David Watkins Harker v. State of Maryland

dropped glove. Before MURNAGHAN and WILKIN- had looked SON, BUTZNER, Judges, glove, Circuit Sen- but did see one. Palmer Judge. ior Circuit jumped in car saw that Thompson, Sergeant in the hall. Van Horn shotgun. had Palmer shot estimated badly people so that it later that there hundreds of mangling milling his left arm shots, After a amputated. few around. saw a man in had a camel’s carry- coat, that he was Thompson remembered hair that it looked like and said Palmer ing a and fired back. revolver assailant. man walked into a court- house Thompson returned his drove off. out, Thompson room. When he came and help. him, to get was able a better look at Thompson positively identified the man as a Palmer’s car as Thompson described day, police assailant. his Later that arrest- red, According Accord. Honda four-door identified, the man Thompson ed had David Horn, Sergeant Van Harker. Thompson his as a described assailant male, thirty-five forty-five, aged white Thompson’s courthouse, photographic, tall, feet, inches medium about six two and courtroom identifications of Harker build, hair, wearing a flan- brown medium objection were admitted at trial over that shirt, and glasses. nel trousers tan they tainted impermissibly police Thompson with to devel- also worked hypnosis session. was convicted of published later op composite, a which was murder, assault with intent and sen- newspaper. County in a Harford Maryland thirty years. tenced to Special Appeals Court of affirmed the assault, con- a Maryland Two weeks after viction, State, Md.App. 460, Harker v. 55 a red trooper spotted state Honda Accord (1983); Maryland A.2d 288 463 Court of by man who resembled the com- driven Appeals petition for a denied Harker’s writ recorded the license posite. The officer petitioned of certiorari. Harker then car plate and determined that the number contending corpus, writ of habeas that registered Harker. At some to David admitting Thompson’s judge trial erred in point the assault between session, identifications, photo permitting jail- looked and in Thompson also at a picture array testify. not contain a of house informant to The district that did Thompson any did not courts Harker. select court found that the had picture of photographs opportunity as a his assail- and fair offered Harker a full contentions, litigate ant. and that record disclosed no violation 30, 1981, Thompson January On consent- rights. We affirm the deci- constitutional hypnotized by Roby ed to James of the be Harker is sion of the court that district Department. During Montgomery Police entitled to federal habeas relief. session, Roby Thompson told to visualize the would be able events II. 7, Roby Thompson asked

December seeing. Roby describe he was at- what legal Much of the debate over use of tempted to record the origin post-hypnotic testimony has its tape. tape and audio Unfor- both video dialogue functioning the scientific on the cap tunately, lens was never removed memory. theory human mem- camera, Roby succeed- the video ory snapshot of the holds certain crime recording. an audio producing ed Instead, question. now come into “[mjany ... memory theorists believe A days after few appears actually what recall is photographs. ten police showed constructive which information Harker, photo selected integrated by received after an event is said that it resembled assailant. representation memory mind into the day, police next learned Harker would Valdez, that event.” States 722 County United Baltimore Circuit Court Cir.1984). 1196, This view daugh- F.2d 1200 and his within the week. memory has malleability of the caused to the ter-in-law Barbara went courthouse officers, of witness sat courts to treat the refreshment on benches two 440 through hypnosis with recollection some Hypnosis Problems in the Use Pretrial Witness,

