In the seminal case of Frye v. United States, 293 F. 1013 (D.C. Cir.1923), which involved the question of admissibility of lie detector test results, the court, in holding that expert testimony relating to novel scientific evidence must satisfy a special foundational requirement not applicable to other types of expert testimony, declared: ... 4th DCA 1986) where the state sought introduction of expert testimony that the child/victim was suffering from a condition known as Post Traumatic Stress Syndrome, the Fourth District employed the relevancy 846*846 approach based on our evidence code for determining the admissibility of such expert testimony.
In Frye v. 733*733 United States, 293 F. 1013 (D.C. Cir.1923), the question before the court was whether an expert witness for the defendant could testify as to the result of a "systolic blood pressure deception test". ... The thrust of Frye and of the court's opinion in Canaday 734*734 is to prevent expert witnesses from testifying as to the truth of statements obtained by scientific methods unless there has been an acceptance by the scientific community of the underlying principles of the procedure.
The trial court conducted a Daubert hearing concerning Epp's expert testimony that the accident caused the fibromyalgia, and the trial court excluded the evidence, concluding that medical science was insufficient to link the trauma to the condition. ... And, to paraphrase the United States Supreme Court's opinion in Daubert, nothing in section 90.702 or elsewhere in Florida's Evidence Code establishes "general acceptance" as a prerequisite to the admissibility of expert opinion evidence.
The other camp, represented by Drs. Rossi and Reiser, the state's expert witnesses in Contreras, denies the existence of a special trance state and explains hypnotic behavior as simply a function of the subject's rapport with the hypnotist, as well as his set of attitudes, reservations and expectations regarding hypnosis. ... We believe however that the case-by-case approach is time consuming, creates a risk of non-uniform results 138*138 and requires judges to become hypnosis experts in order to make intelligent determinations about the efficacy of particular procedural safeguards and about whether there is in fact substantial compliance with those safeguards.
His answers are to the effect that a hypnotized person cannot be free from heightened suggestibility; that a hypnotist through the exercise of skill and attention cannot avoid implanting suggestions in the mind of the hypnotized subject; that after awakening the hypnotic subject cannot consistently recognize which of his thoughts, feelings, and memories were his own and which were implanted by the hypnotic experience; that it is not rare for a person to believe that he was not hypnotized when in fact he was; that previously hypnotized persons cannot restrict their memory to actual facts, free from fantasies and confabulation; that hypnotism can induce subtle but highly significant distortions of memory that will persist indefinitely, distorting all subsequently related recall of the subject; that even the best experts cannot consistently distinguish between actual and pretended hypnosis; that neither the hypnotist nor the subject can sort out facts from fantasy in the recall during or after hypnotism; that the specificity and richness of recalled memories is not an assurance that the hypnotic or posthypnotic subject is recalling fact; that the independent corroboration of some of the hypnotically enhanced memories does not assure that all or most of the witness' memories are reliable; that a complete record of the hypnotic experience is never possible; that "a witness who quite honestly reveals that he is unsure of the identification of a defendant from a photograph or a line-up, may, after hypnosis, become quite certain and confident that he has picked the right man"; that an experienced hypnotist or other expert cannot have a reliable and valid opinion that the recall of a particular witness whose memory has been enhanced by hypnotism was reliable and valid; and that the uncertainties of ordinary eyewitness testimony and those of hypnotically enhanced recall are not sufficiently similar that the legal rules of procedures designed for coping with the one are sufficient for the other. ... Thus, the "judicial caution" of Frye and Reed is counselled by twin dangers: that unreliable experimental evidence may be given undue weight by the jury because of the "scientific" process which generated it; and that "expert testimony" based on such evidence may be given undue weight for similar reasons.
Given the problems inherent in the hypnotic process, such as the enhanced suggestibility of the subject, his tendency to confabulate when there are gaps in his recollection, his increased confidence in the truthfulness and accuracy of his post-hypnotic recall which may preclude effective cross-examination, and the inability of either experts or the subject to distinguish between memory and confabulation, hypnotically refreshed testimony is simply too unreliable to be used as evidence in a judicial setting. ... As the Mack court stated, "Under the Frye rule, the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate."
18*18 We are swayed by the opinions of the courts of other jurisdictions that have held that the concerns surrounding the reliability of hypnosis warrant a holding that this mechanism, like polygraph and truth serum results, has not been proven sufficiently reliable by experts in the field to justify its validity as competent evidence in a criminal trial. ... Under Frye the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.
In this view, traditional legal devices such as cross examination, expert testimony on the inherent risks of hypnosis, and cautionary instructions enable the jury to evaluate the credibility of previously hypnotized witnesses. ... FBI fingerprint experts found Valdez's right palm print on the first extortion note and his left palm print on the second one.
While I agree that testimony from a qualified expert witness may be introduced in a child abuse case to explain changes in a child's behavior and to relate such changes to the issue of whether that child has been subjected to child abuse, such testimony must be scrupulously limited to this narrow area of the witness's expertise. ... We note the concern raised by other state courts regarding the scientific validity of using the results of research on various stress disorders as the basis for expert cause-effect testimony in a criminal justice context.
The defense also presented a videotaped deposition of Dr. Bernard L. Diamond, a psychiatrist from San Francisco, California, and a nationally renowned expert in the field of hypnosis, who testified in essence that the use of hypnosis on a prospective witness at a criminal trial is so inherently dangerous that any testimony by such a person should not be allowed. ... We note, however, that in situations such as the one at bar, the trial court should exercise its discretion and weigh the probative value of the audio-visual recording as part of the basis for the expert's opinion against the risk that the jury might improperly consider it as independent proof of the facts recited by the witness.