Harker v. State of Md., 85-6052

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation800 F.2d 437
Docket NumberNo. 85-6052,85-6052
Parties, 21 Fed. R. Evid. Serv. 807 David Watkins HARKER, Appellant, v. STATE OF MARYLAND, Appellee. Fourth Circuit
Decision Date16 September 1986

Steven H. Goldblatt, Director, Appellate Litigation Clinical Program, Georgetown University Law Center, and Paul Cacciatore, Student Counsel (Martha J. Tomich, Appellate Law Fellow; Michelle Rice, Student Counsel on brief) for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Attorney General on brief) for appellee.

Before MURNAGHAN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WILKINSON, Circuit Judge:

Mervyn Thompson was shot by a man who had identified himself as "Mr. Palmer." Thompson described his assailant to the police, and some weeks later was hypnotized in the hope that he would recall more details of the shooting. At a show-up a few days after the hypnosis session, Thompson identified his assailant as a man named David Harker. Harker was convicted of assault with intent to murder by a Maryland jury, and later filed a petition for habeas corpus, under 28 U.S.C. Sec. 2254.

We affirm the district court's denial of Harker's petition. Testimony by a witness who has previously been hypnotized must meet criteria of independence and reliability, but such testimony does not per se violate either the sixth amendment right to confrontation or the fourteenth amendment right to due process. In addition, the testimony given by Harker's fellow inmate did not constitute the admission of an uncounseled confession, because the inmate was not a government agent.

I.

On the evening of December 7, 1980, a man who called himself "Mr. Palmer" telephoned Mervyn Thompson to say that Palmer's son had cut his hand playing on an old truck on Thompson's property. Palmer asked Thompson to meet him at the truck, to see if any damage had been done to it. At approximately 10:00 p.m., Thompson's daughter-in-law Barbara drove him down the driveway to the place where the truck and Palmer's car were parked. Next to the truck was a pole with a hanging light, which had been turned on. Barbara's headlights were on, as were the headlights of Palmer's car. Thompson was carrying a six volt flashlight, which he used to inspect the truck with Palmer. They found no recent damage; Thompson signalled Barbara to leave, and she did so.

Thompson had begun to walk back to the house when Palmer called him, saying he had dropped a glove. Thompson looked for a glove, but did not see one. Palmer jumped in his car and Thompson saw that he had a shotgun. Palmer shot Thompson, mangling his left arm so badly that it later had to be amputated. After a few shots, Thompson remembered that he was carrying a revolver and fired back. Palmer drove off. Thompson returned to his house for help.

Thompson described Palmer's car as a red, four-door Honda Accord. According to the testimony of Sergeant Van Horn, Thompson described his assailant as a white male, aged thirty-five to forty-five, about six feet, two inches tall, medium build, medium brown hair, wearing a flannel shirt, tan trousers and glasses. Thompson also worked with police to develop a composite, which was later published in a Harford County newspaper.

Two weeks after the assault, a Maryland state trooper spotted a red Honda Accord driven by a man who resembled the composite. The officer recorded the license plate number and determined that the car was registered to David Harker. At some point between the assault and the hypnosis session, Thompson also looked at a photo array that did not contain a picture of Harker. Thompson did not select any of the photographs as a picture of his assailant.

On January 30, 1981, Thompson consented to be hypnotized by James Roby of the Montgomery Police Department. During that session, Roby told Thompson that he would be able to visualize the events of December 7, and Roby asked Thompson to describe what he was seeing. Roby attempted to record the hypnosis session both on video tape and audio tape. Unfortunately, the lens cap was never removed from the video camera, and Roby succeeded only in producing an audio recording.

A few days after the hypnosis session, police showed Thompson ten photographs. Thompson selected a photo of Harker, and said that it resembled his assailant. The next day, police learned that Harker would be at the Baltimore County Circuit Court within the week. Thompson and his daughter-in-law Barbara went to the courthouse with two police officers, and sat on benches in the hall. Sergeant Van Horn estimated that there were hundreds of people milling around. Thompson saw a man in a camel's hair coat, and said that it looked like his assailant. The man walked into a courtroom. When he came out, and Thompson was able to get a better look at him, Thompson positively identified the man as his assailant. Later that day, police arrested the man Thompson had identified, David Harker.

