Appeal from
the District Court of Burleigh County, South Central Judicial
District, the Honorable Dennis A. Schneider, Judge.
AFFIRMED.
Opinion of
the Court by Paulson, Justice.
Robert J.
Snyder [argued], of Bickle, Coles & Snyder, P.O. Box 2071,
Bismarck, for defendant and appellant.
John M.
Olson, Special Assistant State's Attorney [argued], Gail H.
Hagerty, State's Attorney, and John J. Fox, Assistant State's
Attorney, 514 East Thayer, Bismarck, for plaintiff and
appellee.
State v.
Brown
Crim. No. 906
Paulson,
Justice.
Joseph Lesley
Brown appeals from a judgment of conviction entered on
November 1, 1982, by the District Court of Burleigh County
upon a jury verdict finding him guilty of felonious restraint.
The major issue raised on appeal is whether or not a witness
whose memory has been previously enhanced through the use of
hypnosis may testify in a criminal trial in North Dakota. We
conclude that a witness who has previously been hypnotized is
not rendered incompetent to testify. Rather, we hold that
hypnotism affects the credibility
[337 N.W.2d
139]
but not the
admissibility of such testimony. For the reasons which follow,
we affirm the judgment of conviction.
I. THE FACTS
At
approximately 3 a.m. on June 4, 1982, Michelle Fender, a truck
driver, was driving her truck south on U. S. Highway 83
several miles north of Bismarck. According to Fender, as she
turned east onto a gravel road leading to the Cenex Asphalt
Terminal, a person, later identified as the 19-year-old
complaining witness ["Linda", a pseudonym], jumped out of the
ditch and ran toward the truck, frantically waving her arms.
Linda, who was wearing a softball uniform, began running back
and forth in front of and alongside the truck and eventually
climbed up on the front of the truck cab. Fender, who
described Linda as "hysterical", said that Linda told her that
she had been "raped" and "choked", that she had "wet her
pants", and that she had broken her eyeglasses. Fender also
described Linda's eyes as "crazy, just out of a horror movie".
After some discussion, Fender offered Linda a ride into
Bismarck for the purpose of obtaining help. During the trip to
Bismarck, Linda calmed down somewhat, but remained generally
incoherent. Upon arriving in Bismarck, Fender stopped at a
gasoline service station and telephoned the police.
The police
arrived and took Linda to a local hospital for an examination.
While in the hospital emergency treatment room, Linda was
interviewed by Burleigh County Deputy Sheriff David
Schweitzer. Deputy Schweitzer said he initially observed that
Linda "was under a great deal of emotional stress at the time,
seemed a bit confused, a little disoriented", and that he was
able to elicit only "bits and pieces" of information from her.
Linda told Schweitzer that early in the evening of June 3,
1982, she
had been
playing softball. After the ballgames, Linda and her teammates
drank some beer and then proceeded to the Pizza Hut
Restaurant, where they ate pizza and drank some more beer. The
next thing Linda remembered was driving north on U.S. Highway
83 with "Larry", her softball coach. However, Linda was unable
to explain how she and Larry would have happened to have been
in the car together. Linda told Schweitzer that she remembered
the car turning off of the highway onto a side road and
subsequently being driven into a field. Linda stated that at
that point she thought that her companion became violent and
attempted to have sex with her. She also recalled that her
assailant started choking her and "screaming something about
Vietnam". She also remembered him saying something about
"Charlie". Besides identifying Larry as a possible suspect,
Linda described her assailant as being "fairly well built" or
as having a "husky build". Linda also told Schweitzer that she
had "no idea" where her car was.
The doctor
who conducted the medical examination of Linda also described
Linda as "confused" and "upset". Although tests established
that she had not been raped, the doctor determined that,
because of the existence of petechial hemorrhages behind her
eyes and ears, someone had tried to choke her.
At this
stage, Linda's parents had been informed of the incident.
After giving police the license number and description of the
missing vehicle, a brown station wagon, her parents took her
home.
At
approximately 6 a.m. that same morning, police officers found
the station wagon parked in a small park on the south side of
Bismarck. The officers found the interior of the vehicle to be
in a "very messy condition", with crushed beer cans scattered
throughout and ice cream from a half-gallon container smeared
over the back seat. Schweitzer stated that the hood of the
station wagon felt "fairly warm to the touch".
While
investigating the scene, the police officers discovered the
defendant, Brown, walking in another area of the park carrying
a yellow book bag and a clear plastic garbage bag containing
McDonald's Restaurant food cartons. Brown was wearing a light
blue T-shirt, blue jeans, a navy nylon jacket, and
brownish-black soiled work boots. When questioned as to where
he had
[337 N.W.2d
140]
gotten the
book bag, Brown stated that he had found it on a picnic table
behind some evergreen trees. The book bag contained several
McDonald's Restaurant hamburger containers, a softball, a
digital watch, a pair of eyeglasses, and a clutch purse
containing Linda's identification. Brown also told the
officers that he had been staying with a friend in Bismarck,
but that he was not certain of the friend's address. Following
a brief discussion with Brown, the police took possession of
the book bag, and Brown was released pending further
investigation.
In the
meantime, Larry, Linda's softball coach, was questioned by
officers of the Burleigh County Sheriff's Department and
released.
Later that
same morning, Linda, accompanied by her parents, went to the
Burleigh County Sheriff's Department where she was interviewed
by Detective William Yeck. Detective Yeck testified that Linda
was still confused as to her recollection of the incident, but
that she now knew Larry was not her assailant. Linda stated
that she remembered attending a softball game and afterward
going to the Pizza Hut Restaurant with her friends. At
approximately midnight, they left the restaurant and she drove
three of her friends home. She had no clear recollection of
what occurred after dropping off the last person. She
remembered traveling north on Highway 83, but that she was not
the person driving the vehicle. She also remembered kicking at
the brake pedal in an attempt to stop the vehicle. She further
related that the car went into the ditch or median, and then
was driven south toward Bismarck. Linda remembered the car
eventually turning left onto a gravel road, proceeding for a
short distance, and again turning left into a field near a row
of trees. She said that at this point, the person who had been
driving the car began to choke her. She struggled with the
individual, somehow broke free, and escaped from the vehicle.
As she watched, the person then drove off with her car.
Linda also
remembered walking out of the field onto the gravel road and
heading westbound toward the highway. She also told Detective
Yeck that she recalled coming upon a parked truck with a
female driver, "waking the truck driver or getting the
attention of the truck driver in some way and requesting
help".
When
questioned as to the identity of her assailant, Linda
described him as being "heavy set", and wearing blue jeans and
leather work boots. She also told Detective Yeck that the
individual had long, dark hair, and that she thought he had a
beard, but that the beard was bushier at the chin than
anywhere else on his face. She could not remember if it was a
goatee or if it was a beard that was just more pronounced at
the chin.
Following the
interview, Detective Yeck, in an effort to help restore
Linda's recollection of the events of the previous evening,
transported her and her parents north on Highway 83 in a
Burleigh County Sheriff's Department patrol car for the
purpose of attempting to ascertain the scene of the assault.
