STATE v. PEOPLESNo. 106PA83.

319 S.E.2d 177 (1984)

manufacture of formaldehyde, !alued at o!er 2)+,+++. Defendant was arrested on &) $pril ()*( in connection with the robbery. $n eyewitness to the robbery, a shift super!isor at the company whom the perpetrators forced to open the building containing the sil!er, identified defendant as one of the robbers. .ursuant to a plea agreement in an unrelated case, Miller testified against defendant who was tried with 3obert .eele, the third man in!ol!ed in the ,orden #hemical robbery. Miller outlined, in considerable detail, the planning and robbery of ,orden #hemical in which he, .eele, and defendant participated. 4pecifically, he related that defendant, whom Miller had -nown since high school and had seen occasionally during the ensuing twenty years, called him in $pril or May ()*+5 in6uired of his interest in ma-ing 7some easy money75 and arranged a meeting with a third man, .eele. The three men met a number of times to discuss and plan the robbery. $ccording to Miller, defendant called him at his 3aleigh home on &8 May ()*+ and told him to come bac- to /ayette!ille. Miller went to defendant s home, and the two men completed plans for the robbery. Defendant told Miller that a large amount of sil!er was at the plant5 that the number of people at the plant was reduced after the shift changed on 4unday e!enings5 that
3319 S.E.2d 1794

STATE of North Carol !a v. El"#r L#ro$ PEOPLES% Sr.

S&'r#"# Co&rt of North Carol !a. A&(&)t 28% 1984. *&f&) L. Ed" )t#!% Att$. +#!.% ,$ -r#d *. +a" !% A))t. Att$. +#!.% *al# (h% for th# Stat#. .a"#) *. Par )h% A))t. P&,l / 0#f#!d#r% -a$#tt#v ll#% for d#f#!da!t1 a''#lla!t.

EXUM, Justice. The crux of the present case concerns the admissibility of testimony by a witness who undergoes hypnosis prior to testifying. Defendant challenges the trial court s admission of a witness s hypnotically refreshed testimony and of a !ideo tape recording of the hypnotic session. "e find error in both rulings and re!erse the decision of the #ourt of $ppeals. 2. %n the early morning hours of &' May ()*+, ,ruce #roc-ett Miller participated in the armed robbery of the ,orden #hemical .lant in /ayette!ille, 0orth #arolina. 1e, along with two other men, toose!eral buc-ets of almost pure sil!er, used by the plant in its
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company policy prohibited guns on the premises5 that the shift super!isor s name was 4te!e5 and that, once the alarm sounded, the police could arri!e at the plant after no less than fi!e to se!en minutes. 9n 4unday e!ening, Miller, defendant, and .eele went to the plant. $fter the shift changed, Miller, armed with a gun, went to the super!isor s office. 1e instructed the super!isor to ta-e him to the white building where the sil!er was -ept. They went there and were :oined by defendant and .eele. $fter prying open a second door and triggering an alarm, the men loaded a number of blac- buc-ets containing sil!er into the car. They left the premises.( ;ater they

sold some of the sil!er and di!ided the remainder and the money among themsel!es. Miller was arrested on &< March ()*( in connection with an armed robbery unrelated to the instant case. 9n (= $pril ()*(, he ga!e police officers a statement concerning the robbery of the ,orden #hemical .lant, in which he implicated defendant and 3obert .eele. That statement was neither introduced at defendant s trial nor included in the record on appeal. 9n * 9ctober ()*(, Detecti!e 4.#. 4essoms, Jr., of the /ayette!ille .olice Department, conducted a hypnotic session with Miller. 4essoms had pre!iously attended a two>wee- training course in hypnosis at the 0orth #arolina Justice $cademy. 1e stated that the course consisted of the history and current status of hypnosis, myths and misconceptions of hypnosis, illegal aspects of hypnosis, self>hypnosis training, brain psycho> dynamics, de!elopment and training in different techni6ues of hypnotic induction, deepening techni6ues, super!ising sub:ects while they were in a hypnotic state, ta-ing statements from sub:ects in hypnotic conditions, ta-ing composite drawings from people in hypnotic conditions, consisting of written testimony, practical exercises and demonstrations also. During the course, 4essoms hypnoti?ed between eight and ten people. .rior to hypnoti?ing Miller, 4essoms read none of Miller s statements concerning the case. The attempted hypnosis was to seeadditional recall of the robbery which Miller did not ha!e in a normal state. 4essoms explained the process to Miller and proceeded to induce him into a hypnotic state. %n 4essoms opinion, he successfully hypnoti?ed Miller. The process lasted for about an hour. During the hypnotic session, Miller related facts which
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corresponded with his subse6uent testimony. Miller also testified that he did not belie!e he had been hypnoti?ed by 4essoms. Defendant was tried and con!icted for the armed robbery and conspiracy to commit armed robbery of the ,orden #hemical .lant. Judge 3obert ;. /armer consolidated the cases for :udgment and sentenced defendant to a minimum term of se!en years and a maximum term of ten years. The #ourt of $ppeals affirmed. "e allowed defendant s petition for discretionary re!iew on = $pril ()*@. 0.#.Aen.4tat. B <$>@(. 22. The issue before us is whether hypnotically refreshed testimony is admissible. "e do not write, howe!er, on a clean slate. 0umerous state and federal courts which ha!e considered this issue can be categori?ed as followsC D(E cases holding that the effect of prior hypnosis goes only to the weight and credibility, not the admissibility of a witness s testimony5 D&E cases holding that hypnotically refreshed testimony is admissible only if the hypnosis followed certain guidelines5 and D@E cases holding that testimony based on hypnotically refreshed memory is inadmissible.& "e ha!e, until today, adhered to the first position. State v. McQueen, &)= 0.#. )', ((), &88 4.E.&d 8(8, 8&< D()<*E. %n McQueen we obser!ed that
3319 S.E.2d 1804