caution. Prospective on a 68 Calif.L.Rev. 313, (1980); 333 United States v. used, where is is In cases it attitude, demeanor, 722 F.2d at 1201. “The hypno often of the crime who victim expectations hypnotist, his tone See, People 31 e.g., Shirley, tized. voice, body language and his may all 775, Cal.Rptr. 641 P.2d Cal.3d suggestive messages communicate denied, 860, 103 cert. 459 U.S. subject.” Diamond, 68 Calif.L.Rev. (1982); Hurd, L.Ed.2d 114 86 N.J. State Moreover, the relationship hypno between (1981); State, Harding A.2d subject may tist and be both intense and (1968), Md.App. A.2d cert. Subconsciously, intimate. denied, give response he or she thinks the (1969); L.Ed.2d 468 v. Nar States hypnotist People wants to hear. v. Shir ciso, (E.D.Mich.1977). F.Supp. Cal.Rptr. 181 ley, at 641 P.2d at 801. Hypnosis, suggested, help it has can may The result subject’s be that the de people things they to remember that would scription departs reality of the event from Orne, Martin not otherwise remember. Dr. in order questioner’s to conform to the frequent expert witness, psychiatrist a expectations. “hypnosis may believes that be in useful help forgot bring some instances to back A problem, related called “confabula following ten memories an accident or a tion,” occurs when the subject fabricates Orne, crime.” The Use and Misuse of details, missing using often parts of other Court, Hypnosis in 27 Int. J. Clinical & real memories that are unrelated 311, 317-18, Experimental Hypnosis quoted subject situation the is trying to remember. Hurd, in State v. 432 F.2d at 93. “People answer, give want an to be Chowchilla, California, helpful, example, For in many do at will this the risk of twenty-six being kidnapped People children incorrect. to see want crime bus, justice done, school and the bus driver was solved and able and this desire recall, may hypnosis, plate a license num- motivate them to than volunteer more which capture meager ber was instrumental in the is warranted their memory.” E. Note, Loftus, kidnappers. Hyp- Excluding Eyewitness Testimony at 109 (1979), notically Testimony quoted People Induced on the in 181 Shirley, ” Rationale, “Hearsay Cal.Rptr. 20 Val.U.L.Rev. at 641 P.2d at 801. Often attempt n. problems suggestibility The and confa trigger use as a to the recollection compounded by bulation are phe third of the visage suspect. of a criminal See memory hardening. nomenon: After the Vose, Clay (1st Cir.1985). 771 F.2d 1 ended, session has dilemma, course, very may The being is that the hypnotized. remember Dia yields mond, investigative may Moreover, fruits Calif.L.Rev. 334. dangers. recognize sow subject may testimonial We distinguish not be able to drawbacks, specifically, between events recalled hypnosis, before for suggestibility, during confabula- and those recalled State tion, memory, hardening Hurd, 432 A.2d “Once a witness danger attendant of misidentification. makes recitation under con many of problems "While the same inhere in supposed memory fidence in that —whether eyewitness generally, can testimony they genuine strength or greatly invented—is compounded by technique of hypno- may ened. The witness uns then have an sis, tool, powerful yet imperfectly subjective one gives hakeable conviction that Many understood. psychologists impri believe his account the witness stand the a hypnotized person is more likely matur of absolute confidence.” United by suggestions led hypnotist (footnote made aby 722 F.2d States v. Diamond, questioner. omitted). then, or Inherent The worst fear is that an 1984); Awkard, inaccurately 597 F.2d will reconstruct United States eyewitness question, (9th Cir.), denied, memory of the crime either cert. confabulation, suggestion or and will L.Ed.2d convinced of absolute ac- (1979); Hurd, then become State v. A.2d 86.1 To through curacy mem- reconstruction rule per formulate a se would foreclose hardening. ory investigative whatever benefits be de responsible rived from the use of this tech course, purpose is to nique. inquiry rather is a more bal distorting it. recall without In a improve one, in anced and addresses whether the sense, is hypnotizing eyewitness similar previously hypnotized eourt of a picture A cleaning painting. valuable witness has basis fact inde little grime may have value covered with pendent hypnotic influence. However, cleaning pic anyone. ture, hoping distinction; full to restore its contends original changing work. one risks product was the in- accordingly fluence and both his violated III. process rights fourteenth amendment due dealing legal framework sixth amendment to confront closely parallel hypnosis must problem of against the witnesses him. For the rea- dangers of medical debate. The distor- follow, reject sons that we these two con- led have courts tion witness recollection tentions. upon propositions. agree two basic to First, permitted no witness should ever be A. testify while See State to under It is clear that Harker’s sixth amend- 1028, Collins, 670, 464 A.2d 296 Md. v. ment to confrontation was not violat- (1983). Second, govern- neither the 1034 in any ed conventional sense. permit- ment nor the defendant should be witness, present subject was as and was introduce made under the ted to statements cross-examination, ex- to extensive which the truth hypnosis of of the influence plored circumstances the criminal of cases, asserted. In both courts matter truck. encounter The defense made un- have considered that statements assault, night probed the events the of the People are too unreliable. v. der specifics appearance, of the assailant’s 641 at Shirley, Cal.Rptr. 181 at P.2d accent, pattern speech his and and when 783. Thompson first heard the name David time, possible At the same utili Any Thomp- Harker. inconsistencies the refreshment of memo ty of