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NO. 1211-84
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
ROBERT ZANI, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the Court of Appeals for the
Sixth Supreme Judicial District of Texas
BRIEF OF AMICUS CURIAE
IN OPPOSITION TO
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
GERALD C. CARRUTH
State Bar No. 03896500
Chief of Legal Services
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773
ATTORNEY FOR AMICUS CURIAE
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW the Texas Department of Public Safety, as Amicus Curiae, and, with leave of this Honorable Court, files this its
Brief of Amicus Curiae in Opposition to Appellant's Petition
for Discretionary Review, and in support thereof would
respectfully show the Court as follows:
STATEMENT OF AMICUS CURIAE
The challenge made by Appellant to the admissibility of
Hypnotically enhanced testimony presents a legal issue of
first impression for this Honorable Court. The resolution
of this issue is likely to determine whether, and to what
extent, if any, Amicus Curiae will be permitted to continue
the use of hypnosis as an investigative tool.
Amicus Curiae has adopted self-imposed guidelines and procedures
for the use of investigative hypnosis by a limited number of
DPS employees. (1)
The hypnotic interview at issue in the case sub judice was conducted by an investigative hypnotist trained and authorized under these guidelines, which were subsequently
complied with in this cause.
HYPNOTICALLY ENHANCED TESTIMONY
IS NOT INHERENTLY UNRELIABLE
Those courts excluding hypnotically enhanced testimony as "inherently
unreliable" have relied upon the test enunciated in Frye v. United States, 293 F.2d 1013 (D.C.Cir.1923). The Frye rule requires general acceptance by a consensus of the scientific community
to establish the reliability of a new scientific method or procedure.
Amicus Curiae respectfully submits that the Frye rule is inapposite to hypnotically enhanced testimony. Hypnosis is
vastly different from a polygraph, breathalyzer, or similar instrumentation utilized to quantitatively measure or record physiological reactions and characteristics in order to obtain a result
subject to interpretation by a scientific expert. Conversely, hypnosis is utilized to enhance, through deep relaxation, an individual's present recollection of his perception of past events.
Moreover, dogmatic application of the Frye rule to hypnotically enhanced testimony completely ignores the fact that human memory itself fails to satisfy the "generally accepted as
reliable" standard. The same problems of veracity, confabulation, fantasy, and suggestibility exist for non hypnotic memory recall as for that enhanced by hypnosis. (2)
As Dr. Martin Reiser, the leading advocate of the use of investigative hypnosis by police, has testified:
"(A)person is no more or less suggestible under hypnosis than the person would be
out of hypnosis…….(T)he use of hypnosis does not invariably result in confabulation, but only produces a recollection of what is already in the mind of the person hypnotized…..(T)here is no
greater propensity to confibulate (sic) in my experience by witnesses and victims of major crimes in hypnosis than there is by other eyewitnesses without hypnosis."..
"There's
less likelihood of influencing the subject in hypnosis than there is in a routine non hypnotic interview, essentially because the witness' eyes are closed and therefore 60 percent, approximately,
of input that a person gets, which is through the visual senses, is blocked off because of closed eyes. So body language doesn't matter when the person's eyes are closed, and so on, so if
anything there is less likelihood of influencing the person, assuming that the interview is conducted in a correct, neutral, nonleading fashion…..
"..All hypnosis is an interview
technique that hopefully in some three-quarters will enhance memory by allowing the person to relax more. It is not a truth-detection instrument. No one who knows anything about hypnosis claims
that it gets at the truth at all. A person can lie, can make up things, can distort, can do all of those things under hypnosis if he or she is motivated to do that." State v. Brown, 337
N.W.2d 138, 145 (N.D.1985)
The audio recording of the hypnotic interview of Jerry Mogoyne, Jr., conducted by Ranger Carl Weathers in the case at bar supports Dr. Reiser's conclusions. For
example, despite being asked repeatedly to describe the eyes of the "man behind the counter" the witness Mogoyne refused to confabulate and provide information unknown to him concerning
the color or other description of the eyes of the person he described. This is a clear indication that Mogoyne was exercising critical judgment in matters of recall rather than seeking to
"fill in the gaps" or to please the hypnotist by providing information not within his ability to recall.
