Contreras v. State, S-230

CourtSupreme Court of Alaska (US)
Citation718 P.2d 129
PartiesJoseph CONTRERAS and Ricky Glen Grumbles, Petitioners, v. STATE of Alaska, Respondent.
Docket NumberNo. S-230,S-230
Decision Date18 April 1986

Page 129

718 P.2d 129
54 USLW 2610
Joseph CONTRERAS and Ricky Glen Grumbles, Petitioners,
STATE of Alaska, Respondent.
No. S-230.
Supreme Court of Alaska.
April 18, 1986.
Rehearing Denied May 21, 1986.

Susan Orlansky, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for petitioner Contreras.

Donald W. McClintock, Baily & Mason, Anchorage, for petitioner Grumbles.

David Mannheimer, Asst. Atty. Gen., Office of Special Prosecution and Appeals, Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for respondent.



RABINOWITZ, Chief Justice.

When a witness is hypnotized by the police in an effort to identify a suspect, is the witness' subsequent testimony at trial, as to facts and recollections adduced during hypnosis, admissible evidence? The court of appeals held that hypnosis did not render a witness incompetent to testify as to matters adduced during hypnosis, and that hypnotically generated statements or recollections could be admissible in evidence. State v. Contreras, 674 P.2d 792 (Alaska App.1983). The issue is now before us on petition for hearing, filed pursuant

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to Alaska R.App.P. 302(a). We reverse 1 and adopt a rule that permits a witness who has been previously hypnotized to testify only to facts which he related prior to hypnosis.

Joseph Contreras was indicted on charges of kidnapping, assault in the third degree, and three counts of sexual assault in the first degree. 2 The complaining witness was S.J., one of Contreras' alleged victims. Prior to Contreras' arrest, S.J. was hypnotized by Investigator Parmeter, an Anchorage police officer trained in hypnosis, in an effort to identify a suspect. S.J. later identified Contreras as her assailant and the perpetrator of the crimes charged in the indictment.

Prior to trial Contreras filed a motion for protective order to exclude all testimony by S.J. on the grounds that her memory was tainted by the hypnotic session and that Contreras' Sixth Amendment right of confrontation would be violated if she were permitted to testify. The superior court conducted a lengthy evidentiary hearing, taking testimony from three experts on hypnosis. 3 Superior Court Judge Douglas J. Serdahely granted Contreras' motion in part, concluding that S.J.'s testimony "pertaining to the subject matter considered during [the] hypnotic session" was to be excluded; the rest would be admitted. This ruling barred the introduction of S.J.'s identification of Contreras at trial.

Judge Serdahely ruled that the test for the admissibility of new scientific evidence developed in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) was applicable and that hypnosis did not meet the test's requirements. He further held that Contreras' right to confront and cross-examine S.J. would be impaired if she testified about subjects covered during hypnosis since the court accepted the testimony of those experts who stated that hypnosis adds to a witness' confidence in her recall and alters her demeanor.

Judge Serdahely also rejected the approach that hypnotically adduced testimony may be admitted if certain safeguards are met, since he concluded that there was a lack of agreement in the relevant scientific community as to what safeguards are adequate. 4 The State petitioned the court of appeals for review.

Ricky Glen Grumbles was indicted on charges of burglary in the first degree, attempted murder in the first degree and theft in the second degree. Grumbles' alleged victim was Mary Hall, who was shot after she discovered an intruder burglarizing her apartment. Like S.J., Hall was hypnotized by Investigator Parmeter in an effort to identify her assailant. She later identified Grumbles.

In the superior court, Grumbles moved to suppress Hall's testimony. He, too, argued that the victim's identification was irrevocably

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tainted by the hypnotic session. Judge Seaborn J. Buckalew, after reviewing a transcript of the expert testimony in Contreras' case, denied Grumbles' motion to suppress. He ruled that "any influence the hypnotic session might have had on Hall's identification was a matter affecting her credibility to be determined by the jury and not a matter of competency to be determined by the court." State v. Contreras, 674 P.2d at 794-95. Grumbles petitioned the court of appeals for review.

