288

Admissibility at Trial

The question whether hypnotically refreshed evidence is admissible at trial is still an open one in many jurisdictions, and is regulated by statute in a number of States. In those jurisdictions in which the question of admissibility is unsettled, a foundation concerning the reliability of hypnosis is necessary. See, e.g., Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968), cert. denied, 395 U.S. 949 (1969). In jurisdictions where such evidence is clearly admissible, there is no need for a foundation concerning the nature and effects of hypnosis. See United States v. Awkard, 597 F.2d 667 (9th Cir.), cert. denied, 444 U.S. 885 (1979). The question of a witness's competency to testify following questioning under hypnosis is guided in the Federal courts by Rule 601 of the Federal Rules of Evidence, which provides: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. The Federal courts addressing the issue of hypnotically induced testimony of a prosecution witness have generally permitted the use of such testimony, holding that the fact of the hypnosis affects only the credibility of the witness and not the witness's competence or the admissibility of his or her testimony. See, e.g., Beck v. Norris, 801 F.2d 242 (6th Cir. 1986) (on habeas, Tennessee law read as allowing witness's testimony and composite drawing prepared after hypnosis; opportunity to cross examine witness and hypnotist defeats claim of inability to confront witnesses; United States v. Awkard, supra; United States v. Adams, 581 F.2d 193 (9th Cir), cert. denied, 439 U.S. 1006 (1978); Kline v. Ford Motor Company, Inc., 523 F.2d 1067 (9th Cir. 1975); Harding v. State, supra. In Adams, supra, the Ninth Circuit upheld the admissibility of hypnotically refreshed testimony, but the court expressed concern "that investigatory use of hypnosis on persons who may later be called upon to testify in court carries a dangerous potential for abuse. Great care must be exercised to insure that statements after hypnosis are the production of the subject's own recollection, rather than of recall tainted by suggestions received while under hypnosis." Id. at 198-199. The court said that, "at a minimum, complete stenographic records of interviews of hypnotized persons who later testify should be maintained. Only if the judge, jury, and the opponent know who was present, questions that were asked, and the witness's responses can the matter be dealt with effectively. An audio or video recording of the interview would be helpful." Id. at 199 n.12. In Adams, the hypnotist was not board certified and no records were kept of the persons present during the hypnosis, the questions asked, or the responses given. Id. at 199 n.13. CAVEAT: In the late 1980s and 1990s, the question of the admissibility, vel non, of hypnotically refreshed or enhanced testimony went into a state of "flux," largely caused by cases involving uncorroborated allegations of child sexual abuse following "regressive therapy" or other forms of hypnosis-related therapy to bring out "repressed" memories of childhood incidents. This series of cases saw many convictions later reversed on appeal based upon a rethinking of the admissibility issue, and eventually resulted in the adoption in the Federal courts of a "case-by-case approach" in which the court has "discretion to balance all of the factors to determine the reliability of the evidence and the probative versus prejudicial effect of the testimony." Borawick v. Shay, 68 F.3d 597, 305 (2d Cir. 1995), cert. denied, 116 S.Ct. 1869 (1996). In the Second Circuit's lengthy analysis of the admissibility case law leading up to Borawick, the court noted that sometimes the safeguards that may be required by the trial court, supra, may not be enough to ensure the reliability of the testimony, and the defense "may still be able to demonstrate by expert testimony that a witness'[s] memory has been irreparably distorted by hypnosis." 68 F.3d at 606, citing McQueen v. Garrison, 818 F.2d 951, 958 (4th Cir.), cert. denied, 484 U.S. 944 (1987). The Second Circuit concluded that the district court was correct in issuing a pre-trial in limine order that barred the admissibility of the plaintiff's hypnotically refreshed memories - revealed during "regression therapy" - of her aunt's alleged child abuse from over 20 years earlier. 68 F.3d at 609. While the court had indicated that hypnosis conducted as part of therapy might be more inherently reliable than refreshing a witness's memory under the pressure of a criminal investigation, still, the plaintiff's "far-fetched, uncorroborated accusation" against a number of people, which included "fanciful" allegations of ritual rape and abuse - without strong corroboration - weighed against admissibility. Id. Other cases addressing the general issue of admissibility include: White v. Ieyoub, 25 F.3d 245 (5th Cir. 1994) (on habeas, court accepts factors that support admissibility); United States v. Gatto, 924 F.2d 491 (3rd Cir. 1991); Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988), cert. denied, 488 U.S. 1034 (1989). See also Armstrong v. Young, 34 F.3d 421 (7th Cir. 1994) (right to confrontation), cert. denied, 115 S.Ct. 1369 (1995). The question of the admissibility at trial of testimony refreshed or unlocked by pre-trial hypnosis is to be contrasted with the generally accepted inadmissibility at trial of out-of-court statements made while under hypnosis. See State v. Harris, 241 Ore. 244, 405 P.2d 492 (1965).