FtGhe circumstance that this witness was hypnoti?ed prior to trial would bear upon the credibility of her testimony concerning the occurrences at the 0orris house at the time the two women were -illed, but would not render her testimony incompetent. FTGhe :ury was fully ad!ised that the witness had been so hypnoti?ed. 1er credibility, as a result of this circumstance, and of

other matters bearing thereon, was for the :ury. Id. $t the time of our decision in McQueen, howe!er, we were not apprised of the problems inherent in hypnosis. Much of the literature and :udicial analysis regarding hypnosis has emerged since McQueen was decided. ,ecause of recent de!elopments in the understanding of hypnosis as a tool to refresh or restore memory and the :udicial trend away from acceptance of hypnotically refreshed testimony, we now reexamine our position in McQueen in light of the facts before us. "e are also cogni?ant of the !ast array of scholarly literature on hypnosis contained in both legal and scientific :ournals. These sources pro!ided great insight into the process of hypnosis, and we defer to them for this purpose. 9ur goal is to analy?e the legal 6uestion of e!identiary admissibility so as to secure a :ust result. Unfortunately, we cannot achie!e this without some treatment of the hypnotic process itself. "e will, howe!er, follow a simple approach. /irst, we explain briefly the process of hypnosis, emphasi?ing its potential relationship to the :udicial process. 4econd, we examine and e!aluate the three categories of :udicial decisions regarding the admissibility of hypnotically refreshed testimony. Third, we announce the rule to be applied in the courts of this state. 222. The basis for the use of hypnotically refreshed testimony hinges on the notion that memory in!ol!es the storage of information recei!ed by the body s senses in the brain and, therefore, an inability to remember is merely an inability to retrie!e pre!iously stored information. 9rne, 7The Use and Misuse of 1ypnosis in #ourt,7 &< %nt. J. #linical and Experimental 1ypnosis @((, @&( D()<)E. Under this theory, hypnosis operates in a fashion which allows the sub:ect
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to o!ercome the difficulties in retrie!ing this stored information. United States v. Valdez, <&& /.&d (()', (&++ D=th #ir. ()*8E D6uoting .utnam, 71ypnosis and Distortions in Eyewitness Memory,7 &< %nt. J. #linical and Experimental 1ypnosis, 8@<, 8@)> 8+ D()<)EE. $n explanation for this position, simply stated, draws an analogy between the memory process and a multi>channel !ideo tape recorder. $ll sensory impressions are supposedly recorded and stored in their pristine form inside a person s head to be played bacat the time of recall. Theoretically hypnosis acti!ates the !ideo tape recorder. 9rne, supra, at @&(. 1ypnosis, howe!er, in!ol!es more than the mere retrie!al of stored or suppressed information. "hat often seems to be recall is in reality a process through which information recei!ed after an e!ent is transformed by the sub:ect s mind into a memory of that e!ent. See id. Essentially the apparent recollection of a hypnoti?ed sub:ect may actually be a !iew which he has created subconsciously. This composite may e!ol!e from a number of sources, including information gathered from other e!ents, original recall, suggestions occurring during hypnosis from a !ariety of sources, and the unconscious adding of missing details. Martin T. 9rne, one of the leading recogni?ed experts on hypnosis, flatly re:ects the !ideo tape recorder theory of memory and casts serious doubts on the inherent reliability of hypnotically refreshed testimony. Ai!en this basic description of the theory underlying hypnosis, it is illuminating to examine the specific aspects of hypnotic recall rele!ant to its use in a :udicial proceeding. 4uch aspects center on the reliability, or potential for accuracy, of recall stimulated by hypnosis. 4cientists generally agree that a number of flaws exist in the hypnotic process which can contribute to inaccurate recollections. These include the sub:ect s eager suggestibility
3319 S.E.2d 1814

to the hypnotist s words or actions, his desire to accommodate the

hypnotist, and his inability to distinguish between actual memory and pseudo memory arising from the hypnosis. ,arnard ;. Diamond, another recogni?ed expert in the area, explains that hypnosis is a state of increased suggestibility .... F4Guch suggestions cannot be a!oided. The suggesti!e instructions and cues pro!ided to the sub:ect need not be, and often are not, !erbal .... Especially powerful as an agent of suggestion is the context and purpose of the hypnotic session. Most hypnotic sub:ects aim to please.... %t is !ery difficult for human beings to recogni?e that some of their own thoughts might ha!e been implanted and might not be the product of their own !olition .... 0ormally, mental processes are rationali?ed and experienced as the product of free will, e!en when it should be ob!ious that they are not. Diamond, 7%nherent .roblems in the Use of .retrial 1ypnosis on a .rospecti!e "itness,7 '* #al.;.3e!. @(@, @@@>@8 D()*+E. These considerations operate in tandem with the accepted notion that hypnoti?ed sub:ects confabulate, i.e. in!ent details to supply unremembered e!ents in order to ma-e their account complete and logical, as well as acceptable to the hypnotist. Id. at @8&. $lthough scientists do not understand the exact nature of hypnosis, they do recogni?e that it is a trance>li-e state induced by the hypnotist. ,eyond this superficial explanation, the following characteristics ha!e been obser!edC (. Subsidence of the planning function. The hypnoti?ed sub:ect loses initiati!e and lac-s the desire to ma-e and
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carry out plans of his own.... &. Redistribution of attention ... FUGnder hypnosis selecti!e attention and selecti!e inattention go beyond the usual range.... @. Availability of visual e ories fro the past, and heightened ability for fantasy!production.... The memories are not all !eridical, and the hypnotist can in fact suggest the reality of memories for e!ents that did not happen. 8. Reduction in reality testing and a tolerance for persistent reality distortion.... 3eality distortions of all -inds, including acceptance of falsified memories ... and all manner of other unrealistic distortions can be accepted without criticism within the hypnotic state. =. Increased suggestibility. The suggestibility theory of hypnosis is so widely accepted that hypnosis and suggestibility come to be e6uated by some writers on hypnosis. '. Role behavior. The suggestions that a sub:ect in hypnosis will accept are not limited to specific acts or perceptions5 he will, indeed, adopt a suggested role and carry on complex acti!ities corresponding to that role. <. A nesia for "hat transpired "ithin the hypnotic state .... F$mnesiaG is not an essential aspect of hypnosis.... Het it is a !ery common phenomenon, and it can be furthered through suggestion.

