to ensure that each method or technique “relies primarily
upon objective factors for reaching a conclusion, with
subjective factors playing only a minimal role in the
analysis.” Windmere, Inc. v. International Ins. Co., 105
N.J. 373, 385 (1987).
In Windmere, the New Jersey Supreme Court
considered the admissibility of voiceprint test results in
a civil case. The plaintiff, which owned a restaurant, was
denied a fire loss recovery from its insurer. The jury’s
verdict for the insurer came after a trial in which
voiceprints were used to assist the jury in comparing the
voice of the plaintiff’s maintenance man with the voice
recorded by the police when the fire was reported
anonymously by telephone.
The Court in Windmere discussed three methods by
which a proponent of expert testimony or scientific
results can prove the reliability of the technique in terms
of its general acceptance within the professional
community: (1) the testimony of knowledgeable experts;
(2) authoritative scientific literature; and (3) persuasive
judicial decisions which acknowledge such general
acceptance of expert testimony. The Court concluded
that each criteria was seriously challenged or impugned
in the case with respect to voiceprints. First, the Court
found that the testimony of two experts, who had limited
experience and were both affiliated with the development
of the voiceprint device at its principal source, did not
establish the general acceptance of voiceprints within the
professional community, particularly since one expert
conceded that the scientific community was divided.
The Court also found that the scientific journals “are in
disarray” and that there was “a split among the
jurisdictions as to the scientific reliability of the
instrument.” The Court concluded, however, that the
future use of voiceprint analysis “may not be precluded
forever, if more thorough proofs as to reliability are
introduced in other litigation.”
The Supreme Court has followed a Windmere-type
approach in a number of areas of criminal law. See State
v. Spann, 130 N.J. 484 (1993); State v. Cavallo, 88 N.J.
508 (1982); State v. Hurd, 86 N.J. 525 (1981). In Hurd,
the Court adopted the following standards as a condition
precedent for the admissibility of hypnotically induced
recollection:
- The hypnotic session should be conducted by a
licensed psychiatrist or psychologist trained in the use of
hypnosis. - The qualified professional conducting the
hypnotic session should be independent of and not
responsible to the prosecutor, investigator or the defense. - Any information given to the hypnotist by law
enforcement personnel prior to the hypnotic session
must be in written form so that subsequently the extent
of the information the subject received from the
hypnotist may be determined. - Before inducing hypnosis, the hypnotist should
obtain from the subject a detailed description of the facts
as the subject remembers them, carefully avoiding
adding any new elements to the witness’ description of
the events. - All contacts between the hypnotist and the subject
should be recorded so that a permanent record is available
for comparison and study to establish that the witness has
not received information or suggestion which might later
be reported as having been first described by the subject
during hypnosis. Video tape should be employed if
possible but should not be mandatory. - Only the hypnotist and the subject should be
present during any phase of the hypnotic session
including the pre-hypnotic testing and post-hypnotic
interview. State v. Hurd, 86 N.J. at 545-46.
In Rock v. Arkansas, 483 U.S. 44 (1987), the United
States Supreme Court struck down an Arkansas per se rule
which excluded all hypnotically refreshed testimony
when applied to a criminal defendant. The Court held
that the wholesale inadmissibility of a defendant’s
testimony is an arbitrary restriction on that defendant’s
constitutional right to testify in the absence of clear
evidence by the State repudiating the validity of all post-
hypnosis recollections. The Court also concluded,
however, that states may establish guidelines to aid trial
courts in the evaluation of post-hypnosis testimony, and
the prosecution may be able to show that testimony in a
particular case is so unreliable that exclusion is justified.
To this extent, the procedural safeguards adopted in
Hurd may be constitutionally applied to a defendant’s
post-hypnosis testimony as well as that of other
witnesses. See State v. Choinacki, 324 N.J. Super. 19, 42
(App. Div.), certif. denied, 162 N.J. 197 (1999); State v.
L.K., 244 N.J. Super. 261 (App. Div. 1990).The Supreme Court held in Romano v. Kimmelman,
96 N.J. 66 (1984), that the results of breathalyzer tests
shall be generally admissible in evidence when it is shown
that the breathalyzer instrument is in proper working