demeanor, testimony, any son’s flaws in his persuaded federal courts ry has and observation, any his limitations on courts number of state substantial explore jury there for to to counsel previously hypnotized testimony of a wit Vose, Clay evaluate. v. 771 F.2d at a rule subject per not be to ness should Moreover, See, Clay jury fully aware that e.g., v. exclusion trial. se Cir.1985); (1st hypnotized. Lieuten- Vose, F.2d 1 had been 771 hypnotist, Roby, 1196 ant testified at v. 722 F.2d Cir. James States tried, Maryland permitted hypno When courts have that the use of Harker was 1. Some held testimony pro- admissibility. post-hypnotic credibility, but not the introduction of sis affects testimony judge permitted post-hypnotic found Polk v. vided that the it reliable. Others have State, (1981). safeguards Md.App. procedural 427 A.2d 1041 if certain are 48 law, hypnotically-en- present. post-hypnotic Currently, Still have found others Ruffra, admissible, although Hypnoti per se. hanced inadmissible permitted testify cally Testimony: in accord Induced Should It Be Admit witness would (1983). ted?, prior hypnosis. State For a with statements made 19 Crim.L.Bull. 293-94 Collins, thorough development v. 296 Md. 464 A.2d 1028 discussion of the law, only inquiry proceeding People Shirley, Cal.3d Our in a federal habeas see case is, course, Cal.Rptr. a constitutional one. P.2d 775 also ner in trial and submitted cross-examina- photo made the properly inquired tion. Defense counsel graphic confrontational position enforcement, Roby’s into in law (not positive photograph; as to the hesitant training hypnosis, the circumstances confrontation) indicated that he Re hypnosis, possibility suggestive- judgment, critical unimpaired by tained ness, questions and the formulation of the hypnosis.” Harker v. State, A.2d . Roby Thompson. example, asked of For 294 Thomp- counsel elicited the fact that after Nor per do we think a se rule exclu- assailant, Roby described son had for post-hypnosis sion identification testi- asked, you you recognize “Do think would mony grounds sixth on amendment is justi- probing his face?” This extensive of the Suggestibility memory fied. harden- itself gen- conforms to the ing unique hypnosis; are not are they eral view federal courts that use of problems eyewitness whenever an goes weight on a witness makes an identification. “Without under- given his testimony rather than its ad- estimating problems seriousness Awkard, missibility. See United States associated with it should be rec- (9th Cir.1979); Vose, Clay F.2d ognized psychological research con- (1st Cir.1985). F.2d cerning reliability ordinary eye- Expert witnesses of inves- shortcomings.” witnesses reveals similar tigative hypnosis also testified for both Hurd, 432 State v. A.2d at 94. These Stern, sides. The Dr. state called Daniel shortcomings occur for several reasons. eighty-two percent who said that in Any repeats witness a story who a number involved, hypno- cases which he had been likely increasingly of times is to become sis had led additional information. Stern accuracy. confident in its Williams and specialized described as a inter- Hammelmann, Parades, technique necessary view Identification discussed the I, Part quoted Crim.L.Rev. safeguards. The defense cross-examined Wade, in United States problems Stern on the 229, 1926, 1933, S.Ct. L.Ed.2d 1149 compliance customary safeguards (1967). No one likes to admit error. More- Thompson. in the hypnosis of Dr. Dennis over, photo line-up, hypnotic the or identifi- Harrison testified for the defense on the is more in time pitfalls hypnosis, of its cation recent than the wit- for inaccu- racy, acceptance nessing “Regardless and the level of of the crime. investi- of of how gative hypnosis community. about, in the scientific the initial misidentification comes specifically Harrison Thompson’s criticized apt the witness thereafter is to retain in his hypnosis session of problems because with memory image photograph the of the rath- recording equipment, interruption the for seen, than person actually er of the reduc- changing tape, the of police and the use a ing subsequent the line- trustworthiness of hypnotist. jury officer as the Thus the had up or identification.” courtroom Simmons substantial information in the form ex- of States, 377, 383-84, pert testimony in evaluating to aid it the S.Ct. 19 L.Ed.2d 1247 hypnotic effect of the in this case. Vose, Clay F.2d at 4. Despite widespread recognition this Supreme problem, the the of Court suggests Harker nonetheless hypno- that suggested memory hardening, never programs so perceptions sis and fixes the identifications, danger poses all per se aof witness that effective cross-examina- of right. violation the sixth amendment with, impossible. begin becomes To States, See Simmons v. United 390 U.S. at the circumstances of this case belie that case, 88 S.Ct. 971. If the at that were assertion. The spe- courts found eyewitness vast cifically “that amount of critical testi hypnotic the session would mony impair ipso would ability defense counsel’s be excluded. The facto apprising jury cross-examine the victim because the man- answer lies in the of the permitting opportunity misidentification include the dangers uses and event, exploration hypnotic and of the witness view the criminal full crime, degree time of the witness’ op cross-examining subjection attention, accuracy of the pre-hypnotic observation. witness’ portunity case, criminal, description taken in this level steps These were certainty by the accordingly demonstrated Harker suffered no violation witness confrontation, length right to confrontation. at the his sixth amendment time between crime and the confron- B. tation. Thompson’s whether We next consider Biggers, Neil v. U.S. S.Ct. unreliable of Harker was so

