Lead Opinion
Mervyn Thompson was shot by a man who had identified himself as “Mr. Palmer.” Thompson described his assailant to the police, and some weeks later was hypnotized in the hope that he would recall more details of the shooting. At a show-up a few days after the hypnosis session, Thompson identified his assailant as a man named David Harker. Harker was convicted of assault with intent to murder by a Maryland jury, and later filed a petition for habeas corpus, under 28 U.S.C. § 2254.
We affirm the district court’s denial of Harker’s petition. Testimony by a witness who has previously been hypnotized must meet criteria of independence and reliability, but such testimony does not per se violate either the sixth amendment right to confrontation or the fourteenth amendment right to due process. In addition, the testimony given by Harker’s fellow inmate did not constitute the admission of an uncoun-seled confession, because the inmate was not a government agent.
I.
On the evening of December 7, 1980, a man who called himself “Mr. Palmer” telephoned Mervyn Thompson to say that Palmer’s son had cut his hand playing on an old truck on Thompson’s property. Palmer asked Thompson to meet him at the truck, to see if any damage had been done to it. At approximately 10:00 p.m., Thompson’s daughter-in-law Barbara drove him down the driveway to the place where the truck and Palmer’s car were parked. Next to the truck was a pole with a hanging light, which had been turned on. Barbara’s headlights were on, as were the headlights of Palmer’s car. Thompson was carrying a six volt flashlight, which he used to inspect the truck with Palmer. They found no recent damage; Thompson signalled Barbara to leave, and she did so.
Thompson had begun to walk back to the house when Palmer called him, saying he had dropped a glove. Thompson looked for a glove, but did not see one. Palmer jumped in his car and Thompson saw that
Thompson described Palmer’s car as a red, four-door Honda Accord. According to the testimony of Sergeant Van Horn, Thompson described his assailant as a white male, aged thirty-five to forty-five, about six feet, two inches tall, medium build, medium brown hair, wearing a flannel shirt, tan trousers and glasses. Thompson also worked with police to develop a composite, which was later published in a Harford County newspaper.
Two weeks after the assault, a Maryland state trooper spotted a red Honda Accord driven by a man who resembled the composite. The officer recorded the license plate number and determined that the car was registered to David Harker. At some point between the assault and the hypnosis session, Thompson also looked at a photo array that did not contain a picture of Harker. Thompson did not select any of the photographs as a picture of his assailant.
On January 30, 1981, Thompson consented to be hypnotized by James Roby of the Montgomery Police Department. During that session, Roby told Thompson that he would be able to visualize the events of December 7, and Roby asked Thompson to describe what he was seeing. Roby attempted to record the hypnosis session both on video tape and audio tape. Unfortunately, the lens cap was never removed from the video camera, and Roby succeeded only in producing an audio recording.
A few days after the hypnosis session, police showed Thompson ten photographs. Thompson selected a photo of Harker, and said that it resembled his assailant. The next day, police learned that Harker would be at the Baltimore County Circuit Court within the week. Thompson and his daughter-in-law Barbara went to the courthouse with two police officers, and sat on benches in the hall. Sergeant Van Horn estimated that there were hundreds of people milling around. Thompson saw a man in a camel’s hair coat, and said that it looked like his assailant. The man walked into a courtroom. When he came out, and Thompson was able to get a better look at him, Thompson positively identified the man as his assailant. Later that day, police arrested the man Thompson had identified, David Harker.
Thompson’s photographic, courthouse, and courtroom identifications of Harker were admitted at trial over objection that they were impermissibly tainted by the hypnosis session. Harker was convicted of assault with intent to murder, and sentenced to thirty years. The Maryland Court of Special Appeals affirmed the conviction, Harker v. State,
II.
