle of the road" approach. Id. at 140-41. Other
courts following the middle ground included United States v. Keplinger, 776 F.2d 678
(7th Cir. 1985) (declining to adopt per se rule prohibiting all posthypnotic testimony),
and United States v. Narciso, 446 F. Supp. 252 (E.D. Mich. 1977) (admitting post-hypnotic identification of suspect because no substantial likelihood of error existed). Contreras v. State, 718 P.2d at 141 n.1.
Justice Matthews also endorsed the use of strict procedural safeguards and an admissibility standard of "clear and convincing evidence" for proponents of posthypnotic
1988]
HYPNOTICALLY REFRESHED TESTIMONY
jurisdictions already had followed suit by invoking a similar balancing approach." 2 Recently, this view was applied to a civil suit
involving an automobile product liability and negligence action. 1 3 The Fifth Circuit also utilized the relevancy approach to
uphold a conviction grounded on hypnotically refreshed identification testimony."4
The primary rationale for the relevancy approach is the theory of liberal admissibility which underlies the Federal Rules of
Evidence."1 5 In this respect, the relevancy view is analogous to
the credibility approach, because both tests advocate lenient
testimony. Id. at 141. He then suggested that the trial judge give (1) the opponent wide
latitude in cross-examining the witness, and (2) the jury a cautionary instruction warning
regarding the dangers of hypnosis. Id. (citing Brown v. State, 426 So. 2d 76, 93 (Fla. Dist.
Ct. App. 1983)). He chided the majority for rejecting this middle approach as time-consuming, requiring judges to be hypnosis expeits, and creating risks of non-uniform results. Id. at 142. According to Justice Matthews, none of these arguments could withstand scrutiny, because:
As science moves forward, the courts cannot stand still merely because the
issues are more complex and time intensive. . . . In some cases, hypnotically
induced testimony will be extremely probative and in others it will not. The
flaw in the majority opinion is that it fails to offer an approach which can
discriminate between the two situations.
A per se rule of inadmissibility creates a double standard. Proneness to
suggestion and confabulation are natural traits encountered in unhypnotized
witnesses ...
It is unrealistic to insist that hypnotically aided testimony be free from
these faults. All that can be expected is that . . . [it] . . . will be comparable in
reliability to ordinary testimony.
Id. at 142 (Matthews, J., concurring).
Justice Matthews concurred in the result only because the hypnotic interview had
been conducted by an "interested" police officer instead of an independent, licensed
practitioner. Id. The Contreras decision is significant, because it aptly illustrates the
fluctuation of court views, as well as their tendency to focus on protection of the defendant's right to a fair, nonprejudicial trial.
142. See supra note 131 for pertinent case law regarding this balancing approach.
143. See Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1115, 1122, 1125
(8th Cir. 1985) (ordering new trial preceded by pretrial ruling with ad hoc balancing to
determine admissibility of driver's posthypnotic testimony in which he remembered applying faulty brakes).
144. See United States v. Harrelson, 754 F.2d 1153, 1180-81 (5th Cir. 1985) (testimony admitted because hypnotic procedures were careful, non-suggestive and fully
videotaped).
145. See FED. R. Evm. 401-403, and 601-602. The relevancy view generally
presumes that the testimony is relevant and the witness is competent. Note, supra note
3, at 949. See also FED. R. EVID. 401-403 and 601-602. For the pertinent text of these
rules, as well as a lengthy explanatory discussion, see supra notes 46 and 45, respectively.
See also Note, supra note 3, at 952.
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policies vis-a-vis relevant evidence. 4" The former, however, is
far more efficient in that it relegates the admissibility decision to
the trial judge rather than the jury.1 4 7 Arguably, the judge may
be no more qualified than the average juror to make such a determination.1 48 But from a practical standpoint, an experienced
judge should be better able to detect the subtleties of suggestiveness and the witness' desire to please in testimony offered into
evidence. 4 9 The judge also has a greater capacity to understand
helpful expert testimony that addresses these concerns. 5 0° If the
judge finds that posthypnotic testimony will overwhelm, confuse
or mislead the jury, he or she may exclude the evidence.' 5 '
Therefore, the relevancy approach retains the valuable ad hoc
flexibility of the credibility approach, but exercises greater control over the dangers of hypnotic evidence and potential jury
problems.
In contrast to the procedural safeguards view, a pure relevancy test'5 2 completely lacks uniformity of application.' Even
though the prescribed safeguards may vary slightly in different
146. Note, supra note 3, at 952.
147. Id. The trial judge has sole discretion to apply the Rule 403 balancing test on
an ad hoc basis. Id. He or she exercises this discretion at a pretrial hearing, so that the
jury will not be unnecessarily confused. Id. Such a procedure is faster, more decisive, and
serves judicial economy and administrative convenience.
148. See supra note 79 for one view commending juror skills and competence. This
is the argument in opposition to the relevancy view's presumption that a judge has superior knowledge and decisional skills. For elaboration on this presumed notion of a judge's
superiority, see supra notes 78-80 and accompanying text.
149. Note, supra note 3, at 952.
150. Id.
151. Id.
152. FED. R. EvID. 403. "Pure relevancy" denotes a Rule 403 balancing test without
resort to any procedural safeguard requirements. Many courts, however, do incorporate
such safeguards. See, e.g., House v. State, 445 So. 2d 815, 824, 826-27 (Miss. 1984) (balancing test plus safeguards); Brown v. State, 426 So. 2d 76, 90-91, 94 (Fla. App. 1983)
(same). Since the relevancy view is still evolving, some jurisdictions contemplate the use
of safeguards, while others do not. In any case, the presence of safeguards may be a
factor to weigh in the balance. See State v. Contreras, 674 P.2d at 812. This Note views
the combined use of balancing plus safeguards as a good compromise and a practical,
workable approach.
153. See Note, supra note 3 at 952 (comparing pure relevancy and procedural safeguard views). Both tests are administered on a case-by-case basis, but relevancy is more
flexible, since the safeguards approach adheres to an established set of guidelines. Id. A
possible weakness of the relevancy view relates to the trial judge's control of the admissibility issue, because the judge may be overly subjective or abuse his or her discretion. Id.
See supra note 88 for an example of standard guidelines.
HYPNOTICALLY REFRESHED TESTIMONY
1988]
jurisdictions, at least some of the guidelines are consistent
throughout.1' Therefore, the procedural safeguards approach
appears to be superior with respect to efficiency and simplicity
because it provides clearer guidelines for the lower courts to follow. These cherished guidelines, however, have often been criticized as deceptive, ineffective and entirely unresponsive to the
full range of dangers inherent in hypnosis. 55 Nevertheless, a hybrid of both views may provide an easier and more workable test
for judging the admissibility of hypnotically refreshed
testimony.
