Mersch v. City of Dallas Texas

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-11115

GLENDA MERSCH,

Plaintiff-Appellee

v.

CITY OF DALLAS TEXAS; ET AL

Defendants

ANDREW KLEIN; RAYMOND DETHLOFF

Defendants-Appellants

Appeal from the United States District Court for the

Northern District of Texas

March 21, 2000

Before JONES, BARKSDALE and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In this §1983 excessive force case, the question of

qualified immunity hinges on whether a plaintiff’s hypnotically-

refreshed testimony is admissible to prove that two arresting police

officers assaulted her. The magistrate judge admitted the testimony

for summary judgment purposes, leading him to deny qualified

immunity. Because this testimony was uncorroborated and was based

on a hypnotic procedure lacking recognized safeguards, we conclude

that the magistrate judge abused his discretion in admitting it.

Absent any other evidence to prove that an assault occurred, the

plaintiff’s case fails, and the officers should have received

immunity.

FACTS AND PROCEDURAL HISTORY

At about noon on September 9, 1994, Dallas police officers

were summoned to a disturbance involving Mersch, James Gregory

Brown, and a neighbor of Mersch’s. Mersch and Brown had just come

from a bar, where Mersch admitted to having drunk six to eight

beers. While walking from the bar to Mersch’s nearby apartment

complex, Brown got into an argument with a neighbor across a fence.

When Mersch attempted to climb the fence separating Brown and the

neighbor, she fell about three feet down and landed on her buttocks.

Several witnesses observed the incident. One saw Brown

being rough and verbally abusive towards Mersch. The witnesses also

reported that Mersch was falling to the ground and unable to

maintain her balance. Her stockings were torn and she had abrasions

on her knees.

After the police and an ambulance arrived, Mersch was

cited for public intoxication, and she and Brown were taken off in

separate police cars. Mersch and the arresting officers, Dethloff

and Klein, differ as to what happened next. According to the police

officers, they drove Mersch straight to the detox center. There,

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while the officers were momentarily distracted, Mersch fell into a

door and hit her head as she attempted to walk unassisted up a

handicapped ramp. The officers summoned emergency personnel, who

treated Mersch’s forehead bump. Mersch was then admitted to the

detox center and the officers left. Post-hypnosis, Mersch states,

however, that one of the officers jabbed her twice in the abdomen

with a flashlight or a nightstick during the ride to the detox

center. Then the officers stopped the vehicle, yanked her out, and

struck her on the top of the head. Knocked unconscious, she revived

lying face down on asphalt with a throbbing head and blurred vision.

She looked up and saw three or four officers standing around, and

someone in a white uniform shirt with blue letters on it sitting on

a short fence. At this point, she was put back in the police car

and driven to the detox center. She has no memory of being treated

by emergency personnel there.

At the detox center, Mersch complained of stomach pains

and blood in her urine. Late that evening, she was transported to

a hospital and treated for a ruptured bladder.

Mersch did not initially accuse the police officers of

beating her. In her deposition, she stated that when her sister

visited her in the hospital, her sister was suspicious that the

police had caused Mersch’s injuries. Mersch further stated that

although she was suspicious of the police officers before hypnosis,

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she had no grounds for her suspicions other than the fact that she

had been in the custody of the police. Mersch and her sister

continued to discuss their suspicions of the police officers after

she went home from the hospital.1

Mersch visited Dr. Weiss, a licensed psychologist, to

undergo hypnotism as suggested by her attorney. During two

sessions, she “remembered” the alleged assault described above. At

her deposition, she testified that prior to undergoing hypnosis she

did not remember being beaten by the police officers. The hypnosis

was recorded on audiotape, but the tape has been misplaced and was

never made available to defendants’ counsel or the court.

Mersch filed suit against the City of Dallas, Police Chief

Ben Click, and officers Klein and Dethloff, alleging the use of

excessive force. The magistrate judge granted summary judgment to

the City of Dallas and Police Chief Click, but denied Klein and

Dethloff’s summary judgment motion after approving the admission of

Mersch’s post-hypnosis testimony. This interlocutory appeal ensued.

JURISDICTION

Mersch argues that this Court lacks jurisdiction because

whether the hypnotically-enhanced evidence is admissible is not a

1

In December 1994, Mersch reported to an investigating officer that

she had been assaulted from behind by an unknown suspect on September 9. At that

time, she did not state that she had been assaulted by police. She told the

responding officer that she made the report in order to receive money from a

state-sponsored Victim’s Compensation fund.

