Com. v. Juvenile

Decision Date04 November 1980
Citation412 N.E.2d 339,381 Mass. 727
PartiesCOMMONWEALTH v. a JUVENILE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Louis Goldstein, Boston (Charles S. Goldstein, Boston, with him), for defendant.

Frank Mondano, Asst. Dist. Atty., for the Commonwealth.

Thomas Shapiro & Richard Friedman, Boston, amici curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

This case presents in this court for the first time the question of the admissibility of testimony that was developed as the result of hypnosis.

The victim could not identify her attacker with any degree of accuracy. A Boston police detective placed her in a hypnotic state after which she was able to assist in the preparation of a composite picture that, in due course, led to charges against the juvenile. The juvenile appealed to the Appellate Session of the Boston Juvenile Court from a finding of delinquency in the West Roxbury Division of the District Court Department. The juvenile moved to suppress the victim's identification testimony. The judge, acting pursuant to Mass.R.Crim. P. 34, --- Mass. --- (1979), reported certain questions, set forth in the margin, 1 to the Appeals Court. 2 We transferred the case to this court on our own motion.

Although the judge made a careful analysis of the case law and of the problem of the use of hypnotically aided testimony, 3 he did not make findings of fact concerning the reliability of the identification testimony or concerning the suggestability of the procedures that were followed. In view of the absence of findings on these crucial matters and because the juvenile was to attain the age of eighteen early in October, we entered an order on September 17, 1980, remanding the case to the Boston Juvenile Court. 4 This opinion sets forth a brief review of the treatment of this issue in other jurisdictions and identifies considerations that may be material in resolving the question of the admissibility of hypnotically aided testimony.

It is generally accepted that testimony while under hypnosis and evidence of what a subject said while under hypnosis are inadmissible. See Emmett v. State, 232 Ga. 110, 115, 205 S.E.2d 231 (1974); People v. Smrekar, 68 Ill.App.3d 379, 385, 24 Ill.Dec. 707, 385 N.E.2d 848 (1979); People v. Hangsleben, 86 Mich.App. 718, 728-729, 273 N.W.2d 539 (1978); Greenfield v. Commonwealth, 214 Va. 710, 715-716, 204 S.E.2d 414 (1974). But see People v. Modesto, 59 Cal.2d 722, 732-733, 31 Cal.Rptr. 225, 382 P.2d 33 (1963) (statements under hypnosis may be admissible in support of an expert opinion). In one criminal case, it has been held to be error to fail to disclose to the defendant that a prosecution witness's testimony has been aided by hypnosis. United States v. Miller, 411 F.2d 825, 831-832 (2d Cir. 1969).

Some courts have simply stated that the fact that a witness was hypnotized goes to the weight of the evidence, thus passing to the jury any question of the suggestiveness of the process and of the reliability of the witness's posthypnotic testimony. See Harding v. State, 5 Md.App. 230, 236, 246 A.2d 302 (1967), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969), which has been regarded as a leading opinion representative of this position. See also Clark v. State, 379 So.2d 372, 374-375 (Fla.App.1979); Creamer v. State, 232 Ga. 136, 138, 205 S.E.2d 240 (1974); State v. McQueen, 295 N.C. 96, 119-122, 244 S.E.2d 414 (1978); State v. Jorgensen, 8 Or.App. 1, 9, 492 P.2d 312 (1971); Annot., 92 A.L.R.3d 442, 461-464 (1979).

Similarly, the Court of Appeals for the Ninth Circuit has concluded that, both in criminal and civil cases, hypnotically aided testimony is generally admissible. See, e. g., United States v. Adams, 581 F.2d 193, 198 (9th Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978); Kline v. Ford Motor Co., 523 F.2d 1067, 1069-1070 (9th Cir. 1975). That court has simply announced, without detailed analysis, that the fact that a witness's memory may have been aided by hypnosis goes to his credibility but not to the admissibility of his testimony. Kline v. Ford Motor Co., supra. In a criminal case, at least, it suggested that a stenographic record be made, and recommended as helpful an audio or video recording. United States v. Adams, supra at 199 n. 12. That court has not considered the suggestiveness of the hypnotic process, in a general or in a constitutional sense, and has held that the use of such a process did not in itself deny a defendant of his constitutional right to cross-examine witnesses and to call witnesses on his own behalf. Id. at 199. 5 Indeed, the acceptability of hypnotically aided testimony appears so well established in the Ninth Circuit that it is error for the prosecution in a criminal case to bring out the fact of a witness's hypnosis on direct examination or to present an expert in support of the use of such a procedure, unless and until the defendant challenges it. United States v. Awkard, 597 F.2d 667, 669-670 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979).

