Pearson v. State, 681S156
| Decision Date | 12 November 1982 |
| Docket Number | No. 681S156,681S156 |
| Citation | 441 N.E.2d 468 |
| Parties | Mark PEARSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Don R. Darnell, Newport, for appellant.
Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.
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 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.
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:
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 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:
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 Supreme Court of Wyoming recently held...
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