While driving north on Highway 83, still within city limits,
the patrol car passed a male Native American individual
walking northbound along the highway. Upon seeing the person,
Linda, who was seated in the front seat of the patrol car "had
a reaction", according to Yeck. Detective Yeck testified that
"She began to kind of tense up and choke, and she
automatically reached behind her and locked the squad car
door". Linda's father, who was seated in the back seat with
his wife, testified that Linda "immediately lurched down in
her seat and reached over and shoved down the door lock on the
side of her door and then immediately looked straight ahead
and just kind of stared". When asked by Yeck whether or not
the person walking along the highway looked familiar to her,
Linda replied that she was not sure, but that the person could
be her assailant.
Detective
Yeck turned the patrol car around and passed the individual
again so that Linda could have another look at the person.
Yeck then called for assistance from the Burleigh County
Sheriff's Department. Another squad car arrived and the
individual was detained at the scene and
[337 N.W.2d
141]
questioned.
The person turned out to be the defendant, Brown.
Yeck parked
his vehicle behind the other patrol car alongside the highway,
in order to give Linda an opportunity to obtain a clear look
at the individual. Linda Again stated that, although there was
a possibility that the person could have been her assailant,
she was not sure.
Brown was
then transported in the other patrol car to the Burleigh
County Jail for questioning. Yeck proceeded north with Linda
and her parents and eventually discovered fresh vehicle tracks
in a field near the Cenex Asphalt Terminal. Linda recognized
the field as the place where she had been attacked. They then
returned to the Sheriff's Department.
While Brown
was being processed at the Sheriffs Department, Linda sat on a
chair in a hallway. On at least one occasion, Brown walked
directly in front of her on the way to different rooms for the
purpose of being processed. Linda was also shown two
photographs of Brown, a front view and a side view, which were
taken at the Sheriff's Department. Linda once again stated
that she thought Brown could be the individual who attacked
her, but she could not be sure. Yeck, who spoke with Brown at
the time, described him as wearing blue jeans, a pale blue
pullover shirt, and leather work shoes. He was also carrying a
reversible tan jacket with blue lining. Yeck also described
Brown as "extremely dirty" and he noticed that Brown had a
mark on his right hand, "an irritation of some sort".
Brown told
the police that he was on his way to Wilton to look for
welding work when he was found walking on Highway 83. He also
admitted to the police that he had taken the yellow book bag
out of Linda's car when it was parked at the park. He said he
had spent the night in the park and when he awoke about
daylight, he noticed the station wagon there. Brown said that
on the previous evening he and two friends, "Rick" and
"Cletus", went down by the railroad tracks in Bismarck about 7
p.m. and drank three bottles of wine together. He stated that
the three men then went to see a movie. Afterward, they "lost"
Cletus, so he and Rick walked to the Main Bar "for a few
drinks" and stayed until nearly closing time. Brown said that
while they were at the bar, Rick got involved in a fight, so
they parted company. According to Brown, he walked to
McDonald's Restaurant and took several hamburgers he had found
in a dumpster. He stated that he then walked to the park where
he went to sleep.
After brief
questioning by the police, Brown was released.
At
approximately 2:15 p.m. that same day, Linda was placed under
hypnosis by Agent Richard Hilde of the North Dakota Crime
Bureau. Agent Hilde and Detective Yeck were present with Linda
during two hypnotic sessions, which were each videotaped. In
the first hypnotic session, which lasted approximately one
hour, Linda was asked to imagine herself to be a news reporter
and describe the entire incident. Linda proceeded to
emotionally and vividly describe, and virtually reenact, the
events of the preceding evening.
Linda stated
that at approximately 12:30 a.m. on June 4, 1982, she dropped
a friend off in south Bismarck and then drove toward her home
in north Bismarck alone in her family's station wagon. At the
intersection of 17th Street and Broadway Avenue, Linda stopped
at a stop sign and heard something fall off the back seat of
the car. After she had turned around to see what had fallen, a
man came up to her car, got in the driver's side and pushed
her to the other side of the front seat. They traveled through
Bismarck, ultimately heading north on Highway 83. Linda said
she tried on several occasions to stop the car by putting her
feet on the brake, but the man kept pushing her away. Linda
also said she pleaded with the man to let her out of the car,
but he refused, and instead, turned the vehicle around and
headed back south toward Bismarck. He then turned onto a
gravel road, and when Linda asked him what he was going to do,
he told her to "Shut up. I'm, going to kill you". When he
turned into a field and stopped the car, the man began to
choke her. Linda, who at
[337 N.W.2d
142]
this point
during the hypnotic session began to gasp for air, said she
thought she was going to die. She said that during the
struggle she managed to "knee" the man in the groin and was
then able to release herself from his grasp and escape from
the car. She watched as the man left with the station wagon.
Linda, who described herself as "hysterical", also related
under hypnosis how she came upon a semi-truck parked on the
road, and stated that the driver was sleeping.
About thirty
minutes after her first hypnotic session, Linda was placed
under hypnosis again for approximately twenty minutes and was
asked to describe her assailant. She did so in extreme detail.
She described the man as approximately five feet nine or ten
inches tall, with a "pot belly", long dark shoulder-length
hair, and a goatee and a mustache, which was "not well kept".
She further described the man as having a "fat face", "puffy
cheeks", "sleepy looking eyes", "dark skin", and said "he
could be an Indian". She also described the man as "dirty",
with "fat, stubby fingers" and a "scratch on the back of his
right hand". She also said he was dressed in blue jeans, a
T-shirt, and leather work boots, all of which were dirty.
Linda's
description of her assailant matched that of the defendant,
Brown.
Shortly after
the hypnotic sessions, Linda was shown a photographic lineup
containing a picture of Brown. Before Detective Yeck could
finish explaining the purpose and function of the lineup,
Linda positively identified the picture of Brown as the person
who had assaulted her. Brown was once again detained by the
police and this time charged with class A felony kidnapping
pursuant to § 12.1-18-01(l.)(d) of the North Dakota Century
Code.
At a
preliminary hearing held on June 17, 1982, Linda took the
stand and positively identified Brown as her assailant. An
information formally charging Brown with kidnapping was filed
on June 21, 1982, and Brown entered a plea of not guilty. On
July 2, 1982, the defendant moved to suppress any proposed
in-court identification of Brown by Linda on the ground that
such identification was made subsequent to Linda being
hypnotized, and was, therefore, per se inadmissible. The
district court entered an order denying the defendant's motion
to suppress on August 6, 1982.
Commencing on
September 21, 1982, the case was tried before a jury in the
District Court of Burleigh County. Among those testifying on
behalf of the State was Linda. Linda testified, over Brown's
objection, and positively identified Brown as the person who
assaulted her. Aaron E. Rash, supervisor of the Crime
Laboratory Division of the State Laboratories Department,
testified that head hair taken from Brown matched hair samples
taken from Linda's jacket. Although Rash noted that hair
cannot be positively associated with a particular individual,
he stated that the hair was definitely of Mongoloid or Native
American origin. Marnell Engstrom and Kris Vetter, who worked
at Hardee's Restaurant on Highway 83 at the time of the
incident, testified that they observed a Native American male
with a reddish-brown station wagon rummaging through a
dumpster in the Hardee's parking lot at approximately 2:30
a.m. on June 4. 1982. They further testified that the man had
long dark hair and was wearing a blue T-shirt and blue jeans.
