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In Grimes v. State, 297 Md. 1, 464 A.2d 1065 (1983), we reversed a conviction because the testifying victim was unable to remember anything until undergoing hypnosis; her testimony as to criminal agency was based entirely on hypnotically-enhanced memory.
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[No. 108, September Term, 1982.]
Decided September 8, 1983.
EVIDENCE — Hypnotically Enhanced Testimony — Such Testimony Does Not Meet Test Of Scientific Reliability — Hypnotically Enhanced Testimony Is Inadmissible Evidence — But Hypnosis May be Used For Investigative Purposes — Witness May Testify In Accord With Statements Made Prior To Hypnosis — Party Offering Such Testimony Must Clearly Demonstrate That It Accords With Statements Made Prior To Hypnosis — Trial Court's Admission Of Hypnotically Enhanced Testimony Is Reversible Error. Where State stipulated that the victim's testimony relative to criminal agency was hypnotically enhanced and where there were no statements made by the victim relating to the defendant prior to hypnosis, the Court held that the admission of the victim's hypnotically enhanced testimony concerning defendant's criminal agency was reversible error. pp. 2-3
J.A.A.
Appeal from the Circuit Court for Baltimore County (SFEKAS, J.), pursuant to certiorari to the Court of Special Appeals.
Mack Donald Grimes was convicted of assault with intent to murder and was sentenced to twenty years to the Department of Corrections. Grimes appealed to the Court of Special Appeals. Certiorari was granted prior to consideration by that Court.
Judgment reversed. Case remanded to the Circuit Court for Baltimore County for a new trial. Baltimore County to pay the costs.
The cause was argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
John Grason Turnbull, II, with whom were Douglas T. Sachse and Turnbull, Mix Farmer on the brief, for appellant. Richard B. Rosenblatt, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
Per Curiam. MURPHY, C.J., dissents, and filed a dissenting opinion at page 3 infra.
Appellant Mack D. Grimes was convicted in the Circuit Court for Baltimore County of assault with intent to murder. Prior to trial he filed a motion to suppress the hypnotically enhanced testimony of the victim of the crime. That motion was overruled in a scholarly opinion by the trial judge (Alpert, J.) The case then was submitted on an agreed statement of facts to yet another judge who convicted. An appeal followed to the Court of Special Appeals. We granted a writ of certiorari prior to argument in that court in order that we might consider this case with a number of others involving hypnotically enhanced testimony.
The parties have agreed to a statement of facts in this Court pursuant to Maryland Rule 828 g. No useful purpose would be served by a recitation of those facts. Suffice it to say that in this case the victim was unable to remember anything after she went into the bathroom of Grimes followed by Grimes' co-defendant, Barbara Felder. It is indicated that she suffered from hysterical amnesia. Under hypnosis she allegedly was able to recall certain events that previously had been lost to her. She then related the events of the night in question involving appellant and Felder.
At the hearing on the motion to suppress the State stipulated that if the victim's hypnotically enhanced testimony was suppressed, then "all of her testimony in regard to criminal agency should be suppressed."
We have just considered the matter of hypnotically enhanced testimony in State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983), argued the same day this case was argued. We adopted the test laid down in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted in Maryland in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), "as the basis for evaluation of testimony where a witness has been hypnotized." We declined to follow the procedures outlined in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), for the admission of hypnotically enhanced testimony. We said that we are not satisfied that such testimony meets the Frye-Reed test. We went on to say that this did not mean it is impermissible to use hypnosis for investigative purposes and we "s[aw] no reason why a person should not be permitted to testify in court in accord with statements which it can clearly be demonstrated he made prior to hypnosis," since "[s]uch is not then hypnotically enhanced testimony."
Unfortunately, in this instance we have no statements made by the victim relative to the accused prior to hypnosis and the State has stipulated, if we hold as we do, that the victim's testimony relative to criminal agency should be suppressed. It follows, therefore, that under our holding in Collins the judgment here must be reversed and the case remanded for a new trial.
Judgment reversed and case remanded to the Circuit Court for Baltimore County for a new trial; Baltimore County to pay the costs.
I decline to join in the Court's opinion for the reasons stated in my dissent in State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983).