Alsbach v. Bader

• Citation: 700 S.W.2d 823
• Decision Date: 21 November 1985
• Docket Number: No. 66470,66470
• Parties: Carl ALSBACH, Plaintiff-Appellant, v. Margaret Sue BADER and Gretson Corbitt, Defendants-Respondents. State Farm Mutual Automobile Insurance Company, Intervenor-Defendant- Respondent.
• Court: United States State Supreme Court of Missouri

Page 823

700 S.W.2d 823

54 USLW 2330

Carl ALSBACH, Plaintiff-Appellant, v. Margaret Sue BADER and Gretson Corbitt, Defendants-Respondents.

State Farm Mutual Automobile Insurance Company,

Intervenor-Defendant- Respondent.

No. 66470.

Supreme Court of Missouri,

En Banc.

Nov. 21, 1985.

Rehearing Denied Dec. 17, 1985.

Frank J. Niesen, Jr., Donald H. Clooney, St. Louis, for plaintiff-appellant.

Joseph P. Cunningham, III, Festus, for defendant-respondent.

Eugene K. Buckley, Robert D. Arb, St. Louis, for intervenor-defendant-respondent.

HIGGINS, Chief Justice.

Plaintiff suffered a verdict directed for defendants in an action for damages for personal injuries sustained in a motor vehicle collision. The court of appeals reversed and remanded the judgment by an opinion which held that plaintiff's memory refreshed from hypnotic concentration may be admitted to make a submissible case. This Court transferred the case on application of defendants. The judgment of the trial court is affirmed.

On June 2, 1979, at approximately 2:45 a.m., an automobile driven by Carl J. Alsbach collided with a pickup truck operated by Margaret Sue Bader and owned by her employer, Gretson Corbitt. The collision occurred on Highway 21A, a two-lane highway in Jefferson County, Missouri. Alsbach was operating his vehicle in an eastbound direction; Bader was operating her vehicle in a westbound direction. After the collision, Alsbach's vehicle came to rest at a 45 degree angle with the front two-and-one-half feet of his vehicle protruding into the westbound lane. Bader's vehicle came to rest on an embankment north of the shoulder adjacent to the westbound lanes; no parts of Bader's pickup truck were found in the eastbound lane. Frank Siebert passed by the scene of the collision about 15-20 minutes after it occurred; he verified this post-collision position of the vehicles. Following the collision, Alsbach had no memory of the positions of the automobile immediately prior to impact except for seeing a single headlight coming west on Highway 21A approximately 500 feet from him.

On June 26, 1979, Alsbach filed suit against Bader and Bader's employer, Corbitt and alleged that Bader was travelling at an excessive speed and was on the wrong side of the road. Bader denied these allegations and alleged that Alsbach was travelling at an excessive speed and was on the wrong side of the road. Uninsured motorist carrier, State Farm Mutual Automobile Insurance Company, intervened.

Some 19 months later, on January 24, 1981, Alsbach was hypnotized by Dr. George Ulett, a psychiatrist, in an attempt to aid Alsbach to recall his version of what happened immediately prior to impact. During the hypnotic session, Dr. Ulett led Alsbach through various procedures on concentration. Alsbach was then directed to recount his version of what happened on the night of the collision. During the session, Alsbach specifically recalled two headlights approaching. Following the session, Alsbach specifically remembered that Bader's vehicle crossed the center line and struck his vehicle in his lane of travel. The hypnotic session was audio taped; Dr. Ulett said a video tape was unnecessary to detect improper suggestions because the patient's eyes were closed. Dr. Ulett opined that Alsbach's memory with respect to the events of the collision was refreshed from the hypnotic concentration.

State Farm filed a motion in limine to prevent Alsbach's testimony on matters which he remembered only after being refreshed through hypnosis; the trial court sustained the motion. At trial, objection to Alsbach's testimony concerning his post-hypnotic testimony was again sustained. Alsbach then made an offer of proof which consisted of the proposed testimony of Alsbach and Dr. Ulett, the audio tape of the hypnotic session, a typed transcript of the session, and the deposition of Dr. Ulett. The offer was refused, and the trial court entered judgment for defendants on plaintiff's failure to make a submissible case.

Alsbach contends that the trial court erred in failing to allow him to testify from his "present memory and recollection" to the events surrounding the collision. The court of appeals was persuaded that testimony refreshed from hypnotic concentration may be admitted in a civil case providing the trial judge, in advance of the admission of the testimony, approves admission following certain guidelines.