Although they could not positively identify Brown as the man
they saw, they testified that he resembled the man they saw.
Brown
testified in his own behalf and denied having any involvement
in the crime. The defense also presented a videotaped
deposition of Dr. Bernard L. Diamond, a psychiatrist from San
Francisco, California, and a nationally renowned expert in the
field of hypnosis, who testified in essence that the use of
hypnosis on a prospective witness at a criminal trial is so
inherently dangerous that any testimony by such a person
should not be allowed. Dr. Diamond also attacked the
procedures used by Agent Hilde in hypnotizing Linda as being
unduly suggestive.
On rebuttal,
the State called Agent Hilde who testified as to his
qualifications for performing hypnosis and as to the
procedures
[337 N.W.2d
143]
used during
the two hypnotic sessions with Linda. The State also presented
a videotaped deposition of Dr. Martin Reiser, director of
Behavioral Science Services of the Los Angeles, California,
Police Department, a leading authority on the use of
investigative hypnosis by law enforcement in the United
States. Dr. Reiser testified, in essence, that hypnotically
enhanced memory should not bar a witness from testifying in a
criminal trial. On rebuttal, and over the defendant's
objection, the State also presented for the jury's view the
two videotapes of Linda's hypnotic sessions.
On September
24, 1982, the jury found Brown guilty of the lesser included
offense of felonious restraint, a class C felony." See §
12.1-18-02, N.D.C.C. On September 29, 1982, the defendant
moved for a new trial, again on the ground that Linda should
not have been allowed to testify and identify the defendant in
court because she had been previously hypnotized. The district
court entered a memorandum opinion and order denying the
defendant's motion for a new trial on October 12, 1982. The
court reasoned that Linda's testimony and in-court
identification of Brown after having been hypnotized was
admissible, "and only posed a jury question of her
credibility". Judgment of conviction was entered against Brown
on November 1, 1982, and he was sentenced to serve five years
in the North Dakota State Penitentiary.
Brown's major
contention on appeal is that the trial court committed
reversible error in allowing Linda to testify after her memory
had been previously enhanced through the use of hypnosis.
II. THE
EXPERT TESTIMONY
Dr. Diamond,
the defense's expert witness, defined "hypnosis" as "an
artifically [sic] induced state of altered consciousness
characterized by increased suggestibility, suspension of
critical judgment and psychological and physical relaxation".
As noted earlier herein, Dr. Diamond testified that the use of
hypnosis on a prospective witness at a criminal trial is so
inherently dangerous that any testimony by such a person
cannot be allowed.
According to
Dr. Diamond, the problem is that hypnosis can result in what
is known as "confabulation",1 a process of combining fact and
fantasy during hypnosis which can produce a memory after
hypnosis which the person believes to be true, but which
actually can be a mixture of truth and fantasy. The problem is
compounded, according to Dr. Diamond, because after the person
is hypnotized, he or she believes the testimony to be true
even if it is not true. Further, Dr. Diamond notes that the
use of hypnosis has an additional effect of making the
hypnotized person absolutely sure, calm, and unshakable in
their testimony. Dr. Diamond thus concludes that the testimony
of a hypnotized person has become so "contaminated" by the
hypnosis itself that the person must not be allowed to testify
in court.
Dr. Diamond
testified as follows:
"A ... One of
the most consistent and most profound affects [sic] of
hypnosis is the suspension of critical judgement [sic]. And
this suspension of judgement [sic]--critical judgement
[sic]--lasts indefinitely, even long after the hypnotic trance
is all over with. So the hypnosis is a very useful device for
taking a witness who is unsure and uncertain and who is very
self-critical and doubtful of the validity of their memories.
In a very short time, under hypnosis, you can alter the
individual's attitude towards their memories.
[337 N.W.2d
144]
So when they
come out of the hypnosis, they are now absolutely positive
beyond all doubts and uncertainties as to the correctness and
truth of their memories. Experiments have demonstrated over
and over again this sense of confidence and the belief in the
truth and infallibility of one's memory after hypnosis has
nothing whatsoever to do with whether the memory is really
true or not--that one has this false memories as well as for
true memories.
"A ... You
can hypnotize a person and the person can make up a story out
of their own psychological needs and none of the memory can be
true, and they will have the same sense of confidence and firm
belief that this is a true and valid memory. In most
instances, the hypnotic memories are some kind of mixture of
real and fantasy, confabulated thoughts, things that did
happen and things that didn't happen. And yet, the
individual's own sense of confidence and belief in what they
had is just as firm for the false portions of the memory as
for the correct portions of the memory."
See generally
Diamond, Inherent Problems in the Use of Pretrial Hypnosis on
a Prospective Witness, 68 Calif.L.Rev.313 (1980).
In regard to
Linda's hypnotic sessions, Dr. Diamond testified as follows:
"Q. [By
Robert Snyder, defense counsel] Doctor, in addition to, again,
suggestions or the suggestiveness of the alleged victim in
this case, were you able from the tape to detect any
significant post-hypnotic suggestions that were given to her?
"A. Yes. I
think the hypnotist in this case gives the subject specific
instructions about how they are supposed to--what they are
supposed to do and remember after they awaken from the
hypnotic trance. These are known as 'posthypnotic suggestions'
because although they are given in the hypnotic state, the
effect is supposed to take place after they come out of the
hypnotic state, and we know that this occurs just this way.
"And
the--after the first hypnotic state, the individual is given
suggestions about her--about how to be hypnotized the second
time. And in the second hypnotic state, towards the end, the
subject is given specific instructions about what they are
supposed to remember afterwards. She--in the first place, the
subject is told that she has done very well. In other words,
the effect of such an instruction is to say, 'What you
remember is what we want to hear.' And then at the very end,
he says, and I quote:
'You are
going to feel ever better now. You'll feel pretty good about
this now. Your memory will be refreshed, and you may even
remember more details later on, and when you do, you will have
a desire to get ahold of Bill Yeck--'the investigative police
officer--'and let him know your desire to want to cooperate on
your own as you have done now.'
"Q. What is
the effect of that suggestion?
"A. These
are, of course, commands given to the individual in this very
suggestible state, addressed really to her unconscious mind to
tell her what it is she is supposed to do after she awakens
from the hypnosis. In a susceptible person, these commands
will be followed. And furthermore, he tells her, and I quote:
'And you won't be upset about this anymore.'
"Now the
effect of commands about 'you will feel good' and 'you won't
be upset' is to remove all doubts and uncertainties, all
anxieties, all hesitations, all sense of guilt and
responsibility for anything, and to be able to sort of clearly
and coherently relate what happened as if it were a truthful
story.
"Q. Let me
interject for a minute, Doctor. From your view of this tape,
would you then expect in your opinion that ... [Linda] would
be able to relate this incident very calmly, clearly and
positively?
"A. Yes. My
expectation would be that after this hypnotic experience, the
[337 N.W.2d
145]
witness would
have no difficulty in knowing for certain what she believed
her memory to be and to be absolutely confident in her
correctness of memory and all doubts and uncertainties and
hesitations and conflicts and contradictions would have been
eliminated from the story. So this--in my opinion, to have a
hypnotic session of this kind is really to improperly and, I
think, even illegally coach the witness into making up a story
which will fit the needs of the particular case."
