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STATE v. EVANS10/3/1994
ns when the statement standing alone does not otherwise connect co-defendants to the crimes). Accordingly, its admission did not violate Bruton.
Posthypnotic Testimony
In the initial stages of the investigation, police subjected Grandfather to hypnosis in an effort to obtain a better description of the truck. Evans contends that
Pierce addressed the question whether persons present during hypnosis could testify as to the results of the examination. The Court adhered to the general rule that "testimony as to the results of hypnotic examination is not admissible if offered for the truth of the matter asserted," and held that the trial judge did not abuse his discretion in excluding the testimony. Id. at 30, 207 S.E.2d at 418. Importantly, Pierce is limited to the testimony of persons other than the declarant when that testimony is to be admitted for the truth of the matter asserted. Contrary to Evans' assertion, Pierce does not prohibit a declarant from testifying according to his own recollection. Therefore, we reject Evans' claim that Grandfather's testimony was inadmissible under Pierce.
Evans also raises the novel claim that admission of Grandfather's post-hypnotic testimony violated the Confrontation Clause. We disagree.
We are aware that dangers exist with the use of hypnosis as an investigative tool and that courts have taken divergent views as to the admissibility of post-hypnotic testimony. Evans urges us to adopt the view that post-hypnotic testimony is inadmissible unless stringent safeguards are followed to ensure reliability of the hypnotic procedure. See, e.g., State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). Although
To determine whether a witness's testimony is independent of the dangers associated with hypnosis, a court must examine whether: 1) the witness's trial testimony was "generally consistent" with pre-hypnotic testimony, and 2) considerable circumstantial evidence corroborates the witness's post-hypnotic testimony, and 3) the witness's responses to examination by counsel "generally were not the automatic responses of a preconditioned mental process." Id. at 959-61. Because this is a novel issue in South Carolina, we instruct the Bench and Bar that in the future any determination as to the admissibility of post-hypnotic testimony should be made in camera. If the trial judge determines that such evidence is admissible, the parties may fully explore questions of credibility before the jury.
In this case, Grandfather's post-hypnotic recollection of the accident differs from his pre-hypnotic recollection only in that
Expert Testimony
Evans contends that the trial judge erred in allowing an expert to render an opinion that Evans was impaired by alcohol and crack cocaine at the time of the accident. According to Evans, the hypothetical question did not contain facts sufficient to allow the expert to formulate an opinion. We disagree.
A witness testified that Evans shared one gram of crack cocaine with four other people and consumed approximately twelve cans of beer during the period between 10:00 p.m. the night before the accident and 4:00 a.m. the day of the accident. The State then called an expert to correlate the amount of alcohol and drugs ingested with a level of impairment. To elicit the expert's opinion, the solicitor asked the following hypothetical question:
Q: Doctor, let me give this hypothetical to you. Between ten p.m. and
four a.m. the consumption of twelve Budweiser beers of that size which
is a twelve ounce?
A: Twelve ounce.
Q: Twelve ounce beers. Then at approximately beginning at ten o'clock
until
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