NCJ Number
96186
Journal
Nebraska Law Review Volume: 62 Issue: 2 Dated: (1983) Pages: 336-358
Date Published
1983
Length
23 pages
Annotation
This paper analyzes the Nebraska Supreme Court's decision in State v. Palmer (1981) which held that unless experts generally agree that hypnosis can accurately improve memory, a witness who has been questioned under hypnosis prior to trial may not testify in a subsequent criminal proceeding regarding matters covered in the hypnotic session.
Abstract
Harding v. State (1968) was the watershed case in the admissibility of hypnotically influenced testimony. Unable to recall anything after being shot and raped, a young woman did describe the crimes and identify her assailant under hypnosis. This evidence was considered admissible, after the witness's reliability was established and several points corroborated her testimony. Several cases subsequently adopted the Harding position of complete admissibility. The line between such cases and those which hold hypnotically influenced testimony as inadmissible is the Frye test. This rule requires that a scientific procedure or technique must have gained general acceptance in its particular field before the result of that procedure is admissible in court. State v. Mack (1980) was the first major case to apply the Frye test, and on this basis it ruled that hypnotic evidence was inadmissible. Several courts have reached similar decisions, but there is a middle ground between the Mack and the Harding approaches. The court in State v. Hurd (1981) ruled hypnotically influenced testimony was admissible if it complied with certain standards regarding reliability. The hypnotic sessions in the Palmer investigation were performed in such an unprofessional manner that few jurisdictions would have admitted the subsequent testimony. The court, however, rejected the Hurd approach and based its decision on the Mack ruling. The Frye test should not be applied to hypnotically influenced testimony, but such testimony should be treated like any other eyewitness account. The Palmer decision forbids the hypnotized witness from testifying about any matter covered in the pretrial hypnotic interview, and this places an unnecessarily high cost on the use of hypnosis in investigations. The Nebraska court has remedied this problem, but still has not rectified the analytical shortcomings in Palmer. The paper includes 149 footnotes.