People v. Quintanar

• Citation: 659 P.2d 710
• Decision Date: 18 November 1982
• Docket Number: No. 81CA0881,81CA0881
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Barney QUINTANAR, Defendant-Appellant. . II
• Court: Court of Appeals of Colorado

Page 710

659 P.2d 710

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Barney QUINTANAR, Defendant-Appellant.

No. 81CA0881.

Colorado Court of Appeals Div. II.

Nov. 18, 1982.

Rehearings Denied Dec. 16, 1982.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., John D. Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Barbara S. Blackman, Deputy State Public Defender, Denver, for defendant-appellant.

STERNBERG, Judge.

The defendant, Barney Quintanar, was charged with manslaughter and criminally negligent homicide. Following a jury trial he was convicted of the latter offense and acquitted of the former. On appeal he asserts that reversal is required because two witnesses who testified against him had been rendered incompetent to testify by pretrial hypnotic sessions seeking to enhance the witnesses' recollections. He also argues that the evidence was insufficient to support his conviction. We find no merit in his contentions and therefore affirm the conviction.

At trial, the prosecution's evidence indicated the following events had occurred. At 3:00 a.m. one morning, the victim and Quintanar became involved in an argument at the apartment of defendant's estranged wife. Shortly thereafter, the victim's brother and two friends arrived, and the victim's brother temporarily broke up the altercation. Thereafter, as the two friends, the victim and his brother left the apartment, defendant leaped at the victim and struck him hard in the face, causing him to fall to the ground.

According to a pathologist, the victim died of a blow to the head. And, defendant later gave a statement to the police in which he conceded knowledge that the victim had told him of his involvement in an automobile accident as a result of which "he would die ... if he ever got drunk and fell down and hit his forehead."

The prosecution's two main witnesses had given written statements of their recollections from that evening to the police. Both witnesses recalled the defendant striking the victim some place on the head, though not the exact location. Later in the investigation both witnesses were hypnotized by a police officer for the purpose of aiding their recall of the details. The defendant sought to exclude both witnesses from testifying on the grounds that the hypnosis made them incompetent to testify. Following argument at an in-camera hearing, the trial court allowed them to testify, but limited their testimony to their pre-hypnotic recollections as recorded in their written statements.

I.

The question of whether hypnotically refreshed testimony is admissible in a criminal trial is an open one in Colorado. See People v. District Court, 652 P.2d 582 (Colo.1982); People v. Angelini, 649 P.2d 341 (Colo.App.1982). This court has held that an expert's opinion on a subject's mental state based on his observations of the subject during hypnosis is not admissible because hypnosis has not been accepted as a reliable basis for such an opinion. See People v. Diaz, 644 P.2d 71 (Colo.App.1982), (cert. denied March 29, 1982). But Diaz does not settle the question of the use of a witness' own hypnotically refreshed testimony.

Three basic approaches have been taken regarding the use of testimony from witnesses whose memories have been refreshed by hypnosis. In some jurisdictions, prior hypnosis affects only the weight of the testimony, not its admissibility. See, e.g., Chapman v. State, 638 P.2d 1280 (Wyo.1982); People v. Smrekar, 68 Ill.App.3d 379, 24 Ill.Dec. 707, 385 N.E.2d 848 (1979). In others a per se exclusionary rule is followed. See, e.g., People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982); Collins v. State, 52 Md.App. 186, 447 A.2d 1272 (Md.App.1982). And, some admit it subject to certain procedural requirements which seek to insure reliability. See, e.g., State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981).

The People urge us to adopt a rule of absolute admissibility or, in the alternative, to condition admission on a showing of reliability in each instance. The defendant argues for a per se rule that the witness is incompetent to testify. We conclude that none of these is the appropriate approach. Instead, we hold that testimony of a witness who has been questioned under hypnosis is per se inadmissible as to his recollections from the time of the hypnotic session forward. However, we hold that the witness is not incompetent to testify to pre-hypnosis recollections that have previously been unequivocally disclosed and recorded by tape recording, video tape, or, as here, by written statement.

The reliability of evidence obtained from use of a scientific principle is generally tested under the rule in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). There a systolic blood pressure deception test was held to be inadmissible because it had not gained sufficient standing and scientific recognition to justify its use. By application of the Frye test, a per se exclusionary rule was adopted concerning evidence of polygraph results in People v. Anderson, 637 P.2d 354 (Colo.1981).

Although hypnosis is considered reasonably reliable in the fields of psychiatry and psychology, where the interest is in merely stimulating memory, it does not hold this stature in forensics, where the interest is in stimulating accurate memory. Levitt, The Use of Hypnosis to "Freshen" the Memory of Witnesses or Victims, Trial 56 (April 1981); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313 (1980). These recent articles by Levitt, a professor of psychology, and Diamond, a professor of clinical psychiatry, demonstrate that hypnotically induced recollection has not attained the level of reliability among authorities in the field as required by Frye to outweigh the possibilities for prejudice.

Levitt characterizes two salient conditions of a person in a hypnotic trance as hypersuggestibility and hypercompliance. These two characteristics produce a person who is more easily influenced by external sources and more highly motivated to please others than the average person. Also present are the characteristics of reduced use of critical faculties and increased impulsiveness. When these combine with the subject's knowledge that the purpose of the session is to supply missing facts or details, the result is recall that is likely to be a combination of fact and fantasy, the reliability of which the subject is absolutely convinced. Any previous uncertainty in the subject's memory evaporates so that the witness cannot be shaken by cross-examination.

In his article, Diamond points out that even a skilled hypnotist is unable to avoid implanting suggestions in the subject's mind, and the desire to please causes the subject to fill in missing details with fantasy or confabulation (a filling in of gaps in memory by free fabrication, Webster's Third International Dictionary 475 (1976)). Because the subject cannot distinguish between memories "learned" under hypnosis and pre-existing memories, the testimony as a whole appears to be genuine and spontaneous. Nor can the hypnotist or any other expert verify the accuracy of the enhanced memory. Diamond, supra. These observations demonstrate the inadequacy of the adversary system to probe the reliability of the witness' memory and the credibility of his testimony.

In response to the claim that all eyewitness testimony is subject to similar criticism, Diamond points out that witnesses who have not been hypnotized may communicate their awareness of the deficiency in their recall by body language which indicates their lack of confidence, and may be made to concede that their memory is fallible. In contrast, after hypnosis, witnesses become so confident of their memory that they show no hesitancy in relating the "facts." Thus, not only is the recall likely to be inaccurate, but its accuracy cannot be determined either by experts or the witness. Consequently, the trier of fact can do no more than speculate as to the accuracy and reliability of hypnotically-refreshed memory.

We conclude that a jury's ability to observe a witness' demeanor and analyze a witness' ability to perceive, remember, and articulate is so hampered by the hypnotic process that the probative value of such evidence cannot overcome its flaws. The inherent problems with hypnotically enhanced memory make clear that the process cannot be tested within the framework of the adversary system as is any other device used to refresh recollection. We hold therefore that hypnotically refreshed testimony is inadmissible.

In our view, these problems are not overcome by the procedural safeguards adopted by the New Jersey Supreme Court in State v. Hurd, supra. Of primary concern to that court was the fallibility of all human memory from the time of perception, through the process of interrogation, and continuing to the point of articulation.

In Hurd, supra, a physician and professor of psychiatry testified that the use of hypnosis with certain types of memory loss is less likely to yield confabulation and fantasy than with others, i.e., if the loss resulted from traumatic neurosis rather than a bad memory or inability to observe sufficiently in the first place. He suggested that a reliable procedure in...