State ex rel. Collins v. Superior Court

OPINION BY: GORDON

This special action was brought to vacate the order of the Honorable Judge Brown granting defendant's motion in limine which requested that victims who had undergone hypnosis not be permitted to testify. Taking jurisdiction pursuant to A.R.S. Const.Art. 6, Sec. 5(1), we uphold the ruling of Judge Brown and vacate the stay order so that the case may proceed to trial.

Over a three year period, from August, 1977 to May, 1980, eighteen reported rape incidents occurred in unpopulated areas in west Phoenix. There is some variance among the assaults but essentially they followed a similar pattern. Couples in vehicles were approached by a masked, heavyset male armed with a pistol and carrying what the state characterizes as a "rape kit," consisting of ropes, blindfolds, ground cloth, and toilet paper. In each instance the assailant informed the couple he was going to steal their car or take their money and proceeded to tie and blindfold the couple. After using the ground cloth for the rape, the assailant would use the toilet paper to clean the woman, and then untie the victims, return the paraphernalia to his tote bag, and leave the area on foot.

The Phoenix Police Department and the Maricopa County Sheriff's Office investigated the case for several years, taking statements, analyzing fingerprints, sending hair samples to the F.B.I. lab, and increasing patrols in the area. To obtain additional information on the identification of the assailant seven victims were hypnotized.

On July 1, 1980 defendant Silva was arrested as he approached an undercover decoy vehicle containing a male and female officer in plainclothes. Silva was wearing a mask, armed with a pistol, and carrying the "rape kit."

Silva was charged with forty felony counts involving kidnapping, sexual assault, and rape . . . .


TESTIMONY OF HYPNOTIZED WITNESSES

Six rape victims and one attempted rape victim underwent hypnosis between November, 1977 and January, 1980. The record indicates that prior to the hypnotic sessions at least some of the victims had given written statements to the sheriff's department.

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Our concern today is that hypnosis, although still largely untested, has seen a great upsurge in use in the criminal justice system. It is not uncommon for police departments to pay for training of police officers in induction techniques or to have hypnotists on their payroll. . . .

The testimony of persons who have undergone hypnosis is inadmissible for two distinct reasons: the process of hypnosis and its outcome is inherently unreliable; and to permit posthypnotic testimony would violate the defendant's sixth amendment right to cross examination.

POSTHYPNOTIC TESTIMONY IS UNRELIABLE

It is uncontested that we humans as social beings respond to outside stimuli throughout our waking hours. Educators have for decades studied the impact of positive and negative reinforcement and behavioral modification on animals and human subjects. People will react favorably or unfavorably to the tone of voice and body language of a speaker. During the state of hypnosis a person is even more susceptible to outside influences and may strain to produce the desired feedback. Two common characteristics of a subject in a hypnotic trance are hypersuggestibility and hypercompliance. . . .

Hypnosis is typically employed by authorities where there is little evidence and the victim of the crime is extremely enthusiastic to aid the police in any manner. "[T]he subject is so susceptible to suggestion and receptive to the hypnotist's verbal and nonverbal communications, the subject may respond in accordance with what he or she perceives the desired response to be, in order to 'please' the hypnotist." . . . "Even when the hypnotist consciously attempts to avoid emitting signals, the problem may not be avoided. The hypnotic individual need not receive direct suggestions in order to try to please the hypnotist." . . .

This Court is not intimating that police authorities in this state would purposefully attempt to elicit responses they desired from a hypnotized subject. But as in the present case, other stimuli beyond the obvious leading question could and may have induced the subject to answer in a particular way. The record of the evidentiary hearing before us indicates that Detective Fiore knew that the young women he hypnotized and questioned were involved in the "ski mask rapist" case. Detective Fiore admitted that the hypnotized women could have been influenced in subtle ways by such things as the hypnotist's clothing, the environment in which the hypnosis was undertaken, or the presence of police officers in the room. The hypnotic sessions in question took place at the Maricopa County Sheriff's Office, not in a neutral environment. The young women were certainly anxious to assist the police in the pursuit of the man that had accosted them and may have reacted in the appropriate way, that is, the way that met the approval of the hypnotist.