At the very least, this "new relevancy" approach"' represents a good compromise between the Frye per se inadmissible
view and the credibility per se admissible view. Due to the inherent unpredictability of hypnotic evidence, which may be either valuable or worthless, a strict per se rule seems inappropriate. The best recourse is to adopt a flexible case-by-case analysis
tempered by some uniform, established guidelines. Several
courts have already acknowledged this need, even though they
may fail to officially adopt it.157 Although different considerations arise when the posthypnotic testimony is offered by the
defense instead of the prosecution, 1 58 this "new relevancy" view
still provides the most logical and sound solution to the problem
of hypnotically refreshed testimony.
C.
Evolution of the ConstitutionalRight to Testify
The
fendants
this rule
ested in
English courts of the eighteenth century held that dewere incompetent to give testimony. 59 Presumably,
derived from the fear that persons so directly interthe outcome of the trial would undoubtedly testify
154. See Note, supra note 3, at 952. The safeguards always address the problem of
suggestiveness. Id.
155. See supra note 100 and accompanying text for cases expounding this view.
See also Note, supra note 3, at 943, 952.
156. This Note refers to the hybrid of relevancy plus safeguards as "new relevancy" to distinguish it from "pure relevancy" with no safeguards.
157. See cases cited supra note 152.
158. See supra note 16 for a succinct analysis of the constitutional considerations.
Generally, defense testimony triggers right to testify issues under the fifth, sixth and
fourteenth amendments, especially due process. Conversely, witness testimony raises
sixth amendment confrontation and cross-examination issues.
159. W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE 882 (1985).
BRIDGEPORT LAW REVIEW
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falsely.1 6 0 This disqualification rule was inherited by American
jurisprudence as part of the common law tradition. 161 Thereafter, the practice of permitting criminal defendants to tell their
version of the facts developed slowly. 162
Initially, defendants were limited to giving unsworn statements which could not be elicited through direct examination by
counsel, nor subject to cross-examination. 6 3 At the federal level,
the United States Supreme Court abrogated the general incompetency rule in 1842.164 In 1871 the Court specifically acknowledged the right of a federal defendant to be heard.16 5 The courts
also came to recognize that allowing defendants to testify promoted both the "detection of guilt" and the "protection of innocence."'1 66 By the end of the nineteenth century, all states except
Georgia had enacted statutes declaring criminal defendants
competent to testify. 67 Congress finally passed a general competency statute in 1878.16s
The constitutional right to testify is not enumerated in the
Constitution, and the United States Supreme Court did not explicitly recognize it until recently. 16 9 Rulings in several circuits,
however, had upheld a criminal defendant's due process right to
testify in his own behalf, since "the right [had] long been assumed."' 70 Similarly, the United States Supreme Court suggested that the right derived partially from the due process
160. Id. All parties to litigation, not just defendants, were deemed "interested" and
therefore untrustworthy. See Rock v. Arkansas, 107 S. Ct. at 2708.
161. W. LAFAVE & J. ISRAEL, supra note 159, at 882.
162. 2 J. WIGMORE, EVIDENCE § 579, at 827 (J. Chadbourn rev. 1979).
163. Id.
164. W. LAFAVE & J. ISRAEL, supra note 159, at 882 (citing United States v. Murphy, 41 U.S. (16 Pet.) 203 (1842)).
165. Id. (citing McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1871)).
166. Ferguson v. Georgia, 365 U.S. 570, 581 (1961) (quoting 1 AM. L. REV. 396
(1867)) (statute limiting defendant's trial presentation to an unsworn statement held
unconstitutional).
167. Ferguson, 365 U.S. at 577 & n.6, 596-98.
168. Act of March 16, 1878, ch. 37, 20 Stat. 30 (codified as amended at 18 U.S.C. §
3481 (1987)).
169. The landmark case is Rock v. Arkansas, 107 S. Ct. 2704 (1987). For a detailed
expos6 of this case, see infra section III of this Note, THE SIGNIFICANCE OF ROCK V.
ARKANSAS.
170.
testify in
(7th Cir.
nied, 461
Nix v. Whiteside, 106 S. Ct. 988, 993 (1986) (discussion of defendant's right to
defendant-perjury case) (citing United States v. Curtis, 742 F.2d 1070, 1076
1984) and United States v. Bifeld, 702 F.2d 342, 349 (2d Cir. 1983), cert. deU.S. 931 (1983)).
19881
HYPNOTICALLY REFRESHED TESTIMONY
clause of the fourteenth amendment.17 1 As early as 1948, the
Court acknowledged that a person's right to notice and opportunity to be heard included the right to offer testimony in his or
her defense before the fact-finder. 17 Particularly for criminal
defendants, the right to testify became essential to fairness, liberty, and due process of law in the judicial adversary system. 173
A second source of the right to testify is the fifth amendment to the United States Constitution.1
7
The amendment's
privilege against compelled testimony and self-incrimination
guarantees that an accused may either remain silent or speak in
his own defense. 7 5 Choosing to take the stand and to testify is a
crucial tactical decision as well as a matter of constitutional
right.1 76 Therefore, the United States Supreme Court declared
that the right to testify existed as a necessary corollary to this
7
17
fifth amendment privilege.
78
The compulsory process clause of the sixth amendment'
provides the third reference for the right to testify. According to
this clause, a criminal defendant has the constitutional right to
call witnesses in his favor. 7 9 This right extends to criminal state
courts by virtue of the fourteenth amendment. 80 Since the de-
171. See Rock, 107 S. Ct. at 2709. For the pertinent text of the fourteenth amendment, see supra note 17.
172. See Rock, 107 S. Ct. at 2709 & n.8. (citing In Re Oliver, 333 U.S. 257, 273
(1948)). In Oliver, the defendant was convicted of contempt and sentenced to jail by a
one-man judge and grand jury. Id. at 258-59. Due to haste and secrecy, the accused was
unable to enjoy the benefits of counsel or to prepare his defense. Id. at 259. He also had
no chance to cross-examine the other grand jury witness or to summon witnesses to rebut the charge against him. Id. The United States Supreme Court held that the accused
had been denied due process of law. Id. at 273, 278.
173. See Faretta v. California, 422 U.S. 806, 819 & n.15, 820 (1975) (sixth amendment guarantees to criminal defendants the right of defense by self-representation as
well as by counsel). See also Ferguson, 365 U.S. at 602 (Clark, J., concurring) (fourteenth
amendment gives criminal defendants the right to choose between silence and testifying
in one's own behalf).
