Pearson v. State, No. 681S156

Docket NºNo. 681S156
Citation441 N.E.2d 468
Case DateNovember 12, 1982
CourtSupreme Court of Indiana

Page 468

441 N.E.2d 468
Mark PEARSON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 681S156.
Supreme Court of Indiana.
Nov. 12, 1982.

Page 470

Don R. Darnell, Newport, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Mark Pearson, was convicted by a jury of rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1979 Repl.), burglary, a class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.), and battery, a class C felony, Ind.Code Sec. 35-42-2-1 (Burns 1979 Repl.). He was sentenced to consecutive terms of imprisonment of thirty years on each of the class A felonies and to a concurrent term of five years on the class C felony. He has raised eleven issues in his direct appeal which we have consolidated into the following eight issues:

1. Whether the trial court erred in denying defendant's motion to suppress and permitting the victim to testify after she had undergone hypnosis for the purpose of refreshing her memory of the events of the crime;

2. Whether the trial court erred in excluding certain photographs from evidence at the hearing on defendant's motion to suppress;

3. Whether the trial court erred in denying defendant's motion for a continuance when one of defendant's witnesses was unavailable;

4. Whether the trial court erred in granting the state's motion in limine which prohibited any mention to the jury of potential penalties defendant might face;

5. Whether the trial court erred in admitting into evidence a waiver of rights form signed by defendant and certain photographs taken of him following his arrest;

6. Whether the trial court erred in refusing to give four of defendant's tendered instructions;

7. Whether the trial court erred in overruling defendant's motions for directed verdict; and

8. Whether the trial court erred in sending certain exhibits into the jury room during deliberation.

A brief summary of the facts from the record most favorable to the state shows that the victim was attacked by a masked intruder in the living room of her trailer home on the evening of October 2, 1980. The assailant hit her over the head several times, tried to choke her and threatened to kill her because she had hurt one of his friends. He forced her into the bedroom where he raped her. The victim testified that she recognized the assailant's voice as being defendant's voice since he had lived next door to her for three years. At one point, the assailant pulled the mask up over part of his face in order to kiss her and she was able to observe the lower part of his face. She said she felt whiskers and a mustache when she tried to push him away. She told police immediately after the incident that she was sure defendant was the person who had attacked and raped her because of his voice and comments he made about where she worked. Defendant testified at trial and denied all of the allegations against him and said that he had never been inside the victim's trailer.

Eighteen days after the instant crime, two police officers, one of whom was the investigating officer assigned to the case,

Page 471

conducted a hypnotic interview with the victim in order to refresh her memory of the incident and see if she could remember any further details. At this interview, she was shown pictures of defendant as he appeared when he was arrested. Defendant made a pretrial motion to suppress the victim's testimony and presented evidence that the victim's memory of the incident had been contaminated and altered because of the hypnotic interview. He argued that any testimony from her memory would be incompetent, irrelevant, and prejudicial and presented expert testimony in support of his contention. However, the trial court overruled the motion to suppress, and the victim was subsequently allowed to testify at the trial.

I.

The issue of the admissibility of testimony from a previously hypnotized witness may arise in a variety of different contexts and must be treated according to the circumstances of the individual case. We have clearly held, along with a majority of other jurisdictions, that evidence derived from a witness while he is in a hypnotic trance is inherently unreliable and must be excluded as having no probative value. Strong v. State, (1982) Ind., 435 N.E.2d 969, and cases cited therein.

A more complex problem arises when hypnosis is used to refresh the recollection of a witness about certain events and the witness is then asked to testify about those events at trial. Experts generally agree that hypnosis is a reliable investigative tool which can be used to provide valuable leads for investigation, but medical authorities as well as courts have recognized that there is a dangerous potential for abuse when hypnotically recalled memory is used as the basis for courtroom testimony. Unlike the fact finders in the courtroom, the investigator does not need to make subjective evaluations of the truth or falsity of the hypnotic recall but only uses the leads he obtains for the purpose of subsequent investigation and verification. However, when hypnotically refreshed testimony is used in the courtroom, the potential for abuse is great, since the accuracy and reliability of hypnotically-refreshed memory is limited by the characteristics of an individual in the hypnotized state.

It has been well documented that suggestion is a keystone to hypnosis, and hypnotically recalled testimony is often a mixture of fact and fantasy based upon suggestive words or clues used by the hypnotist. It is usually impossible for either the subject or an expert to distinguish between the fact and fantasy even when the subject is brought out of the hypnotic trance. The subject in a state of hypnosis will often unconsciously create answers to the questions which the hypnotist asks if he cannot recount the details being sought. This process of filling in the gaps of memory with fantasy has been called confabulation. As one expert in the field has stated:

"Two salient conditions that usually characterize the person who is in a hypnotic state or trance are hypersuggestibility and hypercompliance. * * * Thus, the hypnotized individual is not only more easily influenced but is also more highly motivated to please others, most especially the hypnotist and those who are seen as associated with the hypnotist." Levitt, The Use of Hypnosis to 'Freshen' the Memory of Witnesses or Victims, Trial, April 1981, at 56. 1

See also: Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.R. 313 (1980); Spector and Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 Ohio L.J. 567 (1977); Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio Northern L.R. 1 (1974). Furthermore, medical authorities have found that a hypnotized subject, upon awakening, has a confidence that everything in his memory is factually based and

Page 472

this conviction about the accuracy of his memory cannot be undermined through cross-examination. Diamond, supra, at 340; Levitt, supra, at 57.

