OPINION OF THE COURT
At issue is the intriguing question whether to admit in evidence the testimony of a witness whose memory was refreshed by hypnosis prior to trial. Defendant moves to preclude Charles Morris, a witness for the prosecution from testifying about a meeting six years earlier during which defendant asked him to witness the final arrangements for a contract murder. Morris’ recollection of the details of the alleged meeting was dim until he underwent hypnosis during the course of police questioning over one year ago. Defendant asserts that the methods used to stimulate Mr. Morris’ memory were overly suggestive, and that such use of hypnosis deprives defendant of his constitutional right of cross-examination. The People contend that the jury must determine for itself the weight to be
The past 10 years have seen a dramatic rise in the use of hypnotism as an aid in criminal investigations. Descriptions, details, and occurrences that have been forgotten or assimilated into the unconscious mind of a traumatized witness may be summoned up by putting the witness into a relaxed, trance-like state. Often meeting with dazzling success, this technique facilitated the apprehension of the Boston Strangler, the arrest of a suspect in the murder of a Metropolitan Opera cellist, and the rescue of 26 kidnapped California schoolchildren; and it has figured in the solution of numerous less-celebrated crimes as well. (See Hypnotism vs. Crime: A Powerful Weapon — Or an Abused Tool?, New York Times, Oct. 14, 1980, § C 1.) Hypnotism may indeed be the only way in some cases to retrieve memories of such particulars as the numbers on a license plate, the color of a car or an article of clothing, or a distinctive physical feature of an alleged assailant.
Regrettably, as useful a pretrial investigative procedure as hypnotism may be, it carries with it inescapable dangers when introduced into the trial setting. The reliability of statements uttered by a person under hypnosis is not susceptible of measurement. A subject of hypnosis is likely to be highly suggestible, eager to supply answers to questions whether or not those answers are a result of actual memories. The desire to please the hypnotist and the receipt of psychological “cues” unwittingly communicated by the hypnotist or others present during the hypnosis may trigger pseudomemories. In that event, the subject relating such a pseudomemory will be entirely persuaded of its veracity. A resolution adopted by the Executive Council of the Society for Clinical and Experimental Hypnosis (Oct. 19, 1978) states: “Because we recognize that hypnotically aided recall may produce either accurate memories or at times may facilitate the creation of pseudo memories, or fantasies that are accepted as real by subject and hypnotist alike, we are deeply troubled by the utilization of this techniques [sic] among the police. It must be emphasized that there is no known way of distinguishing with certainty between actual recall and pseudo memories except
In short, a person under hypnosis may offer two types of replies to questions he is asked: (1) truthful statements based upon information recalled through the process of hypnotism; and (2) “confabulations,” or fictional statements, created to fill memory gaps. The latter are distinguishable from lies and are potentially more of an impediment to the discovery of truth. A person lying, whether under hypnosis or not, will know he is lying, whereas a person confabulating will be absolutely convinced he is telling the truth. Neither he nor his hypnotist will be able to differentiate between a truthful statement and a pseudomemory. This circumstance may render a witness immune to meaningful cross-examination, since his belief in his own honesty is generally unshakeable. Hypnosis is therefore capable of producing both a witness able to describe actual events with precision and one able to testify with complete conviction and sincerity to events that never happened.
Courts consequently face a dilemma that is arising more and more frequently in criminal trials. On the one hand, they are aware that the use of hypnosis in police investigations often yields spectacular results and invaluable witnesses. On the other hand, they are cognizant of the intrinsic problems respecting the truthfulness of statements made under hypnosis.
The dilemma is often compounded at trial by the production of expert witnesses who offer conflicting opinions about the reliability of the hypnotically induced memories of a given witness. For example, in United States v Narciso (
The “total exclusion” rule has been established in at least two States. The Supreme Court of Minnesota, in State v Mack (_Minn_,_,
Similarly, in State v La Mountain (125 Ariz 547, 551 [en banc]), the Supreme Court of Arizona, while acknowledging that hypnosis may be a useful investigative tool, stated: “we do not feel the state of the science (or art) has been shown to be such as to admit testimony which may have been developed as a result of hypnosis.” It, too, held (p 551) that “[a] witness who has been under hypnosis, as in the case here, should not be allowed to testify when there is a question that the testimony may have been produced by that hypnosis.”