174. See supra note 22 for the pertinent text of the fifth amendment.
175. See Harris v. New York, 401 U.S. 222, 225, 230 (1971) (majority and three
dissenting justices agree on this point) and Malloy v. Hogan, 378 U.S. 1, 8 (1964) (fifth
amendment guarantees right to remain silent unless one chooses to speak).
176. See Brooks v. Tennessee, 406 U.S. 605, 612 (1972) (cited in Rock, 107 S. Ct. at
2710 n.10).
177. Rock, 107 S. Ct. at 2710.
178. See supra note 19 for the pertinent text of the sixth amendment.
179. Rock, 107 S. Ct. at 2709.
180. Id. (citing Washington v. Texas, 388 U.S. 14, 17-19 (1967)). See supra note 17
for the pertinent text of the fourteenth amendment.
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fendant sometimes is his own best witness, 18' his testimony is
"material and favorable to his defense,' 182 and he has a constitutional right to offer it. The Court recently declared that there
was no justification for a rule denying an accused the opportunity to offer his own testimony. 183 The sixth amendment guaran8s
tees to an accused the privilege of making a personal defense. '
The veracity of the defendant, like that of all witnesses, is tested
and confirmed adequately by cross-examination. 185 Therefore,
the accused may not be denied the right of self-representation or
the right to present his own version of the facts in his own
words.' 86
The right to testify thus constitutes an implied constitutional right of relatively recent origin. The United States Supreme Court finally acknowledged and clarified this right in the
1987 case of Rock v. Arkansas.8 ' The real controversy of the
decision, however, stemmed from the primary issue in that case:
the prior inadmissibility of the defendant's hypnotically refreshed testimony.'
III.
THE SIGNIFICANCE OF
Rock v. Arkansas
In Rock the United States Supreme Court faced a new challenge. Not only was the posthypnotic testimony a novel problem,
but its context was unique since it involved a defendant rather
than a prosecution witness. 88 The usual sixth amendment issues
relating to the defendant's ability to cross-examine a previously
hypnotized witness were therefore absent. 90 Instead, the arguments focused on the accused's due process right to testify in
181. Rock, 107 S. Ct. at 2709. The majority states that "the most important witness
for the defense in many criminal cases is the defendant himself." Id. Presumably, the
accused's testimony is crucial in that it may be his only means of defense when collaborating evidence is confusing or non-existent. See id.
182. Id. (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
183. Rock, 107 S. Ct. at 2709.
184. Id. (quoting Faretta v. California, 422 U.S. 806, 819 (1975)).
185. Rock, 107 S. Ct. at 2709. (citing Westen, The Compulsory Process Clause, 73
MICH. L. REv. 71, 119-20 (1974) as a general reference).
186. Rock, 107 S. Ct. at 2709-10.
187. Id. at 1708-10.
188. Id. at 2706-08, 2711-12, 2714.
189. See Arguments Before the Court, 55 U.S.L.W. 3688 (April 14, 1987) (editorial
summary).
190. Id.
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HYPNOTICALLY REFRESHED TESTIMONY
her own behalf. e1
The precise question before the Court was the constitutionality of the Arkansas state evidentiary rule that barred the admission of the defendant's hypnotically refreshed testimony. 9
In a 5-4 decision " the Court held that Arkansas' per se exclusion approach was unconstitutional and impermissible in light of
the defendant's unequivocal right to testify in her own defense. 9 " The Court then vacated the Arkansas Supreme Court's
decision. 95 After detailing the facts of the case,'96 the majority
discussed the historical development of the right to testify.' 97
The Court emphasized that "it cannot be doubted that a defendant in a criminal case has the right to take the witness stand
191. Id. at 3688-90.
192. Rock, 107 S. Ct. at 2706.
193. Id. The majority consisted of Justices Blackmun, Brennan, Marshall, Powell
and Stevens. Id. Chief Justice Rehnquist filed a dissenting opinion in which Justices
White, O'Connor and Scalia joined. Id.
194. Id. at 2714-15.
195. Id. at 2715.
196. Id. at 2706-08. The accused had been charged with manslaughter in the death
of her husband. Id. at 2706. The couple had been arguing about changing their living
arrangements when the husband prevented the defendant from leaving the premises to
get food. Id. In response to a physical attack, the accused picked up a gun and shot her
spouse, perhaps accidentally. Id. & n.1. There were no witnesses, and the police arrived
on the scene subsequent to the shooting. Id. at 2706. Because the accused could not
remember exactly what happened, her attorney encouraged her to undergo hypnosis. Id.
A licensed neuropsychologist-hypnotist treated her, took notes and tape-recorded both
sessions. Id. at 2706-07. Although no new information came up during these sessions, the
defendant remembered something after hypnosis. Id. at 2707. She recalled that her finger had been on the hammer of the gun, rather than the trigger, and that it discharged
during a physical struggle. Id. Thereafter, an expert examined the weapon and found it
to be defective and prone to misfire. Id.
Upon learning of the pretrial hypnosis sessions, the prosecutor filed a motion arguing for exclusion of the accused's testimony. Id. The trial judge granted the motion at a
pretrial hearing, limiting the defendant's testimony to the doctor's sparse notes and the
expert's opinion testimony. Id. The jury convicted the accused, sentencing her to 10
years in jail with a $10,000 fine. Id.
On appeal, the Supreme Court of Arkansas affirmed and adopted a per se inadmissible rule for all hypnotically refreshed testimony. Id. at 2707-08 (citing Rock v. State, 288
Ark. 566, 573, 708 S.W.2d 78, 81 (1986)). The Arkansas court also held that exclusion of
the accused's testimony had not violated her constitutional rights, because any resulting
"prejudice or deprivation ... was minimal and resulted from her own actions," rather
than an "erroneous" court ruling. Id. at 2708 (citing Rock v. State, 288 Ark. at 580, 708
S.W.2d at 86). Thereafter, the United States Supreme Court granted certiorari to consider the constitutionality of Arkansas' per se rule. Id.