E. 1ilgard, The Experience of 1ypnosis '>(+ D()'*E, #uoted in Diamond, supra at @('. These characteristics demonstrate the need for extreme caution in using hypnotically refreshed testimony in a :udicial proceeding. The possibility that a person s testimony might be the result of suggestion from another person presents a firm indictment of the reliability of such testimony. The potential for suggestion is exacerbated by the fact that the hypnotic process is directed by a particular indi!idual and the attention of the sub:ect is wholly focused upon that person. /urthermore, suggestions can be entirely unintended and e!en unpercei!ed by the hypnotist as well as the sub:ect. 9rne, supra at @&&>&<. ;i-ewise, the sub:ect experiences an o!erwhelming desire to please the hypnotist and, hence, becomes e!en more susceptible to suggestion. The sub:ect may unwittingly produce responses which he percei!es to be expected.
3319 S.E.2d 1824

be it :udge or :uror, could hardly ma-e the distinction. $bsent ob:ecti!e, independent means to !erify this recall, its accuracy must remain both un-nown and un-nowable. %n addition to resulting in this inability to distinguish between actual and created memory, the process of hypnosis tends to enhance the sub:ect s confidence in his memory, whether genuine or in!ented. 9rne, supra at @@&. $fter a sub:ect experiences what he belie!es to be a recall of e!ents under hypnosis, he may de!elop an unsha-able sub:ecti!e con!iction and confidence in his refreshed recollection. 9ne court noted that this problem is enhanced by two techni6ues commonly used by lay hypnotistsC ,efore being hypnoti?ed the sub:ect is told Dor belie!esE that hypnosis will help him to Iremember !ery clearly e!erything that happened in the prior e!ent, andJor during the trance he is gi!en the suggestion that after he awa-es he will Ibe able to remember that e!ent e6ually clearly and comprehensi!ely. $eople v. Shirley, @( #al.@d (*, '=, '8( ..&d <<=, *+@>+8, (*( #al.3ptr. &8@, &<&, cert. denied, 8=) U.4. *'+, (+@ 4.#t. (@@, <8 ;.Ed.&d ((8 D()*&E. This difficulty is enhanced after the sub:ect lea!es the hypnotic session because he 7remembers the content of his new Imemory but forgets its source, i.e., forgets that he ac6uired it during the hypnotic session....7 Id. %n short, hypnosis not only irre!ocably mas-s whether a sub:ect s recall induced by it is true, it also creates a barrier to the ascertainment of its truthfulness through cross>examinationKthat method normally relied on in the courtroom to test the truthfulness of testimony. "ith this bac-ground regarding the scientific understanding of hypnosis, we turn to an examination and criticism of the !arious ways in which courts ha!e dealt with the admissibility of hypnotically refreshed testimony.

4ince a sub:ect under hypnosis undergoes an impaired critical :udgment, he may gi!e undue credence to !ague and fragmentary memories upon which he would not ha!e relied outside the hypnotic state. Id. at @('>&+. $ combination of a susceptibility to suggestion and a compelling desire to please the hypnotist causes the sub:ect to experience an unwillingness to admit that he cannot recall certain e!ents. Thus he becomes susceptible to creating the e!ent. %f we accept as true the notions of suggestibility and a tendency to confabulate, the dangers surrounding hypnotically refreshed testimony become e!en more pronounced when we reali?e that it is !irtually impossible for the sub:ect or e!en the trained, professional hypnotist to distinguish between true memory and pseudo memory. Id. at (<5 Diamond, supra at @@@>@8. ,oth the sub:ect and the hypnotist would tend to accept the accuracy of the post>hypnotic recall. #ertainly if neither the sub:ect nor the hypnotist can distinguish between true memory and confabulation, a lay obser!er,
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25. $s we ha!e explained, :udicial decisions respecting the admissibility of hypnotically refreshed testimony fall into three basic groupsC decisions holding that hypnosis affects only the credibility of the witness5 decisions holding that hypnotically refreshed testimony is admissible if the hypnotic process followed certain procedural safeguards5 and decisions holding that hypnosis renders a witness s subse6uent testimony inadmissible. "e will discuss each approach seriati , noting the rationale underlying it and e!aluating it in light of the nature of hypnosis. A. The Credibility Approach.
3319 S.E.2d 1834

