State v. Medrano

• Decision Date: 04 February 2004
• Docket Number: No. 1919-02.,1919-02.
• Citation: 127 S.W.3d 781
• Parties: The STATE of Texas, Appellant v. Matthew MEDRANO, Appellee.
• Court: Texas Court of Criminal Appeals

127 S.W.3d 781

The STATE of Texas, Appellant v. Matthew MEDRANO, Appellee.

No. 1919-02.

Court of Criminal Appeals of Texas, En Banc.

February 4, 2004.

Luis E. Islas, El Paso, for appellant.

John L. Davis, Assistant District Attorney, El Paso, Matthew Paul, State's Attorney, Austin, for the State.

Before the court en banc.

OPINION

PRICE, J., delivered the opinion of the Court, in which MEYERS, WOMACK, JOHNSON, KEASLER, and HERVEY, JJ., joined.

This case comes before us on petition for discretionary review by the State of Texas to decide whether Zani v. State, 758 S.W.2d 233 (Tex.Crim.App.1988), was overruled by Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). In Zani, a case based on the general acceptance standard of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), we held that hypnotically enhanced testimony is admissible in Texas.¹ Because Kelly overruled the general acceptance standard and Texas courts' reliance on Frye, the State argues that Zani is implicitly overruled by Kelly. We conclude that, although based on the general acceptance standard expressed in Frye, the Zani case, in developing a highly specific framework to ensure that hypnotically enhanced testimony offered in a particular case is reliable, is not overruled, either explicitly or implicitly, by Kelly or its progeny.

This appeal originally arose from the trial court's exclusion of hypnotically enhanced testimony from the only eyewitness in a capital murder case. In the initial appeal, the court of appeals, citing State v. Roberts, 940 S.W.2d 655, 658 (Tex.Crim. App.1996), held that it did not have jurisdiction to consider the trial court's exclusion of the evidence. State v. Medrano, 987 S.W.2d 600, 603-04 (Tex.App.-El Paso 1999). We granted the State's petition for discretionary review, reversed the court of appeals' decision, overruled Roberts, and remanded the appeal for consideration on the merits. State v. Medrano, 67 S.W.3d 892, 902-03 (Tex.Crim.App.2002). On remand, the court of appeals affirmed the trial court's exclusion of the evidence holding that the trial court correctly applied Zani in ruling on the admissibility of hypnotically enhanced testimony. State v. Medrano, 86 S.W.3d 369, 373 (Tex.App.-El Paso 2002). We granted the State's petition to determine whether Zani was overruled by Kelly. We affirm.

As aptly expressed by the Eighth Court of Appeals, our opinion in Zani dealt with a "highly specific, detailed discussion of a narrowly defined question." State v. Medrano, 86 S.W.3d 369, 372 (Tex.App.-El Paso 2002). That question was "whether hypnotically induced testimony is admissible in Texas." Zani, 758 S.W.2d at 234 (internal citations omitted). In analyzing the admissibility of hypnotically enhanced testimony, we worked within the framework of the applicable law at the time: Frye v. United States.² Judge Clinton, writing the opinion for this Court, stated: "we consider Frye `applicable because lay testimony that is dependent upon hypnosis cannot be logically dissociated from the underlying scientific technique.'" Zani, 758 S.W.2d at 241 (quoting Contreras v. State, 718 P.2d 129, 134 (Alaska 1986)). A discussion of hypnosis and hypnotically enhanced testimony included a discussion of Frye, the case that governed the admissibility of scientific evidence.

In Zani, while applying Frye and discussing the "general acceptance" of hypnosis and hypnotically enhanced testimony in the medical and legal community, we recognized that the accuracy of hypnotically enhanced testimony was questionable. We stated, "To the extent that ordinary disabilities of perception, memory, and articulation may be amplified by hypnosis, it will result in recall less accurate than would ordinarily be expected." Id. at 242 (internal quotation marks omitted). We reasoned that because hypnosis may amplify perception, memory and articulation in the witness's testimony, and because the amplification may go undetected, the best solution would be to adopt a per se exclusionary rule. Ibid.