197. Id. at 2708-10.
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and to testify in his or her own defense. "198
Although the hypnotic issue was novel, the Court had seen
other constitutional challenges to state evidentiary rules.199 For
example, in Washington v. Texas,20 0 the Court confronted and
rejected a state statute that had denied the defendant the benefit of his accomplice's testimony. 0 1 This rule of co-defendant incompetency was both unconstitutional and arbitrary, in that it
excluded a relevant and material defense witness from taking
the stand. 0 2 Similarly, the case of Chambers v. Mississippi20 3 is
renowned for invalidating a state hearsay2 0 ' rule that abridged
the defendant's sixth amendment right to present witnesses in
his own defense. 0 5 The Chambers Court held that since the
06
State had not shown the hearsay testimony to be unreliable,
07
it.
introduce
to
the defendant should have been able
The Rock majority made analogies to both Washington and
Chambers in order to evaluate the Arkansas evidentiary rule at
issue .20 Although the Court noted that the right to present relevant testimony is not without limitation, it warned that restrictions of a defendant's right to testify may not be arbitrary or
disproportionate to the purposes they were designed to serve. 0 9
In applying its evidentiary rules, a state has to balance the benefits of such rules against the limitations imposed on the defendant's constitutional right to testify.2 10 The Arkansas rule presumed that posthypnotic testimony was always unreliable, so it
198. Id. at 2708.
199. Id. at 2710.
200. 388 U.S. 14 (1967) (tested witness disqualification rule for "interested" principals, accomplices or accessories in the same crime).
201. Id. at 22-23. The rationale for unconstitutionality was violation of the sixth
amendment. Id.
202. Id. at 23.
203. 410 U.S. 284 (1973) (rejected rule that precluded the accused from cross-examining the confessed murderer).
204. See supra note 72 for the definition of "hearsay" and the text of the corresponding federal rules.
205. Chambers, 410 U.S. at 302.
206. Id. The Rock majority proposes a similar burden of proof for hypnotically refreshed testimony: the state should provide clear evidence of unreliability before it bars
all such testimony per se. Rock, 107 S. Ct. at 2714.
207. Chambers, 410 U.S. at 302.
208. Rock, 107 S. Ct. at 2710-11.
209. Id. at 2711.
210. Id.
19881
HYPNOTICALLY REFRESHED TESTIMONY
excluded all such testimony per se. s1 In adopting this exclusionary rule, Arkansas followed a majority of states.212 Some of these
states, however, have applied this rule only against witnesses,
and not defendants. 2 1
The most influential precedent for the
per se approach, People v. Shirley, in fact, did just that.214
Although the Rock majority detailed the various jurisdictional tests,215 it focused on the admissibility issue with respect
to defendants only.2" The Court chided the Arkansas Supreme
Court for failing to perform the necessary constitutional analysis
pertinent to a defendant's right to testify.21 7 The majority ac-
knowledged the inherent dangers of hypnosis, but stated that
the use of procedural safeguards would reduce such inaccuracies.218 In particular, the Court supported the use of (1) independent and disinterested, trained hypnotists such as psychologists
or psychiatrists, (2) neutral settings where only the hypnotist
and subject were present, and (3) tape or video recordings of all
interrogations before, during, and after hypnosis.21 9 These three
procedures were designed to minimize overt suggestions and biases communicated to the hypersensitive subject by the
hypnotist.22 °
Additionally, the Court mentioned other traditional means
for assessing the accuracy of posthypnotic testimony. 22' First, information recalled after hypnosis could be verified by corroborating evidence.2 2 2 Second, cross-examination, even of confi211. Id. at 2711-12. Therefore, the trial judge had no discretion to balance or to
admit the testimony, even if he was persuaded that it was reliable. Id. at 2712 n.12.
212. Id. at 2712. See supra note 103 for a listing of cases and jurisdictions that
have adopted this exclusionary rule.
213. See, e.g., Shirley, 31 Cal. 3d at 67, 723 P.2d at 1384, 181 Cal. Rptr. at 273.
(exclusionary rule subject to "necessary exception to avoid impairing the fundamental
right of an accused to testify in his own behalf").
214. Id.; Rock, 107 S. Ct. at 2712 n.15.
215. Rock, 107 S. Ct. at 2712 n.14 and 2713 n.16.
216. Id. at 2712 n.15. The majority noted that "[t]his case does not involve . . .
witnesses other than criminal defendants . . . [and] we express no opinion on that
[other] issue." Id.
217. Id. at 2712.
218. Id. at 2714.
219. Rock, 107 S. Ct. at 2714. The court impliedly adopted these guidelines from
the Hurd court. See supra note 88 for the pertinent text of the original Hurd safeguards.
220. Id.
221. Id.
222. Id.
BRIDGEPORT LAW REVIEW
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dent defendants, was an effective tool for discerning
inconsistencies in their testimony.2 23 Third, a jury could be educated to the risks of hypnosis through expert testimony and cautionary instructions.224
The majority conceded that it was unwilling to endorse the
use of hypnosis without qualifications, since scientific knowledge
of it was "still in its infancy."22 Nevertheless, the Court ruled
that Arkansas' legitimate interest in barring unreliable evidence
could not extend to per se exclusions that might be reliable in
individual cases.22 1 In the absence of clear evidence invalidating
all posthypnotic recollections, Arkansas' per se inadmissible rule
was an arbitrary and impermissible restriction of the defendant's right to testify. 227 The Court impliedly sanctioned the relevancy-balancing approach supplemented by safeguards. 22 The
majority also encouraged states to establish clear guidelines that
would aid trial courts in evaluating posthypnotic testimony.22 9
The dissent focused on the notion that an individual's due
process right to present evidence is always subject to reasonable
restrictions. 30 The United States Constitution does not relieve a
defendant from complying with "rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." ' 23 ' Furthermore, the Court
traditionally defers to the states in the establishment and implementation of state evidentiary rules.2 2 This federalist view prohibited the Court from imposing its own view upon Arkansas. 3 3
Similarly, the ad hoc approach which the majority mandated
23 4
was inefficient and posed "serious administrative difficulties.
The ultimate impact of Rock is difficult to assess. Initially,
223.
Rock, 107 S. Ct. at 2714. In California v. Green, 399 U.S. 149, 158 (1970)
(quoting 5 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN
TRIALS AT COMMON LAW § 1367 (3d ed. 1940)), the Court described cross-examination as
the "greatest legal engine ever invented for the discovery of the truth."
224. Rock, 107 S. Ct. at 2714.
225. Id.
226. Id.
227. Id. at 2714-15.
228. See Rock, 107 S. Ct. at 2714.
229. Id.
230. Id. at 1715-16.
231. Id. at 2716 (citing Chambers, 410 U.S. at 302).
232. Rock, 107 S. Ct. at 2716.
233. See id.
234. Id.
1988]
HYPNOTICALLY REFRESHED TESTIMONY
the decision may lead to increased litigation by defendants seeking relief from convictions where their posthypnotic testimony
was excluded per se. The potential for abuse of judicial process
is evident, 3 5 especially if the posthypnotic testimony was a deliberate falsehood or simply erroneous and misleading. Wrongful
convictions of genuinely innocent defendants, however, may be
rectified." 6 Therefore, Rock may lead to increased mitigation of
unfair trials.
