State v. Hurd: New Jersey Supreme Court

In State v. Hurd (1981), the New Jersey Supreme Court adopted restrictive hypnosis guidelines, essentially because of court-questioned tactics of prosecution involving the detective and psychiatrist who interviewed the hypnotized witness-victim.  Ironically, the first guideline adopted by the court requires the hypnosis of witnesses to be done by a psychiatrist or psychologist. Of course the hypnosis in question in this case was performed by a psychiatrist.

Dr. Orne, the defense expert, managed to inject the issue of the general reliability of hypnotically-enhanced recall rather than the relevant issue of witness credibility in this particular case.  Judge Diana accepted the defense expert's assertions that hypnosis causes a lack of critical judgment, compulsion to supply information, confabulation and fantasies.  Thus, hypnosis refreshment of recall was put on trial instead of the facts and procedures in this questionable case.

State v. La Mountain/Mena/Silva: Arizona

The Arizona Supreme Court became very influential in the hypnosis testimony arena by making negative decision in three notable cases.  In State v. La Montain (1980), with no expert testimony on the record about the effects of hypnosis on a witness, the court made a per se exclusionary ruling in regard to hypnotically-refreshed testimony.

In State v. Mena (1981), the same Court reiterated its negative opinion on hypnosis, again in the absence of expert testimony on the record.  Instead the Court relied heavily on a California Law Review article by Dr. Diamond (1980).  In its opinion, the Court pointed out that the prosecution did not call the doctor who had hypnotized the witness to testify on record.  The Court obviously confused investigative hypnosis with medicine and psychiatry by speaking about it as a medical practice.

In a subsequent case, State v. Silva (1982), the Arizona Supreme Court modified its earlier position somewhat by indicating that hypnosis evidence would need to be reviewed on a case-by-case basis.

State  v. Mack: Minnesota

In State v. Mack (1980), the Minnesota Supreme Court also issued a per se ruling against hypnotically-aided testimony.  This was a poor case involving an intoxicated victim hypnotized by a self-taught hypnotist, and there was no expert testimony on the record.  The Court relied largely on written statements on hypnosis by Dr. Orne in arriving at its decision.

Nazarovich, Taylor, Palmer, Wallach:
Pennsylvania, Nebraska, Michigan

In the Commonwealth of Pennsylvania v. Nazarovich (1981). The Pennsylvania Supreme Court recognized that they were ruling in a bad case and did not make a per se ruling against hypnosis.  They indicated they wanted more proof in future cases that hypnosis could be useful.  In a later case, Commonwealth V. Taylor (1982) a Pennsylvania Superior Court ruled that in spite of the Nazarovich decision, the rape victim could testify to Pre-hypnotic knowledge about the rape and the suspects.  Similar rulings have been reached in State v. Palmer (1982) by the Nebraska Supreme Court, and in State v. Wallach (1981) by a Michigan Appellate Court.

People v. Shirley: California

In one of the most influential decisions against hypnosis, the California Supreme Court in People v. Shirley (1982), arrived at a per se ruling against hypnotically- aided testimony.  This was another bad case involving an intoxicated alleged rape victim.  There was only expert testimony on the defense side on the record, and none one the prosecution side in regard to hypnosis.  Of the five hypnosis cases the California Supreme Court had accepted for review, it chose what is obviously the worse case for their decision.  They cited the Arizona decisions as precedent.

In a subsequent modification of the Shirley decision, the Court amended their original per se hypnosis prohibition by deciding that the decision would not be retroactive as previously indicated and that defendants who had been hypnotized in order to refresh their memory would be able to testify in order to defend themselves.  The ruling against witnesses and victims testifying stands.

People v. Williams: California

In a California hypnosis case after the Shirley decision, the presiding justice in People v. Dexter Wayne Williams took the California Supreme Court sharply to task.  He stated that Shirley is really more of a polemic than an opinion.  More importantly, he points out, on page one of his concurring opinion:

"Somehow, lost in the shuffle, is the fact that the majority rule in this country is that hypnotically induced testimony is admissible. (See United States v. Awkard, 597F. 2nd 667 (9th Cir. 1979). Cert. Denied. 444 U.S. 885. 100S Ct. 179. 62L. Ed. 2nd 116 (1979; United States v. Adams. 581F. 2nd 193 (9th Cir. 1978); U.S. v. Narcisco. 446/F. Supp. 252 (E.D. Mich. 1977); Clark v. State 370 S. 2nd 372 (Fla. D. Ct. Appt. 1980); Creamer v. State, 232 Ga. 136. 205 S.E. 2nd 240 (1974); People v. Smrekar, 68 III. Appt. 3rd 379, 24 III. Dec. 707385 N.E. 2nd 848. (1979); State v. McQueen. 295 N.C. 96, 244 S.E. 2nd 414 (1978); People v. Hughes, 99 Misc. 2nd 863, 417 N.Y. S. 2nd 643 (Ct. Ct. 1979); State v. Jorgensen, 8 Or. App. 1. 492 P. 2nd 312 (1971); Annotation, Admissibility of Hypnotic Evidence at Criminal Trials, 92 A.L.R. 3rd 442.)

These authorities hold that testimony of a witness whose memory has been revived through hypnosis should be treated like any other refreshed recollection.  That the witnesses' memory may have been impaired by hypnosis or that suggestive material may have been used to refresh his recollection is considered to be a matter effecting credibility, not admissibility.  It is assumed that cross-examination will enable the jury to properly evaluate the effect of hypnosis on the witness and the credibility of the testimony.

Harding v. State of Maryland: 1968-The first appellate case in the U.S. involving a government request for the admission of hypnotically refreshed recollection. This case started an avalanche of cases that continues to cascade through the courts.

United States v. Adams: 1978 - For the first time in a criminal case the Ninth Circuit of Court of Appeals affirmed conviction of (2) defendants in a post officer robbery.

Rock v. Arkansas: 1987- The U.S. Supreme court ruled that a court may not automatically exclude the testimony of a criminal defendant who has been hypnotized for memory enhancement prior to trial.

Zani v. State of Texas : (Court of Appeals 1988)- Defendant Robert Zani convicted of murdering a convenience store clerk in 1967. A witness was hypnotized in 1980 (13 years later) and a composite drawing of the suspect was obtained. After the session, the witness was able to pick Zani from a photo lineup.

Texas Senate Bill 928: 1988- Texas placed into law requiring every law enforcement officer in that state using investigative hypnosis to be licensed by the Texas Commission on Law Enforcement Officer Standards and Education. (TCLEOSE)

Soliz v. State of Texas: (Court of Appeals) 1998)- Defendant was convicted in the District Court of aggravated robbery and he appealed. The Court of Appeals held that victim's testimony was not sufficiently trustworthy to be admissible. At the time Sgt. Perez hypnotized the victim, he was not licensed or certified by the state to perform investigative hypnosis. (Police hypnotist did not meet the applicable standards of Texas law.)