Th# f r)t "a6or d#/ ) o! to /o!) d#r th# &)# of h$'!o) ) to #!ha!/# a 7 t!#))8) "#"or$ 7a) Harding v. State, 9 :d.A''. 230% 246 A.2d 302 (1968)% overruled, Collins v. State, 92 :d.A''. 186% 447 A.2d 1272 (1982)% aff'd, 296 :d. 670% 464 A.2d 1028 (1983). 2! Harding th# v /t " of a ra'# a!d a))a&lt t#)t f #d aft#r )h# had ,##! h$'!ot ;#d ! ord#r to r#/all th# #v#!t. Sh# #<'la !#d that )h# 7a) t#)t f$ !( fro" h#r o7! r#/oll#/t o!. That t#)t "o!$ 7a) )&''ort#d ,$ th# h$'!ot )t 7ho t#)t f #d% a) a! #<'#rt% that h$'!o) ) 7a) (#!#rall$ r#l a,l# a!d !ot &!d&l$ )&((#)t v#. =# )tat#d that >2 )#r o&)l$ do&,t )&((#)t , l t$ ! th# 7a$ 7# th !? of% ! that $o& hav# a! !fl&#!/# a!d th# '#r)o! )&,6#/t) h ")#lf to $o&r !fl&#!/#.> Id. 9 :d.A''. at 240% 246 A.2d at 308. Th# :ar$la!d /o&rt /o!/l&d#d that th# fa/t of h$'!o) ) 7#!t to th# 7 t!#))8) /r#d , l t$ a!d !ot to th# ad" )) , l t$ of th# #v d#!/#. Th ) a''roa/h v #7#d th# /hall#!(#d t#)t "o!$ a) a 'r#)#!t r#/oll#/t o! of 'a)t #v#!t) "#r#l$ r#fr#)h#d ,$ th# h$'!o) )% "&/h a) t " (ht hav# ,##! r#fr#)h#d ,$ a!$ )t "&l&). A//ord !(l$% th# fa/t that a 7 t!#)) had ,##! h$'!ot ;#d 7#!t o!l$ to h ) /r#d , l t$ a) a 7 t!#)). The ob!ious ad!antage of this approach hinges on its permitting the :ury to hear all testimony which might be important in a gi!en case. /urthermore it affords the :ury an opportunity to hear certain testimony which may pro!e critical, especially where the witness who has been hypnoti?ed is the bulwar- of the prosecution s case. Under this approach, traditional legal de!ices including cross> examination of the witness5 disclosure to the :ury of the hypnotism5 expert testimony on hypnosis, its ris-s, and limitations5 and appropriate instructions from the court, purportedly enable the :ury to e!aluate properly the credibility of a witness who has been hypnoti?ed. See 3uffa, %ypnotically Induced &esti ony' Should it

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be Ad itted( () #rim.;.,ull. &)@, &)* D()*@E. 4ince the %arding decision in ()'*, a number of :urisdictions, including our own, ha!e followed its lead in holding that a witness s testimony ha!ing been refreshed by hypnosis goes only to credibility and not admissibility. )rea er v. State, &@& Aa. (@', &+= 4.E.&d &8+ D()<8E5 $eople v. S re*ar, '* %ll.$pp.@d @<), &8 %ll.Dec. <+<, @*= 0.E.&d *8* D()<)E5 $earson v. State, 88( 0.E.&d 8'* D%nd.()*&E5 State v. +ren, 8&= 4o.&d <=' D;a.()*@E5 State v. ,reer, '+) 4.".&d 8&@ DMo.#t.$pp.()*+E, vacated on other grounds, 8=+ U.4. (+&< D()*(E5 State v. McQueen, &)= 0.#. )', &88 4.E.&d 8(8 D()<*E5 State v. -ro"n, @@< 0.".&d (@* D0.Da-.()*@E5 State v. -ro , * 9r.$pp. =)*, 8)8 ..&d 8@8 D()<&E5 State v. ,leboc*, '(' 4.".&d *)< DTenn.#r.$pp.()*(E5 )hap an v. State, '@* ..&d (&*+ D"yo.()*&E. Despite the claim that this approach allows the :ury to consider all rele!ant e!idence, it is not without its limitations. $s we ha!e noted, scientific research indicates the unreliability of hypnotically refreshed testimony.@ "e were not aware of the significant pitfalls in this process when we decided McQueen and apparently the %arding #ourt was similarly unapprised. $s one expert on hypnosis explained, .erhaps if the %arding trial and appellate courts had been presented a more accurate description of the nature of hypnosis and the extreme !ulnerability of the sub:ect to suggestion, they might ha!e been less disposed to admit the e!idence, and the subse6uent trend of the law might ha!e been different. Diamond, supra, at @&@. The o!erwhelming scientific e!idence is that a sub:ect under hypnosis is extremely susceptible to suggestion, has an often o!erwhelming desire to please the hypnotist, and is left, after hypnosis, with an inability to distinguish between pre> hypnotic memory and post>hypnotic recall, which may be the
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product of either suggestion, confabulation or both. Thus, the !ery foundation of the %arding approach is 6uestionable, since hypnotically refreshed testimony may well be completely unreliable. More important, this unreliability may be impossible for e!en an expert to ascertain since neither the hypnotist nor the sub:ect can accurately determine whether a hypnoti?ed person s recall under or after hypnosis is actual memory or confabulation. .erhaps the most serious flaw in the credibility approach is the misconception
3319 S.E.2d 1844