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pure question of law, but rather concerns the sufficiency of the

evidence, an issue not cognizable on interlocutory appeal. This

reasoning is incorrect.

Interlocutory orders denying summary judgment on the basis

of qualified immunity are immediately appealable when they concern

a conclusion of law. See Mitchell v. Forsyth, 472 U.S. 511, 530,

105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Such orders are not

immediately appealable if they are based merely on sufficiency of

the evidence, see Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct.

2151, 2156, 132 L.Ed.2d 238 (1995). Nonetheless, a question of law

may be presented despite the existence of a genuine, but subsidiary,

issue of material fact. See Behrens v. Pelletier, 516 U.S. 299,

312, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996).

In this case, before reaching the question whether a fact

issue exists, we must ascertain whether Mersch’s post-hypnosis

testimony embodies admissible facts at all. This is because Rule

56 states that a court may consider only admissible evidence in

ruling on a summary judgment motion. Fed. R. Civ. Proc. 56; see

Stults v. Conoco, Inc., 76 F.3d 651, 654 - 55 (5th Cir. 1996).

Where, as here, the admissibility of particular evidence is critical

to a summary judgment founded on qualified immunity, this court has

not hesitated to review the admissibility of the evidence on appeal.

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See Hayter v. City of Mount Vernon, 154 F.3d 269, 274 (5th Cir.

1998).

MERSCH’S POST-HYPNOTIC STATEMENTS

Mersch’s post-hypnotic testimony is the only evidence that

implicates the police officers in her injuries. It is undisputed

that before she was hypnotized, Mersch had no recollection of being

jabbed in the abdomen or struck in the head by the officers. On the

other hand, she and her sister had discussed the possibility of such

an assault and she had seen the arrest report which named officers

Dethloff and Klein, though she had no independent prehypnotic memory

of their names. We review the admissibility of Mersch’s testimony

for manifest error. See Hayter, 154 F.3d at 273-74.

Although this Court has dealt with the admissibility of

hypnotically-enhanced testimony in the criminal context, it has not

done so in a civil case. While constitutional safeguards applicable

to criminal cases may suggest extra caution when hypnotically-

enhanced evidence is offered by the prosecution, there is no other

reason why the analyses should substantially differ, and other

courts have adopted a consistent approach to both civil and criminal

cases. This court will be guided by our earlier cases.

Hypnotically-enhanced testimony is not per se inadmissible

in the Fifth Circuit. See Wicker v. McCotter, 783 F.2d 487, 492

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(5th Cir. 1986).2 Rather, courts in this Circuit evaluate such

testimony on a case-by-case basis, weighing the probative value of

the testimony against its possible prejudicial effect. See id.

This approach requires consideration of a number of factors,

including whether: 1) the hypnosis is done by a psychologist or

psychiatrist trained in its use and independent of either party; 2)

the hypnosis is done in a neutral setting with only the hypnotist

and the subject present; 3) an audio or video recording is made of

all interrogations before, during and after hypnosis; 4)

corroborating evidence exists; and 5) the pre-hypnosis and post-

hypnosis statements substantially correspond. See Rock v. Arkansas,

483 U.S. 44, 60 - 61, 107 S.Ct. 2704, 2713 - 2714, 97 L.Ed.2d 37

(1987); White v. Ieyoub, 25 F.3d 245, 247 - 248 (5th Cir. 1994).

This Court has, however, identified one situation where

hypnotically-enhanced testimony is per se inadmissible. In United

States v. Valdez, a Texas Ranger participating in surveillance to

2

Courts have been cautious of hypnotically-enhanced testimony because

of the tendency of hypnosis to create inaccurate memories. Three characteristics

of hypnosis cause this risk. First, the subject becomes highly “suggestible”,

easily susceptible to cues from the hypnotist. Second, the subject is more

likely to “confabulate”, i.e., draw on the imagination to round out an incomplete

memory. Third, the subject’s memory becomes “hardened”, increasing the subject’s

confidence in both true and false memories and thus making cross-examination less

effective. See Rock v. Arkansas, 483 U.S. 44, 59-60, 107 S.Ct. 2704, 2713, 97

L.Ed.2d 37 (citing M. Orne et al., Hypnotically Induced Testimony, in Eyewitness

Testimony: Psychological Perspectives 171 (G.Wells & E. Loftus, eds., 1984) and

Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective

Witness, 68 Calif.L.Rev. 313, 333-342 (1980)). Courts around the country

accordingly differ on the standards of admissibility. See discussion in Borawick

v. Shay, 68 F.3d 597, 604-606 (2d. Cir. 1995).