The technique of posthypnotic suggestion enables the subject to recall posthypnotically what transpired during the session. The grave danger is that what subjects "remember" during the session will become their permanent memory. The experts on hypnosis seriously doubt if a suggestion-free hypnotic session can be conducted. This Court will not take a position on the question of whether a suggestion-free session is possible, but we cannot approve posthypnotic testimony in a criminal trial where a witness may be testifying from a memory influenced by undetectable suggestion.

Confabulation

The human mind assimilates information through sensory signals -- what is seen, felt, heard, and smelled. Hypnosis is often viewed as a tool to enhance memory. Admittedly there are instances where a person will be unable to recall a phone number or license plate and then successfully "regains" this memory loss through hypnosis. We can only remember what was initially experienced through our senses, however. For example, if it is dark and perception is impaired hypnosis cannot retrieve a memory of a perception that never existed. These remarks lead us to another concern of hypnotically induced testimony -- the willingness of subjects to "fill in the gaps" in their memories, that is, to confabulate. "[S]ince memory consists of perception, registration and recall, if the elements of perception or registration are missing, hypnosis will not aid the subject's memory, since there is nothing to recall." . . .

"The hypnotized subject is influenced by a need to 'fill gaps.' When asked a question under hypnosis, rarely will he or she respond, 'I don't know.'" "It is also possible for a subject to imagine certain events out of whole cloth. . . . In this latter situation, the subject may recall fabricated memories after he has been brought out of a hypnotic trance and believe them to be true and accurate."

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Incorrect Recall

Another concern over the use of hypnotically induced recall during trial is that it may be totally incorrect. In a recent Arizona Court of Appeals case the victim's posthypnotic recall of the circumstances of the crime materially differed from the statements she had given to the police prior to the hypnosis session.

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Purposeful Lying

A person in a hypnotic trance can willfully lie. The problem arises where the subject wants to implicate a suspect or "remember" particular information that will facilitate the police investigation. "The authorities state that while hypnosis often can produce remarkably accurate recall, it is also prone to yield sheer fantasy, willful lies, or a mixture of fact with gaps filled in by fantasy." . . . "Most authorities agree that a person can lie while under hypnosis. However, many laymen believe that the power of hypnosis, clothed in its veil of mystery, prevents willful deception."

Undue Weight Given By The Jury

Hypnosis is cloaked in a veil of mysticism to the layperson. It seems to be a magical thing indeed that can produce fantastic recall and startling results. A jury is likely to place undue emphasis on what transpired during a hypnotic session. "[A] great danger in the use of hypnosis is the credibility which laymen commonly associate with the technique." Dilloff, supra, at 9. Opposing counsel, voicing the concerns noted by this Court, could attempt to impeach either the hypnotic induction technique or the hypnotist, but it is our opinion that a typical juror will place greater emphasis on posthypnotic testimony than it warrants.

Hypnotic Inducement Not Scientifically Reliable

The hypnotic process and the memory that is "reconstructed" is a matter of controversy. . . . The admissibility of posthypnotic testimony can be likened to that of polygraph and truth serum results. The underlying principles of hypnotic procedure must gain general acceptance by the experts in the field in order that its validity be recognized by this Court.

There is little agreement among the authorities and courts on the issue of the admissibility of posthypnotic testimony on the basis of its scientific reliability. In Hurd, supra, although the New Jersey high court permitted the hypnotically refreshed testimony if sufficient safeguards were followed, the hypnotic testimony was likened to the results of a polygraph examination or voice print analysis.

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Safeguards Cannot Insure Posthypnotic Testimony Is Reliable

Several courts have chosen to permit hypnotically recalled testimony if requisite safeguards are taken to avoid the pitfalls of a hypnotic session. It is this Court's opinion that although proper safeguards should be used by the police if hypnosis is used during investigations, these safeguards cannot insure that hypnotically recalled testimony is reliable and therefore cannot render it admissible. . . .