Dr. Reiser,
the State's expert witness, took the opposite position from
that of Dr. Diamond.2 Dr. Reiser defined "hypnosis" as "an
altered state of consciousness, which is characterized by an
increased focus of attention, a heightened state of mental
concentration, and a decrease of focus and concern about
peripheral, or surrounding noises and stimuli". Dr. Reiser
stated that in his experience he has found that a person is no
more or less suggestible under hypnosis. He also testified
that the use of hypnosis does not invariably result in
confabulation, but only produces a recollection of what is
already in the mind of the person hypnotized. Dr. Reiser also
testified that "There is no greater propensity to confibulate
[sic] in my experience by witnesses and victims of major
crimes in hypnosis than there is by other eye witnesses
without hypnosis".
Dr. Reiser
testified as follows:
"Q. By ...
[State's Attorney John] Olson: Does the hypnotic subject
become unshakibly [sic] confident in his or her memory, or
memories of events?
"A. No.
"Again, I
don't think this is a basic hypnosis issue. I think it's an
issue of a particular individual's function, and how a
person's mental processes work. Specifically I have not found
that people merely because of being hypnotized invariably
become unshakible [sic] in their post-hypnotic view of what
happened during a situation, or what their memory is. No, I
don't think that's the case. However, an individual with or
without hypnosis may become more sure of recall. And I think
the literature is quite clear on eyewitness testimony
generally, that after a certain number of reviews without
hypnosis of going through a crime event a person may become
more sure of the recall at the end of that multi-review
process than before. So I don't see that as a hypnosis issue
at all.
"Q. Can the
hypnotist himself, wittingly or unwittingly, influence the
subject as to memory?
"A. There's
less likelihood of influencing the subject in hypnosis than
there is in a routine nonhypnotic interview, essentially
because the witness' eyes are closed and therefore 60 percent,
approximately, of input that a person gets, which is through
the visual senses, is blocked off because of closed eyes. So
body language doesn't matter when the person's eyes are
closed, and so on, so if anything there is less likelihood of
influencing the person, assuming that the interview is
conduced in a correct, neutral, nonleading fashion.
"A. ... All
hypnosis is is an interview technique that hopefully in some
three-quarters will enhance memory by allowing the person to
relax more. It is not a truth-detection instrument. No one who
knows anything about hypnosis claims that it gets at the truth
at all. A person can lie, can make up things, can distort, can
do all of those things under hypnosis if he or she is
motivated to do that."
See generally
M. Reiser, Handbook of Investigative Hypnosis (1980).
In regard to
Linda's hypnotic sessions in particular, Dr. Reiser testified
as follows:
[337 N.W.2d
146]
"Q. [By
State's Attorney Olson] Could you determine from observing
those interview sessions whether or not there was improper
cueing, or improper suggestions made by Agent Hilde?
"A. Not
really, no. There were during the second--what I would call
the second part of the session after the tapes were changed--I
saw this as one session with a break in between the changed
tapes.
"In the
second part of the section, Mr. Hilde did ask some specific
questions, but I didn't consider those improper questions.
"Q. So were
any leading questions, or impermissible procedures used that
you--
"A. There
were some leading questions. I would not consider them
impermissible, though.
"The leading
questions are a matter of degree. There could be mildly
leading questions to severely leading questions, and Mr. Hilde
did not, as I reviewed this two times, ask any severely
leading questions to this witness.
"Q. Is there
any evidence in your opinion as to any hypersuggestibility in
this witness.
"A. Not
really. As a matter of fact, the second part of the session
after the tape was changed, which was about 19 minutes long as
I timed it, there were specific instances where questions were
asked of the subject where she said no in answer to a mildly
leading question.
"For example,
did the subject have sideburns was a question. The answer was
no. Now that could be considered a mildly leading question.
It's really a zeroing-in kind of question when you're trying
to get facial structure of somebody. But the answer was no.
Now if she were completely suggestible at the question did he
have sideburns she would have said oh, oh, yes, yes, he had
sideburns, wanting to, as our opponents would say, please the
hypnotist and confibulate [sic] this material, make it up in
order to fill in that gap. Now obviously that did not happen.
"Did he wear
glasses? No. Again another no, indicating that this witness
was discriminating. She was using her critical judgment, she
was not hypersuggestible.
"And another
mildly leading question, 'Does this person remind you of
somebody,' and she said, 'Well, he's as tall as Larry,' the
coach of the softball team. And then she went on to say about
five nine or five ten, and then she added spontaneously, 'And
he had a moustache [sic], which was not well kept.' So this
was not specifically part of that question, but she
spontaneously added that information of her own volition. And
then she mentioned that he had a round face and dirty work
boots, and so on and so forth.
"So that
taking this whole session in sequence in terms of the way it
went, the first approximately 56 minutes before the tapes were
changed, this was essentially a free narrative by the subject,
by the witness ... [Linda], with essentially no questions
being asked by the hypnotist. So there could have been no
cueing, no suggestions during that first 56 minutes. And she
very clearly, from my way of interpreting it, went through
that event that she experienced abreacting, or showing emotion
at the proper places. And at that point where she was talking
about being choked by this person and re-experiencing not
being able to breathe, anybody viewing that tape I think would
get the impression pretty clearly that this was a revivication
or a reliving of that experience in more detail in this review
hypnotically than she was able to give the detectives prior to
hypnosis."
III.
ADMISSIBILITY OF HYPNOTICALLY
ENHANCED
TESTIMONY IN A CRIMINAL TRIAL
In State v.
Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950), our court first
dealt with the use of hypnosis in a criminal trial. In Pusch,
the defendant was charged with attempting to poison his wife.
The defendant was placed under hypnosis by an experienced
[337 N.W.2d
147]
hypnotist and
thereafter made statements indicating that he was innocent of
the crime charged. The defendant attempted to offer evidence,
including a recording, that all of the defendant's answers to
questions given him under hypnosis indicated that he was
innocent, and that the hypnotist was qualified to attest to
the truthfulness of the answers.
The trial
court in Pusch sustained objections to the defendant's offer
of proof and rejected the testimony. Our court affirmed,
stating that "the evidence was clearly inadmissible". Pusch,
supra 46 N.W.2d at 522.
Pusch is
distinguishable from the instant case. The defendant in Pusch
sought to introduce testimony and a recording of statements he
had made while he was under hypnotic induction for the purpose
of proving their truth. In the instant case, the issue is
whether or not a witness may testify in person after her
memory had been previously enhanced through the use of
hypnosis.3
The question
involved in this case, a question of first impression in our
jurisdiction, lends itself to no easy solution. Jurisdictions
have essentially taken three different approaches regarding
the use of testimony from witnesses whose memories have been
enhanced by hypnosis.
