Can You Hypnotize a Witness?
We've written before about the Guide to New York Evidence (“GNYE”), the official-unofficial semi-secret rules of evidence published by the New York courts. Realizing that Albany is as likely to approve official rules of evidence as it is to connect the subway to La Guardia, the New York court system updates a website with suspiciously rule like information every time a key evidence issue is decided at the highest level. Sometimes this means that we get a new rule about hearsay or record custodians, typical evidence stuff. And sometimes it means we get a rule about the admissibility of hypnotized testimony.
Wait. Really? Yes. In fact, there are enough appellate decisions on the issue to have highly-detailed rules concerning how courts treat testimony influenced by hypnosis.
The relevant GNYE rule is 6.02. The fairly lengthy rule provides that:
(1) Given that statements made under hypnosis are inherently unreliable:
(a) a witness’s testimony as to events the witness recalls as a result of hypnosis is inadmissible;
(b) a witness’s statement made under hypnosis is, as a general rule, inadmissible for the purposes of impeachment; and
(c) a party’s admission induced by hypnosis is inadmissible.
(2) A witness’s testimony as to events the witness recalls prior to hypnosis is admissible when, at a pretrial hearing, the proponent of the witness establishes by clear and convincing proof that the testimony of the witness as to his or her prehypnotic recollection will be reliable and that there has been no substantial impairment of the defendant’s right of cross- examination. In particular, the trial court must determine the extent of the witness’s prehypnotic recollection (which would establish the boundaries of admissible testimony) and whether the hypnosis was so impermissibly suggestive as to require exclusion of in- court testimony with respect to such prehypnotic recollection. Evidence, testimonial and documentary, which is material to the pretrial determination should be received at the hearing, without rigid application ofthe hearsay rule.
(3) If the witness is held to be competent to testify, the party affected by the testimony may introduce proof with respect to the hypnotic procedures followed as well as expert testimony concerning the potential effect of the hypnosis on the witness’s recollections.
As is apparent from the text, this rule synthesizes multiple occasions where the issue of hypnotized testimony has reached New York’s highest court.
The most straightforward rule, concerning hypnotized confessions, emerges out of the People v Schreiner case. [1] There the defendant had been committed to a psychiatric facility following a trial for attempted murder. At the facility, he underwent hypnosis, ostensibly to help him quit smoking. It's unclear from the record whether this worked, but while under hypnosis, the defendant did confess to an unsolved homicide, despite claiming, prior to the session, not to have any recollection of having participated in the killing. The defendant then disclosed this confession to another treating physician. The defendant was tried for murder and convicted, primarily based upon the testimony of the physician.
The trial court and appellate division upheld the conviction, based largely on technical arguments about whether the defendant was in custody when he made the confession. On review, the New York Court of Appeals reversed, taking the not-terribly-radical position that you cannot hypnotize someone into making a confession:
[T]he record supports no other inference than that defendant's statement was hypnotically induced. The evidence was that he initially thought he hadn't committed the Amsterdamer murder about which he had been questioned and that he "remembered" his involvement following an episode of self-hypnosis. The conclusion is thus inescapable that his recollection was the result of hypnotic therapy and posthypnotic suggestion. Because such recollections are inherently unreliable, the defendant's statement should not have been admitted in evidence against him. [2]
What about impeaching someone with something that they said in a trance? That was the issue in People v. Hults. [3] The police in that case hypnotized a sexual assault victim in an effort to obtain more details about the crime. She provided details, but some of them turned out not to be consistent with the prosecution's theory of the case. In particular she recalled her assailant wearing something different than the defendant was wearing that day. The defense sought to impeach the victim with her prior statements, but the court refused to allow it. On review, the New York Court of Appeals affirmed, holding that statements made under hypnosis are inherently unreliable and cannot be used for the purpose of cross examination.
A slightly different issue was raised in People v. Tunstall. [4] That case also involved a sexual assault victim who was hypnotized by investigators seeking additional information. Unlike the victim in Hults, the hypnosis did not uncover any useful details for either side. But the defendant still cried foul, claiming that the hypnosis had the effect of bolstering the witness’s testimony, making her more definitive and forceful in her recollections than she had been prior to the session.
On review, the Court of Appeals took this quite seriously:
What lies at the heart of this appeal, therefore, is defendant's assertion that the victim's confidence in her prehypnotic recollections, such as her identification of defendant, may have been artificially enhanced by the hypnotic process, thereby impairing defense counsel's ability to conduct a meaningful cross-examination of her. It is precisely this concern which we termed the "major difficulty" underlying the use of hypnosis on persons who subsequently testify at trial. We also noted that the problem may become more serious where, as here, the hypnotist suggests to the subject that a particular event occurred or that the subject will remember everything when she returns to a normal state of consciousness. 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. [5]
The court ordered that a hearing be conducted to determine the impact of the hypnosis on the witness's recollection and whether this meaningfully impacted the other side's ability to cross examine:
To assess the effect, if any, that these and other statements made to the victim while she was under hypnosis may have had on defendant's ability to meaningfully cross-examine her, a hearing is required.
At that hearing, the court should take into consideration the amount of confidence the witness had in her initial recollections prior to being hypnotized, the extent of her belief in the ability of hypnosis to yield the truth, the degree to which she was hypnotized, the length of the session, the type and nature of questioning employed, the effectiveness of the hypnosis in yielding additional details, and any other factors which the court may deem important based upon the specific facts and circumstances of this case. On the legal issue raised, 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. [6]
New York is on one end of the spectrum on the hypnosis issue, though it is hardly an outlier. New Jersey adopted a similar rule in 2006 after initially allowing hypnotically enhanced testimony. In prohibiting hypnotized testimony under almost all circumstances, the New Jersey Supreme Court noted the various state level approaches, reporting that “four states consider hypnotically refreshed testimony per se admissible, with the trier of fact determining its weight, six allow such testimony when certain procedural safeguards, twenty-six have adopted variations on the per se inadmissible rule and nine have adopted some type of totality of the circumstances test.” [7]
The federal courts, as is often the case, have declined to adopt a universal bright line rule concerning admissibility. Instead, the Courts of Appeals to consider the issue have adopted a variety of discretionary formulations that permit the trial court to admit or exclude testimony that has been monkeyed about with via hypnosis. [8] One additional issue that often comes up in federal habeas petitions is whether the use of hypnotized testimony violates various constitutional rights. For example, if a witness has been hypnotized to relate their story with supreme confidence does that violate the Confrontation Clause of the 6th Amendment? Alternatively, if a prosecutor fails to disclose that a witness was hypnotized before trial, does that violate Brady? Courts have generally held that hypnosis does not violate the Confrontation Clause but that the serious credibility issues that it raises require disclosure and that failure to do so can mandate a new trial under Brady. [9]
What's the upshot of this? While it's generally a good idea to prepare your witnesses and to do your best to help them testify persuasively, it's probably not a great idea to put them into a hypnotic trance to reprogram them in the process. But should you feel compelled to do so, try to stay in federal court where judges have any more permissive attitude toward attorney mind control.
[1] 77 NY 2d 733 (1991).
[2] Id. at 740.
[3] 76 NY 2d 190 (1990).
[4] 63 NY 2d 1 (1984).
[5] Id. at 8 (cites omitted).
[6] Id. at 9 (cites omitted).
[7] State v. Moore, 188 NJ 182, 200 (2006).
[8] See Victor J. Gold, Federal Practice and Procedure (Wright & Miller) § 6011 Special Problems Of Witness Competency—Hypnotically Refreshed Recollection, 27 Fed. Prac. & Proc. Evid. § 6011 (2d ed.).
[9] Id.
