Report Title:

Testimony of Previously Hypnotized Witness

Description:

Establishes requirements for the admissibility of testimony from a witness previously hypnotized to recall the testimony.

HOUSE OF REPRESENTATIVES

H.B. NO.

2656

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE HAWAII RULES OF EVIDENCE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 626-1, Hawaii Revised Statutes, is amended by adding a new rule to article VI to be appropriately designated and to read as follows:

"Rule   Testimony of witness who previously underwent hypnosis to recall subject matter of testimony. (a) The testimony of a witness who previously has undergone hypnosis to recall events that are the subject matter of the testimony is admissible if:

(1) The witness, or the parent or guardian of the witness if the witness is a minor, gave informed consent to the hypnosis;

(2) The person who induced the hypnosis is:

(A) A person who is licensed to practice medicine pursuant to chapter 453;

(B) A psychologist who is licensed pursuant to chapter 465

(C) A social worker who is licensed pursuant to chapter 467E; or

(D) An officer or former officer or employee of a law enforcement agency;

who is trained in forensic hypnosis and who is not otherwise currently involved in the investigation of a case or action in which the witness is a victim, witness, or defendant;

(3) Before the hypnosis was induced, a written record was made that includes:

(A) A description of the subject matter of the hypnosis as provided by the witness; and

(B) The information that was provided to the hypnotist concerning the subject matter of the hypnosis;

(4) The entire session at which the hypnosis was induced was electronically recorded by audio or video recording equipment, including any interview that was conducted before or after the hypnosis was induced;

(5) The recording of the entire session at which the hypnosis was induced was made available by the party who produced the witness to each party involved in the case, pursuant to the discovery procedures as provided in chapter 624, the Hawaii rules of civil procedure or the Hawaii rules of penal procedure, depending upon the nature of the proceedings; and

(6) The hypnotist and the witness were the only persons present during the session of hypnosis unless the hypnotist or a law enforcement officer who is investigating the criminal case, if any, determined that it was necessary for one of the following persons to be present during the session:

(A) A parent or guardian of a witness who is a minor or

(B) An artist employed by a law enforcement agency.

(b) The court, on its own motion or that of a party, may exclude the testimony of a person who previously had undergone hypnosis to recall events that are the subject matter of the testimony if the court determines that the testimony is unreliable or is otherwise inadmissible.

(c) The court shall instruct the jury to exercise caution when considering the reliability of the testimony of a person who previously had undergone hypnosis to recall events that are the subject matter of the testimony.

(d) The provisions of this rule do not limit:

(1) The ability of a party to attack the credibility of a witness who previously had undergone hypnosis to recall events that are the subject matter of the person's testimony; or

(2) The legal grounds upon which to admit or exclude the testimony of the witness."

SECTION 2. This Act does not affect the rights or duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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