The majority
of jurisdictions appear to have declared that hypnotically
induced testimonial recall generally poses no barrier to
admissibility, but, rather, affects only the weight of the
testimony. The federal courts have adopted this rule. See
United States v. Awkard, 597 F.2d 667 (9th Cir.), cert.
denied, 444 U.S 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979);
United States v. Adams, 581 F.2d 193 (9th Cir.), cert. denied,
439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978); United
States v. Waksal, 539 F. Supp. 834 (S.D.Fla. 1982); United
States v. Narisco, 446 F.Supp. 252 (E.D.Mich. 1977). See
generally Annot., 50 A.L.R.Fed.602 (1980). The same approach
has been taken in Georgia [Creamer v. State, 232 Ga. 136, 205
S.E. 2d 240 (1974)]; Illinois, [People v. Smrekar, 68
Ill.App.3d 379, 385 N.E.2d 848 (1979)]; Indiana [Pearson v.
State, Ind. 441 N.E.2d 468 (1982); Morgan v. State, Ind.App.
445 N.E.2d 585 (1983)]; Louisiana [State v. Wren, 425 So.2d
756 (La.1983)]; Missouri [State v. Greer, 609 S.W.2d 423
(Mo.Ct.App.1980), vacated on other grounds, 450 U.S. 1027, 101
S.Ct. 1735, 68 L.Ed.2d 222 (1981)]; North Carolina [State v.
McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978)]; Oregon [State v.
Brom, 8 Or.App. 598, 494 P.2d 434 (1972); State v. Jorgensen,
8 Or.App. 1, 492 P.2d 312 (1971)]; Tennessee [State v. Glebock,
616 S.W.2d 897 (Tenn. Crim. App. 1981)]; and Wyoming [Chapman
v. State, 638 P.2d 1280 (Wyo. 1982)]. See generally Annot., 92
A.L.R.3d 442 (1979).
Other courts
have allowed the admission of hypnotically induced testimony
subject to compliance with certain procedural safeguards
designed to ensure reliability. These jurisdictions include
Florida [Brown v. State, 426 So.2d 76 (Fla.Dist.Ct.App.
1983)];4 New Jersey [State v. Hurd, 86 N.J. 525, 432 A.2d 86
(1981)]; New Mexico [State v. Beachum, 97 N.M. 682, 643 P.2d
246 (Ct.App. 1981)]; and Washington [State v. Martin, 33
Wash.App. 486, 656 P.2d 526 (1982); State v. Long, 32 Wash.App.
732, 649 P.2d 845 (1982)].
Recently, a
number of jurisdictions have held that a witness who has
undergone pretrial hypnosis is incompetent to testify as to
subject matter discussed at the hypnotic session, and, thus,
that person's testimony is per se inadmissible. These
jurisdictions include Arizona [State v. Mena, 128 Ariz. 226,
624 P.2d 1274 (1981)]; California [People v. Shirley, 31
Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775, cert. denied, U.S.
, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982)];
[337 N.W.2d
148]
Maryland
[Collins v. State, 52 Md.App. 186, 447 A.2d 1272 (1982); Polk
v. State, 48 Md.App. 382, 427 A. 2d 1041 (1981)];5 Michigan
[People v Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982)];
Minnesota [State v. Mack, 292 N.W.2d 764 (Minn. 1980)];
Nebraska [State v. Palmer, 210 Neb. 206, 313 N.W.2d 648
(1981)]; and Pennsylvania [Com. v. Nazarovitch, 496 Pa. 97,
436 A.2d 170 (1981)].
We further
note that many of the jurisdictions which have, as a minority,
excluded testimony generated by hypnotically expanded memory,
appear to have modified their positions in that a witness may
nevertheless testify with regard to those matters which he or
she was able to recall and relate prior to hypnosis. These
jurisdictions include Arizona [State ex rel. Collins v.
Superior Court, Etc., 132 Ariz. 180, 644 P.2d 1266 (1982)];
Colorado [People v. Quintanar, Colo.App., 659 P.2d 710
(1982)]; Michigan [People v. Jackson, 114 Mich.App. 649, 319
N.W.2d 613 (1982); People v. Wallach, 110 Mich.App. 37, 312
N.W.2d 387 (1981)]; Minnesota [State v. Blanchard, 315 N.W.2d
427 (Minn. 1982); State v. Koehler, 312 N.W.2d 108 (Minn.
1981)]; Nebraska [State v. Patterson, 213 Neb. 686, 331 N.W.2d
500 (1983)]; New York [People v. Hughes, 88 A.D.2d 17, 452
N.Y.S.2d 929 (1982); People v. Smith, 117 Misc.2d 737, 459
N.Y.S.2d 528 (Sup.Ct.Dutchess Cty. 1983)]; and Pennsylvania
[Com. v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982)].
As is so
often the case in the area of criminal law and procedure, none
of the different positions adopted by the various courts which
have decided this issue are without practical, conceptual, and
legal incongruities.
The courts
which have adopted the per se inadmissibility rule, and which
Brown urges us to adopt today, have considered expert
testimony and other evidence concerning the problems
associated with using hypnosis as a means of reviving memory.
In general these courts reason that because hypnosis is a
scientific procedure which is capable of irreparably
contaminating the memory of the witness, the procedure must
satisfy the standard for the admissibility of scientific
evidence which was established in Frye v. United States, 293
F. 1013 (D.C.Cir. 1923).6 Because such a procedure, as a means
of obtaining accurate recall, has not "gained general
acceptance in the particular field in which it belongs", Frye,
supra 293 F. at 1014, these courts have ruled that the
testimony of a witness who has undergone hypnosis to refresh
his or her memory is per se inadmissible in a criminal trial.
See, e.g., Mena, supra 624 P.2d at 1297; Shirley, supra 641
P.2d at 796; Mack, supra 292 N.W.2d at 768; Palmer, supra 313
N.W.2d at 655.
Applying the
Frye rule to the method by which testimony is hypnotically
induced has been criticized by several courts. In Brown v.
State, 426 So.2d 76, 89-90 (Fla.Dist.Ct.App. 1983), the court
stated:
"[W]e
conclude that the method by which testimony is hypnotically
induced is not one that falls within the ambit of Frye. '[T]echnically
the test is not directly applicable because it is concerned
with the admissibility of expert opinion deduced from the
results of a scientific technique, such as a lie detector
test, and not with the admissibility of eyewitness testimony.'
Note, The Admissibility of Testimony Influenced by Hypnosis,
67 Va.L.REv 1203, 1217 (1981) (e.s.); accord, Commonwealth v.
Juvenile, 381 Mass. 727, 412 N.E.2d 339, 342-343 (1980). Our
view is supported by that of the New Jersey Supreme Court in
State v. Hurd, which observed:
[337 N.W.2d
149]
'Unlike the
courts in Mena, supra, and Mack, supra, the court below did
not demand, as a precondition of admissibility, that hypnosis
be generally accepted as a means of reviving truthful or
historically accurate recall. We think this was correct. The
purpose of using hypnosis is not to obtain truth, as a
polygraph or "truth serum" is supposed to do. Instead,
hypnosis is employed as a means of overcoming amnesia and
restoring the memory of a witness. See Spector & Foster,
Admissibility of Hypnotic Statements: Is the Law of Evidence
Susceptible?, 38 Ohio St.L.J. 567, 584 (1977).... In light of
this purpose, hypnosis can be considered reasonably reliable
if it is able to yield recollections as accurate as those of
an ordinary witness, which likewise are often historically
inaccurate.'
432 A.2d at
92. See also State v. Beachum, 97 N.M. 682, 643 P.2d 246, 252
(Ct.App. 1981)." [Emphasis in original.]