Hypnosis During The Investigative Stage

Although the unreliability of hypnosis renders it improper at the judicial stages of a prosecution, this Court recognizes that hypnosis has proven to be a valuable investigative tool. This Court does not wish to encourage mass hypnotic induction of potential witnesses because of the inherent dangers in the process. Resolutions have been adopted by the two major professional associations in the hypnotic field condemning the employment of hypnosis by minimally trained police personnel. Without formally adopting these standards we suggest that those involved in the criminal process adhere to the procedural safeguards set forth in the margin.

We note that if police investigators make the decision to hypnotize an individual, any corroborating evidence subsequently obtained is admissible in a criminal trial subject to other evidentiary objections. Corroborating evidence is not susceptible to the same dangers of unreliability as is posthypnotic testimony. There is no threat that this evidence has been confabulated or has been suggested by the hypnotist.

In conclusion, the use of hypnosis during the investigative stage is permissible if used with great reserve by trained personnel with reasonable safeguards.


VIOLATION OF DEFENDANT'S RIGHT TO CONFRONTATION

Defendants have a constitutional right to confront witnesses against them. This right is fundamental and made obligatory on the states by the fourteenth amendment. The right of confrontation embodies the right of defendants to cross examine the witnesses against them.

"[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case."

. . ."'Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.'" . . . The right to cross examine witnesses would be an empty right were a defendant not afforded the opportunity to meaningfully, effectively cross examine. "If the right to effective cross examination is denied, constitutional error exists without the need to show actual prejudice." . . .

The concern in the area of posthypnotic testimony is that posthypnotic memory may be different than prehypnotic memory. This memory alteration may result from purposeful or unwitting cues given by the hypnotist, the phenomenon of confabulation, and the need for the subject to achieve some sense of certainty within his or her own mind. The basic problem is that if a witness sincerely believes that what he or she is relating is the truth, they become resistant to cross examination and immune to effective impeachment to ascertain the truth.

"In the case of hypnotically induced memories, the violation of the accused's right to confrontation is much more basic than simply a delayed cross-examination. . . .[I]t is quite possible that the witness who emerges from hypnosis is not the same witness who entered into hypnosis. Under such a circumstance, there would be no real confrontation of the witness who might conceivably be the key to conviction or acquittal. Instead, the 'new' witness is convinced that the newly 'remembered' evidence is truthful, and is therefore immune to the rigors of cross-examination."

The new memory of the witness may be wholly or partially fabricated and has been described by authors as pseudomemory. "'Unfortunately, such pseudomemories can and often do become incorporated into the individual's memory store as though they had actually happened . . . [and if such memories] are eminently plausible, there is no way for either the hypnotist or the subject or a jury to distinguish between them and actual recall of what occurred.'". . . "[T]he procedure can bolster a witness whose credibility would easily have been destroyed by cross-examination but who now becomes quite impervious to such efforts, repeating one particular version of his story with great conviction."

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In the case before us the hypnotist Detective Fiore testified that hypnosis could change a person's memory and a witness could be thoroughly convinced of the truth of an objectively proven untruth.

Because of the unreliability of posthypnotic testimony and the denial of the defendant's fundamental right to effective cross examination, posthypnotic testimony is inadmissible in a criminal trial.


PROSPECTIVE APPLICATION

We now consider whether the inadmissibility of posthypnotic testimony is to be retrospectively or prospectively applied in criminal cases. The United States Constitution does not prohibit nor require the retrospective effect of judicial rulings. Nor is retroactive implementation automatic depending on the particular constitutional provision involved. "A state is free under the Constitution to make a choice for itself between the principle of forward operation of a ruling and that of relation backward."

The United States Supreme Court has given us guidance in determining when principles should be retroactively applied. We should examine: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." . . .

The purpose of the holding in Mena and the present case is to exclude from a criminal trial posthypnotic testimony because of its basic unreliability. "The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a 'question of probabilities.'" . . . The purpose of the Mena rule does not warrant the reexamination of unknown numbers of jury verdicts. Not every refinement of the law should result in the rejuvenation of post-conviction appeals. Additional safeguards present during trial minimize the possibility of the miscarriage of justice. The purpose of the rule in Mena "'[does] not clearly favor either retroactivity or prospectivity,'" therefore, we must examine the second and third criteria set out by the Supreme Court.

