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STATE v. PEOPLESNo. 106PA83.

319 S.E.2d 177 (1984)

STATE of North Carol!av.

El"#r L#ro$ PEOPLES% Sr.

S&'r#"# Co&rt of North Carol!a.

A&&t 28% 1984.

*&f& L. Ed"t#!% Att$. +#!.% ,$ -r#d *. +a"!% At. Att$. +#!.% *al#h%

for th# Stat#.

a"# *. Parh% At. P&,l/ #f#!d#r% -a$#tt#vll#% for d#f#!da!t

a''#lla!t.

EXUM, Justice.

The crux of the present case concerns the admissibility of testimonyby a witness who undergoes hypnosis prior to testifying. Defendantchallenges the trial courts admission of a witnesss hypnoticallyrefreshed testimony and of a !ideo tape recording of the hypnoticsession. "e find error in both rulings and re!erse the decision of the

#ourt of $ppeals.

.

%n the early morning hours of &' May ()*+, ruce #roc-ett Millerparticipated in the armed robbery of the orden #hemical lant in/ayette!ille, 0orth #arolina. 1e, along with two other men, too-se!eral buc-ets of almost pure sil!er, used by the plant in its

manufacture of formaldehyde, !alued at o!er 2)+,+++. Defendantwas arrested on &) $pril ()*( in connection with the robbery. $neyewitness to the robbery, a shift super!isor at the company whomthe perpetrators forced to open the building containing the sil!er,identified defendant as one of the robbers.

ursuant to a plea agreement in an unrelated case, Miller testifiedagainst defendant who was tried with 3obert eele, the third manin!ol!ed in the orden #hemical robbery. Miller outlined, inconsiderable detail, the planning and robbery of orden #hemicalin which he, eele, and defendant participated. 4pecifically, herelated that defendant, whom Miller had -nown since high schooland had seen occasionally during the ensuing twenty years, calledhim in $pril or May ()*+5 in6uired of his interest in ma-ing 7someeasy money75 and arranged a meeting with a third man, eele. Thethree men met a number of times to discuss and plan the robbery.

$ccording to Miller, defendant called him at his 3aleigh home on&8 May ()*+ and told him to come bac- to /ayette!ille. Millerwent to defendants home, and the two men completed plans for therobbery. Defendant told Miller that a large amount of sil!er was atthe plant5 that the number of people at the plant was reduced afterthe shift changed on 4unday e!enings5 that

319 S.E.2d 179

company policy prohibited guns on the premises5 that the shiftsuper!isors name was 4te!e5 and that, once the alarm sounded, thepolice could arri!e at the plant after no less than fi!e to se!en

minutes.9n 4unday e!ening, Miller, defendant, and eele went to the plant.$fter the shift changed, Miller, armed with a gun, went to thesuper!isors office. 1e instructed the super!isor to ta-e him to thewhite building where the sil!er was -ept. They went there and were:oined by defendant and eele. $fter prying open a second door andtriggering an alarm, the men loaded a number of blac- buc-ets

containing sil!er into the car. They left the premises.(;ater they

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sold some of the sil!er and di!ided the remainder and the moneyamong themsel!es.

Miller was arrested on &< March ()*( in connection with an armedrobbery unrelated to the instant case. 9n (= $pril ()*(, he ga!epolice officers a statement concerning the robbery of the orden

#hemical lant, in which he implicated defendant and 3obert eele.That statement was neither introduced at defendants trial norincluded in the record on appeal.

9n * 9ctober ()*(, Detecti!e 4.#. 4essoms, Jr., of the /ayette!illeolice Department, conducted a hypnotic session with Miller.4essoms had pre!iously attended a two>wee- training course inhypnosis at the 0orth #arolina Justice $cademy. 1e stated that thecourse

consisted of the history and current status of hypnosis,

myths and misconceptions of hypnosis, illegal aspectsof hypnosis, self>hypnosis training, brain psycho>dynamics, de!elopment and training in differenttechni6ues of hypnotic induction, deepening techni6ues,super!ising sub:ects while they were in a hypnotic state,ta-ing statements from sub:ects in hypnotic conditions,ta-ing composite drawings from people in hypnoticconditions, consisting of written testimony, practicalexercises and demonstrations also.

During the course, 4essoms hypnoti?ed between eight and tenpeople. rior to hypnoti?ing Miller, 4essoms read none of Millersstatements concerning the case. The attempted hypnosis was to see-additional recall of the robbery which Miller did not ha!e in anormal state. 4essoms explained the process to Miller andproceeded to induce him into a hypnotic state. %n 4essoms opinion,he successfully hypnoti?ed Miller. The process lasted for about anhour. During the hypnotic session, Miller related facts which

corresponded with his subse6uent testimony. Miller also testifiedthat he did not belie!e he had been hypnoti?ed by 4essoms.