Much of the legal debate over the use of post-hypnotic testimony has its origin in the scientific dialogue on the functioning of human memory. The theory that the memory holds a certain snapshot of the crime has now come into question. Instead, “[mjany memory theorists believe ... that what appears to be recall is actually a constructive process in which information received after an event is integrated by the mind into the memory representation of that event.” United States v. Valdez,
In cases where hypnosis is used, it is often the victim of the crime who is hypnotized. See, e.g., People v. Shirley,
For example, in Chowchilla, California, twenty-six children were kidnapped from a school bus, and the bus driver was able to recall, under hypnosis, a license plate number which was instrumental in the capture of the kidnappers. Note, Excluding Hypnotically Induced Testimony on the “Hearsay Rationale, ” 20 Val.U.L.Rev. 619, 619 n. 6 (1986). Often police attempt to use hypnosis as a trigger to the recollection of the visage of a criminal suspect. See Clay v. Vose,
The dilemma, of course, is that the very process that yields investigative fruits may sow testimonial dangers. We recognize that hypnosis has drawbacks, specifically, the potential for suggestibility, confabulation, and hardening of memory, and the attendant danger of misidentification. "While many of the same problems inhere in eyewitness testimony generally, they can be compounded by the technique of hypnosis, a powerful tool, yet one imperfectly understood. Many psychologists believe that a hypnotized person is more likely to be led by suggestions made by a hypnotist or questioner. See Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 333 (1980); United States v. Valdez,
A related problem, called “confabulation,” occurs when the subject fabricates missing details, often using parts of other real memories that are unrelated to the situation the subject is trying to remember. “People want to give an answer, to be helpful, and many will do this at the risk of being incorrect. People want to see crime solved and justice done, and this desire may motivate them to volunteer more than is warranted by their meager memory.” E. Loftus, Eyewitness Testimony at 109 (1979), quoted in People v. Shirley,
The problems of suggestibility and confabulation are compounded by a third phenomenon: memory hardening. After the hypnosis session has ended, the subject may not remember being hypnotized. Diamond, 68 Calif.L.Rev. at 334. Moreover, the subject may not be able to distinguish between events recalled before hypnosis, and those recalled during hypnosis. State v. Hurd,
The purpose of hypnosis, of course, is to improve recall without distorting it. In a sense, hypnotizing an eyewitness is similar to cleaning a valuable painting. A picture covered with grime may have little value for anyone. However, in cleaning the picture, hoping to restore its full distinction; one risks changing the original work.
III.
The legal framework for dealing with the problem of hypnosis must closely parallel the medical debate. The dangers of distortion in witness recollection have led courts to agree upon two basic propositions. First, no witness should ever be permitted to testify while under hypnosis. See State v. Collins,
At the same time, the possible utility of hypnosis in the refreshment of memory has persuaded the federal courts and a substantial number of state courts that the testimony of a previously hypnotized witness should not be subject to a rule of per se exclusion at trial. See, e.g., Clay v. Vose,
Harker contends that the testimony of Thompson was the product of hypnotic influence and accordingly violated both his fourteenth amendment due process rights and his sixth amendment right to confront the witnesses against him. For the reasons that follow, we reject these two contentions.
A.
