BEFORE PATTERSON, HAWKINS AND ROBERTSON
ROBERTSON, JUSTICE, FOR THE COURT:
We today consider for the first time the use in aid of a criminal prosecution of testimony adduced through hypnosis. For the reasons described below, we hold that the hypnotist may not testify as to facts constituting the crime told him by the victim during a hypnotic session, nor may he offer an expert opinion that the victim is telling the truth. Because the hypnotically refreshed memory of the victim is susceptible of having been" contaminated "during the hypnotic session, her testimony becomes admissible only after certain safeguards set forth below have been complied with.
The Defendant has been indicted, tried and convicted of unnatural intercourse with M.P. *fn1, an eight-year-old girl, in violation of Miss. Code Ann. 97-29-59 (1972). The offense allegedly occurred on January 26, 1981. In view of the disposition we make, no useful purpose would
be served by recounting the details of the criminal act charged in this case. Suffice it to say that, for the reasons articulated below, we reverse and remand for a new trial.
A brief recitation of certain aspects of the trial proceedings will be helpful to provide the context for our consideration of the hynopsis-related issues presented in this case.
The Defendant has been convicted on the testimony of M.P., a young girl whose birthday is September 5, 1972. There is no independent, objective verification of the truth of the charges. The defendant has vehemently denied any form of sexual contact with M.P. In this context, the fact and opinion testimony of the hypnotist, Dr. Joseph Tramontana, most certainly weighed heavily in the jury's mind in favor of conviction.
Beyond that, the defendant is not the only person M.P. ever accused of forcing her to commit unnatural sex acts. M.P. has charged at least two other male persons with doing this sort of thing to her. M.P.'s mother testified that her daughter was three years old when she first made such accusations. On occasions prior to January 26, 1981, she had accused the defendant.
Moreover, there is the suggestion in the record that M.P. has been the object of a longstanding custody dispute between her mother and her grandparents. M.P.'s mother is the person who reported the instant offense to law enforcement authorities. The record suggests, however, that her motivation may not have been bringing the defendant to justice as much as it may have been to keep M.P.'s grandparents and the local welfare department from challenging the mother's fitness to maintain custody of M.P. and her brother.
We take a backseat to no one in our condemnation of the sort of crime here charged. It offends the sensibilities of decent people. Perpetrators should be vigorously prosecuted. Yet, because this sort of crime is so offensive and because of the other factors mentioned above, we are sensitive to the potential for a miscarriage of justice. This is particularly so where the testimony of the eight year old prosecutrix is arguably the product of a hypnotically refreshed memory corroborated only by the dubious - and inadmissible - hearsay and opinion
testimony of a hypnotist.
Hypnosis has been around for a long time. Its use in judicial proceedings has been debated in other jurisdictions for nigh unto a century. See Ladd, Legal Aspects of Hypnotism, 11 Yale L.J. 173 (1902). Still, the matter has never been considered in the prior decisions of this Court. *fn2
We are told that today hypnosis is a valuable aid to law enforcement. In that during a hypnotic experience many persons are capable of correct recall of the details of past events otherwise forgotten, law enforcement employs hypnosis in investigative work and now at trial. See Quarles, Hypnosis and the Law of Evidence: Testimony from the Hypnotically-Refreshed Memory, 51 Miss. L.J. 743 (1981). We further understand that hypnosis has potential as a tool of the defense in criminal cases,
see Warriner, The Use of Hypnosis in the Defense of Criminal Cases, 27 Int'l Journ. of Cl. and Exp. Hypnosis, No. 4 at 417 (1979), although to our knowledge it has not been so used in this state.
This Court is committed to the proposition that all credible evidence that will assist the jury in its fact-finding task ought, if put in proper form, be admissible. Our prejudice favors inclusion, not exclusion, for we perceive such prejudice to be consistent with the correct administration of justice in this state. We do not fear the new. That a newly developed type of evidence has never been used before in our courts hardly dictates exclusion.
On the other hand, our oaths require vigilance against forms of evidence infected with the potential for mischief and injustice. Even so, our prejudice favors admissibility under guidelines and safeguards realistically designed to ensure reliability. We eschew per se inadmissibility rules wherever possible. We bring this general frame of mind to our consideration of the use in this prosecution of evidence adduced via hypnosis.