The question is whether a witness, in order to make a submissible case for himself, may be allowed to testify about events remembered only after he has undergone hypnosis. In accord with the recent and persuasive trend of authority in other jurisdictions and the concensus of expert opinion, this Court concludes that such post-hypnotic testimony lacks scientific support for its reliability and should, therefore, not be admitted in the courts of Missouri.

Hypnosis has been defined as "an artificially induced trancelike state ... in which the subject is highly susceptible to suggestion, oblivious to all else, and responds readily to the commands of the hypnotist." Stedman's Medical Dictionary, 678 (5th Lawyers' ed. 1982). A hypnotized subject suspends critical judgment and responds to the hypnotist's demand for exact, photographic recall even when the subject's memory is vague or doubtful. Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 340 (1980).

Some jurisdictions permit testimony refreshed by hypnosis to go to the jury on the view that hypnosis affects only the weight of the testimony, not its admissibility; other jurisdictions admit hypnotically induced testimony subject to procedural requirements which seek to ensure reliability; a third group follows a per se exclusionary rule relying upon the standard of general scientific recognition established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982), cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982); see Annot., 92 A.L.R.3d 442 (1979).

The jurisdictions that adhere to the first view treat hypnotically refreshed recollection as no different from recollections refreshed in other legally acceptable ways. The use of hypnosis affects only the weight and credibility, not the admissibility, of a witness's testimony. State v. Brown, 337 N.W.2d 138 (N.D.1983); State v. Glebock, 616 S.W.2d 897 (Tenn.Cr.App.1981). Cross-examination, expert testimony on the inherent risks of hypnosis, as well as cautionary instructions are expected to enable the jury to accurately assess the credibility of the evidence. Chapman v. State, 638 P.2d 1280, 1282-1284 (Wyo.1982). See Ruffra, Hypnotically Induced Testimony: Should it be Admitted? 19 Crim.L.Bull 293, 298 (1983). Alsbach asserts that this is the "better reasoned" approach. There is no doubt that the judge or jury, aided by cross-examination, may be expected to be able to evaluate the effects of bias, leading questions, and the problems of eyewitness testimony itself; but a different case exists when the trier of fact must realistically evaluate the effects of hypnosis on hypnotically induced testimony. The experts generally agree that the trier's ability to observe a witness's demeanor and analyze a witness's ability to perceive, remember, and articulate is so hampered by the hypnotic process that the probative value of post-hypnotic testimony cannot overcome its shortcomings. Until there is general scientific acceptance of hypnosis as a reliable means of refreshing recollection, the dangers inherent in the use of hypnotically induced testimony should bar a rule providing for its per se admission. E.g., State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982).

In support of a rule of per se admissibility of hypnotically-refreshed testimony, Alsbach cites State v. Greer, 609 S.W.2d 423 (Mo.App.1980), vacated on other grounds, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981), and State v. Little, 674 S.W.2d 541 (Mo.banc 1984), cert. denied, Little v. Missouri, 450 U.S. 1027, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). In Greer, the court held that pretrial hypnosis does not, as a matter of law, render resulting identification and testimony related thereto inadmissible, and that the effect of hypnosis is a matter to be weighed by the trier of fact. Id. at 435. Because of the recent development in the understanding of hypnosis and the judicial trend away from acceptance, this Court has examined the position in Greer and determines it should not be followed. Many of the cases cited by the court have since been overruled or modified. For example, the court relied on People v. Hughes, 99 Misc.2d 863, 417 N.Y.S.2d 643 (1979), for the proposition that hypnotically induced recollection, is not inadmissible as a matter of law. This holding was overruled by the Supreme Court, Appellate Division, Fourth Department, in People v. Hughes, 88 A.D.2d 17, 452 N.Y.S.2d 929 (1982). The Appellate Division held that the use of hypnosis had not gained general acceptance in the scientific community as a reliable method of restoring a witness's recollection and therefore hypnotically produced recall was, as a matter of law, inadmissible. This decision was affirmed by the court of appeals. People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983). The court also relied upon 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), which held that hypnosis goes to the weight of the testimony without discussion of the general scientific acceptance of the use of hypnosis. Since Greer, the Maryland courts have reexamined and overruled Harding. Collins v. State, 52 Md.App. 186, 447 A.2d 1272, 1283 (1982), aff'd 296 Md. 670, 464 A.2d 1028 (1983); Polk v. State, 48 Md.App. 382, 427 A.2d 1041 (1981). State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978), has been overruled in State v....