State v. Mack

• Decision Date: 16 May 1980
• Docket Number: No. 50036.,50036.
• Citation: 292 NW 2d 764
• Parties: STATE of Minnesota, Plaintiff, v. David Roy MACK, Defendant.
• Court: Minnesota Supreme Court

292 N.W.2d 764 (1980)

STATE of Minnesota, Plaintiff, v. David Roy MACK, Defendant.

No. 50036.

Supreme Court of Minnesota.

May 16, 1980.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief Asst. County Atty., Appellate Section, David W. Larson and Janice Symchych, Asst. County Attys., Minneapolis, for plaintiff.

William R. Kennedy, County Public Defender, David M. Duffy and James J. Krieger, Asst. County Public Defenders, and Beverly Wiechert, Minneapolis, for defendant.

Ephraim Margolin and Andrea L. Biren, San Francisco, Cal., for California Attorneys for Criminal Justice.

C. Paul Jones, Public Defender, and Michael F. Cromett, Asst. Public Defender, Minneapolis, for Minnesota Public Defenders.

Heard, considered, and decided by the court en banc.

WAHL, Justice.

Defendant, petitioner herein, is being prosecuted in Hennepin County District Court for criminal sexual conduct in the first degree in violation of Minn.Stat. § 609.342(e)(i) (1978), and for aggravated assault in violation of Minn.Stat. § 609.225, subd. 2 (1978). In the course of that prosecution, and before any determination of probable cause had been made, the district court certified to this court an important and doubtful question concerning the use of hypnotically-induced testimony in a criminal trial. It is a case of first impression. The precise question certified is whether a previously hypnotized witness may testify in a criminal proceeding concerning the subject matter adduced at the pretrial hypnotic interview.¹ Under the facts and circumstances of this case, and for the reasons set out below, we hold such testimony inadmissible.

Hypnosis, defined as a "highly suggestible state into which a willing subject is induced by a skilled therapist,"² has long been used as a psychotherapeutic tool. Its more recent and increasing use by police departments as an investigative tool and as a technique to produce evidence for criminal prosecutions³ has given rise to scholarly and judicial concern and controversy.⁴ We are presented in this appeal with a unique opportunity to examine in full the merits of that controversy. Excellent briefs, filed by the Hennepin County Public Defender and the Hennepin County Attorney for the parties and by amicus curiae Minnesota State Public Defender and California Attorneys for Criminal Justice, have aided us in our deliberations. Furthermore, the case need not turn, as have so many of the decided cases,⁵ on an inadequate record. Five experts on hypnosis and memory retrieval testified at the omnibus hearing in the court below: Dr. Carl Malmquist, a practicing psychiatrist and consultant to the Hennepin County District Court; Dr. Allan Roberts, a clinical psychologist at Mayo Clinic who uses hypnosis in therapy and has taught clinical and experimental courses on hypnosis at the University of Minnesota for over ten years; Dr. Charles Mutter, a court psychiatrist from Dade County, Florida; Dr. Leo Alexander, a Boston psychiatrist who has been practicing since 1929 and uses hypnosis almost every day for therapeutic purposes; and Dr. Martin T. Orne. Dr. Orne is both a psychiatrist and a psychologist, heads the major hypnosis research laboratory in the country at the University of Pennsylvania, and is editor-in-chief of the Journal of Clinical and Experimental Hypnosis.⁶ The valuable testimony of these expert witnesses provides an extensive record upon which the legal issue before us may be decided. An examination of their testimony also demonstrates the truth of Dr. Orne's observation that a case-by-case decision on the admissibility question would be prohibitively expensive, and reveals the difficulty of getting experts qualified to testify about hypnosis as an investigative rather than a therapeutic tool.

This case did not arise and cannot be decided in a vacuum. Because no trial has been held and no probable cause determination made, the following facts bearing on the admissibility of the challenged evidence have been taken from the police file and hospital record.

At 2:19 a. m. on May 14, 1978, Marion J. Erickson was brought by ambulance from the Hi Lo Motel in Minneapolis to the Hennepin County Medical Center, bleeding profusely from her vagina. Defendant, who had met and danced with Ms. Erickson at the Spring Inn bar the evening before and had taken her to the motel on his motorcycle afterwards, had telephoned for an ambulance and told the ambulance drivers that he and Ms. Erickson "were engaged in sexual intercourse when she started bleeding." One of the drivers observed that Ms. Erickson was "quite drunk" and that her speech was unclear; she had difficulty walking but did walk from the motel room to the ambulance with defendant's assistance and insisted that "it wasn't defendant's fault." The other driver stated that defendant "seemed very concerned," and that Ms. Erickson refused to give her name but asked defendant to go with her to the hospital.