The leading advocate of the per se inadmissibility approach to
hypnotically enhanced testimony is Dr. Bernard L. Diamond, who concludes that the memory of a prospective witness subjected to hypnosis is so contaminated that the witness is thereafter rendered
incompetent to testify. (3) The application of Dr. Diamond's theory would render the victim of a crime, who has been hypnotized for memory enhancement, incompetent to testify to the very fact
that the crime was committed. Such a result is clearly contrary to the due administration of justice and is analogous to "throwing the baby out with the bath water."
Dr.
Diamond's thesis is rebutted by the comments of Dr. David B. Cheek published in the INTERNATIONAL JOURNAL OF INVESTIGATIVE HYPNOSIS, Issue 13, July 1981. (4)
www.MarxHowell.com
The per se inadmissibility rule regarding hypnotically enhanced testimony is exemplified by the California Supreme Court in People v. Shirley, 641 P.2d 775 (1982). (5)
As Appellant has
observed in his brief, numerous state courts have adopted Dr. Diamond's philosophy. However, federal courts in Texas have failed to embrace the per se inadmissibility approach to hypnotically
enhanced testimony. United States v. Harrelson, 754 F.2d 1153 (5th Cir.1985); United States v. Valdez, 722 F.2d 1196 (5th Cir. 1984); Connolly v. Farmer, 484 F.2d 456
(5th Cir. 1973); United States v. Charles, 561 F.Supp.694 (S.D. Tex. 1983).
Neither has such an extreme position as the per se exclusion of hypnotically enhanced testimony been adopted by
the Texas trial and appellate courts below.
Zani v. State, 679 S.W.2d 144 (Tex.App.-Texarkana 1984, pet. granted);
Vester v. State, 684 S.W.2d 715 (Tex.App.-Amarillo 1984, pet. granted);
Walters v. State, 680 S.W.2d 60 (Tex.App.-Amarillo 1984).
It is respectfully submitted that this
Honorable Court should likewise reject the per se inadmissibility approach to hypnotically enhanced testimony.
THE USE OF INVESTIGATIVE HYPNOSIS
SHOULD NOT BE LIMITED TO MENTAL HEALTH PROFESSIONALS
A review of the contemporary professional literature, both legal and medical, concerning hypnosis reveals an almost universal
agreement among the commentators of the value of hypnosis for law enforcement purposes to develop investigative leads which may be independently corroborated. One of the favorite examples cited
for this proposition by the commentators if the infamous Chowchilla kidnapping case, (6) where hypnosis was successfully utilized to determine all but one digit of the license plate number of the
van used by the kidnappers. This vital information obtained through hypnosis ultimately resulted in the apprehension and conviction of the perpetrators of this heinous crime.
While most
commentators, including Dr. Diamond, (7) are cognizant of the value of hypnosis for investigative purposes, there exists an extreme divergence of opinion regarding the use by police of hypnosis
for forensic purposes.
It is ironic that many of the "horror stories" related by opponents of police hypnotists, to exemplify the misuse and abuse of hypnosis, involve hypnotic
sessions conducted by mental health professionals. (8)
Dr. Martin T. Orne and his colleagues readily admit that "(a) psychiatrist or psychologist skilled in clinical uses of hypnosis
may lack experience with forensic interviewing techniques." (9)
In 1979 the International Society of Hypnosis (ISH)
whose membership is restricted to physicians, psychologists,
dentists, and clinical social workers, adopted a resolution stating, inter alia, that ISH "is strongly opposed to the training of police officers as hypnotechnicians and the use of
hypnosis by the police officer." (10) Not surprisingly, an overwhelming majority of ISH Members responding to the ballot (92.8%) voted to ratify the resolution. (11)
One of the
dissenters, Dr. Herbert Spiegel, expressed his disapproval of the ISH Resolution in a letter to the president of ISH published in the AMERICAN JOURNAL OF CLINICAL HYPNOSIS, Vol. 23, No.2, Oct.
