Borawick v. Shay, 5:92CV00033(TFGD).

• Decision Date: 10 January 1994
• Docket Number: No. 5:92CV00033(TFGD).,5:92CV00033(TFGD).
• Citation: 842 F. Supp. 1501
• Court: U.S. District Court — District of Connecticut
• Parties: Joan S. BORAWICK v. Morrie SHAY, et al.

842 F. Supp. 1501

Joan S. BORAWICK v. Morrie SHAY, et al.

No. 5:92CV00033(TFGD).

United States District Court, D. Connecticut.

January 10, 1994.

Ward J. Mazzucco, Mazzucco & McGonigle, P.C., Danbury, CT, Helen L. McGonigle, Brookfield, CT, for plaintiff.

Charles W. Fleischmann, Margaret M. Wynne, Eugene J. Riccio, Gulash & Fleischmann, Bridgeport, CT, for defendants.

DALY, District Judge.

After careful review of the record, over objection, and in light of Magistrate Judge Margolis' May 26, 1993 filed Supplemental Ruling, the instant Ruling is hereby AFFIRMED, APPROVED and ADOPTED.

SO ORDERED.

RULING ON DEFENDANT'S MOTION IN LIMINE

MARGOLIS, United States Magistrate Judge.

On January 24, 1992, plaintiff Joan Borawick commenced this diversity action in which she seeks compensatory and punitive damages for defendants' alleged willful, wanton, and malicious sexual assault, sexual molestation, and sexual exploitation of her in 1961 and 1964 when plaintiff was four and seven years old, respectively; defendants Christine and Morrie Shay are plaintiff's aunt and uncle.¹

On November 4, 1992 defendants filed the pending motion in limine (Dkt. ## 66 & 74), which seeks to exclude from evidence all hypnotically refreshed testimony.² On November 24, 1992, plaintiff filed her brief in opposition (Dkt. # 70).³

For the reasons stated herein, decision is reserved on defendant's motion in limine pending further submissions by both parties.

I. FACTUAL BACKGROUND

The following information was elicited from defendants' discovery requests to plaintiff and during her deposition, taken July 28-29, 1992. Plaintiff has been under the supervision of a large number of physicians and therapists, commencing in 1980 (Defendants' Exhs. A, B, ¶¶ 2-3, C, ¶¶ 2-3; Plaintiff's Exh. D, ¶¶ 2-3, G). One physician, with whom she consulted from approximately spring 1987 to winter 1988, suggested hypnotherapy to plaintiff, as he indicated that sometimes chronic illness is caused by childhood problems; this physician suggested that plaintiff consult with Val St. Regis of the St. Regis Modality Center (Defendants' Exhs. A & C, D, at 164-65, I, at 164-65; Plaintiff's Exh. B, at 164-65). Plaintiff had approximately twelve to fourteen sessions with St. Regis, from summer 1987 until winter 1988⁴; she stopped seeing him when St. Regis relocated to Anchorage, Alaska, to establish a drug abuse clinic there (Defendants' Exh. D, at 165, 169-73, I, at 169; Plaintiff's Exh. B, at 165-70, 172). Prior to that time, plaintiff had recollection of child abuse by only one family member other than defendants here (Defendants' Exh. D, at 170; Plaintiff's Exh. B, at 170). During her sessions with St. Regis, she specifically asked him if anything had happened between her and this relative, to which the doctor responded, "No." (Defendants' Exh. F, at 196; Plaintiff's Exh. B, at 196).

On the Wednesday of the second week of February 1989, while driving in her car after a troublesome lunchtime appointment with a holistic doctor, plaintiff had her first memory of sexual abuse by a family member and continued to have additional memories every day or every other day thereafter, "little bits and pieces here, little bits and pieces there, sometimes bigger pieces." (Plaintiff's Exh. B, at 176, 178-79). Two days later, on Friday, during the early evening, plaintiff had a telephone conversation with her sister Kathy, who was living in a halfway house; plaintiff asked Kathy if this relative had also sexually abused her (Defendants' Exh. H, at 220; Plaintiff's Exh. C, at 220-21). During that conversation, Kathy mentioned an incident with defendant Christine Shay, which caused plaintiff to have a "flashback" and feel "like her lungs were collapsing" and made her "gasp for breath...." (Defendants' Exh. H, at 223-24; Plaintiff's Exh. C, at 223-24). Later that night, and at times thereafter until 1990 or early 1991, plaintiff had additional detailed memories of grotesque sexual abuse by her aunt (Defendants' Exh. H, at 223-26, 230-33, 235-36; Plaintiff's Exh. C, at 223-25, 231-36). In 1990, plaintiff had her first memory of sexual abuse by defendant Morris Shay (Defendants' Exh. H, at 236-37; Plaintiff's Exh. C, at 236-37).