At Hennepin County Medical Center Emergency Department, Ms. Erickson was attended by one intern who noted that she was in a "flat emotional state" and recorded that she told him she had been "engaged in sexual activity with fingers being placed in her vagina." Another intern who assisted in Ms. Erickson's treatment stated that she was suffering from a cut through the vaginal tissue into a muscle layer and that she believed she had been injured in a motorcycle accident. It was this intern's opinion that the injury could not have occurred during intercourse and that, because of its length and depth, it could not have been caused by a human fingernail. He said this type of injury could be the result of "tearing after childbirth."

After Ms. Erickson had been advised by the doctors concerning the nature of her injury and had been told by them that they did not believe she had been involved in a motorcycle accident, Ms. Erickson telephoned police on May 16 to report an assault. She told police she could remember nothing after the motorcycle accident until she awoke at the motel, bleeding from her vagina and lying in a pool of blood on the bed. She remembered saying, "David, don't leave me" and hearing someone assure her that he would not. She indicated that she had been suffering emotional problems, due to a serious relationship with a man that had recently ended, and that she had "blacked out" from drinking on other occasions.

Lieutenant Dennis Weiss of the Minneapolis Police Department began investigating the case on May 17. He spoke to defendant, to the doctors at the hospital, and to defendant's ex-wife. With the information he gathered, and with Marion Erickson's consent, Lieutenant Weiss made an appointment for June 26, some six weeks after the alleged assault, with Beauford Kleidon, a self-taught lay hypnotist in Roseville, Minnesota. Kleidon testified at the omnibus hearing that he does not solicit police investigatory business and that before the appointment he knew only that Weiss had a witness with a memory block who had been hospitalized with a cut in her vagina. Weiss and Sergeant Roach, who had accompanied Ms. Erickson to Kleidon's office, left the room for 45 minutes. During this time, Kleidon tested Ms. Erickson's hypnotic susceptibility with several standard tests, induced hypnosis with a standard fixation procedure, and, when he had determined that she had entered a deep hypnotic state, asked her permission for Weiss and Roach to enter the room. Ms. Erickson agreed, and the policemen entered and made an audio tape recording of the portion of the hypnotic session which followed. This tape itself has been lost. A transcript, typed by the police stenographer, was received in evidence as State's Exhibit C.

The transcript reveals that Beauford Kleidon told Ms. Erickson that she would remember the events of May 13 and 14 as they actually occurred, but as though on a television screen and without emotion. Under hypnosis, Ms. Erickson reported that at the Hi Lo Motel David Mack "told me to get on the bed and take my clothes off. He said, `I want to get even with you for running out on me.'" As the hypnotist assured her, "you will see it very plainly in your mind," but "you feel nothing," Ms. Erickson said, "oh, no, no, no * * *. He told me to spread my legs, * * *. He pulled out this switchblade and told me he was going to kill me * * * he kept sticking this knife up me and I remember screaming and screaming."

At the close of the session, Kleidon made the following statement, referred to at the hearing and in the briefs as a "post-hypnotic suggestion": "You are going to feel as if your body and your mind have been completely rejuvenized sic and you will be able to remember very clearly everything that has happened on the 13th and 14th. Now that memory is very clear in your mind. This does not disturb you."

The following day, Marion Erickson went to the police department and gave Lieutenant Weiss a typewritten statement recounting as her present memory the events of May 13, as she had reported them under hypnosis. On July 26, 1978, a complaint was issued, and David Mack was arrested on October 5, 1978.

The only issue before us is the admissibility of Marion Erickson's hypnotically-induced testimony. Defendant argues that her hypnotically-induced "memory" of the alleged assault is not sufficiently reliable to merit admission and that permitting her to testify to this memory under the circumstances of this case would deny him his right to confrontation and to cross-examination under the Sixth and Fourteenth Amendments. The state argues that Erickson's testimony is admissible as "present recollection refreshed" and should be admitted as long as certain safeguards can be established.

Defendant urges that the doubtful reliability of hypnosis-prompted recollection raises an admissibility question which is governed by the standards announced in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). In Frye, the...