The questioned testimony produced by the hypnotic sessions between Dr. Joseph Tramontana, a clinical
psychologist and hypnotist, must be divided into three separate categories:
(1) Dr. Tramontana's testimony wherein he stated to the jury facts surrounding the alleged offense told to him by M.P. during the hypnotic sessions;
(2) Dr. Tramontana's expert opinion testimony that M.P. was telling the truth about what the Defendant had done to her; and
(3) The post-hypnotic testimony of M.P. herself.
At the outset, the State urges that we not consider any of the hypnosis issues in this case for procedural reasons. The State insists that these points were not properly preserved in the trial court by timely specific objections.
At trial defense counsel objected to the testimony of Dr. Tramontana on dual grounds: That he conducted his hypnotic session with M.P. without her mother's permission and, second, that he did not record the hypnotic session. The present grounds for objection and suggestion of error include, in addition, hearsay, improper bolstering of the prosecutrix' testimony, plus due process.
It is certainly true that this and every other appellate court we know anything about maintains and enforces a rule requiring that, before errors may be considered on appeal, generally they must be" preserved "at trial. See Stringer v. State, 279 So. 2d 156, 157-159 (Miss. 1973). Generally, this means that the matter must be presented to the trial court in such a form that the trial judge has the opportunity to consider it with full knowledge of the respective contentions of the parties. On the other hand, where an objection is made and where the basis therefor is obvious from the context, little of value is accomplished by insistence upon a technically correct objection. See Loeffler v. State, 396 So. 2d 18 (Miss. 1981). This is certainly true with so much of Dr. Tramontana's testimony as constitutes garden variety hearsay or improper bolstering of the prosecutrix' testimony.
There are other important reasons why we reach the merits of the hypnosis issues here.
First, as explained above, the hypnosis-related
evidence in this case is at the core of the trial. The justice of the proceedings below in a very real sense turns upon a correct treatment of the hypnosis-related issues.
Second, we are aware that hypnotic techniques are being used by law enforcement officials in this state and have been in such use for several years. *fn3 The Attorney General's office released an equivocal opinion on the subject on March 7, 1980. Both law enforcement and the bar need guidance from this Court on this subject. They need that guidance now.
Third, the law has been thoroughly briefed for our use and benefit in this case. Indeed, the briefs of counsel have cited to us practically every relevant legal and psychological authority on the subject. The chances of our getting better briefs at a later date we regard as slim and none. *fn4
Finally, fundamental rights in serious criminal cases rise above mere rules of procedure. Brooks v. State, 209 Miss. 150, 155, 46 So. 2d 94, 97 (1950). We tend to disregard procedural niceties where such is necessary to avoid the possibility of a serious miscarriage of justice. See, e.g., Richardson v. State, 436 So. 2d 790, 791 (Miss. 1983); Hooten v. State, 427 So. 2d 1388, 1391 (Miss. 1983); Glover v. State, 419 So. 2d 588 (Miss. 1982); Horton v. State, 408 So. 2d 1197, 1200 (Miss. 1982); Loeffler v. State, 396 So. 2d 18 (Miss. 1981).
Taken together, the objections actually made and our so-called plain error rule, see Rule 6 (b), Miss. Supreme Court Rules, are sufficient to allow our consideration of the issues surrounding the testimony of Tramontana.
IV. The Hypnotist's Hearsay Testimony Regarding Facts Told Him
At trial, Dr. Joseph Tramontana was permitted to tell the jury factual matters related to him by M.P., the prosecuting witness. This testimony critically related to the facts of the crime with which defendant had been charged.
The context is important. Dr. Tramontana first testified that M.P. had seen him professionally five times in 1980, beginning in February, 1980. This was well prior to the January 26, 1981 incident that is the subject of this prosecution. This was also prior to the hypnotic
Dr. Tramontana testified that in February of 1980 M.P.'s mother brought her to his office and stated that the defendant had had sexual contact with M.P. Two months later both M.P. and her mother reported that these accusations had been the product of M.P.'s dreams, not actual experiences. Dr. Tramontana's testimony here was:
A On the second to the last of the, uh, of the five visits, the five times I had seen her, uh, the mother told me that, uh, that . . . [M.P.] said all of her accusations had been a dream.
Q And what month was that?
A That was, that was April 8, 1980.
A And I talked with . . . [M.P.] and she agreed that it had all been a dream.
Again all of this occurred before January 26, 1981, and before Dr. Tramontana ever hypnotized M.P. It provides a necessary backdrop for understanding Dr. Tramontana's testimony regarding his professional relationship with M.P. after January 26, 1981.
On direct examination this colloquy took place between the state's attorney and Dr. Tramontana:
A February 17, 1981, we had an office visit at Gulf Coast ...