dissenting.
The majority says that the trial court did not err in limiting defendant’s cross-examination of the state’s witness, Gena Luther, who, after testifying before the grand jury and before trial, was questioned by the District Attorney’s investigator while she was in a hypnotized state. The majority has concluded that it was not error for the trial court to limit the defendant’s cross-examination of Gena with regard to the hypnotism. Because I disagree, I respectfully dissent.
When defendant’s counsel asked Gena Luther, “After that appearance before the Grand Jury, did [counsel for the state] have you put under hypnosis?,” the state objected. After some colloquy outside the presence of the jury, the court ruled:
“All you are entitled to show is the difference between the story she told before and the story she tells later, but I am not going to permit any evidence to be presented before the jury regarding what occurred during * * * while the time she was under hypnosis.” (Emphasis supplied.)
With that ruling the trial court foreclosed any further cross-examination of the witness regarding what had occurred at the time of the hypnosis.
The majority concludes that there was no error, because defendant did not make an offer of proof. The majority goes on to say:
“* * * We do not know what additional questions would have been asked. Assuming that a witness who has been hypnotized is competent to testify as to what occurred while he was under hypnosis, the threshold question is whether the witness states that he knows what happened. If he says he does not remember, that is the end of the matter. Because Gena was not asked, either before the jury or as an offer of proof, whether she knew what happened, we cannot tell whether the court’s ruling, assuming it to have been erroneous, was prejudicial.” 63 Or App at 92.
But this was cross-examination of the state’s witness, and an offer of proof is not necessary as to matters sought to be elicited on cross-examination. State v. Davidson, 252 Or 617, 622-23, 451 P2d 481 (1969); Stillwell v. S.I.A.C., 243 Or 158, *99162, 411 P2d 1015 (1966); see also Shepler v. Weyerhaeuser Co., 279 Or 477, 510, 569 P2d 1040 (1977). Because the trial court erroneously restricted defendant’s cross-examination of a material witness, its judgment should be reversed and the case remanded for a new trial.
The majority, after conceding that it is unnecessary to make an offer of proof to preserve error as to matters sought to be elicited on cross-examination, attempts to justify its affirmance of the trial court’s refusal to allow defendant to cross-examine fully Gena by misstating the record. The majority says we are not told “what question was asked that the court ruled could not be answered.” 63 Or App at 92. The question is quoted verbatim in the first sentence of the second paragraph of this dissent.
The majority is in error when it assumes that the only question defendant might be entitled to ask or might wish to ask pertained to “what occurred while [she] was under hypnosis.” Defendant might have wanted to ask questions regarding the conditions under which the hypnosis took place, e.g., whether any drugs were administered, the number of persons present, who they were, their profession or occupations, where the hypnosis took place, when it took place and what representations were made to the witness both before and after the hypnosis session. The majority does not even intimate that such cross-examination would have been improper. Yet it upholds the trial court in forecloseing all inquiry.
The majority says it cannot tell whether the court’s ruling was prejudicial even if it was error, because the witness was not asked, either before the jury or in an offer of proof, whether she knew what happened while she was under hypnosis. As I have pointed out above, defendant’s right to cross-examine the witness is not limited to asking her what she remembers of what occurred while she was under hypnosis; the right to ask even the majority’s “threshold question” was denied; and, as the majority recognized earlier in the same paragraph but then seems to have forgotten, defendant need not make an offer of proof on cross-examination.
There is no doubt that the trial court’s denial of defendant’s right to cross-examine was error. It is presumed to be prejudicial. Without a showing that it was not, it must be found to be so.
*100The majority conclude (63 Or App at 95) that “defendant never contended that Gena Luther’s testimony was not admissible solely because she had been hypnotized.” In the memorandum supporting his pretrial motion to prohibit Gena from testifying, defendant gave as a reason:
“Because the investigator for the district attorney may have caused Gena Luther, under hypnosis, to change her believed perceptions, some other own testimony may not be of her own perceptions as required by ORS 44.060 and she should be prohibited from testifying.”
That language certainly appears to be sufficient to have alerted the court that defendant’s objection to Gena’s testimony was based on what happened during the hypnotism session.
The majority “finds” nothing in the record to indicate that defendant, at any time during the trial, offered into evidence the videotape of the hypnotic session involving Gena Luther. It was not available to be offered. Defendant’s counsel had been allowed to view it before trial. The state then lost it and was not able to produce it again until after the time had expired for the court to rule on defendant’s motion for a new trial. The majority goes on to say that, under State v. Jorgensen, 8 Or App 1, 492 P2d 312 (1971), rev den (1972), if the defendant had offered the videotape of the hypnotic session it should have been admitted. As noted above, it was not available and, in any event, the trial court made it clear that it would not be admitted and that no evidence of any kind as to what occurred during that hypnotism session would be admitted. It was not physically possible to offer it because it was lost, and if it had been available, an offer would have been futile.
In Jorgensen, as here, the defendant assigned as error the admission of testimony of a witness whose memory had been enhanced by hypnotism. We reasoned that, because the witness was “subjected to prolonged and rigorous cross-examination by defendant’s counsel before the jury” and the psychiatric procedures “were fully exposed in the evidence,” the fact that the witness had had her memory restored by those procedures was not a basis for disallowing her testimony. In this case the cross-examination of the witness was limited to prohibit any questions regarding the hypnosis session, and the court made it clear that no other evidence exposing the hypnosis procedure would be admitted.
*101After Jorgensen the legislature enacted ORS 136.675, which provides:
“If either prosecution or defense in any criminal proceeding in the State of Oregon intends to offer the testimony of any person, including the defendant, who has been subjected to hypnosis, mesmerism or any other form of the exertion of will power or the power of suggestion which is intended to or results in a state of trance, sleep or entire or partial unconsciousness relating to the subject matter of the proposed testimony, performed by any person, it shall be a condition of the use of such testimony that the entire procedure be recorded either on videotape or any mechanical recording device. The unabridged videotape or mechanical recording shall be made available to the other party or parties in accordance with ORS 135.805 to 135.990.”
ORS 135.805 et seq provide for pretrial discovery in criminal cases. Affirmance of the the trial court’s decision in this case renders ORS 136.675 meaningless and overrules our decision in Jorgensen. As required by the statute, the state made the videotape available to defendant. The trial court, however, ruled that the tape (and any other evidence of what occurred during the hypnotic session, for that matter) could not be used by the defendant. That ruling makes a hollow mockery of the discovery provided in the statute. We should not encourage it by affirming it.
I respectfully dissent.
Van Hoomissen, J., joins in this dissent.