Despite the lack of general acceptance among the scientific community, we did not impose a per se rule with Zani. Rather, citing the United States Supreme Court decision in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), we "decline[d] to adopt an exclusionary rule prohibiting hypnotic recall in every case." Zani, 758 S.W.2d at 243. Although the law governing scientific evidence, the general acceptance standard of Frye, militated in favor of a per se exclusionary rule, the Supreme Court's decision in Rock "rendered such a position untenable." Id. at 242. See Rock, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (holding a per se exclusionary rule banning hypnotically refreshed testimony of defendants testifying on their own behalf unconstitutional under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution). Yet the question of the reliability of hypnotically enhanced testimony remained.

With Zani, the Court provided a mechanism to allow for the admission of hypnotically enhanced testimony and at the same time to ensure that this admitted testimony was reliable. The solution was the Zani standard. Under the Zani standard, the Court instituted procedural safeguards to protect against "the four-prong dangers of hypnosis: hypersuggestibility, loss of critical judgment, confabulation, and memory cementing." Id. at 244 (internal quotation marks omitted). The Court adopted a non-exclusive list of factors from People v. Romero, 745 P.2d 1003, 1017 (Colo.1987),³ which a trial court is to consider in deciding whether hypnotically enhanced testimony is admissible in a particular case. Zani, 758 S.W.2d at 244. The Zani standard permits admission of hypnotically enhanced testimony "[i]f, after consideration of the totality of the circumstances, the trial court should find by clear and convincing evidence that hypnosis neither rendered the witness's posthypnotic memory untrustworthy nor substantially impaired the ability of the opponent fairly to test the witness's recall by cross[-]examination." Ibid. By requiring clear and convincing evidence of the trustworthiness and the lack of impairment of a witness's hypnotically enhanced testimony, the aim of this Court was to ensure the reliability of the evidence admitted.

Since Zani was decided in 1988, the law governing the admissibility of scientific evidence in Texas criminal courts has evolved from the "general acceptance" standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to the current standard presented in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). In Kelly, we stated that the general acceptance standard was no longer valid for two reasons. First, the Frye standard was no longer valid because, with the 1986 adoption of Texas Rule of Criminal Evidence 702 (stating "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."), there was "no textual basis... for a special admissibility standard for novel scientific evidence." Kelly, 824 S.W.2d at 572. Second, the Frye standard was no longer valid because "scientific evidence may be shown reliable even though not yet generally accepted...." Ibid. Because the Frye-based general acceptance standard was no longer valid, the Court presented a new standard in Kelly.

In determining the admissibility of novel scientific evidence, the threshold question asked by both Rule 702 and Kelly was, "whether the testimony will help the trier of fact understand the evidence or determine a fact in issue." Ibid. (citing Duckett v. State, 797 S.W.2d 906, 910 (Tex.Crim. App.1990)); see also Texas Rule of Evidence 702 (stating that evidence should be admitted, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."). In Kelly, we reasoned that "the trial court's first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results," because "`[u]nreliable ... scientific evidence simply will not assist the [jury] to understand the evidence or accurately determine a fact in issue.'" Kelly, 824 S.W.2d at 572 (quoting K. Kreiling, Scientific Evidence: Toward Providing the Lay Trier With the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 Ariz. L.Rev. 915, 941-42 (1990)). Kelly states that "before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant." Id. at 573 (internal citations omitted). The reliability of novel scientific evidence is the cornerstone of our opinion in Kelly.

Proving reliability requires that the proponent establish: "(a) [that] the underlying scientific technique [is] valid; (b) [that] the technique applying the theory [is] valid; and (c) [that] the technique [has] been properly applied on the occasion in question." Ibid. (internal citations omitted). Additionally, the Court cited seven factors that a trial court may consider which could affect reliability.⁴ This standard was expanded by the Court through Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App. 1997), in which the Court held that the standard established in Kelly applies to all scientific evidence offered under Rule 702. See also Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App.1998). However, we soon recognized that the criterion used to prove reliability by clear and convincing evidence under Kelly may become cumbersome under certain circumstances.

In Nenno v. State, the Court warned that the "general principles announced in Kelly (and Daubert [v. Merrell Dow...