The Admissibility of Hypnotically Refreshed Testimony in Criminal Cases
| Publication year | 1983 |
| Pages | 600 |
| Citation | Vol. 12 No. 4 Pg. 600 |
1983, April, Pg. 600. The Admissibility of Hypnotically Refreshed Testimony in Criminal Cases
The use of hypnotism as a forensic device is a relatively recent practice. Its use by law enforcement agencies to enhance or refresh the memory of victims or other witnesses to crimes has become an increasingly popular investigative tool. However, the effect of the hypnotic process in enhancing or refreshing recollection has raised some troublesome questions about the reliability of posthypnotic testimony. Since this subject was last addressed in The Colorado Lawyer,(fn1) numerous cases have been decided on the subject, including the recent Colorado Court of Appeals case of People v. Quintana.(fn2)
The early cases considering the question of the admissibility of hypnotically refreshed testimony generally involved two distinct testimonial situations. Statements made while the subject was under hypnosis which were offered, usually by the defense, to prove the truth of the matter asserted were uniformly held inadmissible.(fn3) On the other hand, efforts by the prosecution to introduce statements by a victim or other witness whose memory had been hypnotically refreshed were generally successful, with the effect of hypnosis going to the weight rather than admissibility of the testimony.(fn4)
Although cases following the latter rationale are fairly recent, they appear to have been rendered obsolete, at least in Colorado, by the application to hypnosis cases of the analysis formulated in Frye v. United States(fn5) for determining the admissibility of the lie detector test.
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.(fn6)
This analysis has gained increased acceptance in the determination of the admissibility of hypnotically refreshed testimony. In Colorado, since the Frye test had previously been approved by the Supreme Court in holding polygraph evidence inadmissible,(fn7) the Court of Appeals used it to determine the admissibility of hypnotically refreshed testimony in People v. Quintanar.(fn8)
In Quintanar, the defendant was charged with manslaughter and criminally negligent homicide, the charges arising out of an altercation between the defendant and the victim, who died of a blow to the head. The prosecution's two primary witnesses had given written statements to the police to the effect that they had seen the defendant striking the victim somewhere on the head, though not the exact location. Later in the investigation, both witnesses were hypnotized by a police officer for the purpose of aiding their recall of details. At trial the defense sought to exclude the testimony of both witnesses on the ground that the hypnosis rendered them incompetent to testify. The trial court allowed them to testify but limited their testimony to their prehypnotic recollections as recorded by their written statements.
The Court of Appeals affirmed the trial court's ruling, holding that hypnotically refreshed testimony is insufficiently reliable to be admissible, but that prehypnotic recollections which have been previously recorded are admissible.
In applying the Frye test to hypnotically refreshed testimony, the Court of...
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