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Click here for the full text of this decision FACTS:In the underlying case, the trial court excluded hypnotically-induced testimony from the only eyewitness in a capital murder case. The 8th Court of Appeals initially ruled that it did not have jurisdiction to consider the state’s appeal, but this court reversed. On remand, the court of appeals affirmed the trial court’s exclusion, relying on Zani v. State, 758 S.W.2d 233 (Tex.Crim.App. 1988). The state seeks discretionary review to consider the continued validity of Zani, which held that hypnotically enhanced testimony is admissible, but only under a strict legal framework. The state argues that Zani was based on the “general acceptance” standard for admission of scientific evidence found in Frye v. United States, 293 F. 1012 (D.C. Cir. 1923). The general acceptance standard, the state continues, was overruled by Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992). HOLDING:Affirmed. The court reviews the Zani opinion, noting how an analysis under Frye’s general acceptance theory was only part of the analysis. The Zani court said hypnotically enhanced testimony was questionable, and not generally accepted, to the extent that it amplified ordinary perceptions, memories and articulations. Though hypnotically enhanced testimony was not generally accepted, the Zani did not construct a per se rule against its admission. Instead, it created a four-part framework of dangers a trial court should consider when ruling on the admissibility of such evidence: 1. hyper-suggestibility; 2. loss of critical judgment; 3. confabulation; and 4. memory cementing. The Zani standard thus allows hypnotically induced evidence “[i]f, after consideration of the totality of the circumstances, the trial court should find by clear and convincing evidence that hypnosis neither rendered the witness’s posthypnotic memory untrustworthy nor substantially impaired the ability of the opponent fairly to test the witness’s recall by cross[-]examination.” In 1992, the court decided Kelly, which overruled Frye’s reliance on the general acceptance standard for admission of scientific evidence to one that first asks under Texas Rule of Criminal Procefure 702 whether the evidence will help the trier of fact understand the evidence or determine a fact in issue. A trial court should determine if the testimony is sufficiently reliable and relevant. Before novel scientific evidence may be admitted, the proponent of the evidence must prove that it is reliable and therefore relevant. The proponent may prove that reliability by proving first that the underlying scientific technique is valid. Second, that the technique applying the theory is valid. Third, that the technique has been properly applied. The court notes that Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App. 1998), further refined Kelly by noting the difference between “hard” and “soft” science, and setting out a framework for analyzing soft science: “(1) whether the field of the expert’s testimony is within the scope of that field, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.” Nenno did not, however, rule out the Kelly factors, the court points out. Reliability is still the key, regardless of whether the evidence comes from the hard or soft sciences. Though the Zani case was begun before the promulgation of Rule 702, the Court of Criminal Appeals’ decision came after the rule went into effect, and the court was sure to have been aware of the new standard. The court illustrates this probable awareness by showing how the Zani court created a standard to address specific problems with hypnotically enhanced testimony. Though predating Kelly and Nenno, the objective of the strict standard was to ensure the reliability of the testimony. “Because this highly specific framework is a narrowly defined standard that seeks to ensure the reliability of a specific type of scientific evidence, and because Zani is faithful to the primary objective of ensuring reliability in the admission of scientific evidence, the court concludes that Zani remains the standard to be applied by Texas trial courts in assessing the reliability and determining the admissibility of hypnotically enhanced testimony.” OPINION:Price, J.; Meyers, Womack, Johnson, Keasler and Hervey, JJ., join. CONCURRENCE:Womack, J. The concurrence agrees that Zani is still the correct standard, but that it has nothing to do with scientific evidence. Instead, the issue “is the competency of a lay witness to testify about his or her memory of events that he or she perceived.” CONCURRENCE:Cochran, J.; Keller, P.J., and Holcomb, J., join. The concurrence agrees that Zani is the correct standard to apply, but the concurrence questions the use of the “clear and convincing” standard of proof in both that case and with respect to “all expert testimony.” “I fail to understand why we employ an entirely different standard in determining the admissibility of expert evidence than the federal courts do under exactly the same rules of evidence. I also fail to understand why we employ an entirely different standard in determining the admissibility of expert evidence than we ourselves do under any other rule of evidence except Rule 702.”

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