Although the scope of the decision is narrowly limited to
defendants, 3 7 the spirit of Rock might also encourage greater leniency towards the admissibility of hypnotically refreshed testimony by witnesses. Therein lies the greatest danger posed by
Rock, because until the "technology" of hypnosis becomes 100%
accurate, a witness' testimony may convict an innocent man or
woman. Nevertheless, courts should favor flexible balancing tests
and be open to crucial evidence gained from new advances such
as hypnosis. The only caveat the courts should preserve is the
additional and necessary scrutiny towards prosecutorial hypnotic evidence.
IV.
CONNECTICUT LAW
Generally, the constitution of Connecticut parallels the federal constitution in all pertinent respects. Therefore, the guarantees of due process, compulsory process, confrontation rights,
and the privilege against self-incrimination apply with equal
force in Connecticut.23 8 The Connecticut rules of evidence are
235. See Shirley, 31 Cal. 3d at 40, 641 P.2d at 787, 181 Cal. Rptr. at 255-56 (predicting delay, confusion, a "fertile new field for litigation" so that "the game [was] not
worth the candle").
236. Such was apparently the case in Rock. See supra note 196 for the facts of this
case.
237. See Rock, 107 S. Ct. at 2712 n.15.
238. Article XVII of Amendments to the Constitution of the State of Connecticut
amends art. 1 § 8 and reads in pertinent part:
In all criminal prosecutions, the accused shall have the right to be heard
by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf. . . . No person shall be compelled to
give evidence against himself, nor be deprived of life, liberty or property without due process of law . . ..
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also essentially the same as the corresponding federal rules,"3 9 so
that considerations of relevancy,24 competency and personal
242
knowledge of witnesses,2" 1 and scientific and expert testimony
govern the admissibility of all evidence in Connecticut state
courts.
The earliest Connecticut precedent relating to hypnosis was
United States v. Miller.243 Although Miller was a federal case, it
originated in the District Court for Connecticut and was appealed in the Second Circuit.24 4 Its influence on Connecticut law
was thus considerable. The Miller court established a basic procedural rule for the use of hypnosis. Essentially, the rule required disclosure of a prosecution witness' pretrial hypnosis to
the defense.24 The purpose behind the rule was to protect the
defendant's right to confrontation and cross-examination, as
well as to insure fairness in criminal trials. 24 61 Even if implementation of the new rule resulted in the "escape of a guilty man
rather than the vindication of an innocent one," the Miller majority was willing to make that sacrifice. 47
In State v. Nims,24 8 the Connecticut Supreme Court was exposed indirectly to the hypnosis admissibility issue. The prosecution had tape-recorded the hypnosis session of a key witness,
but did not plan to use the tape in the state's case.24 9 On crossexamination the defense referred to the hypnotic session as
tainted and suggestive in order to discredit the witness' identification. 250 The prosecution offered the tape as evidence only to
rebut the defense's allegations2 5 1 Therefore, the admissibility of
239.
See
CONNECTICUT RULES OF COURT,
734-36, 745, 756-57 (West 1988). For the
pertinent text of the federal rules, see supra notes 45-47.
240. FED. R. EVID. 401-403.
241.
FED.
R. EvID. 601-602.
242. FED. R. Evm. 702-703.
243. 411 F.2d 825 (2d Cir. 1969). See supra note 64, 66 and accompanying text for
the facts and other extensive details.
244. Id. at 827. See Miller v. State, 381 F.2d 529 (2d Cir. 1967) (affirming district
court conviction).
245. Miller, 411 F.2d at 830.
246. Id. at 832.
247. Id.
248. 180 Conn. 589, 430 A.2d 1306 (1980) (jury trial wherein defendant was convicted of murder).
249. Id. at 598, 430 A.2d at 1310.
250. Id. at 598, 430 A.2d at 1310-11.
251. Id. at 598, 430 A.2d at 1311.
19881
HYPNOTICALLY REFRESHED TESTIMONY
the tape did not depend on the reliability or the truthfulness of
the hypnotic statements." 2 The court exercised its discretion
and admitted the tapes simply to aid the jury in assessing the
credibility of the identification. 53
The most important Connecticut hypnosis case is State v.
Atwood.2" 4 In Atwood, the defendant was charged with the murder of his wife.2 55 Alleging that he was suffering from amnesia,
the accused requested that the court issue a pretrial ruling admitting his testimony should he decide to undergo hypnosis to
refresh his memory. 256 The defense also argued in the alternative
that a finding of true amnesia was irrelevant, since the court
could not deny him the right to testify in his own behalf. 2 57 He
further argued that procedural safeguards would insure the reliof fact should be
ability of the hypnosis session, and the trier
28
able to weigh the value of such testimony. 5
The state, however, stressed that hypnosis was unreliable
29
and not generally accepted within the scientific community. 5
Therefore, a finding of true amnesia was necessary prior to the
granting of the defendant's motion.26 0 Since the accused had
never suffered a loss of oxygen, he experienced no real amnesia."' Ultimately, the defense did not meet its burden of proving
the amnesia, so its initial pleading failed.26 2
252. Id. at 598, 430 A.2d at 1311.
253. Id. at 599, 430 A.2d at 1311. The majority stressed that once the defendant
had " 'opened the door' by introducing the fact of hypnosis, the court had to choose
Id.
whether to leave this inference. . . unanswered, or. . .to let the jury decide .
at 599, 430 A.2d at 1311.
254. 39 Conn. Supp. 273, 479 A.2d 258 (1984). In Atwood, the police responded to a
"domestic complaint" and proceeded to the given address. Id. at 273, 479 A.2d at 259.
There they found the defendant in a closet, lying on top of his deceased wife, with a
blood-stained kitchen knife in his hand. Id. at 273-74, 479 A.2d at 259. The defendant
had stab wounds in his chest, and his wrists were cut. Id. at 274, 479 A.2d at 259. His
wife had died from knife wounds and/or strangulation. Id. at 274, 479 A.2d at 259-60.
The accused alleged that he was unable to recall the events preceding the arrival of the
police. Id. at 275, 479 A.2d at 260.
255. Id. at 274, 479 A.2d at 260.
256. Id. at 274-75, 479 A.2d at 260.
257. Id. at 275, 479 A.2d at 260.
258. Id. at 275, 479 A.2d at 260.
259. Atwood, 39 Conn. Supp. at 275, 479 A.2d at 260. This argument reflects the
Frye view.
