People v. McDowell
| Decision Date | 16 April 1980 |
| Citation | 103 Misc.2d 831,427 N.Y.S.2d 181 |
| Parties | PEOPLE of the State of New York v. Glenn R. McDOWELL. |
| Court | New York Supreme Court |
Richard A. Hennessy, Jr., Dist. Atty. of Onondaga County, James Lantier, Asst. Dist. Atty., Syracuse, of counsel, for the People.
Armani & Merckel, Eric M. Alderman and Frank Armani, Syracuse, of counsel, for defendant.
The defendant was indicted and charged with having committed the crime of MURDER IN THE SECOND DEGREE in violation of § 125.25(1) of the Penal Law; GRAND LARCENY IN THE SECOND DEGREE in violation of § 155.30 and CRIMINAL POSSESSION OF STOLEN PROPERTY IN THE FIRST DEGREE in violation of § 165.50. Relative to the Murder count, it is alleged that the defendant, Glenn R. McDowell, intentionally caused the death of one Eddie Joe Hendrix by means of strangulation.
The defendant has made this Motion to Suppress the Statements Made by Johnnie T. Williams, an alleged eye-witness to this murder. The general basis for this motion revolves around the fact that this witness was hypnotized and that by virtue of such hypnosis, the defendant contends he will be deprived of his constitutional right to due process of law in that he cannot receive a fair trial. Specifically, the defendant contends that as a result of such hypnosis, the defendant will be deprived of his right to confront and cross-examine the witness.
The defendant asserts in support of this contention that it is uniformly accepted that hypnosis instills in the subject of the hypnosis an absolute subjective conviction of that which is incorporated or reported during hypnosis, regardless of the historical truth of what is stated, and that as a result of this occurrence, the ability to truly cross-examine an individual is prevented.
Furthermore, the defendant contends that by reason of such hypnosis, that evidence in the form of testimony has been destroyed by the prosecution. This allegation is based upon the fact that memories of events developed during hypnosis may come to be accepted by the subject as her recollection of the original events and if such recollection of the events is not accurate or historical, the true facts as they occurred might be lost from the witness's memory.
Additionally, the defense contends that the use of hypnosis on Johnnie Williams was an identification procedure and the defendant was entitled to notice and the presence of counsel at such session, and that this specific identification procedure was unduly suggestive. The defense also contends that any testimony given by the witness during or subsequent to any hypnosis session must be viewed in the relation to the hypnosis and cannot be separated therefrom, and that this particular hypnosis session was held as an evidence-gathering technique which renders the resulting testimony inadmissible.
In essence, therefore, the defendant contends that the use of hypnosis in the manner utilized in this particular case has resulted in an altered non-historical recall of events relating to this murder, and that as a result of such "confabulation" in the process of recalling this event, it is impossible to examine this witness properly because her memory of this event is now the memory as recalled during the hypnotic session and because of its subjective nature, the witness, herself, now accepts that recall of the events as historical and truthful.
The Court has had the opportunity to consider the expert testimony presented upon the hearing of this matter and has personally viewed and listened to the video and audio tape recordings of the instant hypnotic session, and is of the opinion that the statements of Johnnie Williams are admissible upon the trial of this matter and are not as a matter of law rendered inadmissible by virtue of the use of hypnosis. While the Court is of the opinion that this particular hypnotic session was not conducted in a suggestive manner, great care must be exercised, generally, so that statements made during and after hypnosis are the product of the subject's own recollection, rather than of recall tainted by suggestions received while under hypnosis.
In determining the ability of testimony to be given by one who has been hypnotized, and in order to protect the due process rights of any defendant with regard to such evidence, several safeguards have been delineated by the Courts of this State and several others. (See People v. Hughes, 99 Misc.2d 863, 417 N.Y.S.2d 643). The following safeguards have developed with regard to hypnosis, generally, whenever there is any possibility that the subject will be called upon to give testimony. This Court will discuss these various safeguards and how they apply in the instant case.
(1) The person conducting the hypnotic session should be a qualified professional, preferably a Psychiatrist or Psychologist, with training in the use of hypnosis. In the instant case, Mr. Gandino who conducted this particular session, is a Psychiatric Social Worker who has extensively utilized hypnosis in his work for approximately five years and has studied under well recognized experts in this field.
(2) The qualified professional should be independent, not acting in concert with or responsible to the prosecution, investigator or the defense. While Mr. Gandino is under contract in certain respects with the Onondaga County Sheriff's Department, the instant session in this Court's opinion was truly conducted in a manner consistent with an independent professional, although this Court believes that the hypnotist should be independent to avoid even the chance of some unintentional suggestions.
(3) The qualified professional...
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