that cross>examination of the pre!iously hypnoti?ed witness will allow the opponent not only to illustrate the ris- of the procedure, but also to contest the witness s testimony. 4cientific research indicates that once a sub:ect experiences hypnotic recall, his confidence in the accuracy of his recall is greatly strengthened. This enhanced confidence may gi!e the witness an unsha-able con!iction that his testimony is accurate. Diamond, supra, at @@) Dnoting that one 7remar-able feature of hypnosis is its apparent ability to resol!e doubts and uncertainties ...7E. This false confidence may actually nullify the safeguard of cross>examination. %n a criminal proceeding a defendant has a constitutional right to confront the witnesses against him. U.4. #onst. amend. L%. 4ince a pre!iously hypnoti?ed witness has no recollection of the procedure itself, the defendant is unable to 6uestion him about the hypnotic process and his right of confrontation on this point is completely frustrated. Effecti!e cross>examination is, furthermore, nearly impossible when a witness s confidence in his recall has been artificially enhanced by hypnosis. %n the final analysis, o!erwhelming scientific e!idence suggests that hypnotically refreshed testimony is not inherently reliable and that cross>examination is not an ade6uate safeguard against the dangers inherent in hypnosis. Het there is a 7scientific7 aura which is associated with hypnosis that may be so well>entrenched in the

minds of potential :urors that they assign undue credibility to hypnotically refreshed testimony. Jurors may 7accord uncritical and absolute reliability to a scientific de!ice without consideration of its flaws in ascertaining !eracity.7 )o on"ealth v. .azarovitch, 8)' .a. )<, (+&, 8@' $.&d (<+, (<@ D()*(E D6uoting 4pector M /oster, Ad issibility of %ypnotic State ents' Is the /a" of 0vidence Susceptible( @* 9hio ;.J. ='<, =*@ D()<<EE. Jurors are, 6uite simply, not able to be arbiters of the credibility of hypnoti?ed witnesses. 3uffa, supra, at @(8. "e conclude, therefore, that the credibility approach to hypnotically refreshed testimony is unsound and should be re:ected. %n o!erruling %arding, the Maryland court reached the same conclusion. )ollins v. State, =& Md.$pp. (*', 88< $.&d (&<& D()*&E, aff1d, &)' Md. '<+, 8'8 $.&d (+&* D()*@E. @. The Safeguards Approach. The second group of cases which adopt a middle ground is exemplified by State v. %urd, *' 0.J. =&=, 8@& $.&d *' D()*(E. $s the 0ew Jersey #ourt explained, 71ypnotically>induced testimony may be admissible if the proponent can demonstrate that the use of hypnosis in the particular case was a reasonably reliable means of restoring memory comparable to normal recall in its accuracy.7 Id. at =@*, 8@& $.&d at )&. These decisions recogni?e the general problems associated with hypnosis, including extreme suggestibility, loss of critical :udgment, tendency to confabulate, and increased confidence in one s recall. %n an effort to reconcile these scientifically established problems associated with hypnosis with the recognition that rendering hypnotically refreshed testimony inadmissible may result in the potential loss of important e!idence, these cases car!e out a middle ground between admissibility and inadmissibility. To facilitate this approach, the %urd #ourt adopted the following set of guidelinesC
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/irst, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session .... 4econd, the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, in!estigator or defense. Third, any information gi!en to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or in other suitable form .... /ourth, before inducting hypnosis the hypnotist should obtain from the sub:ect a detailed description of the facts as the sub:ect remembers them ....
3319 S.E.2d 1894

/ifth, all contacts between the hypnotist and the sub:ect must be recorded. This will establish a record of the pre> induction inter!iew, the hypnotic session, and the post> hypnotic period, enabling a court to determine what information or suggestions the witness may ha!e recei!ed.... 4ixth, only the hypnotist and the sub:ect should be present during any phase of the hypnotic session, including the pre>hypnotic testing and the post>hypnotic inter!iew .... Id. at =88>8', 8@& $.&d at )'>)<. These procedural safeguards were first suggested by 9rne. See 9rne, supra, at @@=>@'. $ number of courts ha!e followed 0ew Jersey s lead in ta-ing this middle ground, adopting guidelines similar to those abo!e. See -ro"n v.

