State v. Iwakiri

BAKES, Justice. On March 30, 1977, Brandi Summers and Tiffany Wise disappeared from their home in San Bernardino, California, after their mother, Beverly Wise, was murdered. The older girl, Brandi, was the natural daughter of Beverly and her first husband, Roy Summers, while Tiffany was the daughter of Beverly and Claude Wise, Beverly’s husband at the time of the murder. The girls and Roy Summers were subsequently sighted in various locations in Nevada and the southwest.

In 1980 a Garden City resident positively identified Brandi as having been in Boise from viewing a picture that investigators ran in The Idaho Statesman. Further investigation revealed witnesses who could place both girls in the care of appellant and led ultimately to appellant’s arrest in Boise in 1980. At appellant’s trial on kidnapping charges the testimony of Rebecca Boyer was presented. Boyer had been hypnotized twice prior to trial in order to refresh her memory.

The first hypnosis session was conducted by a detective with the Boise Police Department. Also present at that session were Boyer's attorney, Robert Aldridge, another detective, two investigators, an operator and recorder. Defense counsel was aware of the session, part of which was tape recorded. The second session took place shortly before trial at the Boise Hypnosis Center and was conducted by a Dr.

Streib. The existence of a second hypnosis session was not revealed during discovery. The key portion of Boyer’s testimony consisted of an account of having seen the two missing children in appellant’s home. She also testified to seeing a man, later identified as Roy Summers, in the house.

The testimony of attorney Robert Aldridge, who was under subpoena, was also presented at trial. In 1977 Boyer had referred appellant to Aldridge, and on two occasions in the summer of 1977 appellant had contacted Aldridge by phone to talk to him about adoption questions she had. Both conversations resulted in Aldridge informing appellant that he could not or would not take her case. Preparatory to trial, Aldridge and appellant had a third conversation wherein she told him to tell her defense attorney, Mr.

Wyman, anything Wyman wanted to know. At trial, the judge ruled that the 1977 communications between appellant and Aldridge were privileged communications, but the privilege had been waived. Aldridge was ordered, over the objection of appellant, to testify to the content of the two conversations. Appellant was convicted of second degree kidnapping and sentenced to an inde- terminate term of five years.

She was granted probation after four months and her conviction was later reduced to a misdemeanor. On appeal, appellant contends that the trial court erred in two respects: (1) by admitting the testimony of a witness who had been hypnotized to refresh her recollection; and (2) by ruling that appellant had waived her attorney client privilege and allowing the testimony of Robert Aldridge to be admitted. We will consider the latter allegation first. I. WAIVER OF ATTORNEY-CLIENT PRIVILEGE The trial court was correct in ruling that the 1977 phone conversations between appellant and Aldridge were privileged. Communications between attorney and client made in the course of professional employment are protected by the attorney-client privilege. I.C. § 9-203(2).

The privilege extends to communications made with a view toward employing the attorney by a potential client, whether or not actual employment results. People v. Squitieri, 49 A.D.2d 374, 375 N.Y.S.2d 124 (1975); see also Com. v. O’Brien, 377 Mass. 772, 388 N.E.2d 658 (1979). The trial court’s ruling that the privilege had been waived, however, was erroneous. I.C. § 9-203(2) provides that an attorney cannot be examined regarding confidential communications made in the course of employment “without the consent of his client.” The statute thus makes it clear that the client is the holder of the privilege.

Accordingly, only the client can waive the privilege. The only possible ground for waiver in the instant case arises from appellant’s directions to Aldridge that he tell Wyman, her defense attorney, anything Wyman wanted to know. Her obvious purpose was to ensure that Wyman was as well prepared as possible for her trial. As such, the communications remained privileged.

It is well established that communications between attorneys for the same client are protected by the attorney-client privilege in the absence of any showing of waiver. See Annot., Attorney-Client Privilege As Affected By Communications Between Several Attorneys, 9 A.L.R.3d 1420, 1424 (1966). There being nothing to indicate that appellant intended to waive the privilege, the subject communications were protected. The improperly admitted testimony was highly prejudicial.