identification 34 L.Ed.2d 401 See also that it Harker’s fourteenth amend- violated Brathwaite, Manson U.S. con- right process. ment to due 2253; Garrison, 624 Willis v. F.2d imper- tends session was Cir.1980). suggestive and tainted the subse- missibly Thompson good opportunity had a af- quent array show-up. We photo along lights his assailant. The to see firm of the district court the decision lit, driveway headlights process to due was not vio- Harker’s Thompson car were assailant’s on. esti pre-trial procedures neither lated and that spent eight mated that he five and between testimony gave Thompson’s courtroom nor hypno minutes with his assailant. Before very rise to “a substantial likelihood sis, police produced irreparable misidentification.” Simmons Deputy composite. Jordan Watts testified States, 390 U.S. at v. United composite that he had shown the David at 971. father, father and that the had previously hypnotized closely it resembled his son. Under said in one may contravene due witness description gave a First, the identifica- ways. two in-court closely assailant matched de independent a basis which is may tion lack given police shortly he had scription second, the from shooting; change he did not after consistency procedures during hypnosis ses- used during or story sion themselves be defective. in Thompson’s identifications be is, how- jury of evidence exclusion fore, provided during, and after ever, sanction, limited drastic one that is ample permitting basis is mani- testify jury. before festly suspect. point, “Short of that such independent for Thomp This clear basis for jury weigh ... evidence is for to Hark'eFcompensates identification of son’s some element of untrustwor- evidence with for the deficienciSs in the customary grist jury thiness is Maryland agree We Court itself. Brathwaite, mill.” Manson Appeals Special obviously that “it would L.Ed.2d 140 tape better to a video have been have State, session,” Harker estab- Supreme previously

