Rock v. State

Decision Date21 April 1986
Docket NumberNo. CR85-215,CR85-215
Citation708 S.W.2d 78,288 Ark. 566
Parties, 54 USLW 2611 Vickie Lorene ROCK, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Putman & Maglothin by E.E. Maglothin, Jr. and Jenniffer Morris Horan, Fayetteville, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant was charged with manslaughter for the July 2, 1983 shooting of her husband. She was convicted and sentenced to ten years imprisonment and fined $10,000.

On appeal appellant's primary argument revolves around a hypnotic session conducted prior to the trial. Appellant could not remember everything about the shooting and without consulting the court nor informing the prosecutor, her attorney hired a psychiatrist to use hypnosis to induce recollection. Before hypnosis was begun, the psychiatrist, Dr. Bettye Back, interviewed appellant for an hour. Included in that interview was appellant's recollection of the shooting prior to hypnosis. No video or sound recording was made of the pre-hypnotic session, but Dr. Back made handwritten notes of the session.

The trial court ruled testimony of matters recalled by appellant due to hypnosis inadmissible because of its unreliability and because of the effect of hypnosis on cross-examination. Appellant was allowed to testify about things she remembered prior to being subjected to hypnosis, though testimony resulting from post-hypnotic suggestion was excluded. We believe the trial court's ruling was correct.


Appellant makes two arguments relating to the court's ruling: the hypnotically refreshed testimony should have been admitted, and in the alternative, even assuming that such testimony is inadmissible, the trial court was unduly restrictive of appellant's testimony.

Divergence of Opinion on Admissibility

Hypnotically refreshed testimony has resulted in a divergence of opinion as to its proper treatment in the courtroom. Most courts agree there is some inherent unreliability in hypnotically refreshed testimony, but disagree as to how that affects admissibility. Some jurisdictions generally admit it, and do not view hypnotism as a matter of scientific procedure, but merely a matter of credibility to be weighed by the trier of fact. See Clark v. State, 379 So.2d 372 (Fla.Dist.Ct.App.1979); State v. Greer, 609 S.W.2d 423 (Mo.App.1980); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978).

A second group of cases recognizes dangers in such testimony and allows it only if certain safeguards have been followed to minimize those dangers. See State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); State v. Beachum, 97 N.M. 682, 643 P.2d 246 (1981); State v. Long, 32 Wash.App. 732, 649 P.2d 845 (1982); State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386 (1983).

A third group of cases has found hypnotically refreshed testimony so unreliable the testimony is held inadmissible per se. See People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982); Collins v. Superior Court for the County of Maricopa, 132 Ariz. 180, 644 P.2d 1266 (1982); Collins v. State, 52 Md.App. 186, 447 A.2d 1272 (1982); State v. Mack, 292 N.W.2d 764 (Minn.1980); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983). (For a more comprehensive list of citations on the alignment of jurisdictions, see People v. Shirley, supra : Collins v. Sup. Ct., supra; Collins v. State, supra; People v. Guerra, 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635 (1984).)

Current Trend Toward Exclusion

While it was said in State v. Hurd, supra, that a majority of courts have held hypnotically induced testimony admissible, the cases cited for that conclusion are from the previous decade. (Hurd, 432 A.2d at p. 91). The more recent trend is toward exclusion of such testimony. McCormick on Evidence § 206 (1984 3d ed.); People v. Shirley, supra; State v. Atwood, 39 Conn.Supp. 273, 479 A.2d 258 (1984). Collins v. Sup. Ct., supra. Typical of this trend is Maryland, which in 1968 permitted the testimony, treating the issue as one of weight rather than admissibility. Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968). Harding was the leading opinion on this point, yet in 1982 Maryland reversed its position and held that a witness who has been hypnotized may not testify to induced recollections. Polk v. State, 48 Md.App. 382, 427 A.2d 1041 (1981); Collins v. State, supra. McCormick notes that even in those jurisdictions that previously held post-hypnotic testimony generally admissible, there is a trend toward insisting that rigorous safeguards be observed before the hypnotically refreshed memories are admissible, and "[t]he more prevalent view is that testimony about the post-hypnotic memories is not admissible." McCormick, supra at 623.

