State v. Hurd

• Decision Date: 02 April 1980
• Citation: 173 N.J.Super. 333,414 A.2d 291
• Parties: STATE of New Jersey, Plaintiff, v. Paul HURD, Defendant.
• Court: New Jersey Superior Court

Page 333

173 N.J.Super. 333

414 A.2d 291

STATE of New Jersey, Plaintiff, v. Paul HURD, Defendant.

Superior Court of New Jersey, Law Division Somerset County.

April 2, 1980.

Leo Kaplowitz, Linden, for defendant (Kaplowitz & Wise, Linden, attorneys).

Robert D. Clarke, Asst. Prosecutor, for the State of New Jersey (David Linett, Somerset County Prosecutor, attorney).

DIANA, J. S. C.

This is essentially a defense motion on 14th Amendment grounds to suppress a proposed in-court identification of defendant by the victim of a knife attack.

Pursuant to R. 3:13-1(b), and with consent of counsel, the hearing to determine the admissibility of the identification was held prior to the selection of a jury.

The basis of the challenge to the proposed in-court identification is that it is unreliable since the victim was unwilling or unable to identify defendant as her attacker following the incident and did so only after the improper importuning of law enforcement officers and an impermissibly suggestive hypnotic session, 21 days after the attack.

More particularly, defendant contends there is insufficient medical or scientific data to establish that testimony elicited through hypnosis is reliable and that acknowledged experts insist that such testimony is unreliable. Further, defendant contends that there is no precedent in this State for the admissibility of an identification allegedly induced by a hypnotic trance. Defendant further argues that even if it be held that identifications induced by hypnosis are not per se inadmissible, the facts of this case reveal that the process was so impermissibly suggestive as to taint the identification and render it inadmissible.

The issue may be stated as follows:

Can the victim of a crime be allowed to make an in-court identification of her attacker when she was unwilling or unable to make an identification until she submitted to a pretrial hypnotic procedure? A resolution of that question involves a consideration of a number of other issues:

(1) Is hypnosis a sufficiently reliable procedure to justify its use as a memory refreshener in litigation?

(2) Were the methods used and circumstances under which the hypnotic session was conducted unnecessarily suggestive so as to require suppression of the in-court identification even if memory refreshed by hypnosis is not per se inadmissible?

(3) Whether, under the totality of the circumstances, the identification was reliable even if it be found that the hypnotic procedures employed were suggestive?

The essential facts of this case are that at or about 5:45 a. m. on June 22, 1978 Jane Sell was attacked as she slept in her ground floor apartment bedroom, suffering numerous serious knife wounds. Mrs. Sell occupied the apartment with her present husband, David Sell, and her three sons, two of whom were by her prior marriage to defendant, Paul Hurd. On the preceding evening, David Sell had fallen asleep on the couch and Mrs. Sell was alone in her bed at the time of the attack. There were no lights on in the bedroom, the curtains were drawn and the venetian blind was halfway down on the only window in the room. There is no evidence that the attacker sought to rob or sexually assault the victim.

Following the attack Mrs. Sell was unable or unwilling to identify her attacker, but in the hospital on the day of the attack she told police officers to "check out" her former husband, Paul Hurd.

Mrs. Sell did have two recollections of the attack which the police believe to be inconsistent. At one point she indicated the attacker approached her from the area of the dresser, which was located on a wall opposite the window, while on another occasion she stated the attacker entered from the window. There was also reference by Mrs. Sell to a "stranger." An investigation of the crime was commenced by the North Plainfield Police Department and the Somerset County Prosecutor's Office. The principal participants in the early investigation were Officers Van Winkle and Gilbert of the North Plainfield Police Department and Detective Pierangeli of the Somerset County Prosecutor's Office. From the inception of the investigation the police held the view that there were two possible suspects, the primary suspect being the victim's former husband, Paul Hurd, and the other her present husband, David Sell. Although separated for over seven years, Mrs. Sell and her former husband continued to argue over financial and visitation matters, the most recent argument having occurred over the telephone the night before the attack in a conversation between Paul Hurd and David Sell.

At the suggestion of the Prosecutor's Office, or her husband, David Sell, or both, Mrs. Sell was convinced to undergo hypnosis in an attempt to improve her recollection of the incident, more particularly to identify her assailant.