The Court to enabling the accused chal A.2d in as- lished factors to be considered hypnotist lenge techniques by the used sessing quality independent of an basis “court to what informa determine for the There is no violation identification. suggestions have tion or the witness due if process during what the session and recall received through hypnosis.” elicited State ‘totality of circumstances’ was first

under the Hurd, Although A.2d even at 97. was reliable attempted the session hypnotist was to record though procedure the confrontation tape, the lens cap suggestive____ to be con- on audio video factors both [T]he removed the video camera. evaluating likelihood never sidered in was tape was, audio pear The of the session how- to important have been more ever, case, available with some small inaudible identification in this often gaps. variety lack a of photographs of the same suspect from select. person hypnotized Thompson, who Roby, Lieutenant James was a trained law show-up at the hypnotist enforcement and member of courthouse reveals no due viola Montgomery County Depart- Police tion. Police did not tell that his shooting ment. The occurred Harford assailant would be at the courthouse. County, Roby participate did not in the Thompson was not sure of the identifica investigation except for the ses- first, positive tion at but was after a second temptation sion. Thus much there was less look at show-up Harker. The was not so hypnotist questions for the ask which suggestive as produce any substantial Roby, would confirm a result. desired likelihood of misidentification. See Willis fact, very that testified he knew little about Garrison, 624 F.2d 491. hypnosis session; case Harker, had not heard the name nor David IV. photograph had he ever seen a or sketch of objects Harker also to the use of the Perhaps reason, Harker. for that pho- no Eley, Larry one a fellow in- tographs or sketches the assailant were mate, who testified that Harker had told Thompson during shown the session. It shooting Thompson. him about Harker has been said that “inaccuracy Eley contends first incompe- that was an recall increases with the number and detail tent secondly witness and Eley was a questions” and that “the least-distorted government agent and extracted un- an provided recollections are by free narra- counseled confession. We find no merit in tion,” States v. F.2d either contention. Orne, (citing The Use and Misuse of Pointing post-conviction Court, testimo Hypnosis Int’l J. Clinical ny from a single psychiatrist, Harker Experimental Hypnosis 319-321 trial, moved (1979)). arguing new trial court found Eley state should have known that that the session in this case did not exhibit unstable, mentally and that the use excess of guidance. direction or testimony was therefore fundamentally un State, Harker v. 463 A.2d argument fair. This fails for several rea Finally, rights were not sons, compelling the most of which is the photo array violated show-up. or the trial court’s conclusion that exclusion of argues photographs ten the evidence changed would not have Thompson, shown showed outcome of the trial. The evidence did not wearing plaid flannel shirt over tend to affirmatively establish the inno During another shirt. the hypnosis ses accused, cence of the and there remained sion, Thompson had described his assailant substantial evidence that established his wearing plaid as flannel shirt over a guilt. picture colored shirt with a collar. The wearing Harker showed him argues a flannel shirt Eley Harker next was a over white tee shirt. photo government agent Another who extracted un graph array in subject the also showed a counseled In confession. v. States wearing a 264, 2183, flannel or velour a Henry, shirt over 447 U.S. 100 S.Ct. 65 large (1980), dark shirt with a collar. The number L.Ed.2d Supreme 115 Court held of photographs by shown further of testimony use a fellow in against impermissible suggestive militates mate of paid the accused who was a infor States, ness. See acting Simmons v. United 390 mant under instructions of 385, Moreover, at U.S. 88 government S.Ct. violated the sixth amendment features, clothing, ap- However, facial rather right than to counsel. “the mere