It is clear that Harker’s sixth amendment right to confrontation was not violated in any conventional sense. Thompson was present as a witness, and was subject to extensive cross-examination, which explored the circumstances of the criminal encounter by the truck. The defense probed the events the night of the assault, the specifics of the assailant’s appearance, his pattern of speech and accent, and when Thompson first heard the name David Harker. Any inconsistencies in Thompson’s testimony, any flaws in his demeanor, any limitations on his observation, were there for counsel to explore and the jury to evaluate. See Clay v. Vose,
Moreover, the jury was fully aware that Thompson had been hypnotized. Lieutenant James Roby, the hypnotist, testified at
Expert witnesses on the subject of investigative hypnosis also testified for both sides. The state called Dr. Daniel Stern, who said that in eighty-two percent of the cases in which he had been involved, hypnosis had led to additional information. Stern described hypnosis as a specialized interview technique and discussed the necessary safeguards. The defense cross-examined Stern on the problems with hypnosis, and on compliance with customary safeguards in the hypnosis of Thompson. Dr. Dennis Harrison testified for the defense on the pitfalls of hypnosis, its potential for inaccuracy, and the level of acceptance of investigative hypnosis in the scientific community. Harrison specifically criticized Thompson’s hypnosis session because of problems with recording equipment, the interruption for changing the tape, and the use of a police officer as the hypnotist. Thus the jury had substantial information in the form of expert testimony to aid it in evaluating the effect of the hypnotic session in this case. See Clay v. Vose,
Harker nonetheless suggests that hypnosis so programs and fixes the perceptions of a witness that effective cross-examina-becomes impossible. To begin with, the circumstances of this case belie that assertion. The Maryland courts found specifically “that the hypnotic session would not impair defense counsel’s ability to cross-examine the victim because the manner in which Thompson made the photographic and confrontational identification (not positive as to the photograph; hesitant at the confrontation) indicated that he Retained critical judgment, unimpaired by the hypnosis.” Harker v. State,
Nor do we think a per se rule of exclusion for post-hypnosis identification testimony on sixth amendment grounds is justified. Suggestibility and memory hardening are not unique to hypnosis; they are potential problems whenever an eyewitness makes an identification. “Without underestimating the seriousness of the problems associated with hypnosis, it should be recognized that psychological research concerning the reliability of ordinary eyewitnesses reveals similar shortcomings.” State v. Hurd,
Despite this widespread recognition of the problem, the Supreme Court has never suggested that memory hardening, a danger in all identifications, poses a per se violation of the sixth amendment right. See Simmons v. United States,
B.
We next consider whether Thompson’s identification of Harker was so unreliable that it violated Harker’s fourteenth amendment right to due process. Harker contends that the hypnosis session was imper-missibly suggestive and tainted the subsequent photo array and show-up. We affirm the decision of the district court that Harker’s right to due process was not violated and that neither pre-trial procedures nor Thompson’s courtroom testimony gave rise to “a very substantial likelihood of irreparable misidentification.” Simmons v. United States,
The testimony of a previously hypnotized witness may contravene due process in one two ways. First, the in-court identification may lack a basis which is independent from the hypnotic session, and second, the procedures used during the hypnosis session may themselves be defective. The exclusion of evidence from the jury is, however, a drastic sanction, one that is limited to identification testimony which is manifestly suspect. “Short of that point, such evidence is for the jury to weigh ... for evidence with some element of untrustwor-thiness is customary grist for the jury mill.” Manson v. Brathwaite,
The Supreme Court has previously established the factors to be considered in assessing the quality of an independent basis for the identification. There is no violation of due process if
under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive____ [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil v. Biggers,
Thompson had a good opportunity to see his assailant. The lights along the driveway were lit, and the headlights of the assailant’s car were on. Thompson estimated that he spent between five and eight minutes with his assailant. Before hypnosis, Thompson and the police produced a composite. Deputy Jordan Watts testified that he had shown the composite to David Harker’s father, and that the father had said it closely resembled his son. Under hypnosis, Thompson gave a description of his assailant that closely matched the description he had given to police shortly after the shooting; he did not change his story during or after hypnosis. The consistency in Thompson’s identifications before, during, and after hypnosis provided ample basis for permitting Thompson to testify before the jury.