Aldridge testified that he responded to appellant’s statement that she had an adoption question she wanted to ask, by the following statement: “Wait a second. I don’t handle black market or under-the-counter types of adoptions. I will handle them if they are health and welfare type of adoption or if there is some religious or other organization involved that has a child, but I don’t take things under the counter, next of kin or otherwise.” Tr., p. 1617, lines 16-22. It was not until sometime after he completed that statement that he turned down potential employment by appellant.1 It was therefore within the scope of the attorney-client privilege and should not have been admitted. Its prejudicial effect is obvious and mandates reversal of the conviction. See State v.

Goodrich, 97 Idaho 472, 546 P.2d 1180 (1976); State v. White, 97 Idaho 708, 551 P.2d 1344 (1976), cert. den. 429 U.S. 842, 97 S.Ct. 118, 50 L.Ed.2d 111. II. ADMISSION OF HYPNOTICALLY REFRESHED TESTIMONY Appellant also assigns as error the admission of the testimony of a witness whose memory was hypnotically refreshed. Because we reverse this case for a new trial, we must give the trial court some direction on the admissibility of hypnotically refreshed testimony. This is an issue that has received a great deal of attention in recent years, in both law review articles and judicial opinions.

See, e.g., Beaver, Memory Restored or Confabulated by Hypnosis — Is it Competent? 6 Univ.Puget Sound L.Rev. 155 (1983);. Falk, Post-hypnotic Testimony — Witness Competency and the Fulcrum of Procedural Safeguards, 57 St. John’s L.Rev. 30 (1982); Testimony by Previously Hypnotized Witnesses: Should It Be Admissible? 18 Idaho L.Rev. Ill (1982); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.Rev. 313 (1980).

See also, People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982); State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983); State v. Brown, 337 N.W.2d 138 (N.D. 1983); State v.

Armstrong, 110 Wis.2d 555, 329 N.W.2d 386 (1983). The issue presented in this case is: Does the fact that a witness has been hypnotized prior to trial to refresh memory render that witness incompetent to testify? This is a question of first impression in this jurisdiction and requires our considered analysis. The basic issue presented is one of competency of a hypnotized witness. We begin our analysis by noting the evolution of the general rule on competency of witnesses.

At early common law, certain witnesses were deemed to be incompetent per se merely because they were included in a certain group of persons. Groups which were commonly disqualified as witnesses included those holding certain religious beliefs, persons deemed to be insane, persons convicted of a crime, and persons of immature age. Later, these rules were modified in favor of a general rule of competency, giving to the jury the duty of judging the credibility of witnesses. However, some per se disqualification exceptions were retained, for example, the disqualification of children as competent witnesses.

See I.C. § 9-201; I.C. § 9-202. The recently adopted Federal Rules of Evidence, applicable in the federal courts, provide a further example of the continued evolution of a general rule of competency by establishing a rule which reads, “Every person is competent to be a witness except as otherwise provided in these rules.” Federal Rule of Evidence 601. The rule then provides an exception only for judges and jurors participating in the trial at hand. The commentary to Federal Rule 601 states, “A witness wholly without capacity is difficult to imagine.

The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence.”2 Thus, the trend of the law in other jurisdictions in favor of a general rule of competency, which leaves to the discretion of the trial court the determination of whether circumstances render the witness incompetent, has been evolving over the last century, resulting in rejection of any per se rule of incompetency. The evolution is based upon the premise that per se rules which disqualify witnesses with knowledge of facts pertinent to the case are serious obstructions to the ascertainment of truth, the ultimate goal in our legal system. See McCormick, Evidence, § 71, p. 150 (1972). On the other hand, there are a number of generally recognized problems with hypnotically induced testimony.

In the early experience with hypnosis it was the general belief, as a basic underlying assumption of the use of hypnosis, that memory was similar to a videotape machine, in that it merely recorded the perceptions of the viewer and stored them away for recall, which could be enhanced through the use of hypnosis. More recent studies suggest, however, that this may well be a fallacious assumption. One contemporary developing view of the way the memory reacts to hypnosis is best explained in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981). “It is generally agreed that hypnosis is a su.te of altered consciousness and heightened suggestibility in which the subject is prone to experience distortions of reality, false memories, fantasies and confabulation (the ‘filling in of memory gaps with false memories or inaccurate bits of information’).” Id. 624 P.2d at 1276.