Thompson's photographic, courthouse, and courtroom identifications of Harker were admitted at trial over objection that they were impermissibly tainted by the hypnosis session. Harker was convicted of assault with intent to murder, and sentenced to thirty years. The Maryland Court of Special Appeals affirmed the conviction, Harker v. State, 55 Md.App. 460, 463 A.2d 288 (1983); the Maryland Court of Appeals denied Harker's petition for a writ of certiorari. Harker then petitioned for a writ of habeas corpus, contending that the trial judge erred in admitting Thompson's identifications, and in permitting a jailhouse informant to testify. The district court found that the Maryland courts had offered Harker a full and fair opportunity to litigate his contentions, and that the record disclosed no violation of Harker's constitutional rights. We affirm the decision of the district court that Harker is not entitled to federal habeas relief.

II.

Much of the legal debate over the use of post-hypnotic testimony has its origin in the scientific dialogue on the functioning of human memory. The theory that the memory holds a certain snapshot of the crime has now come into question. Instead, "[m]any memory theorists believe ... that what appears to be recall is actually a constructive process in which information received after an event is integrated by the mind into the memory representation of that event." United States v. Valdez, 722 F.2d 1196, 1200 (5th Cir.1984). This view of the malleability of memory has caused courts to treat the refreshment of witness recollection through hypnosis with some caution.

In cases where hypnosis is used, it is often the victim of the crime who is hypnotized. See, e.g., People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775, cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969); United States v. Narciso, 446 F.Supp. 252 (E.D.Mich.1977). Hypnosis, it has been suggested, can help people to remember things that they would not otherwise remember. Dr. Martin Orne, a psychiatrist and frequent expert witness, believes that "hypnosis may be useful in some instances to help bring back forgotten memories following an accident or a crime." Orne, The Use and Misuse of Hypnosis in Court, 27 Int. J. Clinical & Experimental Hypnosis 311, 317-18, quoted in State v. Hurd, 432 F.2d at 93.

For example, in Chowchilla, California, twenty-six children were kidnapped from a school bus, and the bus driver was able to recall, under hypnosis, a license plate number which was instrumental in the capture of the kidnappers. Note, Excluding Hypnotically Induced Testimony on the "Hearsay Rationale," 20 Val.U.L.Rev. 619, 619 n. 6 (1986). Often police attempt to use hypnosis as a trigger to the recollection of the visage of a criminal suspect. See Clay v. Vose, 771 F.2d 1 (1st Cir.1985).

The dilemma, of course, is that the very process that yields investigative fruits may sow testimonial dangers. We recognize that hypnosis has drawbacks, specifically, the potential for suggestibility, confabulation, and hardening of memory, and the attendant danger of misidentification. While many of the same problems inhere in eyewitness testimony generally, they can be compounded by the technique of hypnosis, a powerful tool, yet one imperfectly understood. Many psychologists believe that a hypnotized person is more likely to be led by suggestions made by a hypnotist or questioner. See Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 333 (1980); United States v. Valdez, 722 F.2d at 1201. "The attitude, demeanor, and expectations of the hypnotist, his tone of voice, and his body language may all communicate suggestive messages to the subject." Diamond, 68 Calif.L.Rev. at 333. Moreover, the relationship between hypnotist and subject may be both intense and intimate. Subconsciously, the subject may give the response he or she thinks the hypnotist wants to hear. People v. Shirley, 181 Cal.Rptr. at 269, 641 P.2d at 801. The result may be that the subject's description of the event departs from reality in order to conform to the questioner's expectations.

A related problem, called "confabulation," occurs when the subject fabricates missing details, often using parts of other real memories that are unrelated to the situation the subject is trying to remember. "People want to give an answer, to be helpful, and many will do this at the risk of being incorrect. People want to see crime solved and justice done, and this desire may motivate them to volunteer more than is warranted by their meager memory." E. Loftus, Eyewitness Testimony at 109 (1979), quoted in People v. Shirley, 181 Cal.Rptr. at 270, 641 P.2d at 801.

The problems of suggestibility and confabulation are compounded...

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