260. Id. at 275-76, 479 A.2d at 260.
261. Id. at 276-79, 479 A.2d at 262.
262. Id. at 279, 479 at 262.
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Atwood was a case of first impression for Connecticut.2 6
The majority reviewed the case law of other jurisdictions2 64 and
adopted the Frye per se exclusion approach. 265 The court held
that denial of the defendant's request did not infringe upon his
due process right to testify. 26 6 The majority reasoned that a
judge was not required to accept uncorroborated evidence of
"dubious quality" and "uncertain value. ' 2 7 Therefore, exclusion
of the proposed hypnotically refreshed testimony was proper.26 8
The most recent Connecticut case dealing with hypnosis is
State v.Pollitt.2 a The Pollitt decision was released only two
months after the United States Supreme Court's ruling in Rock
v. Arkansas. Although the Pollitt court conceded that the hypnotic procedures at issue were inadequate,270 it affirmed the trial
263. Atwood, 39 Conn. Supp. at 280, 479 A.2d at 262. The court stated that "Connecticut courts have not yet directly addressed the admissibility issue where the product
offered has been drug or hypnotically induced." Id. at 280, 479 A.2d at 262 (emphasis
added).
264. Id. at 280-82, 479 A.2d at 263-64 (citing Hurd, 86 N.J. at 525, 432 A.2d at 86,
Harding,5 Md. App. at 230, 246 A.2d at 302 and Shirley, 31 Cal. 3d at 18, 641 P.2d at
775, 181 Cal. Rptr. at 243).
265. Id. at 283-84, 479 A.2d at 264. See supra section II(B)(3) of this note for a
detailed discussion and evaluation of this approach.
266. Id. at 284, 479 A.2d at 264-65.
267. Id. at 284, 479 A.2d at 264-65 (quoting Greenfield v. Robinson, 413 F. Supp.
1113, 1120-21 (W.D. Va. 1976) as precedent for defendant hypnosis).
268. See id. at 284-85, 479 A.2d at 265. (Defendant's due process rights unaffected). Arguably, such a strict per se rule seems particularly unfair, because the trier of
fact can never weigh or be apprised of crucial facts and evidence that may be necessary
to prove the defendant's case. See Rock, 107 S. Ct. at 2708-09, 2711-12. This extreme
detriment to the defendant helps to explain the rationale behind the United States Supreme Court's intervention into state evidentiary law in Rock. Id. at 2712. The Rock
court rejected Arkansas' per se rule, which excluded all posthypnotic testimony and relied in part on Atwood's per se view. Id. at 2708. In rejecting Arkansas' rule, then, the
Court also impliedly rejected the Atwood holding. Therefore, Rock severely undercuts
Atwood and challenges its continued application, particularly with respect to defendant
testimony.
269. 205 Conn. 61, 530 A.2d 155 (1987). In Pollitt, the defendant appealed from the
judgments in two consolidated cases where he had been convicted of (1) attempted sexual assault, burglary and unlawful restraint, and (2) sexual assault, burglary and robbery.
Id. at 63, 530 A.2d at 157. The fact of hypnosis was an issue pertinent only to the former
case. Id. at 78, 530 A.2d at 164. The victim in that instance was hypnotized at her home
by a detective who had taken a 10-week course on hypnosis. Id. Another detective was
present, there were numerous distractions, and the session was not recorded on tape or
video. Id. The primary purpose for the pretrial hypnosis was to aid the victim's recall of
the license plate number on her assailant's vehicle, which she might have viewed prior to
the assault. Id. at 78, 530 A.2d at 164.
270. Id. at 80, 530 A.2d at 165. The Pollitt court recognized that the procedural
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HYPNOTICALLY REFRESHED TESTIMONY
court's denial of the defendant's motions to either exclude the
victim's
entire posthypnotic testimony or to exclude parts of
217 1
it.
Instead, the majority distinguished Rock 2
2
and further
concluded that it need not address the defendant's constitutional claims. 2 " The primary basis for this conclusion was the
court's acceptance of the victim's posthypnotic testimony as a
valid recollection rather than a prejudicial product of a
"pseudomemory. "274 The majority thus held that the trial court
75
had properly admitted the testimony.
The Pollitt decision was predictable and reasonable, as well
as extremely narrow. The legitimacy of the posthypnotic testimony had been supported by two corroborating witnesses. 6
Also, the testimony itself was not particularly prejudicial nor
significant to the case's outcome, in that it was "almost identical
in content" to the victim's prehypnotic statements.2 Additionally, the trial court's charge to the jury designated hypnosis as a
factor that related to the weight and credibility of the victim's
testimony.7 8 The Pollitt court upheld this instruction as correct
in law because it "fairly presented the case to the jury in such a
way that injustice was not done to either party.
' 279
The major-
ity, however, carefully qualified its holding as pertaining only to
safeguards, as outlined in Rock, clearly had not been followed. Id. at 80, 530 A.2d at 165.
In particular, a trained psychologist or psychiatrist had not been employed, the setting
was not neutral and non-coercive, and the interview had not been recorded. Id. at 79, 530
A.2d at 164-65.
271. Id. at 81, 530 A.2d at 165-66.
272. Id. at 79 n.6, 530 A.2d at 164 n.6. The Pollitt court noted that Rock narrowly
addressed only criminal defendants, whereas the case at bar dealt with a witness' posthypnotic testimony. Id. at 79 n.6, 530 A.2d at 164 n.6.
273. Pollitt, 205 Conn. at 80, 530 A.2d at 165. The defendant argued that the witness' hypnotic experience had produced a new, false memory recall which deprived him
of his due process and cross-examination confrontation rights. Id. at 80, 530 A.2d at 165.
The court rejected this constitutional argument, because it rejected the underlying factual claim that the recall was false or hypnotically derived. Id. at 80, 530 A.2d at 165.
274. Id. at 80, 530 A.2d at 165.
275. Id. at 81, 530 A.2d at 165-66.
276. Id. at 81, 530 A.2d at 165. The defendant claimed that the victim recalled his
workboots only after hypnosis. Id. Although she failed to include this detail in the original police report, the victim told her brother about it immediately after the assault occurred. Id. Similarly, the victim made an emergency call to a police dispatcher, in which
she referred to her assailant's boots several times. Id. at 81 n.7, 530 A.2d at 165 n.7.