1980. (12) The comments of Dr. Spiegel are worth of consideration by this Honorable Court.
Since 1972 Dr. Reiser, founder of the "Law Enforcement Hypnosis Institute" in Los
Angeles, California, has been responsible for the training of more than 1,000 law enforcement officers, and it is estimated that more than 5,000 law enforcement officers have received such
training nationwide. (13)
It is submitted that Dr. Reiser's findings, based upon his years of practical experience in investigative hypnosis involving witnesses and crime victims in actual
cases merits greater consideration than that of the so-called experts in clinical and therapeutic hypnosis, whose research regarding forensic hypnosis has been conducted using students and other
volunteers under simulated conditions in the sterile environment of a research laboratory.
Dr. Diamond, for example, has testified that the last individual he personally hypnotized in a
criminal case was the assassin of Robert Kennedy, Sirhan Sirhan, in 1968. (14)
This Honorable Court has had many years of collective judicial
Experience reviewing records of criminal
proceedings wherein mental health professionals provided subjective "expert" opinion testimony regarding such controversial medico-legal issues as incompetency and insanity. Since
different "experts" are able to reach divergent opinions on the competency or sanity of the same individual, one can only surmise whether such opinions might be influenced by which
party to the litigation retained the professional services of the witness. Just as those mental health professionals can often not agree on the mental status of an individual, it is not
surprising that they would likewise not agree on issues involving so controversial a subject as hypnosis.
In the case at bar, Dr. Richard Garver testified as an expert witness on behalf of
Appellant and expressed his opinion that the State's expert witness, was not a qualified forensic hypnotist. (15) It should be noted that this same expert witness was employed by the defense to
conduct the hypnosis of Linda May Burnett. In Burnett v. State, 642 S.W.2d 765, a majority of this Honorable Court observed that the expert witness had "followed substantially the accepted
practice" in conducting the
hypnosis in that case. Supra at 769.
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Conversely, Dr. Richard Garver participated with the FBI hypno-coordinator in conducting the hypnotic interview of Ranger Jackson in U.S. v Valdez, supra, wherein the Fifth Circuit concluded that "the procedures employed during the hypnotic session were unduly suggestive." 722 F.2d at 1203 (emphasis added).
One method employed to assess the reliability of hypnotically enhanced testimony involves the use of procedural safeguards, such as those first suggested by Dr. Orne in an amicus brief
filed with the U.S. Supreme Court in Quaglino v. California, NO. 77-1288, cert. denied, 99 U.S. 599 (1978). This approach has been adopted by the New Jersey Supreme Court in State v. Hurd, 432
A.2d 86 (1981).
While in general agreement of the need for procedural guidelines, Amicus Curiae believes that the guidelines advocated by Dr. Orne are unduly restrictive in limiting the
use of investigative hypnosis to mental health professionals.
For the reasons previously stated, it is respectfully submitted that investigative hypnosis may be properly utilized by a
trained law enforcement hypnotist under guidelines similar to those adopted by Amicus Curiae. (16)
WHEREFORE, PREMISES CONSIDERED, Amicus Curiae prays that this Honorable Court will uphold
the admissibility of hypnotically enhanced testimony in Texas courts, and that the use of investigative hypnosis not be limited to mental health professionals.
Respectfully,
Gerald C. Carruth
Chief of Legal Services
Texas Department of Public Safety
Austin, Texas
ATTORNEY FOR AMICUS CURIAE
CERTIFICATE OF SERVICE
I hereby certify that a
true and correct copy of the foregoing Brief has been served by depositing the same in the United States Mail, postage prepaid, on this the 23 day of August, 1985, addressed as follows:
Attorney for the defendant
Texas Criminal Defense Lawyers Association
District Attorney
BIBLIOGRAPHY
(1)
See Attachment "A", (DPS policies and procedures) which
was originally adopted on July 30, 1980, and amended effective January 18, 1984, to, inter alia, expand the
prohibition against use of hypnosis for therapeutic purposes, including weight reduction and smoking, by DPS
personnel trained and authorized to utilize investigative hypnosis.