However, the videotape theory is still relied upon by those adhering to the “investigative hypnosis” school of thought, such as Dr. Martin Rieser, Director of the Law Enforcement Hypnosis Institute, the vehicle through which many law enforcement officers receive their training in hypnotism. When a subject is hypnotized, especially a witness to a crime eager to aid in solving the crime, both schools of thought agree that the subject is especially vulnerable to suggestions and/or “cueing” from the hypnotist. “The hypnotized subject may respond to implicit stimuli unintentionally emanating from the hypnotist, and unrecognized by him. The desire to please the hypnotist may induce the subject to mirror the attitude detected in the hypnotist's questions and his behavior.” Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 Ohio St.L.J. 567, 578 (1977). A subject may also confabulate, i.e., fill in the blanks in his or her memory, in an effort to answer questions posed by the hypnotist.

When asked by the hypnotist to “imagine you are there,” the subject may sometimes do just that: “imagine.” Another perceived problem is that when a subject awakens from the hypnotic trance, he or she often believes that distortions in memory due to cueing and confabulation are a part of his or her own memory. This phenomenon allegedly makes it difficult to determine what is “true memory” and what is “false memory.” It is for these reasons, among others, that the question of admissibility of hypnotically induced testimony has become such a difficult one. The courts which have addressed this problem have generally taken three separate approaches in determining the admissibility of hypnotically induced testimony. The first approach is a per se rule of inadmissibility.

That approach is well represented by the case of People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982). Cases adopting this approach generally base their rationale on an extension of what is known as the Frye rule, taken from Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

The Frye rule “conditions the admissibility of evidence based on a new scientific method of proof on a showing that the technique has been generally accepted as reliable in the scientific community in which it developed.” People v. Shirley, supra 641 P.2d at 784. Cases applying the Frye approach generally hold that hypnosis has not been shown to have been generally accepted as reliable in the scientific community. Thus, they adopt a rule that, until hypnosis is generally accepted by the scientific community, a witness whose testimony has been hypnotically enhanced is not competent to testify.

See also Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); Commonwealth v. Juvenile, 381 Mass. 727, 412 N.E.2d 339 (1980); People v.

Gonzales, supra; State v. Mack, 292 N.W.2d 764 (Minn.1980). However, some of the courts that have adopted the per se rule still allow a witness to testify to facts recalled prior to hypnosis. See Collins v.

Superior Court, supra; State v. Patterson, supra; People v. Gonzales, supra. Another approach is to rule that such testimony is always admissible, not incompetent, and the fact that a witness may have been hypnotically manipulated merely goes to the credibility and weight of the testimony, and as such is an issue for the jury to decide.

See State v. Brown, 337 N.W.2d 138 (N.D.1983); Chapman v. State, 638 P.2d 1280 (Wyo.1982). Again, this line of cases establishes a per se rule, albeit a rule of admissibility as opposed to inadmissibility. The third line of authority allows for the admissibility of hypnotically induced testimony if certain safeguards are followed to ensure the reliability of the testimony.

See State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); State v. Beachum, 91 N.M. 682, 643 P.2d 246 (App.1981); People v. Lewis, 103 Misc.2d 881, 427 N.Y.S.2d 177 (1980).

The safeguards often relied on in these cases are safeguards developed by Dr. Martin Orne, an expert in hypnotically induced testimony. These safeguards are: “(1) The hypnotic session should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis. “(2) The qualified professional conducting the hypnotic session should be independent of and not responsible to the prosecutor, investigator or the defense. “(3) Any information given to the hypnotist by law enforcement personnel prior to the hypnotic session must be in written form so that subsequently the extent of the information the subject received from the hypnotist may be determined. “(4) Before induction of hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding adding any new elements to the witness’ description of the events. “(5) All contacts between the hypnotist and the subject should be recorded so that a permanent record is available for comparison and study to establish that the witness has not received information or suggestion which might later be reported as having been first described by the subject during hypnosis. Videotape should be employed if possible, but should not be mandatory. “(6) Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the prehypnotic testing and post-hypnotic interview.” State v.