This clear independent basis for Thompson’s identification of Hark'eFcompensates for the deficienciSs in the hypnosis session itself. We agree with the Maryland Court of Special Appeals that “it would obviously have been better to have a video tape of the hypnosis session,” Harker v. State,
The person who hypnotized Thompson, Lieutenant James Roby, was a trained law enforcement hypnotist and a member of the Montgomery County Police Department. The shooting occurred in Harford County, and Roby did not participate in the investigation except for the hypnosis session. Thus there was much less temptation for the hypnotist to ask questions which would confirm a desired result. Roby, in fact, testified that he knew very little about the case prior to the hypnosis session; he had not heard the name David Harker, nor had he ever seen a photograph or sketch of Harker. Perhaps for that reason, no photographs or sketches of the assailant were shown Thompson during the session. It has been said that “inaccuracy in hypnotic recall increases with the number and detail of questions” and that “the least-distorted recollections are provided by free narration,” United States v. Valdez,
Finally, Harker’s rights were not violated by the photo array or the show-up. Harker argues that of the ten photographs shown to Thompson, only his showed a subject wearing a plaid flannel shirt over another shirt. During the hypnosis session, Thompson had described his assailant as wearing a plaid flannel shirt over a colored shirt with a collar. The picture of Harker showed him wearing a flannel shirt over a white tee shirt. Another photograph in the array also showed a subject wearing a flannel or velour shirt over a dark shirt with a collar. The large number of photographs shown Thompson further militates against impermissible suggestiveness. See Simmons v. United States,
The testimony on the show-up at the courthouse reveals no due process violation. Police did not tell Thompson that his assailant would be at the courthouse. Thompson was not sure of the identification at first, but was positive after a second look at Harker. The show-up was not so suggestive as to produce any substantial likelihood of misidentification. See Willis v. Garrison,
IV.
Harker also objects to the use of the testimony of one Larry Eley, a fellow inmate, who testified that Harker had told him about shooting Thompson. Harker contends first that Eley was an incompetent witness and secondly that Eley was a government agent and extracted an un-counseled confession. We find no merit in either contention.
Pointing to post-conviction testimony from a single psychiatrist, Harker moved for a new trial, arguing that the state should have known that Eley was mentally unstable, and that the use of his testimony was therefore fundamentally unfair. This argument fails for several reasons, the most compelling of which is the trial court’s conclusion that exclusion of the evidence would not have changed the outcome of the trial. The evidence did not tend to establish affirmatively the innocence of the accused, and there remained substantial evidence that established his guilt.
Harker next argues that Eley was a government agent who extracted an uncounseled confession. In United States v. Henry,
Eley was not paid, nor was he acting under the instructions or solicitations of the government. He responded to a general request for information, and no promises were made to him. Since Eley was not a government agent, there was no violation of Harker’s right to counsel. “[T]he Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” Maine v. Moulton, — U.S.-,
For the foregoing reasons, the decision of the district court is
AFFIRMED.
Notes
. Some courts have held that the use of hypnosis affects credibility, but not admissibility. Others have permitted post-hypnotic testimony only if certain procedural safeguards are present. Still others have found post-hypnotic testimony inadmissible per se. Ruffra, Hypnotically Induced Testimony: Should It Be Admitted?, 19 Crim.L.Bull. 293, 293-94 (1983). For a thorough discussion of the development of the case law, see People v. Shirley,
When Harker was tried, Maryland permitted the introduction of post-hypnotic testimony provided that the judge found it reliable. Polk v. State,
Concurrence Opinion
concurring:
I concur in the result despite profound misgivings about the procedures employed by the police in administering the hypnosis. The dangers peculiar to reviving recollection by hypnosis, and introducing such evidence at trial, have been treated at some length by the majority. It suffices to say, in summary, that hypnosis poses two distinct problems for the fact-finding process. First, the witness’ actual recollection can be altered by suggestive aspects of the hypnotic session, or by “confabulation,” the filling in of details with manufactured, though believable, recollections. Simply going through the hypnotic session may have the effect of artificially heightening the witness’ subjective belief in his own recollection. Second, the jury may be misled by the “scientific” nature of hypnosis to give undue credence to the verity of the witness’ testimony.
Although hypnosis in certain circumstances functions as a useful investigative tool, its effects are unreliable and occasionally damaging to the fact-finding process. Many jurisdictions have rejected outright the admissibility of testimony based on, hypnotic enhancement.
On appeal from denial of a habeas corpus petition, however, we may only grant relief if the petitioner is being held in violation of a federal statutory or constitutional right. 28 U.S.C. § 2254(a); Cupp v. Naughton,
*446 may have an unshakeable subjective conviction that gives his account on the witness stand the imprimatur of absolute confidence. Indeed, in a criminal trial, the witness’ resultant undue confidence might violate the defendant’s constitutional right to confront and cross-examine witnesses, for an absolute conviction in the accuracy of his memory might make it ‘impossible to cross-examine [the] witness.’