The court of appeals consolidated these petitions and granted both, stating:

Given the difference of opinion between the trial courts in these two cases, the importance of the issue, and the substantial difference of opinion reflected in decided case law throughout the United States, we have granted the petitions for review to resolve the issue prior to completion of the trials in question.

Id. at 795 (citation omitted).

The court of appeals reversed the superior court in Contreras, holding that hypnotically adduced testimony is admissible. The court affirmed the superior court's ruling in Grumbles.


I. The Hypnotic Process.

There is no generally accepted definition of what is hypnosis, 5 although "there is considerable consensus at the descriptive level." 6 There are two major camps into which hypnosis theorists divide themselves. The viewpoint of the first group, represented at Contreras' evidentiary hearing by Dr. Diamond, expert witness for the defense, is that hypnosis is a distinctive altered mental state or "trance" in which a person tends to respond to suggestions in an uncritical fashion. The other camp, represented by Drs. Rossi and Reiser, the state's expert witnesses in Contreras, denies the existence of a special trance state and explains hypnotic behavior as simply a function of the subject's rapport with the hypnotist, as well as his set of attitudes, reservations and expectations regarding hypnosis.

On the basis of a variety of empirical and theoretical works cited by petitioners we think it is apparent that suggestibility poses a fundamental problem with admitting hypnotically induced statements or recollections. 7 As Judge Wachtler writing for the Court of Appeals of New York observed in People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 260, 453 N.E.2d 484, 489 (N.Y.1983):

In fact suggestion is the method or mechanism used to induce the hypnotic state. Of course the power of suggestion does not affect all people to the same extent and, indeed, has little or no effect on some. It is recognized, however, that the hypnotic subject will be affected to some degree in three primary respects. (footnotes omitted)

According to the Court of Appeals of New York the three areas affected were as follows: first, that a person who has been hypnotized becomes increasingly susceptible to suggestions consciously or unconsciously advanced by the hypnotist or others present during the session; second,

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that the subject himself may confabulate; 8 and third, that the subject will experience an increased confidence in his subsequent recollection of the incident in question. 9

In addition to proof demonstrating the hypnotized subject's increased susceptibility to suggestion, Contreras adduced substantial evidence showing confabulation and enhanced certainty on the part of hypnotized subjects. In regard to confabulation Contreras contended that early "age regression" studies, in which adults "recalled" events from early childhood, were not verified at the time and were later shown to be products of confabulation. 10 Contreras also noted that when asked, hypnotized subjects are able to describe in detail the year 2000--an indication of the ease with which fantasy is induced. 11 In Orne's view, confabulation results from a decrease in critical judgment in hypnotized subjects. If the appropriate suggestions are made during hypnosis, the subject, who is less tolerant of memory gaps in the hypnotized state simply mixes confabulated detail with actual memory in order to structure a whole and internally consistent memory. The confabulated and actual memories then become indistinguishable. 12 Sloane's study also reported that hypnotized subjects were more confident of their recollections. 13

Given these three detrimental aspects of hypnosis, the record in these cases, and the

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relevant case law and literature, we are in full agreement with the observations of the Supreme Court of North Carolina in State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984). There Justice Exum writing for the court stated:

The possibility that a person's testimony might be the result of suggestion from another person presents a firm indictment of the reliability of such testimony. The potential for suggestion is exacerbated by the fact that the hypnotic process is directed by a particular individual and the attention of the subject is wholly focused upon that person. Furthermore, suggestions can be entirely unintended and even unperceived by the hypnotist as well as the subject. Likewise, the subject experiences an overwhelming desire to please the hypnotist and, hence, becomes even more susceptible to suggestion. The subject may unwittingly produce responses which he perceives to be expected. Since a subject under hypnosis undergoes an impaired critical judgment, he may give undue credence to vague and fragmentary memories upon which he would not have relied outside the hypnotic state. A combination of a susceptibility to suggestion and a compelling desire to please the hypnotist causes the subject to experience an unwillingness to admit that he cannot recall certain events. Thus he becomes susceptible to creating the event.

If we accept as true the notions of suggestibility and a tendency to confabulate, the dangers surrounding hypnotically refreshed testimony become even more pronounced when we realize that it is virtually impossible for the subject or even the trained, professional hypnotist to distinguish between true memory and pseudo memory.... Both the subject and the...

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