New York Law Review

Tag: Hypnosis

  • People v. Hults, 76 N.Y.2d 190 (1990): Admissibility of Hypnotic Statements for Impeachment

    People v. Hults, 76 N.Y.2d 190 (1990)

    Hypnotic statements are generally inadmissible for impeachment purposes because their inherent unreliability outweighs their probative value in testing a witness’s truthfulness.

    Summary

    Defendant was convicted of sodomy. The complainant had undergone hypnosis as part of the police investigation. Defendant sought to impeach the complainant’s trial testimony with inconsistent statements she made while under hypnosis, specifically regarding the name on the assailant’s shirt. The trial court disallowed this. The Court of Appeals affirmed the conviction, holding that statements made during hypnosis are generally inadmissible for impeachment due to their inherent unreliability. Furthermore, a defendant who argues the unreliability of hypnotic statements cannot then introduce those statements for impeachment purposes.

    Facts

    The complainant accepted a ride from the defendant, who she later identified as wearing a blue Exxon uniform. During the ride, the defendant drove to an empty parking lot and sodomized her at knifepoint. The complainant provided details about the defendant and his car to the police. Three months later, the defendant was arrested in a similar car while wearing a blue shirt with an Exxon patch. The complainant identified the defendant in a lineup. Critically, the complainant underwent hypnosis as part of the police investigation three weeks after the crime.

    Procedural History

    Defendant was convicted of sodomy in the first degree. The Appellate Division reversed and ordered a new trial on other grounds but noted that the defendant could not use the complainant’s hypnotic statements for impeachment at the new trial. The defendant’s subsequent motion for a Hughes-Tunstall hearing was denied. After a second trial, defendant was again convicted of sodomy. The Appellate Division affirmed, and the defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court abused its discretion in denying the defendant’s application for a Hughes-Tunstall hearing.
    2. Whether precluding the defendant’s use of the complainant’s hypnotic statements for impeachment unconstitutionally restricted his right to cross-examination.

    Holding

    1. No, because the defendant failed to show good cause for his failure to bring the motion in a timely manner.
    2. No, because the state may constitutionally exclude hypnotic statements demonstrated to be unreliable, and the defendant conceded the unreliability of the complainant’s hypnotic statements.

    Court’s Reasoning

    The Court of Appeals first addressed the Hughes-Tunstall hearing, finding the motion untimely. On the main issue, the Court extended the rule in People v. Hughes, which held posthypnotic testimony inadmissible as direct evidence due to its unreliability, to also preclude the use of hypnotic statements for impeachment. The Court reasoned that the dangers of hypnosis – suggestion and confabulation – affect all hypnotic statements, regardless of whether they are introduced as evidence-in-chief or for impeachment.

    The Court acknowledged the importance of cross-examination but distinguished hypnotic statements from other types of prior inconsistent statements. Unlike voluntary statements obtained in violation of Miranda, which can be used for impeachment because they are deemed trustworthy, hypnotic statements may be the product of suggestion or confabulation and therefore not fairly the witness’s own. As such, “because of the statement’s unreliability, the inconsistency simply is not probative of the truth or falsity of the witness’ subsequent trial testimony.”

    The Court recognized the Supreme Court’s decision in Rock v. Arkansas, which held that a State’s per se rule prohibiting posthypnotic testimony could not be applied to criminal defendants testifying in their own defense without considering indicia of reliability. However, the Court distinguished the case, noting that the defendant in this case conceded the unreliability of the complainant’s hypnotic statements. Having argued that the statements were unreliable due to the suggestiveness of hypnosis, the defendant could not then introduce those same statements for impeachment purposes. In essence, he was estopped from taking inconsistent positions.

  • People v. Tunstall, 63 N.Y.2d 1 (1984): Admissibility of Testimony After Hypnosis

    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.”

  • People v. Hughes, 59 N.Y.2d 523 (1983): Admissibility of Testimony After Pretrial Hypnosis

    People v. Hughes, 59 N.Y.2d 523 (1983)

    Hypnotically refreshed testimony is inadmissible as evidence unless it satisfies the standard for admissibility of scientific evidence and is deemed reliable by the scientific community; however, a witness is not necessarily incompetent to testify to events recalled before hypnosis.

    Summary

    The New York Court of Appeals addressed whether a rape victim’s testimony was admissible after undergoing pretrial hypnosis to refresh her memory. The court held that post-hypnotic recollections are inadmissible unless the procedure is generally accepted as reliable in the scientific community. However, the court also ruled that the witness was not automatically barred from testifying about pre-hypnotic recollections, provided those recollections are deemed reliable after a pretrial hearing. This case provides a framework for balancing the investigative uses of hypnosis with a defendant’s right to a fair trial.

    Facts

    The victim was raped in her apartment. Initially, she had difficulty recalling the details of the attack. Police arranged for her to undergo hypnosis with a psychologist to help restore her memory. During the session, she identified the defendant, a neighbor she knew, as her assailant. Prior to hypnosis, she told her sister “I saw Kirk” (defendant’s first name). Subsequent to the initial hypnosis session, and after reading about the effects of prehypnotic suggestions, the victim consulted a psychiatrist to make sure she was not being forced to remember something that was not true. The defense moved to suppress the victim’s identification, arguing the hypnosis was unduly suggestive and impaired his right to confrontation.

    Procedural History

    The trial court initially granted a hearing to determine if the hypnotic procedures were impermissibly suggestive. After the hearing, the trial court concluded that the hypnosis was not impermissibly suggestive and admitted the victim’s testimony. The defendant was convicted of rape, burglary, and assault. The Appellate Division reversed, holding that hypnotically produced testimony is not generally accepted as reliable and should be inadmissible, though the victim could testify to pre-hypnotic recollections. The prosecutor appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether hypnotically refreshed recollections are admissible as evidence at trial.

    2. Whether a witness who has undergone pretrial hypnosis is incompetent to testify to events recalled prior to the hypnosis.

    Holding

    1. No, because hypnotically refreshed recollections are only admissible if the procedure and results are generally accepted as reliable in the scientific community.

    2. No, because the pretrial use of hypnosis does not necessarily render the witness incompetent to testify to events recalled prior to being hypnotized, but a pretrial hearing is required to determine the reliability of the prehypnotic recollection.

    Court’s Reasoning

    The Court of Appeals applied the Frye standard, requiring that scientific evidence be generally accepted as reliable in the relevant scientific community. The court recognized the inherent suggestibility of hypnosis, noting that it can lead to subjects becoming more susceptible to suggestion, confabulating events, and experiencing increased confidence in their recollections, regardless of accuracy. The court emphasized that there is no scientifically accepted method for determining whether recollections under hypnosis are accurate. The court stated: “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 technique among the police. It must be emphasized that there is no known way of distinguishing with certainty between actual recall and pseudo memories except by independent verification”.

    The court distinguished hypnosis from other methods of refreshing recollection, highlighting that suggestion is an essential part of the hypnotic process. While acknowledging that hypnosis may be a useful investigative tool for generating leads, the court cautioned against using it to confirm police suspicions or prepare a witness for trial. The court held that excluding posthypnotic recollections does not eliminate the impact of the hypnotic session because the added confidence the witness has obtained remains and may hinder effective cross-examination.

    The court outlined the procedures to follow in cases where a witness has undergone hypnosis prior to trial, requiring the People to demonstrate by clear and convincing proof that the testimony of the witness as to prehypnotic recollection will be reliable and that there has been no substantial impairment of the defendant’s right of cross-examination. The defendant retains the option to introduce evidence of the hypnotic procedures and expert testimony on the effect of hypnosis on the witness’s recollections.