After a careful consideration of both expert testimony and scholary articles on the limitations of the reliability of hypnotically refreshed testimony, other jurisdictions have divided in their treatment of this issue. Some jurisdictions have adopted a rule of total exclusion holding that a previously hypnotized witness is incompetent to testify in a criminal trial about any events which were the subject of the hypnosis. People v. Shirley, (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775; People v. Gonzales, (1981) 108 Mich.App. 145, 310 N.W.2d 306; State v. Palmer, (1981) 210 Neb. 206, 313 N.W.2d 648; Commonwealth v. Nazarovitch, (1981) 496 Pa. 97, 436 A.2d 170; State v. Mena, (1981) 128 Ariz. 226, 624 P.2d 1274; State v. Mack, (1980) Minn., 292 N.W.2d 764. These courts found that the problems involved with the reliability of hypnotically induced testimony were so substantial that "the game is not worth the candle." People v. Shirley, supra, 31 Cal.3d 40, 181 Cal.Rptr. 255, 641 P.2d 787.

However, other courts have found that despite its inherent dangers, hypnotically refreshed testimony could be admitted if certain safeguards on the hypnotic procedure were followed. The safeguards required are generally patterned after those recommended by an expert in the field, Dr. Martin T. Orne, and enumerated by the New Jersey Supreme Court in State v. Hurd, (1981) 86 N.J. 525, 432 A.2d 86:

"1. A psychiatrist or psychologist experienced in the use of hypnosis must conduct the session.

"2. The professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense.

"3. Any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or another suitable form.

"4. Before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. The hypnotist should carefully avoid influencing the description by asking structured questions or adding new details.

"5. All contacts between the hypnotist and the subject must be recorded.

"6. Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and the post-hypnotic interview." Id. 432 A.2d at 96-97.

Similar safeguards have been adopted in other cases. See, Polk v. State, (1981) 48 Md.App. 382, 427 A.2d 1041; People v. McDowell, (1980) 103 Misc.2d 831, 427 N.Y.S.2d 181; Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J. Clinical & Experimental Hypnosis, 311 (1979).

Finally, still other courts have held that hypnotically-refreshed testimony is admissible and that the problems inherent in its use go to the weight of the evidence. The...

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50 practice notes
  • U.S. v. Kimberlin, Nos. 82-1025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 9, 1987
    ...3 The weight of the evidence was a question for the trier of fact. This view retained vitality after 1981. See, e.g., Pearson v. State, 441 N.E.2d 468, 473 (Ind.1982); Chapman v. State, 638 P.2d 1280, 1285 (Wyo.1982); State v. Armstrong, 110 Wis.2d 555, 575, 329 N.W.2d 386, cert. denied, 46......
  • People v. Hughes
    • United States
    • New York Court of Appeals
    • July 5, 1983
    ...contributed little or nothing to the witness's initial recollections (Chapman v. State, 638 Page 264 P.2d 1280 [Wyo.]; Pearson v. State, 441 N.E.2d 468 [Ind.]; State v. Wren, 425 So.2d 756 In short the law is in a state of flux and there is no rule which will entirely satisfy all the demand......
  • Bundy v. State, No. 57772
    • United States
    • United States State Supreme Court of Florida
    • June 21, 1984
    ...held that the procedures used also go to the credibility rather than the admissibility of the testimony. See, e.g., Pearson v. State, 441 N.E.2d 468 (Ind.1982); Morgan v. State, 445 N.E.2d 585 (Ind.App.1983); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); Chapman v. State, 638 P.2d 1......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...was not the product of hypnotic suggestion. Strong, supra; Peterson v. State, (1983) Ind., 448 N.E.2d 673; Pearson v. State, (1982) Ind., 441 N.E.2d 468. XIII During trial Defendants requested the trial court permit the jury to view the automobile allegedly used in the crime. The motion was......
  • Request a trial to view additional results
50 cases
  • U.S. v. Kimberlin, Nos. 82-1025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 9, 1987
    ...3 The weight of the evidence was a question for the trier of fact. This view retained vitality after 1981. See, e.g., Pearson v. State, 441 N.E.2d 468, 473 (Ind.1982); Chapman v. State, 638 P.2d 1280, 1285 (Wyo.1982); State v. Armstrong, 110 Wis.2d 555, 575, 329 N.W.2d 386, cert. denied, 46......
  • People v. Hughes
    • United States
    • New York Court of Appeals
    • July 5, 1983
    ...contributed little or nothing to the witness's initial recollections (Chapman v. State, 638 Page 264 P.2d 1280 [Wyo.]; Pearson v. State, 441 N.E.2d 468 [Ind.]; State v. Wren, 425 So.2d 756 In short the law is in a state of flux and there is no rule which will entirely satisfy all the demand......
  • Bundy v. State, No. 57772
    • United States
    • United States State Supreme Court of Florida
    • June 21, 1984
    ...held that the procedures used also go to the credibility rather than the admissibility of the testimony. See, e.g., Pearson v. State, 441 N.E.2d 468 (Ind.1982); Morgan v. State, 445 N.E.2d 585 (Ind.App.1983); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); Chapman v. State, 638 P.2d 1......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...was not the product of hypnotic suggestion. Strong, supra; Peterson v. State, (1983) Ind., 448 N.E.2d 673; Pearson v. State, (1982) Ind., 441 N.E.2d 468. XIII During trial Defendants requested the trial court permit the jury to view the automobile allegedly used in the crime. The motion was......
  • Request a trial to view additional results

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