It has also
been argued that the strict per se inadmissibility rule is
unduly harsh because it denies a victim, who has undergone
hypnosis and who may be the only eyewitness to a violent and
traumatic crime, the opportunity to tell a jury his
recollections of what he saw. Under this line of reasoning, a
victim could not even testify to the occurrence of the crime.
People v. Williams, 132 Cal.App.2d 920, 183 Cal.Rptr. 498, 502
(1982) (Gardner, Associate Justice, concurring).7 This
situation presents the State with the dilemma of choosing to
use a particular witness at trial or to use hypnosis on the
witness as an investigatory tool. See Beachum, supra 643 P.2d
at 252.
We also note
that those cases which have modified the per se
inadmissibility rule to allow the witness to testify with
regard to those matters which he or she as able to recall
prior to hypnosis [see, e.g., State ex rel. Collins, supra;
Koehler, supra; Patterson, supra] are difficult to reconcile
with the leading cases in those jurisdictions adopting the per
se inadmissibility rule. A major concern in the latter cases
was that "Because the person hypnotized is subjectively
convinced of the veracity of the 'memory', this recall is not
susceptible to attack by cross-examination". Mack, supra 292
N.W.2d at 770. See also Mena, supra 624 P.2d at 1280; Palmer,
supra 313 N.W.2d at 653. Under the rationale employed in these
cases, it is difficult to envision how a witness whose memory
has been "irreparably contaminated" could differentiate
between his or her pre- and post-hypnotic memory.8
As noted
earlier herein, a handful of courts have followed a "middle of
the road" approach which allows the admission of hypnotically
induced recall testimony, provided that there has been strict
compliance with court-formulated standards which the courts
reason will minimize the danger of pseudomemory.
Representative of the cases in which specific safeguards have
been adopted is State v. Hurd, 86 N.J. 525, 432 A.2d 86
(1981). The New Jersey Supreme
[337 N.W.2d
150]
Court in Hurd,
supra 432 A.2d at 96-97, ruled that before a party may
introduce hypnotically refreshed testimony, the party must
demonstrate compliance with the following requirements;
"First, a
psychiatrist or psychologist experienced in the use of
hypnosis must conduct the session.
"Second, the
professional conducting the hypnotic session should be
independent of and not regularly employed by the prosecutor,
investigator or defense....
"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 [emphasis in the original]....
"Fifth, all
contacts between the hypnotist and the subject must be
recorded....
"Sixth, only
the hypnotist and the subject should be present during any
phase of the hypnotic session, including the pre-hypnotic
testing and the post-hypnotic interview....
In addition,
the court in Hurd, supra 432 A.2d at 97, ruled that the party
seeking to introduce hypnotically refreshed testimony has the
burden of establishing admissibility by clear and convincing
evidence.
Several of
the Hurd safeguards have been criticized.
Regarding the
first safeguard, that only a licensed psychiatrist or
psychologist conduct the interview, Dr. Reiser testified that
properly trained law enforcement personnel are actually better
qualified to do so. Even Dr. Diamond, the defense's expert
witness, admitted that in "most of the cases, the most
flagrantly suggestive and improper questioning was done by my
medical colleagues". Dr. Reiser also refuted the proposition
that the hypnotist should be independent of the prosecution
and the defense. He reasoned that this is an ethical or
professional integrity question because once a psychologist or
psychiatrist is employed by the defense or the prosecution,
that person is, in a sense, no longer a neutral party. Dr.
Reiser also stated that the requirement that any information
the hypnotist has pertaining to the case should be in writing
again poses only an ethical question and is an attempt to
impose sterile laboratory conditions unrealistic to the real
world. The requirement that before induction the hypnotist
should elicit a detailed account of the facts in the case,
allows "an extra opportunity for the hypnotist to have more
details than is necessary to conduct a neutral, nonleading
questioning of the individual", according to Dr. Reiser. Dr.
Reiser describes the requirement that only the hypnotist and
the subject be present during the interview as "unworkable".
He agreed, however, that a complete record, preferably an
audio-visual record, should be made of the contacts between
the hypnotist and the subject. Dr. Diamond does not believe
that the Hurd safeguards "are sufficient to sort out what is
contamination and hypnotic confabulation and what is reality".
One court has
stated that the Hurd standards might even have an
"affirmatively detrimental effect" in many cases. People v.
Gonzales, 108 Mich.App. 145, 310 N.W.2d 306, 313 (1981), aff'd,
415 Mich. 615, 329 N.W.2d 743 (1982). The court in Gonzales,
supra, reasoned that the Hurd standards, themselves, would
give the hypnotic process "an aura of reliability which, in
actuality, it does not possess", and, thus, a jury would
likely be less critical of the testimony.
The Wyoming
Supreme Court has reasoned that although the party proffering
the testimony of a previously hypnotized witness may wish to
follow the Hurd safeguards to fortify the testimony of the
witness, "there are too many variables in hypnotism to mandate
such requirements". Chapman v. State, 638 P.2d 1280, 1283
(Wyo. 1982).
Other courts
have reasoned that a case-by-case determination under the Hurd
standards would produce a fertile new field for litigation and
thus would consume too much
[337 N.W.2d
151]
in the way of
judicial resources, would produce conflicting results in
different trial courts, and would produce few situations in
which hypnotically induced testimony is ever admitted. See,
e.g., State ex rel. Collins, supra 644 P.2d at 1294; Shirley,
supra 641 P.2d at 787.
The courts
which have held that hypnotically induced testimonial recall
poses no barrier to admissibility reason that the emphasis
should be placed on the credibility, rather than on the
competency, of the witness. These courts generally reason that
the testimony of a witness whose memory has been enhanced
through hypnosis should be treated like other witnesses whose
present recollection has been refreshed. The hypnotic session
is believed to be just one of many factors which can affect a
witness. Under this rationale, the courts conclude that
skillful cross-examination will enable the jury to evaluate
the effect of hypnosis on the witness and the credibility of
his testimony. See, e.g., Smrekar, supra 385 N.E.2d at
854-855; Pearson, supra 441 N.E.2d at 473; Chapman, supra 638
P.2d at 1282-1284.
This position
has been criticized as being insensitive to the problem of the
unreliability of hypnotically induced testimony. The critics
also point to the difficulty and expense of calling expert
witnesses qualified to testify to the reliability and uses of
hypnosis as an investigative tool. It is also argued that to
allow a jury to consider hypnotically induced testimony in a
criminal trial would result in having the defendant's guilt or
innocence depend on the jury's speculating, on the basis of
conflicting scientific-medical testimony, whether or not an
identification was a true recollection or was implanted by the
hypnotist. See, e.g., Shirley, supra 641 P.2d at 787; Mack,
supra 292 N.W.2d at 770; Hurd, supra 432 A.2d at 98 (Sullivan,
Justice, concurring in the result).