(2)
See generally Reiser, HANDBOOK OF INVESTIGATIVE HYPNOSIS (1980).
(3)
See generally Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 CALIF. L. REV.313
(1980).
(4)
See Attachment "B" (International Journal of Investigative Hypnosis, issue 13, July 1981).
(5)
It is interesting to note that federal courts in California have
repeatedly rejected the per se inadmissibility approach to hypnotically enhanced testimony in both civil and criminal cases. See, e.g., United States v. Awkard, 597 F.2d 667 (9th Cir.), cert.
denied, 444 U.S.885 (1979); United States v. Adams, 581 F.2d 193 (9th Cir. 1978), cert. denied, 439 U.S. 1007 (1978); Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975); Wyller v. Fairchild
Hiller Corp., 503 F.2d 506 (9th Cir. 1974).
(6)
People v. Woods, et al., No. 63187 ABNC (Alameda Co. Cal., December 15, 1977) as reported in INTERNATIONAL JOURNAL OF CLINICAL AND
EXPERIMENTAL HYPNOSIS, Vol. XXVII, No. 4, 358, 367-368 (1979).
(7)
Supra, n. 3, 332.
(8)
See, e.g., Leyra v. Denno, 347 U.S.556 (1954); Emmett v. Ricketts, 397 F.Supp.1025 (D.C.Ga.1975); Creamer v. State,
205 S.E.2d 240 (Ga. 1974); Wisconsin v. White, No. J-3665 (Cir.Ct., Branch
10, Milwaukee Co., Wis., March 27, 1979);
In Re Milligan, No. J-17617 (Super.Ct.Cal., Monterey Co., June 29, 1978); See generally Worthington, The Use in Court of Hypnotically Enhanced
Testimony, INTERNATIONAL JOURNAL OF CLINICAL AND EXPERIMENTAL HYPNOSIS, Vol. XXVII, No. 4, 402-416 (1979); Orne, The Use and Misuses of Hypnosis in Court, INTERNATIONAL JOURNAL OF CLINICAL AND
EXPERIMENTAL HYPNOSIS, supra, 311-341.
(9)
Orne, Soskis, Dinges, Orne and Tonry, Hypnotically Refreshed Testimony: Enhanced Memory or Tampering with Evidence?, ISSUES AND PRACTICES IN
CRIMINAL JUSTICE, National Institute of Criminal Justice, January 1985, 44.
(10)
Reproduced in INTERNATIONAL JOURNAL OF CLINICAL AND EXPERIMENTAL HYPNOSIS, supra, n. 8 at 453.
(11)
Orne, et al, supra, n. 9.
(12)
See Attachment "C". (Letter from Dr. Herbert Spiegel to ISH President re resolution - American Journal of Clinical Hypnosis,
Vol. 23, No. 2, Oct. 1980).
(13)
Orne, et al., n. 9.
(14)
Deposition of Dr. Diamond in Brown v. State, supra.
(15)
R. 1221.
(16)
Cf. Spiegel, Hypnosis and Evidence: Help
or Hindrance, FORENSIC PSYCHOLOGY AND PSYCHIATRY, Annals of the New York Academy of Sciences, Vol. 347 (1980) (See Attachment "D").
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NOTE: Admissibility of hypnotically refreshed recall was upheld
by the Texas Court of Criminal Appeals provided specific factors (procedural safeguards) are followed
and the four prong dangers are considered.
The four prong dangers and the 10 procedural safeguards are listed in the article
“The Profile Of A Forensic Hypnosis Interview”
on this webpage.
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