Defendant was tried and con!icted for the armed robbery andconspiracy to commit armed robbery of the orden #hemical lant.Judge 3obert ;. /armer consolidated the cases for :udgment and

sentenced defendant to a minimum term of se!en years and amaximum term of ten years. The #ourt of $ppeals affirmed. "eallowed defendants petition for discretionary re!iew on = $pril()*@. 0.#.Aen.4tat. B @(.

.

The issue before us is whether hypnotically refreshed testimony isadmissible. "e do not write, howe!er, on a clean slate. 0umerousstate and federal courts which ha!e considered this issue can be

categori?ed as followsC ( cases holding that the effect of priorhypnosis goes only to the weight and credibility, not theadmissibility of a witnesss testimony5 & cases holding thathypnotically refreshed testimony is admissible only if the hypnosisfollowed certain guidelines5 and @ cases holding that testimony

based on hypnotically refreshed memory is inadmissible.&

"e ha!e, until today, adhered to the first position. State v.McQueen,&)= 0.#. )', ((), &88 4.E.&d 8(8, 8&< ()

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other matters bearing thereon, was for the :ury.

Id.$t the time of our decision inMcQueen,howe!er, we were notapprised of the problems inherent in hypnosis. Much of theliterature and :udicial analysis regarding hypnosis has emerged

sinceMcQueenwas decided. ecause of recent de!elopments in theunderstanding of hypnosis as a tool to refresh or restore memoryand the :udicial trend away from acceptance of hypnoticallyrefreshed testimony, we now reexamine our position inMcQueeninlight of the facts before us.

"e are also cogni?ant of the !ast array of scholarly literature onhypnosis contained in both legal and scientific :ournals. Thesesources pro!ided great insight into the process of hypnosis, and wedefer to them for this purpose. 9ur goal is to analy?e the legal6uestion of e!identiary admissibility so as to secure a :ust result.

Unfortunately, we cannot achie!e this without some treatment of thehypnotic process itself. "e will, howe!er, follow a simpleapproach. /irst, we explain briefly the process of hypnosis,emphasi?ing its potential relationship to the :udicial process.4econd, we examine and e!aluate the three categories of :udicialdecisions regarding the admissibility of hypnotically refreshedtestimony. Third, we announce the rule to be applied in the courts ofthis state.

.

The basis for the use of hypnotically refreshed testimony hinges onthe notion that memory in!ol!es the storage of information recei!edby the bodys senses in the brain and, therefore, an inability toremember is merely an inability to retrie!e pre!iously storedinformation. 9rne, 7The Use and Misuse of 1ypnosis in #ourt,7 &(+, '88 .&d (&'',(&)= ()*&5 Shirley,@( #al.@d at '

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the witnesss confabulation and true memory is sufficient for us toconclude that adopting a series of procedural safeguards would notbe effecti!e in combating the dangers we see in hypnoticallyrefreshed testimony. "e hold, therefore, that hypnotically refreshedtestimony is inadmissible in :udicial proceedings. 9ur cases to thecontrary are o!erruled.

This holding is consistent with our recent determination that theresults of polygraph tests are inadmissible e!en upon the stipulationof the parties.Id.%n ma-ing that determination, we noted the futilityof gi!ing the trial :udge discretion to determine case>by>casewhether particular polygraph testing was reliable, the consumptionof :udicial time and resources in ma-ing such determinations, andthe undue influence which such results might ha!e upon the :ury.Id.at '8&>8@, @++ 4.E.&d at @=)>'+. These same considerationsmilitate against adopting procedural safeguards li-e those

articulated in%urd.9ur rule of inadmissibility does not, howe!er, render all testimonyof a pre!iously hypnoti?ed witness inadmissible. $ person who hasbeen hypnoti?ed may testify as to facts which he related before thehypnotic session. The hypnoti?ed witness may not testify to any factnot related by the witness before the hypnotic session. %n!estigators,attorneys, and other parties who might ha!e occasion to inducepotential witnesses to be hypnoti?ed are cautioned to ma-e e!eryeffort to preser!e, in writing or otherwise, this pre>hypnoticinformation. "hen a party attempts to offer testimony by a person

who has been hypnoti?ed, that party will bear the burden of pro!ingthat the proffered testimony was related prior to hypnosis. $ partyproffering the testimony of a pre!iously hypnoti?ed sub:ect is undera duty to disclose the fact of this hypnosis to the court and counsel,outside the presence of the :ury and before the testimony of thewitness.

"e wish to ma-e clear that this rule does not affect the use of

hypnosis in criminal in!estigations. "e caution, howe!er, thosewho use hypnosis5 it is a procedure to be executed with care. "esuggest that the procedural safeguards formulated by Dr. 9rne andadopted by%urd,which ha!e been 6uoted earlier in this opinion, befollowed in the use of hypnosis for criminal in!estigati!e purposes.

See Valdez,

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