People v. Boudin
| Decision Date | 11 March 1983 |
| Citation | 460 N.Y.S.2d 879,118 Misc.2d 230 |
| Parties | The PEOPLE of the State of New York v. Katherine BOUDIN, et al., Defendants. |
| Court | New York Supreme Court |
Kenneth Gribetz, Dist. Atty., New City, for plaintiff.
Martin Garbus, Leonard I. Weinglass, New York City, for defendant.
This is a motion to suppress the testimony of two prosecution witnesses. Defendants assert that these witnesses are incompetent to testify in that they have been hypnotized for the purpose of restoring/refreshing their memory of the events in issue. (People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775). The District Attorney opposes the motion, taking the position that only the pre-hypnotic statements of the two witnesses are being offered and that this posture does not render the witnesses incompetent to testify as to the facts they were able to recall prior to undergoing hypnosis. (People v. Hughes, 88 A.D.2d 17, 452 N.Y.S.2d 929). Defense counters with the argument that the hypnotic session had the effect of "concreting" the witnesses' testimony, thereby rendering cross examination ineffective and interfering with defendant's right of confrontation under the Sixth Amendment. (People v. Shirley, supra; State v. Mena, 128 Ariz. 226, 624 P.2d 1274).
While the motion to suppress was first enunciated during the pre-trial identification hearings (U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), further argument and discussion on the propriety of a pre-trial hypnosis hearing indicated to the Court that the motion to suppress was intended to extend beyond the pre-trial phase and into the trial itself. With this understanding, this decision will address itself not only to the testimony of the two witnesses in the pre-trial hearing, but also with regard to their testimony on trial. In fact, this decision is probably more appropriate to the trial testimony in that the testimony of the two witnesses during the Wade hearings While there is no statutory authority for such a procedure, the Court concluded that a pre-trial hearing was appropriate in the circumstances and, accordingly, directed that the same be accomplished after disclosure by the prosecutor that the two witnesses involved had undergone hypnosis. It appears that a failure of disclosure in this regard might lead to preclusion (Emmett v. Ricketts, 397 F.Supp. 1025; United States v. Miller, 411 F.2d 825 (2nd Cir.1969)), and it also appears that such disclosure took place in sufficient time to allow the defense to make necessary preparation. If indeed disclosure is required, the Court concludes that this duty has been fulfilled.
indicated that they did not participate in any identification procedure.
On October 20, 1981, a Brinks armored car was robbed at gunpoint in the Nanuet Mall, during which episode a Brinks armored guard was shot and killed and another wounded. In furtherance of their escape, the suspects switched vehicles and proceeded to an entrance to the New York State Thruway in West Nyack at which point the vehicle in which they were traveling was stopped by police and a gun battle ensued. During the shootout, two police officers were killed; one wounded, and several arrests were made, one at the scene and others shortly thereafter. Two of the surviving police officers, Detective Arthur Keenan and Patrolman Brian Lennon made statements later that same day, which were reduced to writing. On October 21, 1981 Detective Keenan (in an attempt to gather more detailed information of the events of the previous day) was hypnotized by a retired New York State police officer, Joseph Czaplicki, who had both formal training and several years of experience in this area of investigation. On October 22, 1982, Officer Lennon was involved in a similar procedure, for similar reasons. The hypnotic session, in both cases, was tape recorded and subsequently transcribed. (There were also taped and transcribed "pre-hypnotic" and "post-hypnotic" statements which both Keenan and Lennon made to the hypnotist.) An analysis of both officers' initial written statements and the three statements given to the hypnotist reveal some variants and greater detail, but for all practical purposes, they are substantially the same. The only difference that might be regarded as significant is Keenan's statement under hypnosis, where he described the passenger emerging from the vehicle stopped at the Thruway as being "Puerto Rican" or "Indian" but considering that this description does not appear in any other statement he made and in that this person was arrested at the scene, its significance (if any) pales. Considering the arrest at the scene, Keenan would have little or no reason to describe this person, and on cross examination he indicated that he remembers making the statement under hypnosis, but has no idea why he gave such a description. It should be noted also, that the transcript reveals no leading question on the part of the hypnotist which might have provoked such a response.
