Clay v. Vose
| Decision Date | 23 August 1985 |
| Docket Number | No. 85-1088,85-1088 |
| Citation | 771 F.2d 1 |
| Parties | 18 Fed. R. Evid. Serv. 969 Frederick CLAY, Petitioner, Appellant, v. George VOSE, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Thomas G. Shapiro, Boston, Mass., with whom Shapiro & Grace, Boston, Mass., was on brief for petitioner, appellant.
Frances L. Robinson, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Asst. Atty. Gen., Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Div., Boston, Mass., were on brief for respondent, appellee.
Before CAMPBELL, Chief Judge, RUBIN * and BREYER, Circuit Judges.
The introduction of identification testimony from a previously hypnotized witness who had given a prehypnosis identification to the police and who was subject to in-court cross-examination before a carefully instructed jury who also heard testimony concerning the potential inaccuracies of hypnotically induced testimony did not violate the defendant's sixth amendment right to confront the witness. We, therefore, affirm the district court's decision, 599 F.Supp. 1505, to deny the petition for writ of habeas corpus of a person convicted of a state offense after the admission of such testimony against him.
Jeffrey Boyajian, a cab driver, was shot and killed in November, 1979. The police found his body near his cab in front of the Archdale Housing Project in downtown Boston.
On the night of the murder, Richard Dwyer, another taxi driver, had parked his cab behind Boyajian's taxi in front of the Pilgrim Theatre. Dwyer saw three black men cross the street and approach the cabs. The three first headed for Dwyer's cab, but he did not like their looks and turned on his meter to indicate that he was busy. He then observed them entering the cab in front of him. One of the men, later identified as James Watson, walked in front of Dwyer's cab and looked Dwyer directly in the eye before entering the taxi. Dwyer watched the three men for no more than thirty seconds, and did not attach any particular significance to his observations at the time.
The next day, however, Dwyer read an account of Boyajian's murder in the newspaper. He telephoned the police, went to a police station, and gave a somewhat vague description of the men whom he had seen the night before. The police asked Dwyer if he would be willing to undergo hypnosis to improve his memory of the men, and Dwyer agreed. Before being hypnotized, Dwyer examined a group of twelve photographs. He made a positive identification of Watson, and also picked out a picture of Clay whom he tentatively identified as one of the other men he had seen enter Boyajian's cab shortly before the time of the murder. At trial, there was conflicting testimony concerning the degree of confidence Dwyer expressed in his identification. The police said he had been "80% certain," but Dwyer testified to a lesser degree of certainty. Dwyer also picked out a third photo that he "liked," but could not provide a positive identification of the third man.
After Dwyer had examined the photographs, Detective Brady, the hypnotist, explained to Dwyer that, under hypnosis, he would see "a documentary of what had taken place," "that the hypnosis would make it clear in [his] mind what [he] had seen the previous evening," and that Dwyer "would be able to see [the events] in his mind just as if he were watching T.V." (There was later testimony that this account of the mental processes of a person under hypnosis is incorrect and, because it is misleading, unduly suggestive as well.) Three Assistant District Attorneys also attended the hypnosis session, as did three police detectives. The police also made an audio recording of the session. Dwyer did not make any identifications while under hypnosis.
Immediately after Detective Brady had hypnotized him, had instructed him to review the events, and had returned Dwyer to consciousness, Dwyer examined the same photo array he had seen before the session. He reiterated his identification of Watson, and was now positive that Clay's photograph was that of one of the men he had seen the night of the murder. He remained unable to identify the third man. Eleven days later, Dwyer underwent hypnosis a second time. After this second session, Dwyer viewed the same photographs again, and repeated his identification of Watson and Clay, but was unable to identify the third man. The police made an audio recording of this session as well.
At trial, the court admitted into evidence the fact of Dwyer's pretrial identification of the photographs of Watson and Clay, including the change in his professed confidence in his identification of Clay after hypnosis. In addition, Dwyer took the stand and identified both defendants in the courtroom.
The jury also heard extensive testimony concerning the hypnotic sessions, including a tape recording of each session. They heard conflicting expert testimony from Dr. Martin Reiser, who testified for the Commonwealth, and from Dr. Martin Orne, Clay's expert. Dr. Reiser testified that he approved of the technique that Detective Brady had used to induce hypnosis, and that, in his opinion, hypnosis was not highly significant in the instant case. Dr. Orne, on the other hand, criticized Detective Brady's technique in conducting the sessions. He also gave his opinion that the hypnotic procedures used in this case profoundly increased Dwyer's conviction about what he was saying without necessarily increasing the accuracy of the statements.
Dwyer's testimony was not the only evidence adduced at trial. The Commonwealth introduced Neal Sweatt, a resident of the Archdale Project. Sweatt testified that he saw Watson, Clay, and a third man pull Boyajian from his cab, beat him, and rifle through his pockets. Sweatt also said that he saw Clay point an arm in the driver's direction, heard at least three shots, then saw the three men run away together. Sweatt identified Watson and Clay from a police photographic array, and again in court. Parts of Sweatt's testimony, but not the identifications, were corroborated by Sweatt's mother and by one of Sweatt's friends, both of whom viewed the incident from the parlor window in Sweatt's apartment.
In defense, Clay called his foster mother who testified that, on the evening of the murder, Clay was in the foster home, and remained there until 8 o'clock the next morning. She further stated that Clay could not have left her home during the evening because she was the only person who had a key to open the door to her home. Clay himself took the stand and also testified that he was in his foster home the night of the murder. Several rebuttal and surrebuttal witnesses then testified concerning Clay's alibi defense.
At the conclusion of the evidence, the trial judge instructed the jury that they could not consider the statements made by Dwyer while under hypnosis as evidence. He further instructed the jurors that the tapes of the hypnosis sessions were to be considered "solely for the purpose of deciding whether any identification made by Dwyer was the product of his own recollection and not one that was suggested to him either deliberately or inadvertently." He also cautioned the jury to consider the experts' testimony as to the effect of hypnosis on memory, and specifically on Dwyer's memory. Finally, the trial judge told the jury,
The jury found Clay and Watson guilty of first degree murder, and the Supreme Judicial Court of Massachusetts affirmed the conviction on appeal. 1 Clay then filed a petition for writ of habeas corpus in the federal district court, and, after the court denied the petition, this appeal followed.
Clay argues that the potential for effective cross-examination of a witness is destroyed by the process of hypnosis because hypnosis causes a witness to develop an unshakable confidence in the accuracy of his posthypnotic perception. Clay claims that Dwyer reacted to his hypnotic experience in exactly this manner. First, any doubt he may have had about the accuracy of his identification of Clay evaporated immediately after his first hypnosis. Second, despite the increased certainty of his post-hypnotic recollection, Dwyer attributed his positive identification to his original observation. Finally, Clay claims, Dwyer's increased confidence in the accuracy of his perception altered his demeanor as a witness. Clay contends, therefore, that his counsel was unable to cross-examine Dwyer effectively as to his prehypnosis uncertainty in identifying Clay.
Clay's argument finds support in the numerous state cases that have noted the likelihood that hypnotic subjects will show increased confidence in the truth of their recollections under hypnosis regardless...
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