Having
carefully considered the pros and cons of the various
positions adopted by the courts in deciding this issue, and
having weighed the benefits of hypnotically induced recall
testimony against the inherent risks, we are not convinced
that a witness should be rendered incompetent to testify
merely because he or she was hypnotized during the
investigatory phase of a criminal case. Rule 601 of the North
Dakota Rules of Evidence provides that "Every person is
competent to be a witness except as otherwise provided in
these rules." Our rules of evidence do not provide that a
previously hypnotized witness is incompetent to testify. We
believe that an attack on credibility is the proper method of
determining the value of hypnotically induced testimony. See
Rule 607, N.D.R.Bv.; Chapman, supra 638 P.2d at 1284.
Accordingly, we align ourselves with the majority of
jurisdictions which have held that hypnosis affects
credibility but not admissibility.
Flatly
rejecting testimonial evidence because it might be suspect is
a proposition we do not favor. If we were to apply to all
witnesses the concern with suggestibility and difficulty of
cross-examination which is exhibited in the decisions from the
jurisdictions which have adopted the per se inadmissibility
rule in regard to hypnotically induced testimony, "we would
not allow a lawyer to talk to his witnesses before trial, we
would exclude most identification testimony, and relatives and
friends of a party could be excluded as witnesses". State ex
rel. Collins, supra 644 P.2d at 1277 (Holohan, Chief Justice,
dissenting).9
Should our
decision result in exposing the jury in each case to the
testimony of expert witnesses as to reliability and uses of
hypnosis as an investigative tool, so be it. We believe this
alternative is preferable to the potential exclusion of
relevant testimonial evidence and, the end of hypnosis as an
investigative tool in this jurisdiction. Expert scientific and
medical testimony is hardly a new phenomenon in a criminal
trial setting. For example, jurors are often exposed to
conflicting medical testimony
[337 N.W.2d
152]
when a
defendant places his sanity at issue. We are firmly of the
belief that jurors are "quite capable of seeing through flaky
testimony" and pseudo-scientific "clap-trap". People v.
Williams, 132 Cal.App.3d 920, 183 Cal.Rptr. 498, 502 (1982)
(Gardner, Associate Justice, concurring).
However, we
are not unaware of the potential for abuse in the use of
hypnotically induced testimony in a criminal trial. Thus, we
believe the following facts are significant in regard to the
instant case:
1. A valid
investigatory purpose existed for placing the witness under
hypnosis. The evidence established that Linda was unable to
recall significant portions of her ordeal with the assailant.
2. The
hypnotist was trained and experienced. Agent Hilde testified
that he had completed 90 hours of formal classroom training in
the use of investigative hypnosis. He had completed 40 hours
of basic training in investigative hypnosis at the Law
Enforcement Hypnosis Training School at Los Angeles,
California, and his advanced training included subsequent
sessions in Los Angeles and Orlando, Florida.
3. A record
was made of the hypnotic sessions. Both of Linda's hypnotic
sessions were videotaped. Although it appears that a record
was not made of the thirty-minute period between the two
hypnotic sessions, Agent Hilde was questioned at the trial as
to his communications with Linda during the interval between
the two sessions
4. Prior to
trial, the defense was made aware of the fact that the witness
had been hypnotized. The record reflects that the State fully
cooperated with defense counsel and made the videotaped
recordings available for his inspection.
5. The
evidence established that, at the time of the incident in
question, the witness had ample opportunity to view her
assailant. It is not disputed that Linda spent a substantial
amount of time in the car with her assailant.
6. The jury
was made fully aware of the fact that the witness had been
hypnotized and of the attendant circumstances of the hypnotic
sessions. As noted earlier herein, Agent Hilde was questioned
by both the state's attorney and defense counsel regarding
whether or not impermissible suggestion was used during
Linda's hypnotic sessions. Both parties called expert
witnesses who gave their opinions as to the reliability of
hypnosis in general and as to the possibility of impermissible
suggestion in Linda's case in particular. In addition, the
jury was allowed to view the actions of the hypnotist in the
videotapes of Linda's hypnotic sessions.
7. The State
did not introduce into evidence the videotapes of the hypnotic
sessions in its case in chief for the purpose of proving the
truth of the matters asserted by the witness. Rather, the
videotapes were introduced during the State's rebuttal as part
of the basis for the expert opinion.10 Although jurisdictions
are divided over the question of whether or not testimony of a
[337 N.W.2d
153]
witness whose
memory has been aided by hypnosis is admissible, courts are
legion in holding that the contents of actual hypnotic
interviews are inadmissible for the purpose of proving that
the facts recounted by the hypnotized witness actually
occurred. E.g., State v. Pusch, 77 N.D. 860, 46 N.W.2d 508,
521-522 (1950); State v. Peoples, 60 N.C.App. 479, 299 S.E.2d
311, 314-315 (1983); People v. Smith, 117 Misc.2d 737, 459
N.Y.S.2d 528, 540 (Sup.Ct.Dutchess Cty. 1983), and cases cited
therein; Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d
414, 419 (1974). We note, however, that in situations such as
the one at bar, the trial court should exercise its discretion
and weigh the probative value of the audio-visual recording as
part of the basis for the expert's opinion against the risk
that the jury might improperly consider it as independent
proof of the facts recited by the witness. See Rule 403,
N.D.R.Ev.; State v. Schlickenmayer, 334 N.W.2d 196, 199 (N.D.
1983); People v. Modesto, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382
P.2d 33, 39-40 (1963); State v. Harris, 241 Or. 224, 405 P.2d
492, 498-500 (1965). In this regard, a cautionary instruction
might be appropriate. However, the record reflects that no
such instruction was requested. Under the circumstances of
this case we believe the trial court properly exercised its
discretion.
8. The
witness's identification of the defendant was corroborated by
other evidence. The evidence established that several hours
after the incident Brown was found in close proximity to
Linda's automobile at the park. Brown also had in his
possession Linda's yellow book bag which was taken from her
station wagon, which had signs of having been recently driven.
Before being placed under hypnosis, Linda "had a reaction",
according to Detective Yeck, upon seeing Brown walking along
Highway 83. At least one of Brown's explanations of his
movements on the night of the incident would have placed him
at the same time and place as Linda at the time her assailant
entered her car. We further note that Linda's description of
her assailant made during the later morning hours of June 4,
1982, before she was placed under hypnosis, was generally
consistent with Brown's appearance.
The defense
argues that Linda's description of her assailant was not a
description of the person who actually attacked her, but was a
description of a person she saw personally and in photographs
on several occasions during the short period of time between
the commission of the crime and the hypnotic sessions, i.e.,
Brown. The State argues that Linda knew before the hypnotic
sessions that Brown was her assailant, but because of her
earlier misidentification of Larry as her assailant, and
subsequent admonishment to her by police to be sure of the
person's identity, she was reluctant to positively identify
him. Those contentions were argued to the jury, and, as we
have concluded, the ultimate determination was properly left
to the jury.
We conclude
that the trial court did not err in allowing Linda to testify
and identify Brown as her assailant.
IV. JURY
INSTRUCTIONS
Brown also
contends that the trial court erred in refusing to instruct
the jury that the crime of kidnapping, a class A felony,
includes the "essential element" that the actor did not
voluntarily release the victim alive and in a safe place prior
to trial. Section 12.1-18-01(2), N.D.C.C., provides that
kidnapping is a class B felony if "the actor voluntarily
releases the victim alive and in a safe place prior to trial".
The trial court presented this issue to the jury in the form
of an interrogatory.
