Mosely vs Commonwealth 420 SW 2d 679 (1967)

Impeachment by other means

Facts:
For several months, Geraldine Eden had been staying in the home of the Ashers
where she was employed as a full-time baby-sitter. One night, on May 11, 1966,
Geraldine, then 27 years of age, testified that the spouses Ashers left the house to go
bowling. Appellant, an acquaintance of Geraldine and a relative of the Ashers entered
the Asher home for the purpose of staying overnight. Geraldine stated that after the
Asher children went to bed, appellant tried to make love to her. When she resisted his
amorous advances, he forcibly tied her hands behind her back, pushed her down on a
couch, removed her underclothing and raped her.
On the other hand, appellant, 54 years of age, testified that Geraldine voluntarily
submitted to sexual intercourse with him as she had on several previous occasions.
Appellant was surprised to learn that Geraldine claimed he had raped her.
Appellant was thereafter convicted of rape and sentenced to ten years' servitude in the
state penitentiary. Nonetheless, appellant asserted that the court erred in refusing to
permit the jury to consider, for the purpose of impeaching Geraldine's credibility, the
testimony of Doctor Gay concerning Geraldine's mental condition.
Issue:
Whether or not the court erred in refusing to permit the jury to consider, for the
purpose of impeaching Geraldine's credibility, the testimony of Doctor Gay
concerning Geraldine's mental condition
Ruling:
Yes. The Court erred in refusing to allow the testimony of Doctor Gay.
To be certain, Doctor Gay has obtained a PhD degree in psychology and has been
licensed by the state of Kentucky as a clinical psychologist. He was in charge of the
treatment of Geraldine's mental disorder, and testified, by way of avowal out of the
presence of the jury, that Geraldine had entered a state hospital for mental treatment
during October 1961. At that time, she complained that her father and brothers had
molested her sexually during her adolescence. She was discharged but readmitted for
treatment on a voluntary basis during 1964.
While Doctor Gay believed that Geraldine was in a state of remission at the time of
the alleged rape, it was his opinion that she is schizophrenic and is an immature
individual. He further stated that one of the manifestations of schizophrenic reaction
is fantasies, which in Geraldines case, extend to the area of sex.
Since the Commonwealth relied upon the uncorroborated testimony of Geraldine to
establish its case against appellant, the principal question at issue had reference to the
credit to be given to the testimony of Geraldine. Therefore, Doctor Gay's testimony
may have had an important impact on the jury as it tended to impeach Geraldine's
credibility.

The proffered testimony of Doctor Gay should then be considered relevant and
competent, and should have been received, not in extenuation of rape, but for its
bearing upon the question of the weight to be accorded Geraldine's testimony.
Generally a witness may be impeached only as specified in our Rules of Civil
Procedure (CR 43.07). However, the modern trend is to permit the jury to consider
expert testimony in the field of mental disorders and relax the rule in sex offense
cases.
Notably, the existence of insanity or mental derangement is admissible for the
purpose of discrediting a witness. Evidence of insanity is not merely for the judge on
the preliminary question of competency, but does to the jury to affect credibility.
The judgment is reversed with directions to grant appellant a new trial.

Newton vs State 127 A. 123 (1924)

Impeachment by other means
Facts:
Newton was jointly indicted with Dickey and Gillepsie but was tried separately. In his
trial, Newton called Dickey as a defense witness. The State cross-examined Dickey as
to whether or not he had given the same testimony at his and Gillepsies trial
proceedings. When Dickey answered in the affirmative, the prosecutor said, And you
were convicted, were you not? The prosecutor further asked Dickey whether or not
he was convicted in his trial in the same court where Newtons trial was being held.
Issue:
Whether or not it is proper to cross-examine a witness if he had indeed given the same
testimony he is currently presenting in a previous trial where he was convicted
Ruling:
No. If an examiner seeks to impeach the credibility of a witness by showing that he
had been convicted of a crime, the examiner should just ask the question directly. On
another note, if an examiner intends to show that in another case the witness swore to
statements contrary to his testimony in the present case, the witness should be asked
whether he made such conflicting statements.
The method of cross-examining Dickey was improper in this case. In addition to
intimidating Dickey, the only apparent purpose was to point out to the jury that in
Dickeys own case, when he was tried for the same crime, he had made the same
statements he was giving at Newtons trial, and that the three judges before whom he
was tried discredited his statements and convicted him. The obvious purpose was to
induce the jury to believe that since judges in the same court had discredited Dickeys
testimony, they should likewise discredit it in the current trial. The judgment of
conviction is reversed and a new trial is ordered.

State vs Peoples 319 SE2d 177 (1984)

refreshing recollection
Facts:
Miller participated in the armed robbery of the Borden Chemical Plant in Fayetteville,
North Carolina. He, along with two other men, took several buckets of almost pure
silver, used by the plant in its manufacture of formaldehyde. The shift supervisor at
the company whom the perpetrators forced to open the building containing the silver
identified defendant as one of the robbers. Herein defendant was thereafter arrested on
29 April 1981.
Pursuant to a plea agreement in an unrelated case, Miller agreed to testify against
defendant, and was able to outline the robbery in considerable detail. However, his
testimony arose out of a hypnotic session conducted by Detective Sessoms. It was
said that the hypnosis intended to seek additional recall of the robbery which Miller
did not have in a normal state.
Defendant was eventually tried and convicted for armed robbery and conspiracy to
commit armed robbery.
Issue:
Whether or not hypnotically refreshed testimony is admissible

Ruling:
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 posthypnotic 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. The Court further concludes that no set of procedural safeguards can
adequately remedy this unreliability.
This rule of inadmissibility does not, however, render all testimony of a previously
hypnotized witness inadmissible. A person who has been hypnotized may testify as to
facts which he related before the hypnotic session. The hypnotized witness may not
testify to any fact not related by the witness before the hypnotic session.
In this case, the testimony by Detective Sessoms regarding the hypnotic session and
the admission and playing before the jury of the video tape of the witness Miller
during the hypnotic session were inadmissible. Furthermore, since Miller's statement
made before the hypnotic session was not proffered at trial nor is it contained in the
record on appeal, none of his testimony was admissible. The case is therefore
remanded where defendant will be given a new trial.