277. Pollitt, 205 Conn. at 81, 84, 530 A.2d at 165, 167.
278. Id. at 84, 530 A.2d at 167.
279. Id. at 85, 530 A.2d at 167.
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posthypnotic testimony that was consistent with prehypnotic
statements. 0
Presumably, the per se exclusion rule postulated in Atwood
was still viable, even though the Pollitt court failed to address
it.281 The hesitancy and evasiveness of the majority with respect
to this issue gives rise to various speculations. 8 2 The most obvious inference is that the Connecticut Supreme Court wants to
keep the matter open for free interpretation by state courts in
the future. By neither endorsing nor overruling Atwood, the majority effectively achieves this goal. Unfortunately, such extreme
"freedom of expression "281 for Connecticut courts may lead to
conflicting decisions and inconsistent case law. The end result
may be chaotic and detrimental rather than merely beneficially
flexible. Whether they be prosecutors or defense counsel, Connecticut attorneys need to have clearer guidelines in order to
plan their cases effectively. Similarly, the state trial courts need
some basic rules or precedent that will assure at least a minimal
degree of uniformity and predictability. By adopting a balancing
test2'8 supplemented by set guidelines,8 6 the state courts will
have the benefit of ad hoc flexibility as well as some essential
structural rules.
V.
PROPOSAL
The issue of admissibility of hypnotically refreshed testimony is highly problematic and poses no easy solution. Until the
techniques of hypnosis become systematized and are proven to
280.
with ...
Id. at 85, 530 A.2d at 167. The court stated: "Because we are not faced today
posthypnotic testimony that is inconsistent with ... statements made prior to
an improperly conducted hypnosis session, we express no opinion on that matter." Id. at
85, 530 A.2d at 167.
281. See Pollitt, 205 Conn. at 85, 530 A.2d at 167 (issue limited to inconsistent
testimony). The opinion makes no reference to Atwood or to the per se exclusion rule
which Atwood posited. Therefore, the Pollitt court neither sanctions nor rejects the rule.
282. See supra note 280 for the text of the majority's opinion, which explicitly declines to decide the matter.
283. By "expression," this Note refers to the four divergent approaches to hypnotically refreshed testimony as discussed in section II(B) of the text. In general, the views
may also be categorized as either a per se rule, a balancing test, or a combination
thereof.
284. FED. R. EvID. 403. See supra note 46 for the text of this rule.
285. See supra note 88 for the appropriate guidelines, as outlined by Dr. Orne in
Hurd.
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HYPNOTICALLY REFRESHED TESTIMONY
be 100% effective and reliable, the legal controversy will probably continue unabated. Since Connecticut case law is limited as
well as confusing," 6 comparison to other jurisdictions2 8 7 is necessary. In light of Rock v. Arkansas, the formerly popular per se
exclusion rule has been officially abrogated, at least with respect
to defendants.2 88 Even the per se admissible rule now appears to
s
be generally disfavored, except in the most obvious of cases. 2
A few early commentators have posited unique solutions.
For example, one author suggested combining hypnosis with a
polygraph test.2 0 The lost information retrieved through the
former technique could then be tested for accuracy by the latter
device. 291 The resulting testimony might be more reliable and
safer to admit into evidence. 9 2 On the other hand, since perjury
and deceit are possible under both methods, the double protection afforded might be superfluous and even futile. 29 1
A second author has proposed continued application of the
Frye test, but with a uniform set of standards that would span
across many jurisdictions.2 9 4 The author's primary goal was to
eliminate the presence of conflicting, local scientific opinions
that produced inconsistent case law.2 95 According to this commentator, "general scientific acceptance" would reflect current
scientific knowledge and practice only if set guidelines were issued by broad-based organizations of psychologists and psychiatrists, rather than by major hypnosis societies. 296 Endorsement
286. See section IV of this Note on Connecticut law, particularly Atwood and Pollitt. The former dealt with defendants, while the latter focused on eyewitness testimony.
The import of both cases is difficult to determine in light of the United States Supreme
Court's decision in Rock v. Arkansas.
287. See cases cited supra notes 84, 97, 103 and 131 for other jurisdictional tests.
288. Rock, 107 S. Ct. at 2712 n.15, 2714-15.
289. See, e.g., Collins v. State, 52 Md. App. 186, 447 A.2d 1271 (1982) (rejecting
Harding'sper se admissible rule prospectively). For an "obvious" case, see Pollitt, 205
Conn. at 61, 530 A.2d at 155. Because hypnosis had a negligible effect on the actual
testimony offered into evidence, it was reasonable and practical to admit it, subject to
the jury's determination as to its weight and credibility. Id. at 81, 84, 530 A.2d at 165,
167.
290. Note, supra note 10, at 146.
291. Id. at 146-47.
292. Id. at 147.
293. Id.
294. Packer, supra note 3, at 323.
295. Id.
296. Id.
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by the latter was undesirable and less credible, since such groups
might seek to legitimize hypnosis in order to insure their own
economic futures.297
The import of these unique suggestions illustrates the classic tension underlying the controversy over hypnotically refreshed testimony. Aside from the risk of unreliability, the major
concerns involve (1) determining if such evidence is beneficial
and useful in an individual case, and (2) developing set guidelines to govern admissibility and to encourage uniformity in the
courts. The first concern may be addressed by ad hoc balancing, while the second gives rise to standardized per se rules.29 9
This Note acknowledges that both basic views have merit, even
though they appear to contradict one another. The best recourse
is to employ a "new relevancy" approach 0 0 that combines factors from both the relevancy and the procedural safeguards
views." 1 This may be accomplished by pretrial admissibility rulings where the judge first finds strict compliance with per se
safeguards, and then weighs the benefits of the posthypnotic testimony against its detriments. 2 The United States Supreme
Court had already suggested such a compromise in Rock v.
Arkansas.3 0 3
Additionally, a distinction must be made between posthypnotic testimony offered by defendants and that given by
prosecution witnesses. In the case of the former, courts should
be more lenient about admissibility, particularly when the ac297. Id.
298. See FED. R. EvID. 403 and the relevancy approach for examples of the balancing test. For the text and analysis of rule 403, see supra note 46. See section II(B)(4) for
material on the relevancy view.
299. See supra section II(B)(1) for the Harding per se admissible view and see
supra section II(B)(3) for the Frye per se inadmissible view. This Note also refers to the
Hurd safeguards, by themselves, as a set of standardized per se rules (see supra note 88
for the actual rules).
300. This Note identifies "new relevancy" as a hybrid of the relevancy plus procedural safeguards views.
301. See cases cited supra notes 31 (relevancy) and 97 (safeguards). The relevancy
approach has already gained support with recent courts and commentators, and the procedural safeguards view has managed to persevere. See also Note, supra note 3, at 954, in
which the author favors the relevancy view since it directly adopts a balancing approach.
Additionally, "all courts agree... balancing. . . should apply to the issues which hypnotically refreshed testimony presents." Id. at 961.