445 Second, may jury be mis- had recollection. informant who jailhouse aof presence by “scientific” nature of conversations led to overhear instructed verity in defendant some credence to the engage give a criminal undue and to necessarily be un- testimony. would witness’ conversations 276, 447 U.S. at Henry, constitutional.” hypnosis in certain circum- Although concurring). (Powell, 2190 J. 100 S.Ct. investigative as a useful functions stances acting paid, nor was Eley tool, was not are and occasion- its effects unreliable or solicitations fact-finding process. the instructions ally damaging gener- responded He to a government. rejected outright Many jurisdictions have information, promises no request for admissibility al on, based Eley was not made to him. Since example, For hypnotic enhancement.2 there was no violation government agent, Maryland concluded Appeals Court Sixth right to counsel. Harker’s “[T]he are so unrelia- the effects of by is not violated Amendment it introduction at trial ble that barred whenever— in- State obtains happenstance luck or originated during and after the recollection —the the accused criminating statements from (allowing only testimony hypnotic session has attached.” right to counsel after the or originated — U.S.-, Moulton, Maine v. subjects in testimony on not addressed (1985). 487, also 477, L.Ed.2d 481 88 session). Maryland hypnotic See State of — -, Wilson, 106 U.S. v. Kuhlmann Collins, 670, 296 Md. 464 A.2d 1028 v. 2616, 364 91 L.Ed.2d S.Ct. (1983). The decision came too late for criminal trial in state reasons, the decision foregoing For court. is the district court from denial of a habeas cor- appeal On AFFIRMED. however, may only grant petition, we pus MURNAGHAN, Judge, concur- Circuit being in petitioner if held viola- relief ring: statutory or constitutional tion of a federal 2254(a); Cupp right. 28 U.S.C. v. § despite profound I in the result concur 396, 94 S.Ct. Naughton, employed procedures misgivings about 400, At least two 38 L.Ed.2d 368 administering hypnosis. have identified federal circuits reviving recollec- dangers peculiar to introduction of objections to constitutional introducing such evi- by hypnosis, and tion product is the trial, treated at some have been dence Circuit, in v. The Fifth United States Val- say, length by majority. It suffices Cir.1984), empha- dez, 1196 722 F.2d poses dis- summary, two First, of concern. sized two areas fact-finding process. problems for the tinct “hardening” the tenden- effect can First, recollection the witness’ actual artificially con- cy for a become aspects by suggestive altered recollection, verity may of a “confabulation,” vinced of or testify- subject so confident manufactured, render the filling in of details with Amendment ing the defendant’s Sixth believable, Simply recollections. though cross-examine wit- confront and hypnotic session going through the effectively nullified. Valdez nesses is artificially heightening the effect of have witness, that a own court noted subjective belief the witness’ 615, (1982); Court, State v. Mich. 329 N.W.2d 743 Superior Ariz. 415 Mack, rel. Collins v. 132 2. State ex banc); (Minn.1980); 180, (1982) (en People State v. N.W.2d 764 P.2d 1266 292 243, (1981); Cal.Rptr. Palmer, 641 P.2d Shirley, 31 Cal.3d 210 Neb. 313 N.W.2d denied, (1982), U.S. cert. Hughes, 466 N.Y.S.2d People N.Y.2d Quintanar, (1982); People 74 L.Ed.2d (1983); Peoples, 311 State v. 453 N.E.2d 484 State, Bundy (Colo.App.1982); 659 P.2d (1984); Com. v. S.E.2d 177 N.C. Naza- Collins, (Fla.1985); 296 Md. State 471 So.2d 9 rovitch, 436 A.2d 170 496 Pa. Gonzales, (1983); People v. A.2d 1028 subjective may have an (a) unshakeable con- conviction of the defendant because the gives on the viction account wit- witness had identified the defendant imprimatur ness stand the of absolute hypnosis, hypnosis and the increased his Indeed, trial, confidence. a criminal certainty by only (b) margin; a small the the witness’ resultant undue confidence defendant had been identified another might violate the defendant’s constitu- eye-witness; (c) judge had issued tional and cross-exam- confront cautionary extensive regarding instructions witnesses, ine for absolute conviction the use and of hypnosis. limitations accuracy memory might in the of his F.2d at 4. ‘impossible it make to cross-examine Given the serious scientific debate over witness.’ [the] of hypnosis memory, effects on quoting F.2d State Min of impact hypnotically of induced Mack, nesota 292 N.W.2d testimony on rights the constitutional (Minn.1980). accused, simply unacceptable it is on, however, The court went to focus on government to conduct ses- process objections; due circumstances sur- potentially suggestive sions under circum- rounding the identification of the defendant stances that cannot be examined or chal- through hypnosis may suggestive be so lenged trial inadequate because re- resulting trial conviction is cording procedures. Hypnosis and other fundamentally In unfair.3 the wit- hypnotized can have both the dye ness was a state effect and of officer catalyst: who had staked out two locations where memory witness’ can be al- money dropped pay off was a blackmail- augmented tered or through suggestion or hypnotized er. officer to enhance confabulation; through once the recollec- passed recall individuals who near colored, tion has memory the whole drop locations; occurred, “hardened,” can be the experiences, both however, investigation after the had nar- imagined, securely real and fixed more defendant, rowed to and the officer had experience the mind interviewed the defendant at least two employed itself. If tois be on a prior occasions. The Valdez court re- potential witness, least, appropriate conviction, versed the holding that uncor- should taken measures to ensure that personal identification, roborated made the session has been conducted cir- person after of a clearly possibility cumstances which minimize the singled for suspicion out must be excluded. suggestion, and that the defense has process sug- identification sowas access a complete record of the session gestive totality under the of circumstances purposes safeguarding defendant’s rights defendant’s due rights constitutional at trial. were violated. 