State, 8&' 4o.&d <' D/la.Dist. #t.$pp.()*@E5 State v. -eachu , )< 0.M. '*&, '8@ ..&d &8' D#t.$pp.()*(E5 State v. Martin, @@ "n.$pp. 8*', '=' ..&d =&' D()*&E. 9regon has codified this approach in its statutes. 9r.3e!.4tat. B (@'.'<= D()*(E. Theoretically, adherence to these procedural re6uirements is supposed to increase the reliability of hypnotically refreshed testimony and decrease the dangers inherent in the hypnotic process, especially that of suggestion. $rmed with a proper and complete record of the entire hypnotic process, a court may exclude hypnotically refreshed testimony if it deems it too unreliable after considering the procedures employed in performing the hypnosis. 4ince the :ury hears this e!idence only after the court ma-es an initial :udgment of reliability, this approach at least eliminates the problems associated with the :ury s ha!ing to ma-e its own determination of reliability. $ number of problems still remain. The most important is that ascertaining the reliability of hypnotically refreshed testimony may yet remain practically impossible e!en for well trained obser!ers including the trial :udge. %f, as many experts on hypnosis belie!e, the hypnoti?ed sub:ect tends to confabulate or fill in gaps in his memory so that neither he nor the trained hypnotist can distinguish between what the sub:ect truly recollects and what he has confabulated, then ascertaining the reliability of his hypnotically refreshed testimony becomes practically impossible. 9nly if this testimony is independently corroborated would its accuracy be reasonably ascertainable. %n that case, howe!er, the need for the hypnotically refreshed testimony is diminished since the corroborating e!idence could often be used in its place. This approach also contemplates a case>by>case analysis of admissibility of specific hypnotically refreshed testimony. %t consumes :udicial time and leads to conflicting results in the trial courts. /urther, it could ha!e the ad!erse effect of gi!ing
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hypnotically refreshed testimony, in the eyes of the :ury, 7an aura of reliability which, in actuality, it does not possess ....7 $eople v. ,onzales, (+* Mich.$pp. (8=, ('+, @(+ 0.".&d @+', @(@ D()*(E, aff1d, 8(= Mich. '(=, @&) 0.".&d <8@ D()*&E, odified on other grounds, 8(< Mich. )'*, @@' 0.".&d <=( D()*@E. The courts which admit hypnotically refreshed testimony if it follows certain safeguards e6uate the potential inaccuracies of hypnotically refreshed testimony with 7often historically inaccurate7 ordinary eyewitness testimony. %urd, *' 0.J. at =8&>8@, 8@& $.&d at )&. #ertainly all eyewitness testimony is sub:ect to inaccuracies because human beings are fallible. The problem with hypnotically refreshed testimony lies not so much with the fallibility of the human witness but with the defects in the hypnotic process itself which cannot be compensated for by the ordinary trial process. 1ypnotically refreshed testimony is, 6uite simply, not li-e normal eyewitness testimony. The fatal flaw with the safeguards approach, as ac-nowledged by 9rne who originally proposed it, is that the safeguards cannot pre!ent the sub:ect from confusing that which he has confabulated under hypnosis with actual memory. 9rne, $ffida!it for $micus #uriae ,rief in 9pposition to .etition for 3ehearing before #alifornia 4upreme #ourt at '><, $eople v. Shirley, @( #al.@d (*, '8( ..&d <<=, (*( #al.3ptr. &8@
3319 S.E.2d 1864

D()*&E, #uoted in 3uffa, supra at &)8 n. *. Thus this approach affords no acceptable way to test the reliability of hypnotically refreshed testimony. C. The Inadmissibility Approach. $ growing number of state courts ha!e adopted a general rule that hypnotically refreshed testimony is inadmissible, a position first ta-en in State v. Mac*, &)& 0.".&d <'8 DMinn.()*+E. See State v. Mena, (&* $ri?. &&', '&8 ..&d (&<8 D()*(E5 $eople v. Shirley, @( #al.@d (*, '8( ..&d <<=, (*( #al.3ptr. &8@, cert. denied, 8=) U.4.

*'+, (+@ 4.#t. (@@, <8 ;.Ed.&d ((8 D()*&E5 Strong v. State, %nd., 8@= 0.E.&d )') D()*&E5 )ollins v. State, =& Md.$pp. (*', 88< $.&d (&<& D()*&E5 $eople v. ,onzales, 8(= Mich. '(=, @&) 0.".&d <8@ D()*&E, odified on other grounds, 8(< Mich. )'*, @@' 0.".&d <=( D()*@E5 State v. $al er, &(+ 0eb. &+', @(@ 0.".&d '8* D()*(E5 $eople v. %ughes, ** $.D.&d (<, 8=& 0.H.4.&d )&) D()*&E5 )o on"ealth v. .azarovitch, 8)' .a. )<, 8@' $.&d (<+ D()*(E. $t least one federal court also follows this rule. See United States v. Valdez, <&& /.&d (()' D=th #ir.()*8E. This approach appears to be gaining in :udicial fa!or. See 0ote, $retrial %ypnosis and its 0ffect on +itness )o petency in )ri inal &rials, '& 0eb.;.3e!. @@', @8' D()*@E. These decisions reflect a common concern with the present state of the art of hypnosis. They elect to preclude the admission of hypnotically refreshed testimony because the indices of unreliability inherent in normal memory reappear in more extreme forms when the witness is hypnoti?ed. The 7safeguards7 theory, first enunciated by %urd, is deemed inade6uate and impractical in alle!iating this unreliability. Shirley, @( #al.@d at '@ n. 88, '8( ..&d at *+& n. 88, (*( #al.3ptr. at &<+ n. 88. %n reaching the :udgment that hypnosis, as a scientific method for impro!ing a witness s recollection, is unreliable, many courts ha!e determined that the scientific community has not recogni?ed hypnosis as a generally reliable method of enhancing a witness s recollection to the extent that it should be used in :udicial proceedings. See Mena, (&* $ri?. at &@(, '&8 ..&d at (&<)5 .azarovitch, 8)' .a. at ((+, 8@' $.&d at (<<. These cases rely upon the standard established in 2rye v. United States, &)@ /. (+(@ DD.#.#ir.()&@E. This widely recogni?ed and cited case formulated the general rule that expert testimony on a new scientific techni6ue can only be admitted when that techni6ue has 7gained general acceptance in the particular field in which it belongs.7 Id. at (+(8. #ourts relying upon 2rye scrutini?e the scientific testimony and literature to determine whether hypnosis
(+ 3efreshing 3ecollection