Hurd, 432 A.2d at 89-90.3 This line of cases can also be interpreted as a per se rule in that the cases seem to imply that if the safeguards proposed are followed, the testimony is admissible; but if the safeguards are not followed the testimony is inadmissible. While each of the three approaches discussed above have merit, they all advocate to a greater or lesser extent a per se rule of admissibility or inadmissibility which is inconsistent with the general trend of witness competency that every person is competent to be a witness. While each of the three approaches focuses on an important consideration to be evaluated by a trial court in determining competency, they do so to the exclusion of other considerations, and thus unnecessarily tie a trial court’s hands in determining the competency of a witness to testify. If we were to adopt the rule that hypnotically induced testimony should be left to cross examination and impeachment, there would still be circumstances where testimony admitted under that rule had been rendered tainted and unreliable due to the methods used in hypnosis.

Thus, a per se rule of admissibility would in some circumstances allow for the admission of unreliable testimony, an undesirable result in our judicial system, where we strive to reach verdicts based only on reliable testimony. On the other hand, a per se rule of inadmissibility, such as that discussed above, would, in some circumstances, disallow reliable testimony, thus thwarting the truthseeking function of our judicial system. Finally, the third line of authority adopting safeguards to be used in hypnotic sessions, could also represent a per se rule if it were interpreted to mean that, if the safeguards were followed, the testimony is always admissible, and if the safeguards were not followed the testimony is never admissible. We foresee circumstances where, even when the safeguards are not strictly or entirely followed, a trial court could nevertheless conclude that the testimony would still be sufficiently reliable for its admission.

For example, one of the safeguards proposed by Dr. Orne is that only the hypnotist and the subject should be present during any phase of the hypnotic session. However, strict compliance at all times with this safeguard would prevent a criminal defendant from seeking the self protection of the presence of his attorney, or even prevent a person from requesting that his or her own psychiatrist be present to observe the session. In this case, the presence of a third person would protect the rights of a subject, but at the same time would not necessarily render the entire testimony unreliable.

Thus, merely because one of the safeguards was not followed should not result in the automatic exclusion of the entire testimony. Accordingly, we adopt our own rule on the admissibility of hypnotically induced testimony, rejecting each of the per se rules set out above. We adopt this rule with the intent of giving guidance to trial judges grappling with the difficult question of the admissibility of hypnotically induced or enhanced testimony. There needs to be some method of determining the admissibility of this type of testimony that will protect against the dangers of hypnosis, particularly the dangers of cueing and confabulation, and yet allow for receipt of the benefits of memory recall which hypnosis can produce.

Thus, we adopt a rule wherein trial courts are directed, in eases where hypnosis has been employed, to conduct pretrial hearings on the procedures used during the hypnotic session in question. Trial judges should then apply a “totality of the circumstances” test and make a determination whether, in view of all of the circumstances, the proposed testimony is sufficiently reliable to merit admission. If the witness’s memory seems to have been altered in such a way as to render it unreliable, the trial court may rule the witness to be incompetent. We feel that some safeguards should be outlined to give trial courts guidance on what elements they should look for in applying this test.

We adopt the following modified version of the Orne safeguards, for the general guidance of the trial courts. (1) The hypnotic session should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis and thus aware of its possible effects on memory, so as to aid in the prevention of cueing and improper suggestion. (2) The person conducting the session should be independent from either of the parties in the case. (3) Information given to the hypnotist by either party concerning the case should be noted, preferably in written form, so that the extent of information the subject received from the hypnotist may be determined. (4) Before hypnosis, the hypnotist should obtain a detailed description of the facts from the subject, avoiding adding new elements to the subject’s description. (5) The session should be recorded so a permanent record is available to ensure against suggestive procedures. Videotape is a preferable method of recordation, but not mandatory. (6) Preferably, only the hypnotist and subject should be present during any phase of the hypnotic session, but other persons should be allowed to attend if their attendance can be shown to be essential and steps are taken to prevent their influencing the results of the session, (i. e., they are not allowed to participate in the session, etc.). This “totality of the circumstances” rule should be applied whether the hypnotized witness is produced by the plaintiff or defendant. The rule we set out today is a rule of competency, not an exclusionary rule intended to punish one side or another for some perceived misconduct in the manner in which the hypnosis was conducted, such as the exclusionary rule in Weeks v.

United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), or Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). This rule will bring this evidentiary problem in line with other problems of a similar nature. The process of hypnosis, which sometimes results in a modification of memory, is not the only subsequent event that could serve to modify memory and render it untrustworthy.

