People v. Tunstall, 63 N.Y.2d 1 (1984)
A pretrial hearing is required to determine if a witness’s ability to be cross-examined has been substantially impaired due to hypnosis, even if the hypnosis didn’t reveal new facts, focusing on whether the process artificially enhanced the witness’s confidence in pre-hypnotic recollections.
Summary
Tunstall was convicted of rape, sodomy, and robbery. Prior to trial, the victim underwent hypnosis to enhance her memory of the crime, though her trial testimony largely mirrored her pre-hypnotic statements. The defense argued the hypnosis bolstered the victim’s confidence, hindering cross-examination. The Appellate Division reversed, ordering a pretrial hearing to assess the impact of hypnosis. The New York Court of Appeals modified the order, holding that a hearing was indeed necessary to evaluate whether the hypnosis substantially impaired the defendant’s ability to cross-examine the victim, but stopped short of ordering a new trial unless the hearing demonstrated such impairment.
Facts
The victim and her boyfriend were accosted by two masked men, Tunstall and Chamberlin. The victim was raped and sodomized. The victim and her boyfriend identified Tunstall and Chamberlin in photo arrays and lineups. Prior to trial, the victim was hypnotized to refresh her memory. The only additional details elicited were that Tunstall wore an army jacket and Chamberlin a plaid shirt, details not presented at trial.
Procedural History
Defendant was convicted on five counts. The Appellate Division reversed and ordered a new trial with a pre-trial hearing to determine the impact of the hypnosis on the victim’s testimony. The Court of Appeals modified the order, remitting the case for a hearing, and stating that a new trial would only be necessary if the hearing revealed that the hypnosis substantially impaired the defendant’s ability to cross-examine the victim.
Issue(s)
Whether a pretrial hearing is required to determine if a witness’s ability to cross-examine a prosecution witness has been unduly impaired as a result of hypnosis when the witness’s testimony at trial mirrored statements made prior to hypnosis?
Holding
Yes, because a hearing is necessary to determine whether the hypnosis substantially impaired the defendant’s ability to meaningfully cross-examine the victim, specifically focusing on whether the process artificially enhanced her confidence in her pre-hypnotic recollections.
Court’s Reasoning
The Court acknowledged the concerns surrounding hypnotized witnesses, namely suggestibility, confabulation, and artificially enhanced confidence. While the first two weren’t at issue because the victim’s testimony aligned with her pre-hypnotic statements, the Court focused on the potential for hypnosis to bolster the victim’s confidence, thus hindering meaningful cross-examination. The Court pointed to the hypnotist’s suggestion that the victim had a “good glimpse” of her attackers as potentially problematic. The court stated, “Under these circumstances, defendant should have been afforded an opportunity to demonstrate that his ability to meaningfully cross-examine the victim was substantially impaired as a result of these alleged irregularities in the hypnotic process.”
The Court outlined factors for the hearing, including the witness’s pre-hypnotic confidence, belief in hypnosis, the depth of hypnosis, questioning techniques, and effectiveness in yielding new details. The prosecutor bears the burden of proving by clear and convincing evidence that the hypnosis did not substantially impair cross-examination. If impairment is found, a new trial is warranted; otherwise, the original judgment should be reinstated. The court stated that “the prosecutor will have the burden of demonstrating by clear and convincing proof that there has been no substantial impairment of the defendant’s ability to meaningfully cross-examine the victim.”