has 7gained such standing and scientific recognition among FtheG authorities as would :ustify the courts in admitting7 hypnotically refreshed testimony. Id. $s the Mac* court stated, 7Under the 2rye rule, the results of mechanical or scientific testing are not admissible unless the testing has de!eloped or impro!ed to the point where experts in the field widely share the !iew that the results are scientifically reliable as accurate.7 &)& 0.".&d at <'* DMinn.()*+E. #ourts which adopt the !iew that hypnotically refreshed testimony is inadmissible re:ect both the notion that a witness s ha!ing been hypnoti?ed goes only to his credibility and the belief that the unreliability inherent in hypnosis can be eliminated or sufficiently curbed by following certain procedural safeguards. Valdez, <&& /.&d at (&+&. ,y holding hypnotically refreshed testimony inadmissible, these courts ris- excluding e!idence which may be both rele!ant and probati!e on certain issues. Id. at (&+(. Despite this potential loss of e!idence, the unreliability of the hypnotic process and its unacceptability within the scientific community ha!e led these courts to conclude that the fairest practice is to -eep hypnotically refreshed testimony out of :udicial proceedings. 4e!eral courts, while adopting a general rule of inadmissibility, ha!e refrained from ma-ing the rule absolute. The /ifth #ircuit noted that in a gi!en case, 7the e!idence fa!oring admissibility might ma-e the probati!e !alue of the testimony outweigh
3319 S.E.2d 1874

its pre:udicial effect. %f ade6uate procedural safeguards ha!e been followed, corroborati!e post>hypnotic testimony might be admissible.7 Valdez, <&& /.&d at (&+@. The #alifornia 4upreme #ourt exempted testimony of a criminal defendant himself from its rule of inadmissibility. The #ourt created this 7necessary exception to a!oid impairing the fundamental right of an accused to testify in his own behalf.7 Shirley, @( #al.@d at '<, '8( ..&d at *+=, (*( #al.3ptr. at &<@. /urthermore, courts which ha!e ruled hypnotically refreshed testimony inadmissible ha!e not precluded the testimony

of a pre!iously hypnoti?ed witness concerning matters related prior to the hypnotic session, so long as the testimony does not relate the fact that the witness has been hypnoti?ed. State e3 rel. )ollins v. Superior )ourt of Arizona, (@& $ri?. (*+, &+)>(+, '88 ..&d (&'', (&)= D()*&E5 Shirley, @( #al.@d at '<, '8( ..&d at *+=, (*( #al.3ptr. at &<@5 Mac*, &)& 0.".&d at <<(. )o on"ealth v. &aylor, &)8 .a.4uper. (<(, 8@) $.&d *+= D()*&E. The general approach is to find hypnotically refreshed testimony inadmissible sub:ect to these limited exceptions. 5. 9ur re!iew of the state of the art of hypnosis and the :udicial decisions which ha!e considered the admissibility of hypnotically refreshed testimony lead us to conclude that our decision in McQueen should be o!erruled insofar as it permits the admission of hypnotically refreshed testimony. Ai!en the problems inherent in the hypnotic process, such as the enhanced suggestibility of the sub:ect, his tendency to confabulate when there are gaps in his recollection, his increased confidence in the truthfulness and accuracy of his post>hypnotic recall which may preclude effecti!e cross>examination, and the inability of either experts or the sub:ect to distinguish between memory and confabulation, hypnotically refreshed testimony is simply too unreliable to be used as e!idence in a :udicial setting. $ salient factor influencing our decision to re!iew and o!errule McQueen is Maryland s decision to o!errule %arding. )ollins, =& Md.$pp. (*', 88< $.&d (&<& Do!erruling %arding v. State, = Md.$pp. &@+, &8' $.&d @+& D()<*EE, aff1d, &)' Md. '<+, 8'8 $.&d (+&*. "e followed %arding in McQueen and the recent o!erruling of %arding by the Maryland #ourt of $ppeals erases the cornerstone of the credibility approach to hypnotically refreshed testimony and, hence, the basic premise of McQueen. $s one
(( 3efreshing 3ecollection

commentator noted, 4)ollins destroys the !ery foundation of those cases that ha!e !iewed hypnosis as only affecting the credibility of witnesses.7 0ote, 7.retrial 1ypnosis,7 supra at @88. "e find the change adopted by the Maryland courts extremely persuasi!e in our analysis of the admissibility of hypnotically refreshed testimony. $ number of the courts which ha!e applied the 2rye test and concluded that hypnotically refreshed testimony is inadmissible ha!e used that test in other contexts. See State v. +a*efield, &'@ 0.".&d <' DMinn.()<*E Dconsidering the admissibility of polygraph resultsE5 State e3 rel. &ri ble v. %ed an, &)( Minn. 88&, ()& 0.".&d 8@& D()<(E Dconsidering the admissibility of !oice printsE. $lthough we ha!e not specifically adopted the 2rye test in this :urisdiction, we ha!e used the theory underlying that decision. %n holding that the results of polygraph examinations should not be admitted, we stressed that the polygraph had 7not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception.7 State v. 2oye, &=8 0.#. <+8, <+*, (&+ 4.E.&d ('), (<& D()'(E. Accord State v. -runson, &*< 0.#. 8@', 88=, &(= 4.E.&d )8, (++ D()<=E. /urthermore, in our recent decision which changed our exception to this rule and held that the results of polygraph examinations could not be admitted e!en by stipulation, we stressed the 7lac- of general scientific recognition7 as a ma:or factor in our decision. State v. ,rier, @+< 0.#. '&*, '@*, @++ 4.E.&d @=(, @=' D()*@E.
3319 S.E.2d 1884