There is some indication that Oklahoma may also follow the rule of exclusion. While not deciding the precise ques
Courts embracing the second approach defined above have admitted hypnosis-related evidence on the theory that the hypnotism of a witness is just one of many factors that a jury must weigh in assessing the credibility of the witness. Doubts as to the witness’ reliability or credibility may be raised during cross-examination. (See Clark v State, 379 So 2d 372, 376 [Fla] [“The state was entitled to have the jury weigh all of the circumstances relating to the hypnosis in determining the credibility they would attach to the post-hypnotic identification”]; State v Jorgensen, 8 Ore App 1 [credibility of witnesses who “were subjected to prolonged and rigorous cross-examination” as to testimony given in open court; but see State v Harris, 241 Ore 224, 242, was for the jury]; see, also, Collier v State, 244 Ga 553; State v McQueen, 295 NC 96; State v Exum, 138 NC 599.) Federal courts, too, have declined to hold testimony based on hypnotically refreshed memories inadmissible as a matter of law. (See United States v Adams, 581 F2d 193, 199; Kline v Ford Motor Co., 523 F2d 1067, 1069; United States v Narciso,
Selecting a middle road, the courts of several States have enumerated safeguards to be observed by those conducting the hypnosis, in order to reduce the potential unreliability of statements produced. New York has perhaps gone the farthest in delineating these precautions. In People v Lewis (
These guidelines were explicitly adopted and examined at length in People v McDowell (
The propounding of safeguards implies that a “totality of the circumstances” judgment as to the suggestiveness of the procedure used in a given case is to be made by the trial court in its discretion. (See People v Hughes,
There is no question that most of the Lewis and McDowell safeguards were lacking in the instant case.
As the instant case illustrates, the fact patterns involving hypnosis are too complex and varied to adopt any absolutist position on admissibility. The judgment in each case must turn upon an assessment of the reliability of the posthypnosis testimony, after weighing all of the factors and their relationship to each other. Such case-by-case scrutiny is most likely to obtain the benefits available from hypnosis while avoiding its innate hazards. In light of the particular features mentioned above, this court does not believe that Morris should be precluded from testifying.
Permitting Morris to testify does not resolve all issues raised by the hypnotic session in which he participated. Morris’ testimony concerns events which he claims occurred over six years ago, about which he has given a number of oral and written statements through the years. These statements, while not inconsistent with his proposed trial testimony, are far less detailed and indicate an inability to recall most specific details. Defendant correctly points out that this variance would ordinarily be a powerful weapon on cross-examination, as he could challenge the now-remembered details as recent fabrications. He fears, however, that this weapon will be turned against him if the People are able to inform the jury that Morris has recalled
The chief defense in this contract murder case is that Morris, the People’s major witness, has invented his entire story of being summoned by defendant to meet the hired killers and witness the murder contract. The importance of what happens on cross-examination cannot be overstated.
If the People are allowed to demonstrate that the details of Morris’ testimony were “remembered” during hypnosis, there is a danger that a lay jury, unfamiliar with the pitfalls of hypnosis, will suspend its critical faculties and unhesitatingly accept the testimony because of the erroneous, but common, belief that persons under hypnosis do not lie. On the other hand, if the People are precluded from revealing the hypnosis, defendant’s attack on the testimony as a recent fabrication would be similarly, and unfairly, invulnerable.
Defendant’s suggested solution of preclusion misperceives both the problem and the appropriate remedy. The difficulty arises not because of the suggestiveness of the hypnotic session or the lack of safeguards used, but because of the vast gap between the public perception of hypnosis and the scientific fact. This can only be remedied by education of the jury, by expert testimony if defendant chooses, and by appropriate instructions from the court. Therefore, if defendant chooses to attack Morris’ improved memory, the People will be permitted to show that Morris allegedly went through hypnosis, leaving to defendant the right to-attempt to discredit both the hypnotic session and its results. The court will instruct the jury as to the inherent dangers in all posthypnosis testimony and the particular hazards present here because of the failure to adhere to the appropriate safeguards (cf. People v Diaz,
Defendant’s motion to suppress is denied, subject to the conditions set forth above.
Notes
. Among other flaws, the session, though recorded, was not video taped, and was administered by a police department hypnotist in the presence of detectives directly involved in the investigation.
. The court wishes to express its gratitude to Debra Groisser, a Columbia Law School student, for her research assistance.