See F. Frankfurter, The Case of Sacco and Vanzetti (1927) (“The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.”), as quoted in Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness identification, 29 Stan. L.Rev. 969-1030 (1977) (many variables affect perception of events and may result in distortion of memory). An idle conversation with another witness to the same occurrence can, according to some of the experts, lead to a modification of a witness’s memory.

While the possibility of alteration of memory through the use of hypnosis is much greater than in other subsequent events, the question is only one of degree. Thus, placing this hypnosis evidentiary problem within the control of the trial court assures that reliability will be determined before submission of the evidence to the jury, just as in other cases where evidentiary problems are presented. Our rule today also gives control over this question to the entity most experienced in dealing with evidentiary questions, the trial court. We should also note that in the event a trial court finds that, as a result of a hypnotic session, a witness’s testimony on particular matters has been tainted, and the witness has thus been rendered incompetent on those matters, the trial court may determine that the witness is still competent to testify in areas where the witness’s recollection is unmarred by the hypnotic sessions.

This may or may not be limited to situations where it is clear that certain parts of a witness’s memory of events was in existence before hypnosis and thus is still in existence, untainted, after the hypnotic session. To determine the possible existence of untainted testimony of this type, the trial court can examine statements of the witness, made prior to hypnosis, and any videotapes or recordings of the hypnosis sessions themselves. If certain areas were not covered, the trial court may well determine that the witness remains competent to testify to those matters. See Collins v.

Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982) (even under per se rule, hypnosis does not render witness incompetent to testify to facts demonstrably recalled prior to hypnosis). A witness who has the ability to observe, perceive and testify accurately should be allowed to testify to those facts relevant to the case at hand. With that general principle in mind, trial courts considering the question of admissibility of hypnotically induced testimony should examine the circumstances surrounding the hypnotic session, keeping in mind the safeguards previously mentioned and determine if, in the totality of the circumstances, it appears that the testimony proposed is sufficiently reliable to merit admission. We note that it would be an unusual case where admission of the testimony would be allowed where none of the safeguards mentioned were followed. It would also be an unusual case if all of the mentioned safeguards were followed, but the trial court nevertheless ruled that the witness was still not competent to testify.

Upon retrial of this case, the trial court should determine the admissibility of the hypnotized witness’s testimony using the guidelines set forth herein. Because the rule we set out is a rule of competency, once the determination of competency is made the witness should testify on direct examination as to his or her present recollection without indicating the fact of hypnosis. A witness should not be able to buttress his testimony by stating that his present recollection resulted from his or her hypnosis any more than a witness may buttress his direct testimony by testifying that he has made the same statements on a lie detector test and has passed the test. Cf. Frye v.

United States, 293 F. 1013 (D.C.Cir.1923). If a party wishes then to impeach the competency of the witness who has been hypnotized because of the fact of hypnosis, or because of an inconsistent prehypnosis statement, he may cross examine concerning the hypnosis, and both parties may then bring in experts to testify to the dangers and benefits of hypnosis as rebuttal of the other party’s assertions, which experts can then also be rebutted. Reversed. DONALDSON, C.J., and McFADDEN, J., Pro Tern., concur. SHEPARD, J., dissents as to Part I, without opinion, and concurs as to Part II. . Any communication between Aldridge and Iwakiri subsequent to his refusal to handle her case falls outside the scope of the privilege and is admissible.

Farley v. Peebles, 70 N.W. 231 (Neb.1897); McGrede v. Rembert Natl. Bank, 147 S.W.2d 580 (Tex.Civ.App.1941); 8 Wigmore, Evidence, § 2304 (1961 ed.). .

The rules also allow for exceptions allowed under substantive state law, i.e., the Dead Man’s Statutes. See F.R.E. 601. The proposed Idaho Rule of Evidence also creates a general rule of competency, but sets up a procedure allowing for the trial court to determine incompetency. “Every person is competent to be a witness except: ”(a) Incompetency determined by court. Persons whom the court finds to be incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” Proposed Idaho Rules of Evidence 601. .

Some cases have also adopted a modified and expanded version of the six safeguards developed by Dr. Orne, adding requirements that the witness be examined prior to hypnosis to detect possible mental illness and assure that the witness possesses judgment and comprehension of the process, and that consideration be given to evidence corroborating or challenging information elicited during hypnosis. See People v. Lewis, 103 Misc.2d 881, 427 N.Y.S.2d 177 (1980).