Hypnotically Refreshed Testimony in Trials-a New Approach
| Publication year | 1989 |
| Pages | 631 |
| Citation | Vol. 04 No. 1989 Pg. 631 |
1989, April, Pg. 631. Hypnotically Refreshed Testimony in Trials-A New Approach
On June 22, 1987, the United States Supreme Court, in Rock v. Arkansas,(fn1) struck down an Arkansas evidentiary exclusionary rule as it applied to a defendant in a criminal case. The Arkansas rule held that the hypnotically refreshed memories of all witnesses are per se inadmissible. Colorado's almost identical per se exclusionary rule was overruled because of Rock by the Colorado Supreme Court in the November 1987 case of People v. Romero.(fn2)
A close reading of Rock shows that the Court limited its ruling only to the hypnotically refreshed memory of a defendant, which was the issue in that case. The Court did not extend its holding to all witnesses. However, it seems that the logic of the ruling can easily be extended to all witnesses. The Court pronounced:
A State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.(fn3) This wording is compelling, and the Colorado Supreme Court in Romero seems to be in accord with its philosophy.
This article looks at hypnotically refreshed testimony and the standards that have been set nationally and in Colorado. The article also discusses some possible misconceptions about the proper process for hypnosis in forensic settings.
At the time Rock was handed down, sixteen states, including Colorado, had an exclusionary rule similar to that in Arkansas. There were also six jurisdictions which conducted individual reliability inquiries in each case to determine admissibility or adopted a rule that hypnosis affects the credibility, but not the admissibility, of hypnotically refreshed testimony.(fn4)
Colorado's per se exclusionary rule prior to Romero was unequivocally stated in People v. Quintanar.(fn5) The Colorado Court of Appeals held that a witness is not rendered incompetent to testify by virtue of pre-trial hypnotic sessions, and may testify to pre-hyp-nosis recollections. However, the court further held that the testimony of a witness who has been questioned under hypnosis is per se inadmissible as to his or her recollection from the time of the hypnotic session forward.(fn6)
Many of the jurisdictions that have admitted hypnotically refreshed testimony have followed the procedural prerequisites for admissibility adopted in the 1981 case of State v. Hurd.(fn7) The Hurd standards seem to have greatly influenced Colorado in establishing the Romero standards. However, they have been qualified in Romero so they can be used more effectively.
In Hurd, the New Jersey Supreme Court held that such testimony is admissible subject to strict safeguards to ensure the reliability of the hypnotic procedure. The procedural safeguards adopted in Hurd were substantially those suggested by expert witness Dr. Martin Orne(fn8) in the Hurd trial court, and are primarily that:
1) the session must be conducted by a psychiatrist or psychologist experienced in the use of hypnosis;
2) the professional conducting the hypnotic session should be independent of and not regularly employed...
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