We believe
that this question has been rendered moot because the jury
found Brown not guilty of kidnapping, but guilty of the lesser
included offense of felonious restraint. Our court "has long
indicated it will not issue advisory opinions". Lips v. Meier,
336 N.W.2d 346, 348 n.5 (N.D. 1983).
For the
reasons stated in this opinion the judgement of conviction is
affirmed.
William L.
Paulson
Ralph J.
Erickstad, C.J.
Vernon R.
Pederson
Paul M. Sand
Gerald W.
VandeWalle
[337 N.W.2d
154]
VandeWalle,
Justice, concurring specially.
I concur in
the opinion written for the court by Justice Paulson. It
contains a thorough discussion of the various viewpoints in
other jurisdictions, the pros and cons of the wisdom of
admitting testimony of a previously hypnotized witness, as
well as our conclusion on the matter. I write separately to
indicate that although we have adopted the position that
hypnosis affects the credibility but not the admissibility of
a witness's testimony, I, for one, do not view our opinion as
a carte blanche invitation to use hypnosis as an investigative
tool in all instances. I believe the use of this procedure is
justified only where the particular facts of the case are
sufficient to indicate a necessity for its use. My concern is
that prosecutors and investigators may read our opinion as
indicating that hypnosis should be used as a normal
investigative tool thus subjecting to the procedure all
eyewitnesses or other witnesses who may have heard, smelled,
tasted, or touched something in connection with the crime.
Justice
Paulson has set forth several facts which are significant in
regard to the instant case. They include the fact that Linda
was unable to recall important portions of her ordeal with her
assailant. A review of the evidence indicates far more than
the normal confusion which may beset a victim in these
circumstances. I obviously agree that a witness should be
subjected to hypnosis only by someone adequately trained in
the process and that the procedure specified in the majority
opinion be followed. The procedure should not be attempted by
amateurs.
Perhaps my
thoughts evince some doubt on my part as to the efficacy of
hypnosis; however, I am most concerned that the procedure not
be used in those instances in which there is no clear and
substantial reason for its use. Investigators or prosecutors
should not use the procedure in the remote possibility some
additional evidence may be forthcoming.
Gerald W.
VandeWalle
Paul M. Sand
Footnotes:
1. Brown
contends that the present case has produced two "substantiated
incidents" of confabulation on the part of the complaining
witness, Linda. The first instance, according to Brown, is
that during a hypnotic session Linda described in detail
seeing a person walking down the sidewalk, crossing the
street, approaching her car door, and entering her car.
However, during the trial, Linda testified that she did not
see the person before he entered her car. The second instance,
according to Brown, is that during a hypnotic session she
described coming upon a parked truck on the road and awakening
the driver. However, during the trial, Michelle Fender, the
truck driver, testified that she was driving the truck when
she first encountered Linda.
2. This
controversy has no doubt given rise to a wealth of scholarly
literature in recent years. See, e.g., Note, Hypnotically
Induced Testimony: Credibility versus Admissibility, 57
Ind.L.J. 349 (1982); Note, Safeguards Against Suggestiveness:
A Means for Admissibility of Hypno-Induced Testimony, 38
Wash.& Lee L.Rev. 197 (1981); Note, The Admissibility of
Testimony Influenced by Hypnosis, 67 Va.L.Rev. 1203 (1981);
Comment, Hypnosis--Its Role and Current Admissibility in the
Criminal Law, 17 Willamette L.Rev. 665 (1981).
3. We note
that the jury in this case was allowed to view the videotapes
of Linda's hypnotic sessions. This is discussed infra at pages
152 and 153.
4. Before the
Brown court set forth its series of safeguards, the Florida
courts followed the rule that hypnotically induced testimony
is admissible and the credibility thereof is for the jury to
determine. Clark v. State, 379 So.2d 372
(Fla.Dist.Ct.App.1979). The court in Brown, supra 426 So.2d at
90, concluded that Clark was correctly decided, but further
"recommended" that several safeguards be followed.
5. The
Maryland courts had previously followed the majority rule that
hypnosis affects the credibility, rather than the
admissibility, of the testimony. See State v. Temoney, 45
Md.App. 569, 414 A.2d 240 (1980); Chaney v. State, 42 Md.App.
563, 402 A.2d 86 (1979) Harding v. State, 5 Md.App. 230, 246
A.2d 302 (1968). cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23
L.Ed.2d 468 (1969).
6. We note
that our court has never directly adopted the Frye rule. Cf.
State v. Swanson, 225 N.W.2d 283 (N.D. 1974).
7. In a
subsequent modification of the Shirley decision, the
California Supreme Court determined that the testimony of a
defendant who submits to pretrial hypnosis will not be
rendered inadmissible if he elects to take the stand. The
court reasoned that this exception was necessary "to avoid
impairing the fundamental right of an accused to testify in
his own behalf". Shirley, supra 31 Cal.3d at 67, 181 Cal.Rptr.
at 273.
In regard to
this development, a California appellate judge in Williams,
supra 183 Cal.Rptr. at 502 (Gardner, Associate Justice,
concurring), has noted that:
"The idea
that the predator may testify and yet his victim may not
offends my sense of justice. It appears to me that the scales
of justice are tilted--dangerously."
8. The
Michigan Supreme Court has attempted to deal with this
incongruity. After adopting the strict per se inadmissibility
rule in People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743, 748
(1982), the Michigan Court stated:
"We do not
foreclose, by this opinion, the use of hypnosis as an
extremely useful investigative tool. A party could preserve a
witness's prehypnotic testimony by using a ... deposition.
After the hypnotic session, the subject would be considered
'unavailable as a witness'."
We believe
that this proposed solution nevertheless raises difficult
confrontation problems when, as in the instant case, there is
no "defendant" at the time of the hypnotic session.
9. In
criticizing the per se inadmissibility rule, the dissent in
State ex rel. Collins, supra, also pointed out that "it would
indeed be unfortunate if the defense were prevented from using
the testimony of a witness which might exonerate the
defendant".
10. When the
State offered in evidence the videotapes of the hypnotic
sessions, the following colloquy took place;
"MR. SNYDER:
Your Honor, I'm objecting to that exhibit. I think that ...
[Linda] has testified once already, and to allow this tape to
be played would in effect be allowing her to testify twice,
and I'm objecting to it on a cumulative ground.
"MR. OLSON:
The State resists the objection, your Honor. The defense
witness, Mr. Bernard Diamond, opened up this matter. He based
a lot of his conclusions on reviewing this tape. Our rebuttal
witness Dr. Reiser was presented. He also had observations of
this tape. I think that this tape, the two sessions that we
wish to have presented, are very, very crucial to the
determination to be made by this jury, and it's their
decision.
"THE COURT:
It's the Court's determination through this entire matter that
the question, although argued extensively by both sides in
this particular case, that the central question here, one of
the questions is the acceptance or rejection by the jury of
the complaining witness' testimony, that is to say, ...
[Linda's]. And in that regard, it is my position that at this
particular time that that is evidence that the jury is
entitled to weigh, and in that regard, the jury, I think, is
entitled to have this particular evidence before it. And
therefore, Exhibits Numbers 24 and 25 are received. The
objections are noted and overruled...."