Courts adopting a rule of exclusion often rely on the test announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), that an expert witness "may not testify on the basis of scientific methodology unless the principles on which he relies have achieved general acceptance within the scientific community." Some critics contend that Frye is too strict and will exclude helpful and probative evidence. McCormick, supra § 203; Latin and White, Remote Sensory Evidence and Environmental Law, 64 Cal.L.Rev. 1300 (1976). We do not have to resolve that issue in this case, as we would find the hypnotically refreshed testimony inadmissible by either the Frye test, or some form of it, or by traditional evidentiary concepts. Unif.R.Evid. 403. To this same effect see McCormick, supra at 633.

Expert Opinion

While hypnosis may have gained recognition as an aid to therapy, it has not gained general acceptance as a means of ascertaining truth in the field of forensic law. Cases comprising the recent trend toward exclusion of hypnotically refreshed testimony have examined extensively the expert opinions in this field and have concluded that it is inherently unreliable and without sufficient acceptance to allow it in the courtroom. See, People v. Shirley, supra; Collins v. Sup. Ct., supra; Commonwealth v. Kater, supra; Collins v. State, supra; People v. Quintanar, 659 P.2d 710 (Colo.App.1982); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982); People v. Hughes, supra, State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Peterson v. State, 448 N.E.2d 673 (Ind.1983); Robinson v. State, 677 P.2d 1080 (Okla.Cr.App.1984); State v. Mack, supra, State v. Atwood, 3 Conn.Supp. 273, 479 A.2d 258 (1984).

Dr. Bernard L. Diamond, Professor of Clinical Psychiatry, University of California at Berkeley, in his article, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.Law Review 313 (1980), states:

I believe that once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence. Recently, some courts have shown a healthy suspicion of the veracity of this sort of testimony. Yet even under stringent safeguards, including presentation to the trier of fact of the fullest possible information on the effects of hypnosis, the trier will not be able to sort out reality from witness fantasy and weigh this testimony properly.

People v. Shirley, supra, one of the leading cases for the rejection of hypnotically refreshed testimony, was recently reviewed in People v. Guerra, supra. The appellant in Guerra challenged the findings of Shirley as not being in step with recent developments in hypnosis in the scientific community. The California Supreme Court reviewed the studies and authorities since Shirley and found the experts even more cautious on the use of hypnosis in the courtroom. One of the more significant studies cited in Guerra is that of Dr. Martin T. Orne (Orne, et al, Hypnotically Induced Testimony, In Eyewitness Testimony: Psychological Perspectives, Wells & Loftus, edits. 1984). Orne is widely cited on this issue, and it was his guidelines for the use of hypnotic testimony that were adopted by the New Jersey court in Hurd v. State, supra. Guerra points out Orne's current position:

After discussing Shirley and the decisions that preceded and followed it, the authors agree that "The present state of scientific knowledge is consistent with the rules of a number of state supreme courts that memories retrieved through hypnosis are sufficiently unreliable that their use is precluded as eyewitness testimony in criminal trials ...

There is no way, however, by which anyone (including an expert with extensive experience in hypnosis) can for any particular piece of information obtained in hypnosis determine whether it is an actual memory or a confabulation. For these reasons, hypnotically induced testimony is not reliable and ought not be permitted to form the basis of testimony in court."

The dangers of hypnosis in memory retrieval are summed up in the Guerra opinion: the subject's capacity to judge the reality of his memories is impaired; he is apt to recall "memories" that never existed, yet be convinced those memories are real; he will produce on demand a recollection of an event which may be a compound of actual facts, irrelevant matter and highly plausible "confabulations"; hypnosis artificially increases the subject's...

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