II. DISCUSSION

Defendants allege that because plaintiff's post-hypnotic memories should be excluded because they are not recollections, are not probative, are inherently unreliable, and could only tend to mislead and confuse the jury. Plaintiff argues that although her "memories" chronologically followed her hypnosis, her recollections were not "hypnotically refreshed." Plaintiff further argues that an adverse in limine ruling will dispose of all of plaintiff's evidence and prevent the fact-finder from reaching the merits of her case.

Prior to the adoption of the Federal Rules of Evidence, courts applied the test developed in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), regarding when novel scientific evidence should be admitted at trial. Under Frye, novel scientific evidence is admissible only when it has been "sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. However, after adoption of the Federal Rules of Evidence, and in particular Rules 702-05 regarding expert testimony, some jurisdictions have abandoned the Frye standard in favor of a more liberal approach. The Second Circuit was among the first courts to do so, in United States v. Williams, 583 F.2d 1194 (2d Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979), regarding spectrographic voice analysis. In Williams, the Second Circuit instead applied a balancing test, analogous to F.R.Evid. 403, in weighing the evidence's probative value, materiality, and reliability against its tendency to mislead, prejudice, or confuse the jury. 583 F.2d at 1198-1200. Just last year, the Second Circuit applied the Williams decision in concluding that DNA profiling evidence was properly admissible. United States v. Jakobetz, 955 F.2d 786 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992).

The Second Circuit has not addressed the admissibility of post-hypnotic testimony under the Federal Rules of Evidence.⁵ In Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the U.S. Supreme Court held, in a five-to-four decision, that Arkansas' per se rule of excluding a criminal defendant's hypnotically refreshed testimony was unconstitutional under the Fifth, Sixth, and Fourteenth Amendments. Id. at 56-62, 107 S.Ct. at 2711-14. The Supreme Court summarized the scientific and legal debate over hypnosis as follows:

Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled.

Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes "suggestible" and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to "confabulate," that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences "memory hardening," which gives him great confidence in both true and false memories, making effective cross-examination more difficult. Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence.

Id. at 58-60, 107 S.Ct. at 2712-13 (multiple citations & footnotes omitted). The Supreme Court added that "a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions." Id. at 61, 107 S.Ct. at 2714. See also 27 C. Wright & V. Gold, Federal Practice & Procedure: Evidence § 6011, at 113-23 (1990 & 1992 Supp.) "Federal Practice".

Courts generally have taken three different approaches to this question. First, many state courts have held that a witness who has undergone hypnosis for the purpose of refreshing collection is per se incompetent to testify as to any subject discussed while under hypnosis. See Rock, supra, 483 U.S. at 57-58 & n. 14, 107 S.Ct. at 2712 & n. 14 (listing multiple cases); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1120 n. 10 (8th Cir.1985) (same), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986); Federal Practice, supra, at 128-31 (same). Second, at the opposite end of the spectrum, some federal and state courts have held that the witness is presumed to be per se competent because the use of hypnosis to refresh recollection goes to the question of credibility for the trier of fact to resolve. E.g., Kline v. Ford Motor Co., Inc., 523 F.2d 1067, 1069-70 (9th Cir.1975); Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509-10 (9th Cir.1974). See also Rock, supra, 483 U.S. at 58 & n. 16, 107 S.Ct. at 2712-13 & n. 16 (listing multiple cases); Sprynczynatyk, supra, 771 F.2d at 1120 n. 9 (same); Federal Practice, supra, at 123-28 (same).

And third, a middle ground has been found, with some variations — some federal and state court have held that a witness who has been hypnotized to refresh recollection may be competent to testify if the witness has suffered from a type of memory loss that hypnosis can potentially remedy and if...