The court went on, however, to focus on due process objections; circumstances surrounding the identification of the defendant through hypnosis may be so suggestive that the trial and resulting conviction is fundamentally unfair.
The First Circuit has also recognized constitutional difficulties with use of post-hypnotic recollection in a criminal trial. See Clay v. Vose,
Given the serious scientific debate over the effects of hypnosis on memory, and the potential impact of hypnotically induced testimony on the constitutional rights of the accused, it is simply unacceptable for the government to conduct hypnotic sessions under potentially suggestive circumstances that cannot be examined or challenged at trial because of inadequate recording and other procedures. Hypnosis can have both the effect of a dye and of a catalyst: the witness’ memory can be altered or augmented through suggestion or through confabulation; once the recollection has been colored, the whole memory can be “hardened,” the experiences, both real and imagined, fixed more securely in the mind by the experience of hypnosis itself. If hypnosis is to be employed on a potential witness, at the least, appropriate measures should be taken to ensure that the session has been conducted under circumstances which minimize the possibility of suggestion, and that the defense has access to a complete record of the session for purposes of safeguarding defendant’s constitutional rights at trial.
Undoubtedly, hypnosis is a valuable tool of investigation, and it would be altogether too onerous to deprive police departments of the ability to enhance the recollection of witnesses. If the state wishes to introduce testimony about recollection, the subject of which was addressed in a hypnosis session, it should bear the burden of proof to show that the hypnosis was conducted and state
The leading case in structuring guidelines for police hypnosis of witnesses is State of New Jersey v. Hurd,
The present case is troubling because of the faulty police procedures during the hypnotic session. The police attempted to videotape and audiotape the proceedings, though the videotape failed because the lens cap was not removed, and the audiotape is of poor quality and has some gaps. A police lieutenant of the Montgomery County Police Department conducted the session. Although the record on appeal contains no positive evidence of suggestive identification procedures, and only some indication of “hardening” of Thompson’s recollection as a product of hypnosis,
Harker does not merit reversal, however, because the record shows that the identification by Thompson was sufficiently reliable apart from the possible influence of the hypnosis. Prior to hypnosis, Thompson was able to assist in the preparation of a composite sketch which bore a strong similarity to Harker. Harker was first suspected when he was spotted driving a car which matched the description given by the victim; the car turned out to be owned by Harker. Thompson initially identified Harker in a photo array, ten days after the hypnosis session, and there is no indication that Thompson was exposed to Harker’s likeness any time prior to or during the hypnosis. Thus, while the police procedure in administering the hypnosis was flawed, the consistency of Thompson’s description before, during and after hypnosis show that the error was harmless beyond a reasonable doubt, and the petition should be denied. Chapman v. California,
The police should not be free to administer hypnosis, however, to witnesses in an uncontrolled and potentially suggestive environment and without adequately memorializing the proceedings. Use of testimony elicited under such circumstances poses too great a threat to the right of confrontation secured to the accused by the Sixth and Fourteenth Amendments, and to the right to due process secured by the Fourteenth Amendment.
. State ex rel. Collins v. Superior Court,
. The suggestive identification problem is not limited to testimony derived through hypnosis, but appears in a variety of circumstances where the government has offered a witness the opportunity to identify a suspect, under circumstances which suggest a particular individual. See, e.g., Stovall v. Denno,
. The victim first identified Harker in a photo array ten days after hypnosis. Thompson testified that at the photo show-up, he said "I think that looks very much like the man who shot me ... I think it’s definitely an older picture, but it looks very similar to the man and I would like to see that man in a line-up or something.” Later, the victim was taken to a courthouse where he spotted and identified Harker as the assailant out of a crowded hallway. At trial, Thompson identified Harker positively, saying: "Believing that on the final day God will be my judge and all the saints my jury, there stands the man who tried to murder me.”