The reliance police authorities placed on the prior law is the second criterion in deciding if a principle should be retroactively applied. The apparent reliance of the police in the hypnosis area clearly weighs in favor of the prospective application of Mena and the case before us. There was no clear statement of the law proscribing the use of posthypnotic testimony prior to Mena. The police were not on notice pre-Mena that placing persons under hypnosis would then preclude their testimony at a subsequent trial. The argument could be made that the police had notice of the incompetency of previously hypnotized witnesses after State v. La Mountain. Mena, however, as was noted by the trial judge below, is a much clearer statement of this Court's position on posthypnotic testimony. Therefore, the reliance that the police placed on the admissibility of the testimony of persons hypnotized pre-Mena operates in favor of Mena having only prospective application. "The point of reliance is critical, not because of any constitutional compulsion, but because it determines the impact that newly articulated constitutional principles will have upon convictions obtained pursuant to investigatory and prosecutorial practices not previously proscribed." . . .

The third criterion enunciated by the United States Supreme Court is the effect of retroactive application on the administration of justice.

"We are reluctant to apply a constitutional rule of criminal procedure retroactively as '[t]o characterize a past proceeding as unconstitutional and therefore void reflects seriously on the integrity of the law, . . . weakens the confidence of those who trusted in the existence and validity of the rule and undermines the doctrine of the finality of prior determinations.'"

It is possible that juries in Arizona have convicted defendants in trials where posthypnotic testimony was introduced. But the law is dynamic. It is a continuum of succeeding redefinitions. Not every refinement in the law should call into question all prior convictions. Justice does not demand judicial reexamination of all criminal trials for each new advancement in judicial thinking. The judiciary could not function if there was never any finality to decisions. It is for this reason that only where there is a denial of a basic right of constitutional magnitude that is correctable will retrospective application be invoked. This is not the case here.

There is practical consideration in addition to the taxing of trial and appellate courts in denying the retroactive employment of Mena. The fact that a witness has undergone hypnosis may not be in the record, and therefore an appellate court would be handicapped in discovering this information.

Because of the unforeseen change in the law, the burden retrospective application would place on the administration of justice, and the need for finality, we hold Mena to be prospective only.

In establishing that the holdings of Mena and the present case are to be applied prospectively, we next must decide at what point in time will the application become effective. We hold that any person hypnotized post-Mena is incompetent to testify. Any person hypnotized pre-Mena but who testified post-Mena or who has not yet testified is incompetent to testify. We further hold that any conviction presently in the appeals process in which there was hypnotically recalled testimony and where the testimony and hypnosis took place pre-Mena will be examined on a case-by-case basis to determine if there was sufficient evidence, excluding the tainted testimony, to uphold the conviction. In other words, the question in these cases is whether the introduction of posthypnotic testimony was harmless error. The time of the mandate of Mena is the controlling date. In the case before us seven of the eighteen reported rape victims were hypnotized. Even though the hypnotic sessions occurred prior to Mena the hypnotized witnesses have not yet testified and are incompetent to testify at the pending trial.

This Court is cognizant that its holding is not purely prospective but has concluded that in balancing the competing interests this was the most equitable place to draw the line. This dilemma "highlights the problem inherent in prospective decision-making, i.e., some defendants benefit from the new rule while others do not, solely because of the fortuities that determine the progress of their cases from initial investigation and arrest to final judgment. The resulting incongruities must be balanced against the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected. Thus, raising the specter of potential anomalies does not further the difficult decision of selecting the precise event that should determine the prospective application of a newly formulated constitutional principle.

"Once the need is established for applying the principle prospectively as the Supreme Court of New Jersey has pointed out, 'there is a large measure of judicial discretion involved in deciding . . . the time from which the new principle is to be deemed controlling.'"

It is hereby ordered that the petitioner's prayer for relief is denied and the stay order vacated.