Again, at the initiation of the Prosecutor's Office, Dr. Herbert Spiegel, a psychiatrist and acknowledged authority on hypnosis, was retained to conduct the hypnotic procedure, which took place in New York City on July 14, 1978. Both Detective Pierangeli and Dr. Spiegel tape recorded portions of the session. During this session five persons were in the doctor's office: the doctor, Pierangeli, Lieutenant Van Winkle, Mrs. Sell and a physician studying under Dr. Spiegel. David Sell, Mrs. Sell's husband, had accompanied her to New York City but waited in an outer office during the session.

While in a hypnotic trance Mrs. Sell was directed to relive the event (abreact) and was questioned about the details of the attack. In response to questions Mrs. Sell recounted the events and partially described the clothing and some features of her attacker. Mrs. Sell then commenced to cry hysterically. At that point Pierangeli asked Mrs. Sell if she knew the attacker. Mrs. Sell replied, "Yes." Pierangeli asked, "Is it David?" Mrs. Sell replied, "No." Pierangeli then asked, "Is it Paul?" Crying hysterically Mrs. Sell replied, "Yes." When Mrs. Sell was taken from the hypnotic trance to a so-called post-hypnotic state, there was further conversation between Mrs. Sell, Dr. Spiegel and the police officers during which Dr. Speigel and the officers sought to encourage Mrs. Sell to make an identification. Pierangeli continued to urge Mrs. Sell to verbalize the identification at dinner following the session.

Among the remarks made to Mrs. Sell by Pierangeli and Dr. Spiegel following the hypnotic procedure were several to the effect that unless she identified her attacker he would remain free to attempt to attack again, and that should a subsequent attack prove successful her children would be without a mother. Further, they urged that by not making an identification her current husband, David Sell, could not be eliminated as a suspect. It should also be noted that David Sell had voluntarily submitted to one or more polygraph examinations shortly after the attack. There was brief reference to the effect that these tests failed to eliminate him as a suspect, although the result of these tests was not admitted into evidence.

On July 20, 1978 Mrs. Sell, accompanied by her husband, David Sell, appeared at the North Plainfield Police Department where she made a tape-recorded, later transcribed statement in which she first described her attacker and then identified her former husband, defendant Paul Hurd, as her attacker. In the following month defendant was indicted and charged with assault with intent to kill, atrocious assault and battery, assault with a deadly weapon, possession of a dangerous knife and breaking and entry with intent to assault.

Although we have found no reported cases in New Jersey dealing with the use of hypnotically induced recall for trial purposes, several decisions in federal courts and other jurisdictions have considered these issues. Annotation, "Admissibility of Hypnotic Evidence at Criminal Trial," 92 A.L.R.3d 442 (1979). In this case we are primarily concerned with the issues relating to the use of hypnosis to refresh the recollection of a witness.

Our starting point must be an attempt to describe the hypnotic phenomenon, its uses and its limitations as explained by the expert witnesses. We must then examine the procedures employed in this case by those persons involved in the evidence-gathering process.

As defined by the State's expert, Dr. Herbert Spiegel, a hypnotic state is a heightened or intense state of concentration which enables the subject to recall past events that for a variety of reasons the subject was unable to remember. According to Dr. Spiegel, a substantial percentage of the population has the capacity to be hypnotized; however, this capacity differs in degree in each individual. The significance of this difference in capacity is that persons with greater capacity for or susceptibility to hypnosis may be more responsive to hypnotic suggestion or requests than those with lesser capacity or susceptibility. Dr. Spiegel testified that he had developed a clinically acceptable method to quickly measure an individual's capacity to achieve a hypnotic state, which he called the "Hypnotic Induction Profile." He contends that the previously accepted test for measuring capacity, known as the "Stanford Scales," have recently been questioned by one of the psychiatrists who developed those scales. Dr. Spiegel's Hypnotic Induction Profile employs a rating or grading from 0 to 5, with 0 representing a virtual inability to experience hypnosis and 5 representing the maximum capacity to experience hypnosis. In this instance he had classified Mrs. Sell as a 2 to 3 range individual which he defined as "mid range."

As explained by Dr. Spiegel, to achieve the objective of assisting a person to remember a specific past event or series of events, the hypnotic process seeks to reduce the subject's usual peripheral awareness of vast amounts of information, thus enhancing the subject's ability to devote full attention and concentration to a specific...