MATTHEW MEDRANO, Appellee

I agree with the Court's decision to affirm the courts below in excluding the evidence of the hypnotized witness. I also agree that we should adhere to the Court's decision in Zani, ⁽¹⁾ even though it assigns a higher burden to the proponent of such evidence than the burden on the proponent of scientific evidence.

The reason that the burdens are different is that the question in the hypnosis cases is different from the questions that were presented in Frye, ⁽²⁾ Kelly, ⁽³⁾ or Daubert. ⁽⁴⁾ Those cases involve the admissibility of scientific evidence, specifically experimental data or expert opinion about the results of scientific tests. Cases like the one that is now before us do not involve the admissibility of such evidence. The issue in these cases is the competency of a lay witness to testify about his or her memory of events that he or she perceived. The question is the extent to which hypnosis has affected the reliability of the witness's memory. The standards of the scientific-evidence cases can do no more than inform a court's decision about the admissibility of the witness's testimony. ⁽⁵⁾

For these reasons, I agree with Judge Cochran that it was inappropriate to import into our scientific-evidence decisions the "clear-and-convincing" burden of Zani. ⁽⁶⁾ I would conform to Daubert the burden of Kelly, but not the burden of Zani.

Zani was correct not only in imposing a higher burden, but also in adopting a flexible standard that can take into view "the totality of the circumstances" of the case to consider whether "that hypnosis neither rendered the witness' posthypnotic memory untrustworthy nor substantially impaired the ability of the opponent fairly to test the witness recall by cross[-]examination." ⁽⁷⁾ As another court has put it:

The district court must then determine whether in view of all the circumstances, the proposed testimony is sufficiently reliable and whether its probative value outweighs [the danger of] its prejudicial effect, if any, to warrant admission. Ultimately the district court must decide whether the risk that the testimony reflects a distorted memory is so great that the probative value of the testimony is destroyed. ⁽⁸⁾

In Zani we quoted a long, but non-exclusive, list of circumstances. ⁽⁹⁾ Others could always be added, such as a consideration of the purpose for the hypnosis ⁽¹⁰⁾ and evidence of the witness's "hypnotizability." ⁽¹¹⁾ On these circumstances, expert opinion may be relevant. ⁽¹²⁾

En banc.

Date filed February 4, 2004 .

Publish.

1. Zani v. State, 758 S.W.2d 333 (Tex. Cr. App. 1988).

2. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

3. Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992).

4. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

5. See Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1994).

6. Post, at 4-5 (Cochran, J., concurring).

7. Zani, 758 S.W.2d, at 244.

8. Sprynczynatyk v. General Motors Corp., 777 F.2d 1112, 1123 (8th Cir. 1985).

9. "[T]he level of training in the clinical uses and forensic applications of hypnosis by the person performing the hypnosis; the hypnotist's independence from law enforcement investigators, prosecution, and defense; the existence of a record of any information given or known by the hypnotist concerning the case prior to the hypnosis session; the existence of a written or recorded account of the facts as the hypnosis subject remembers them prior to undergoing hypnosis; the creation of recordings of all contacts between the hypnotist and the subject; the presence of persons other than the hypnotist and the subject during any phase of the hypnosis session, as well as the location of the session; the appropriateness of the induction and memory retrieval techniques used; the appropriateness of using hypnosis for the kind of memory loss involved; and the existence of any evidence to corroborate the hypnotically-enhanced testimony." 758 S.W.2d, at 243 (quoting People v. Romero, 745 P.2d 1003, 1017 (Colo. 1987)).

10. Borawick, 68 F.3d at 608 ("whether it was to refresh a witness's memory of an accident or crime or whether it was conducted as part of therapy. In the former instance, the subject may feel pressured to remember details, to aid the criminal investigation, whereas when the subject has undergone therapy to explore the sources of her psychological ailments, she may be less inclined to confabulate or describe a complete coherent story. In the latter case, however, the court should be mindful of the possibility that the subject may have received subtle suggestions from her therapist that abuse or other traumas could be at the root of her problems").

11. Ibid.

12. Ibid.