722 F.2d at 1203. Undoubtedly, hypnosis is a valuable tool The First recognized Circuit has also con of investigation, altogether it would stitutional post-hyp difficulties with use of too deprive police onerous to departments notic recollection in a criminal trial. See ability enhance recollection of Vose, Clay (1st Cir.1985), 771 F.2d 1 — If witnesses. wishes state to introduce denied, U.S.-, cert. recollection, about Although L.Ed.2d the court hypnosis session, which was addressed in a danger addressed the to Sixth Amendment rights it present in should testimony giv proof the use of bear the burden of to show en upheld the court was conducted and state- suggestive See, problem suggest 3. The particular is not es which individual. Denno, through hypnosis, e.g., limited to derived Stovall U.S. variety (condemn- appears (1967) but in a of circumstances where 18 L.Ed.2d 1199 government terms, oppor- ing, general practice showing offered witness tunity identify suspect, suspects singly, groups). under circumstanc- rather than in controlled, Although appeal neu- record on tightly under session. the ments elicited positive suggestive contains no evidence of tral conditions. procedures, only some and in- structuring guide- leading case The “hardening” Thompson’s dication rec- hypnosis police lines of witnesses product hypnosis,4 my ollection as ob- Hurd, Jersey v. 86 N.J. New State of that the jection is record Supreme The Court A.2d session was so that a trial flawed court ses- Jersey required hypnosis all New simply adequate could not judg- make an following con- conducted the sions be whether ment about the circumstances of (1) psychiatrist psychologist or ditions: suggestive. the session were fact hypnosis the use of must conduct trained in reversal, session, (2) conducting however, not professional the Harker does merit the independent of the the record that the hypnosis the must be because shows identifi- investigation by Thompson sufficiently the de- prosecution, the and cation was reli- apart the sub- fense, (3) regarding possible information able the influence of all given hypnotist hypnosis. hypnosis, Thompson Prior ject the witness to the the to and recorded, (4) preparation assist prior must was able to in the to the session be by composite strong which begin should the session sketch bore a sim- hypnotist the pre- Harker. obtaining complete ilarity account of the to Harker was first sus- witness, (5) spotted driving all hypnosis memory pected from the when was a car hypnotist description given by matched the and the contacts between victim; videotaping is the car to owned by recorded and turned out must be recommended, (6) initially strongly and Harker. identified just photo array, days in a ten after hypnotist and the witness interact to, during just hypnosis. hypnosis and there is no prior and after the indication 545-47, Hurd, exposed A.2d at 96-97. was to Harker’s 86 N.J. at provide any during room time or ample The standards likeness to Hurd Thus, employ during police procedure an while police hand, administering flawed, the ac- was investigation. On the other consistency description of Thompson’s cused is assured of neutral, before, during complete record and after show is fair and beyond was trial court error harmless rea- the accused and the allows both doubt, and should petition witness to assess the extent which the sonable influenced, all, hypno- Chapman California, if U.S. denied. 17 L.Ed.2d Sprynczynatyk sis itself. See v. General 771 F.2d 1122-23 Corp., Motors police should be free to adminis- Cir.1985). however, witnesses ter suggestive troubling potentially en- present case is because uncontrolled during adequately faulty police procedures and without memori- vironment police attempted alizing proceedings. hypnotic session. Use audiotape poses such videotape proceedings, elicited under circumstances too videotape great right a threat of confrontation though the failed because removed, audio- to the the Sixth cap lens was not secured accused Amendments, gaps. and to the tape poor quality and has some Fourteenth is of by the Montgomery A lieutenant of to due secured Fourteenth Department the Amendment. County Police conducted Later, photo the victim taken to a courthouse first identified Harker in a The victim spotted days hypnosis. Thompson Harker as array testi- where he and identified ten trial, hallway. photo of a At show-up, he said "I think assailant out crowded fied that at the positively, saying: very like shot me identified Harker that looks much the man who day my definitely "Believing will be picture, but it that on the final God ... it’s an older I think my jury, very judge like all the there stands the I would saints looks similar man and something.” me.” line-up in a man who tried murder to see that man or

Case Details

Case Name: David Watkins Harker v. State of Maryland

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 16, 1986

Citation: 800 F.2d 437

Docket Number: 85-6052

Court Abbreviation: 4th Cir.