%n addition to holding that hypnosis has not reached a le!el of scientific acceptance which :ustifies its use for courtroom purposes, we further conclude that no set of procedural safeguards can ade6uately remedy this unreliability. Dr. 9rne, who designed the safeguards generally followed by courts which ha!e adopted them, has admitted that they are ineffecti!e in eliminating the dangers associated with hypnosis. "e are persuaded that the inability of either an expert or the hypnoti?ed witness to distinguish between

the witness s confabulation and true memory is sufficient for us to conclude that adopting a series of procedural safeguards would not be effecti!e in combating the dangers we see in hypnotically refreshed testimony. "e hold, therefore, that hypnotically refreshed testimony is inadmissible in :udicial proceedings. 9ur cases to the contrary are o!erruled. This holding is consistent with our recent determination that the results of polygraph tests are inadmissible e!en upon the stipulation of the parties. Id. %n ma-ing that determination, we noted the futility of gi!ing the trial :udge discretion to determine case>by>case whether particular polygraph testing was reliable, the consumption of :udicial time and resources in ma-ing such determinations, and the undue influence which such results might ha!e upon the :ury. Id. at '8&>8@, @++ 4.E.&d at @=)>'+. These same considerations militate against adopting procedural safeguards li-e those articulated in %urd. 9ur rule of inadmissibility does not, howe!er, render all testimony of a pre!iously hypnoti?ed witness inadmissible. $ person who has been hypnoti?ed may testify as to facts which he related before the hypnotic session. The hypnoti?ed witness may not testify to any fact not related by the witness before the hypnotic session. %n!estigators, attorneys, and other parties who might ha!e occasion to induce potential witnesses to be hypnoti?ed are cautioned to ma-e e!ery effort to preser!e, in writing or otherwise, this pre>hypnotic information. "hen a party attempts to offer testimony by a person who has been hypnoti?ed, that party will bear the burden of pro!ing that the proffered testimony was related prior to hypnosis. $ party proffering the testimony of a pre!iously hypnoti?ed sub:ect is under a duty to disclose the fact of this hypnosis to the court and counsel, outside the presence of the :ury and before the testimony of the witness. "e wish to ma-e clear that this rule does not affect the use of
(& 3efreshing 3ecollection

hypnosis in criminal in!estigations. "e caution, howe!er, those who use hypnosis5 it is a procedure to be executed with care. "e suggest that the procedural safeguards formulated by Dr. 9rne and adopted by %urd, which ha!e been 6uoted earlier in this opinion, be followed in the use of hypnosis for criminal in!estigati!e purposes. See Valdez, <&& /.&d at (&+85 )ollins, (@& $ri?. at (*<, '88 ..&d at (&<@. 52. "e must also consider the application of the rule announced herein to other cases in!ol!ing hypnotically refreshed testimony. %n assessing the potential retroacti!e application of this rule, both the purpose which it see-s to achie!e and the effect of retroacti!e application on the administration of :ustice are important. See -ro"n v. /ouisiana, 88< U.4. @&@, @&*, (++ 4.#t. &&(8, &&(), '= ;.Ed.&d (=) D()*+E5 %an*erson v. .orth )arolina, 8@& U.4. &@@, &8*, )< 4.#t. &@@), &@8<, =@ ;.Ed.&d @+' D()<<E5 Stovall v. 5enno, @** U.4. &)@, &)<, *< 4.#t. ()'<, ()<+, (* ;.Ed.&d (()) D()'<E. The purpose of the rule ma-ing hypnotically refreshed testimony inadmissible is to pre!ent the admission of inherently unreliable e!idence. $s we ha!e explained, the dangers associated with this type of testimony are too great to allow it to infect the fact>finding process. The admission of hypnotically refreshed testimony directly affects the truth>see-ing function of the courts. 9ur new rule should be gi!en broadest application consistent with the due administration of :ustice. Therefore, our holding in this case will apply only to cases which ha!e not been finally
3319 S.E.2d 1894

determined on direct appeal as of the certification date of this decision. %t may not be used as the basis for collaterally attac-ing any case which has been finally determined on direct appeal or in which no appeal was ta-en from the trial :udgment. "e thin- this fairly balances those considerations calling for the adoption of the

new rule against any ad!erse impact upon the administration of :ustice caused by its adoption. %n applying our new rule retroacti!ely to all cases which ha!e not been finally determined on direct appeal as of the date on which this opinion is certified, we will examine each appeal on a case>by>case basis to determine if the error was re!ersible, i.e., whether a reasonable possibility exists that a different result would ha!e been reached at the trial had the e!idence not been erroneously admitted. The use of this harmless>error analysis will allow us to correct errors in which the truth>see-ing process was tainted by the hypnotically refreshed testimony while imposing minimal ad!erse impact on the administration of :ustice. 522. %n this case, the testimony by Detecti!e 4essoms regarding the hypnotic session and the admission and playing before the :ury of the !ideo tape of the witness Miller during the hypnotic session were inadmissible under the rules we today announce. Het they constituted a ma:or portion of the state s case. Miller was, by his own admission, an accomplice of defendant. 1is testimony, after undergoing hypnosis for the purpose of refreshing his recollection, was in large part responsible for defendant s con!iction. 4ince Miller s statement made before the hypnotic session was not proffered at trial nor is it contained in the record on appeal, none of his testimony was admissible under the rules we today announce. The !ideo tape of the hypnotic session strengthened the credibility of his testimony in the eyes of the :ury. %t ga!e an unwarranted aura of reliability to his testimony. These erroneous admissions ta-en together constitute re!ersible error because a reasonable possibility exists that a different result would ha!e been reached had this e!idence not been admitted at defendant s trial. 0.#.Aen.4tat. B (=$>(88@DaE. "e therefore re!erse the decision of the #ourt of
(@ 3efreshing 3ecollection

$ppeals and remand the case to that court for further remand to the superior court where defendant will be gi!en a new trial to be conducted under the rules we today announce. 3ELE34ED and 3EM$0DED.