The question before the Court is whether the pre-hypnotic testimony of Detective Keenan and Officer Lennon should be admitted. The positions of both the prosecution and the defense have been defined (supra), and in an effort to clarify some of the legal controversy surrounding the subject of hypnosis in recent years and, more particularly, to answer the question before the Court, an extensive pretrial hearing was conducted. The Court heard the testimony of some of the foremost experts in the field of hypnosis in this country, if not in the world. In Dr. Herbert Spiegel, Dr. Theodore Barber, Dr. Martin Orne, the Court had before it, men who are generally recognized as three of the four people who are "the experts" in the field of hypnosis. (The other being Dr. Richard Hilgard, who did not testify.) Dr. Bernard Diamond, author of the widely quoted (and highly controversial) article, "Inherent Problems in the Use of Pretrial Hypnosis On a Prospective Witness" (68 Cal.L.Rev. 313, 1980) also appeared. While Dr. Diamond is highly regarded for his work in the field of forensic The direct testimony of Dr. Spiegel and Dr. Barber involved a general discussion on the subject of hypnosis (or at least enough discussion to provide a background for the particular question before the Court). Both Dr. Spiegel and Dr. Barber characterized the hypnotic state as one of increased relaxation wherein the subject is able to concentrate or focus on a particular area (or as Dr. Spiegel expressed it, getting the subject to "pay attention"). They also generally agreed that the phenomena of fantasy, increased suggestibility, concreting, confabulation and other so-called "contaminations" of the memory process (which are sometimes occasioned by the hypnotic process) are, in fact, possibilities that only occur in a small percentage of cases. They maintain that only a very small segment of the population make good hypnotic subjects (highly suggestible and given to fantasizing) and to "bias" a subject would require a deliberate effort on the part of the hypnotist. Dr. Barber was particularly emphatic on this point and decried the lack of scientific and factual basis for the opinions expressed by some so-called experts in the field (even Dr. Orne and Dr. Diamond) which opinions have been adopted in whole or in part, by some appellate courts in this country. With regard to the aforementioned "phenomena" they point out that they can (and do) occur with subjects who have not been hypnotized, and in answer to the objection that in the case of a hypnotized subject these phenomena cannot be identified, they argue that in most cases, the hypnotic subject has not been biased and, in any event, the process of cross examination is available to explore the possible influence of the hypnotic process on a witness. They stated that the hypnotic process is a legitimate means of increasing recall in some cases and the hypnotic induction process merely accomplishes this potential in a shorter time than it might take normally. They answer the objection to the admissibility of pre-hypnotic testimony (i.e., the deprivation of the opportunity of meaningful cross examination by hypnotically induced "concreting" of the witness' recall) by pointing out again, that this phenomenon rarely occurs and if it does, it only occurs with a highly suggestible subject and where there has been a deliberate attempt to impose the "concreting" process on the subject. (They also emphasized that concreting can occur in witnesses who have not been hypnotized, sometimes by the simple process of repetition.)
psychology, he is not considered to be (and does not consider himself to be) an expert in the field of hypnosis. The People also called Dr. Martin Reiser and Dr. Helmut Relinger. Dr. Reiser (a psychologist) conducts a school which teaches law enforcement personnel the methodology involved in the hypnotic procedure and Dr. Relinger is a professor at the University of California who has done considerable work in the field of hypnosis, but has not obtained the stature of a Barber, a Siegel, an Orne or a Hilgard. The hypnotist, Joseph Czaplicki, also testified.
By way of rebuttal, Dr. Martin Orne appeared for the defense. He testified almost exclusively in the area of the effect of hypnosis on cross-examination and stated that the memory "validating" effect of hypnosis deprived a cross-examiner of the opportunity to effectively and meaningfully cross-examine a witness who has been hypnotized. He was rather explicit in this opinion, indicating that the reliving of an experience by the subject "concreted" the memory, contributing to an unshakability on the part of the witness, thereby rendering him invulnerable to cross-examination. Interestingly, he agreed with Dr. Spiegel's thesis that the witness who has been hypnotized is best able to be cross-examined, but qualifies this opinion with the proviso that this...
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