88 A.D.2d 17 | N.Y. App. Div. | 1982
Lead Opinion
opinion of the court
The use of hypnosis has not gained general acceptance in the scientific community as a reliable method of restoring a witness’ recollection of an event. We hold, therefore, that the testimony of a witness concerning hypnotically produced recall is, as a matter of law, inadmissible in a criminal trial in this State.
i
Whether such testimony should be admitted, a question apparently not before considered in any appellate court in New York, arises in the context of an appeal from convictions for rape, first degree, burglary, first degree, and assault, second degree. The victim, Nancy Simmons, was unable to recall the details of the incident including the
At a lengthy pretrial hearing concerning the admissibility of Mrs. Simmons’ testimony, three expert witnesses testified. The prosecutor called Dr. Land. Although he stated that the hypnotic procedures he employed were not biased or suggestive, Dr. Land conceded: that there is no general agreement in the profession as to the reliability of hypnosis as a means of gathering evidence for courtroom purposes; that suggestions made before, during or after hypnosis can affect the subject’s recall; that a subject can create a memory where none previously existed; that a subject will generally be convinced of the accuracy of such false memory; and that his testimony will be given with confidence and have the ring of truth. Neither of the other two expert witnesses — Dr. Goldfarb, called by the People, and Sheldon Malev, professor of clinical psychology, sworn by the defense — disputed Dr. Land’s testimony on these points.
At trial, Mrs. Simmons testified to her recollection of various details recalled after undergoing hypnosis, including her identification of defendant and the presence of defendant’s brother during part of the incident.
ii
County Court’s ruling that hypnotically produced testimony is not legally inadmissible runs counter to the thrust of recent holdings in other jurisdictions that such evidence should not be permitted absent a finding that it satisfies the so-called Frye test (Frye v United States, 293 F 1013) or comparable standard, viz., that before the results of a scientific procedure may be used as evidence, it must be established that the procedure has gained general acceptance in the scientific community (see, e.g., Arizona v Superior Ct.,_Ariz_, 644 P2d 1266; State v Mena, 128 Ariz 226; People v Shirley, 31 Cal 3d 18; Polk v State, 48 Md App 382; People v Tait, 99 Mich App 19; State v Mack,_ Minn_, 292 NW2d 764; Commonwealth v Nazarovitch,_ Pa_, 436 A2d 170). It is significant, we think, that even Maryland’s high court, which decided Harding v State {supra) — for many years the leading case permitting such testimony and holding that the fact of hypnosis of the witness “goes to the weight, not the admissibility” of the evidence
in
Out-of-State courts which have applied the Frye standard to hypnotically produced testimony have generally agreed that such testimony has not been accepted as reliable in the scientific community, citing the following conclusions of recognized authorities in the field.
(1) The subject under hypnosis becomes extremely receptive to suggestions perceived to have come from the hypnotist, even suggestions which were unintentionally or unwittingly communicated. He is also susceptible to suggestions received, whether before or during the hypnosis, from other persons who may have communicated with the witness such as, for example, investigating police officers.
(2) The subject feels compelled to please the hypnotist and thus, seeking to co-operate, may “fill in” missing details through “confabulation”, or fantasy.
(4) Once a subject has been hypnotized, there is no known reliable method enabling anyone — subject, hypnotist, expert witness, Judge or Jury — to distinguish “pseudo memory” from accurate memory which has been enhanced by hypnosis.
While the authorities are not in complete agreement,
From our reading of recent decisions in the field and of recognized authorities (see ns 3-6, supra) we are persuaded that hypnotically produced testimony is not generally accepted in the scientific community as reliable and that it should, therefore, be inadmissible (see People v Middleton, 54 NY2d 42, supra; People v Leone, 25 NY2d 511, supra; People v Forte, 279 NY 204, supra; People v Tarsia, 67 AD2d 210, affd 50 NY2d 1, supra).
iv
We must comment briefly on the standards proposed in the dissent for the use of hypnotically produced testimony. Such testimony should be accepted, it is suggested, “when there are facts establishing that the witness did not confabulate.” Corroboration, as the dissenter views it, should be “the linchpin of admissibility.” In other words, what ap
Reliability of hypnotically generated testimony, not its plausibility, should determine whether it is accepted. Polygraph evidence (see People v Leone, supra), voice stress test results (see People v Tarsia, supra), and pathometer exam readings (see People v Forte, supra) are disallowed because the procedures used have not been generally accepted in the scientific community as producing reliable results; such evidence does not become admissible because other evidence corroborates it. For the court to admit what seems to be true and exclude what does not subverts the traditional role of jurors as the exclusive judges of the facts. With corroboration “the linchpin of admissibility”, false hypnotically produced testimony based on “pseudo memory” which happens to coincide with other evidence could come in. Crucial reliable but uncorroborated testimony would be barred. Consequences of such a rule are readily imagined.
If and when hypnosis becomes generally accepted in the scientific community as a reliable method of restoring memory, testimony based on hypnotic recall should in a proper case be admitted. The jury, not the court, should then determine whether such testimony is worthy of belief. Until then, it should be excluded.
Although on a retrial the testimony produced through hypnosis must be excluded, it does not follow that because she has been hypnotized, Mrs. Simmons is incompetent to testify to facts which she was able to recall prior to undergoing hypnosis (see Arizona v Superior Ct., _ Ariz _, supplemental opinion, 644 P2d 1279, 1296; cf. State v Mack,_Minn_, 292 NW2d 764, 771, supra).
We find no error in the other evidentiary rulings of the trial court challenged on appeal.
The judgment should be reversed and a new trial granted.
. Apparently the victim had named the defendant twice prior to hypnosis, stating that she “saw” him or “remembered” him. She did not, however, state that it was he who had attacked her but rather maintained that she could not remember who it was who had done so.