Other courts have approached the admissibility of hypnotically aided testimony by seeking to determine, according to the test first stated in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), whether the reliability of such testimony has gained general acceptance by experts in the field. This court has applied the Frye standard in various circumstances (see Commonwealth v. Lykus, 367 Mass. 191, 196, 327 N.E.2d 671 (1975), and cases cited), but has also noted that the Frye standard has been criticized (id. at 203-204, 327 N.E.2d 671). See also Commonwealth v. Vitello, --- Mass. ---, --- n.17, --- n.20 a, 381 N.E.2d 582 (1978). The question basically is whether judges (at least initially) or finders of fact should sort out any controversy over the acceptability of the consequences of hypnosis.

Courts that have applied the Frye rule to determine the admissibility of hypnotically aided testimony have come to different results. Recently, on a record including the testimony of five experts on hypnosis and memory retrieval, the Minnesota Supreme Court held that, in a criminal proceeding, information adduced following a pretrial hypnotic interview of a particular witness could not be admitted because it did not meet ordinary standards of reliability. State v. Mack, 292 N.W.2d 764, 772 (Minn.1980). 6 In State v. La Mountain, 126 Ariz. ---, ---, 611 P.2d 551, 555 (1980), the Supreme Court of Arizona, without analysis, held that the admission of hypnotically aided testimony was error (but not reversible error) because "the state of the science (or art) has (not) been shown" to be adequate. On the other hand, in another recent opinion, a trial judge in New Jersey concluded that the Frye test was met to the extent that hypnotized subjects have "the ability to concentrate on a past event and volunteer previously unrevealed statements concerning the event." State v. Hurd, 173 N.J.Super. 333, 361, 414 A.2d 291 (1980). The court then concluded that such hypnotically aided recall should be admitted in evidence only if it meets an acceptable level of reliability. Applying the principles of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (Hurd, supra 173 N.J.Super. at 362, 414 A.2d 291), together with standards for the conduct of any hypnotic procedure 7 (id. at 363, 414 A.2d 291), the judge concluded that the State had failed to prove either that there was no impermissibly suggestive or coercive conduct during the hypnotic session or that the hypnotically aided testimony was reliable under the totality of the circumstances. Id. at 369, 414 A.2d 291.

We need not decide now whether the rule of the Frye case appropriately should be applied to test the admissibility of hypnotically aided testimony. The Frye rule deals with the admissibility of expert testimony based on the application of scientific principles. Hypnotically aided testimony is different in character, but consideration of the Frye rule, or some modification of it, may nevertheless be appropriate in such a situation. Cf. State v. Temoney, 45 Md.App. 569, 577-578, 414 A.2d 240 (1980).

The ultimate question is whether hypnotically aided testimony lacks sufficient reliability to make presentation of that evidence appropriate. The process by which testimony was obtained may be so suggestive as to destroy its reliability. Various procedures have been recommended to enhance the reliability of such testimony. 8 We need not decide now what, if any procedures we would require or recommend. It may be that we will conclude, as a matter of law, that no procedures are adequate. 9 Nor need we now decide whether considerations applicable in passing on the suggestiveness of a pretrial identification procedure are relevant in determining the admissibility of hypnotically aided testimony. 10 Of course, even if, after a voir dire hearing, the judge should determine to admit the evidence, the issue of the reliability of the testimony could be raised before the jury.

In order to exercise our judgment reasonably, we need findings concerning the reliability of hypnotically aided testimony generally and the reliability of that testimony in light of the procedures followed in the particular case. Obviously, procedures that were or may have been suggestive present a less satisfactory case for admission of such testimony than procedures that were carefully designed, as far as possible, to eliminate any suggestiveness. It was the absence of any findings on these points that prompted us to issue the order remanding the case to the trial court. We will have to deal with these considerations, and perhaps others, if and when another case comes before us on a fuller record. 11 We add that because there is...

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    ...initially) or finders of fact should sort out any controversy over the acceptability" of scientific evidence, Commonwealth v. A Juvenile, 381 Mass. 727, 731, 412 N.E.2d 339 (1980), we have often emphasized the desirability of a judicial determination in order to avoid "the danger that on th......
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  • Memory Restored or Confabulated by Hypnosis-is it Competent?
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