302. See Rock, 107 S. Ct. at 2714.
303. Id.
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HYPNOTICALLY REFRESHED TESTIMONY
cused can show corroboration or a state of traumatic amnesia. In
the absence of such proof, the defendant should be allowed to
offer the testimony provided that 1) he or she has no other
means of defense, or 2) the testimony appears to be probative
and is crucial to the defendant's case. Once admitted, the testimony will still be subject to challenge by cross-examination or
opposing expert testimony. The jury can be given cautionary instructions and may, in any event, disbelieve the testimony and
reject it.
Because the accused has an unequivocal constitutional right
to testify,30 ' any doubts or borderline cases should be resolved in
his or her favor. A balancing test with liberal admissibility for
defendants comports with the spirit of the Federal Rules of Evidence3 0 5 and buttresses the due process right to a fair trial. Fur-
ther protection could be granted to defendants in the form of a
rebuttable presumption which presupposes that their hypnotically refreshed testimony is honest and probative. The prosecution, if it seeks to exclude the testimony, could then assume the
burden to disprove this by clear and convincing evidence.
Where the posthypnotic testimony offered is that of a prosecuting victim or eyewitness, however, the court should exercise
greater scrutiny and caution. In place of the constitutional right
to testify, the accused must be guaranteed the right to crossexamine and confront such witnesses. 06 Again, due process demands that the defendant receive a fair trial, free from any undue suggestiveness or prejudice. A balancing analysis supplemented by procedural safeguards may still be employed,
provided that the court abandons the presumption of honesty
and probity in the proffered testimony. Instead, the prosecution
should establish that the testimony is probative and "reasonably
reliable" by clear and convincing proof.307 Then the defense
should be given the opportunity08 to rebut such testimony by a
preponderance of the evidence.3
304. Id. at 2708.
305. See FED. R. EVID. 401-403 on relevancy, which encourages liberal admissibility.
For the text and analysis of these rules, see supra note 46.
306. U.S. CONST. amend. VI. For the text of this amendment, see supra note 19.
307. See Hurd, 86 N.J. 525, 543, 432 A.2d 86, 95 (1981) (proposing "reasonably
reliable" test). For more details on the Hurd approach, see supra notes 91, 95 and accompanying text.
308. See id. at 548, 432 A.2d at 96 (advocating rebuttable preponderance of the
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In all cases, admissibility should be determined by the trial
judge at a pretrial hearing outside of the jury's presence." 9 The
procedure should be the same for both prosecution and defense
testimony, except for the more advantageous and lower burden
of proof granted to the defendant. This last element is necessary
to protect the accused's due process rights. Historically, the defendant has usually been given certain preferential procedural
privileges,31 0 because of the belief that it is always better to let a
guilty person go free than to risk convicting an innocent individual. 311 This Note defers to this humanitarian view as a basic
principle underlying all modern jurisprudence.
VI. CONCLUSION
The theory of hypnosis is not new to the legal profession,
because police investigators and prosecutors have used it in the
past to aid their witnesses and to strengthen their cases.312 Hypnosis of defendants, however, is a novel issue for Connecticut as
well as for other jurisdictions. 313 Similarly, the constitutional
right to testify in one's own defense is of relatively recent origin.31 ' The juxtaposition of these issues is complex and has received little consideration in rulings prior to Rock v.
31 5
Arkansas.
evidence standard for defendants). See also note 96 supra and accompanying text for
additional reference.
309. See supra sections II(B)(2) (procedural safeguards view) and II(B)(4) (relevancy view) for a review of pretrial procedures and hearings.
310. See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963) (constitutional rule requiring prosecution to disclose evidence favorable to defendants); United States v.
Miller, 411 F.2d 825, 832 (2d Cir. 1969) (same rule to insure fairness in criminal trials);
People v. Shirley, 31 Cal. 3d 18, 67, 723 P.2d 1354, 1384 (1982) (barring posthypnotic
testimony per se, but excepting defendants who wish to take the stand). These preferential privileges flow primarily from the constitutional dictates of the fifth and sixth
amendments. See supra notes 16 and 19 for clarification.
311. See Miller, 411 F.2d at 832 (expounding this view and stating that it was willing to "pay the price").
312. See supra notes 4 and 5 and accompanying text for more information.
313. See cases cited supra notes 84, 97, 103 and 131. Many of these were cases of
first impression. See also Atwood, 39 Conn. Supp. at 280, 283-84, 479 A.2d at 262 (first
Connecticut case to directly address the admissibility issue of hypnotically induced
evidence).
314. See Rock, 107 S. Ct. at 2708-10, where the majority traced the history of the
right and explicitly declared its existence. Rock was the first United States Supreme
Court case to define and discuss it at length. Id.
315. See Arguments Before the Court, supra note 189, at 3688. Although a few
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HYPNOTICALLY REFRESHED TESTIMONY
In particular, hypnosis needs more careful attention and
should be analyzed from a constitutional standpoint as well as
from an evidentiary one. In view of Rock v. Arkansas, Connecticut will be required to reconsider its former per se exclusion
rule.3 16 Therefore, the need for specialized guidance is apparent.
Since no clear judicial precedent exists, 1 7 the legislature might
consider providing this guidance in the form of statutes or
amended rules of procedure and evidence. New provisions regarding the use of hypnosis also may be added to the Connecticut PracticeBook which sets forth the governing rules of court.
In any event, the most practical and constitutional approach would be for Connecticut to adopt a relevancy balancing
test supplemented by strict procedural safeguards. Whether the
posthypnotic testimony is offered by the defense or the prosecution, Connecticut's focus should be to protect the defendant's
due process right to a fair and non-prejudicial trial. At the same
time, the courts should be flexible and ready to respond to
changing scientific methods. Although hypnosis may be presently unpredictable, expanding scientific knowledge and advancements may make it more reliable in the future."' 8 Inevitably, Connecticut courts should be prepared to accept
hypnotically refreshed testimony as an invaluable aid in the
search for truth.
Rene Brandner
cases existed, Rock probably will be considered the seminal case and will function as
primary precedent.
316. See supra notes 265-268 and accompanying text for a review of the per se rule
proposed by the Atwood court.
317. See supra section IV for a discussion of the lack of precedence. The only pertinent Connecticut cases are Atwood and Pollitt, which tend to confuse, rather than to
clarify Connecticut's stance on the admissibility issue vis-a-vis hypnotically refreshed
testimony.
318. See Note, supra note 10, at 127, in which the author offers voiceprints and
fingerprints as examples of presently accepted, reliable evidence. Both of these methods,
like hypnosis, were initially criticized. Id.