State v. Weston , 16 Ohio App. 3d 279 ( 1984 )

I concur in affirming appellant's conviction, but am not prepared to grant our imprimatur to the use of hypnosis for the purpose of refreshing the recollection of a witness. It is a fact, of course, that hypnosis can and does occur. The scientific community recognizes the phenomenon. It is equally clear that some individuals are more prone to hypnotic suggestions than others. Nevertheless, there are too many unknowns involved to elevate hypnosis to the scientific level we should require in a court of law. In State v. Mena (1981), 128 Ariz. 226, 231,624 P.2d 1274, 1279, the Arizona Supreme Court held "until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases." I am in general agreement with such statement, but would not find it necessary to exclude all of the testimony of a witness simply because only a portion of it constituted hypnotically induced testimonial recall.

In the case at bar, Carol Thompson selected a photograph of the appellant from a photo array shown to her on July 10, 1981, four days before she underwent hypnosis. It would therefore be manifestly unjust to exclude such photographic identification on the theory that it later became tainted while under hypnosis. If, however, Thompson had later recalled under hypnosis, that appellant was wearing a blue tie and had a mole on his right cheek, or some similar characteristic, the hypnotically refreshed recollection should be excluded as undependable. In such an instance, there would be no reason to exclude the photographic identification as being tainted.

In the case at bar, the challenged identification was overwhelmingly supported by circumstantial evidence which virtually leaves no room for doubt that Richard L. Weston was present at or near the scene when the victims were executed. There has been no showing that the hypnotic refreshing procedure was either helpful to the state or damaging to appellant. I therefore conclude that the use of hypnosis to refresh the recollections of both Thompson and Jenkins did not taint their prior identification, and accordingly did not affect the outcome of the trial. Accordingly, the conviction should be affirmed.