. It should be noted that the Maryland court in Harding v State (5 Md App 230, cert den 395 US 949) apparently accepted a statement of the psychologist who hypnotized the complainant which has subsequently been completely rejected in the scientific community, viz., that hypnosis does not render the subject particularly receptive to suggestion. Thus, the continued soundness of the holdings in Harding and in United States v Awkard (597 F2d 667, 669, cert den 444 US 885) and United States v Adams (581 F2d 193, 198, cert den 439 US 1006), both of which rely on Harding, is subject to question (see
. See People v Shirley (31 Cal 3d 18, n 46) and authorities cited therein (State v Mack,__ Minn_, 292 NW2d 764, "768; Diamond, op. cit., p 333).
. See State v Mena (128 Ariz 226, 229, quoting Spector and Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St L J 567, 578); People v Shirley (31 Cal 3d 18, _, supra). Diamond, op. cit., p 335 states: “[T]he hypnotically recalled memory is apt to be a mosaic of (1) appropriate actual events, (2) entirely irrelevant actual events, (3) pure fantasy, and (4) fantasized details supplied to make a logical whole.”
. See People v Shirley (31 Cal 3d 18,_, supra); State v Mack (supra, p 769, see excerpt from Dr. Martin Orne’s testimony, n 10); Commonwealth v Nazarovitch (_Pa _, _, 436 A2d 170,174-175); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal L Rev 313, 333-338, 340; Spector and Foster, op. cit., p 593.
. See People v Shirley (supra, pp_,_); State v Mack (supra, p 769); State v Hurd (86 NJ 525, 538-539, quoting Orne, The Use and Misuse of Hypnosis in Court, 27 Int J Clinical & Experimental Hypnosis 311, 317-318); Diamond, op. cit, pp 337, 339-340.
. For example, New Jersey’s Supreme Court, applying New Jersey’s version of the Frye test, held that hypnotically generated evidence was admissible in certain instances, concluding that “[i]f it is conducted properly and used only in appropriate cases, hypnosis is generally accepted as a reasonably reliable method of restoring a person’s memory.” (State v Hurd, supra, p 538; see, also, Spector and Foster, op. cit.)
Dissenting Opinion
(dissenting). In my view a rule of per se inadmissibility is “unnecessarily broad” and results in the exclusion of worthwhile evidence (State v Hurd, 86 NJ 525). Hypnosis is neither supernatural nor magical but “a
The majority apply the Frye rule (Frye v United States, 293 F 1013) to hypnotically refreshed testimony and conclude that there is no general acceptance of the reliability of such evidence. I have some doubts as to whether that rule should apply, since the evidence being presented is not an expert testifying as to the results of a scientific test but rather the witness testifying as to her own recollection, albeit a refreshed one. Assuming, arguendo, that the Frye rule should apply, my application of it to the facts at hand results in a different conclusion, for there is general acceptance in the scientific community that hypnosis can restore the subject’s memory, and there is general agreement that
Turning to the facts at hand, there was ample corroboration that the victim accurately identified her attacker and not some innocent party. A neighbor saw defendant enter the apartment building where he and the victim both lived at 10:10 p.m. About five minutes later, two other neighbors heard screams coming from the victim’s apartment. One of the neighbors heard the victim’s four-year-old son screaming and heard the victim cry out, “What are you doing here? What do you want? Get out.” She then heard a thumping noise, like something falling down the back stairs. About 45 minutes later, a fourth neighbor who lived
The majority feel that the admissibility of a hypnotically refreshed identification should not hinge on corroboration. They note that corroboration does not render admissible other evidence, such as polygraph tests. However, polygraphs, voice stress tests and the like are genetically different from hypnotically refreshed testimony. The former are “tests”; therefore, they can have no probative worth unless the validity of the tests has been established, and it is of no consequence that the test produced a correct
In enumerating the various reasons, why hypnotically refreshed testimony is subject to question, the majority seems to suggest that the admissible testimony of any other witness will produce evidence clear from taint, prejudice, or simple mistaken recall. We know that such is not the case. Nor does the rule of law I propose usurp the function of the jury. The ultimate determination of weight and credibility in either case remains for the trier of the fact. The problem which I envision in the “per se” rule of the majority is that it rejects, out of hand, testimony which is reasonably likely to be as reliable as that of any other witness.
Assuming, arguendo, that the majority position is correct, I must further disagree with the conclusion that the subject is not incompetent as a witness to testify to her recollections prior to hypnosis. A major justification for rejecting hypnotically refreshed testimony is that the subject cannot separate pre- and posthypnotic recollections and, once hypnotized, the subject acquires great confidence in the memory thus rendering cross-examination ineffective (see State v Mena, 128 Ariz 226). These considerations have prompted California to declare the hypnotized witness incompetent to testify at all as to matters discussed under hypnosis (People v Shirley, 31 Cal 3d 18,_, supra).
Finally, I make several concluding observations. Hypnosis should not be used in a great many cases, particularly those in which the witness was inebriated at the time or unable to remember clearly for some other reason (see, e.g., People v Shirley, supra). Moreover, hypnotically refreshed testimony should not be used merely to elicit details where the victim has substantial memory of the event. The greater the detail required of the witness, the more chance
For the reasons stated herein, I would affirm defendant’s conviction.
Dillon, P. J., Callahan and Schnepp, JJ., concur with Hancock, Jr., J.; Doerr, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and the facts, and a new trial granted.
In proposing a rule of admissibility I note that various procedural safeguards should be followed to minimize the possibility of confabulation. In this regard, I observe that the procedure in this case was tainted because the victim inadvertently learned, prior to hypnosis, that defendant was a suspect. However, in view of the very strong corroborating evidence, I do not view this fact as dispositive.