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investigate an extortion attempt witnessed a man approach the money-

drop area and then turn away. He was later unable to identify the

man in a lineup. The Ranger knew that Valdez was the prime suspect

in the investigation. After undergoing hypnosis, the Ranger

identified the man he had seen as Valdez. There was no other

corroboration for the identification of Valdez at the drop site.

See United States v. Valdez, 722 F.2d 1196, 1197 - 1198 (5th Cir.

1984). This Court held that “when ... a hypnotized subject

identifies for the first time a person he has reason to know is

already under suspicion, the post-hypnotic testimony is inadmissible

whatever procedural safeguards were used to attempt to sanitize the

hypnotic session.” United States v. Valdez, 722 F.2d at 1203.

Mersch’s case appears to fit squarely within the holding

of Valdez. Mersch knew that her sister suspected the police

officers of being responsible for Mersch’s injuries. She also

admitted in her deposition that, pre-hypnosis, her own suspicions

of the police officers were based on the fact that she had been in

their custody rather than on any concrete memory of an assault.

Like the Ranger in Valdez, Mersch had a suspicion but no direct

evidence to substantiate her suspicion. Under such circumstances,

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as we recognized in Valdez, hypnotically-enhanced testimony is so

unreliable as to be more prejudicial than probative.3

Even if Valdez is somehow distinguishable from this case,

Mersch’s testimony would still be inadmissible under the totality

of the circumstances test. Mersch neglected to provide the trial

court with rudimentary information to support the objectivity and

lack of suggestion at her hypnosis sessions. For example, she did

not establish whether Dr. Weiss had any training in hypnotism or how

much he knew about the case before he hypnotized Mersch. Moreover,

those factors on which she provided information point against

admission. No recording of the session can be produced; there is

no corroborating evidence; and Mersch’s statements about the events

before and after hypnosis are quite different. Given these indicia

of unreliability and the dearth of evidence of procedural

safeguards, the totality of the circumstances weighs strongly

against admission of the post-hypnotic testimony.

The Second and the Eighth Circuits employ a similar

totality of the circumstances test for determining the admissibility

of hypnotically-enhanced testimony in civil suits. See Borawick v.

3

The magistrate judge held that Valdez was inapplicable, reasoning

that Mersch’s pre-hypnosis suspicions constituted sufficient pre-hypnosis

identification of defendants to avoid the Valdez rule. Mersch’s suspicions –

which she admitted were not grounded in any independent memory of the event –

cannot be considered a pre-hypnosis identification under Valdez. On the

contrary, her suspicions, drawn from the sheer fact of injury and having been in

police custody, are exactly the kind of prior suspicions that Valdez was

concerned about.

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Shay, 68 F.3d 597, 608 - 609 (2d Cir. 1995); Sprynczynatyk v.

General Motors Corp., 771 F.2d 1112, 1119 - 1124 (8th Cir. 1985).

In addition, both circuits impose on the proponent of the

hypnotically-enhanced testimony the burden of proof during the

proceeding and recommend that district courts conduct pretrial

evidentiary hearings on the matter. See Borawick, 68 F.3d at 608 -

609; Sprynczynatyk, 771 F.2d at 1122 - 1123.4

We find these cases persuasive and concur in their

approach. If requested, the district court should hold a hearing

when a case presents a significant issue concerning hypnotically-

enhanced testimony. Such a hearing would have better enabled the

parties in this case to air their positions on admissibility.

Alternatively, in a case proceeding toward trial, the often complex

determination about the admissibility of such testimony can be made

on an evidentiary record compiled without the distraction and haste

that may occur before and during trial.

Whether considered under Valdez or the totality of the

circumstances, Mersch’s post-hypnosis testimony should not have been

4

In White v. Ieyoub, this Court stated that “the court should

determine whether the defendant has shown, from the totality of the

circumstances, that the post-hypnosis testimony is unreliable.” White v. Ieyoub,

25 F.3d at 248 - 249. White arose, however, in the habeas context, where the

petitioner bears the burden of showing constitutional error. In the ordinary

civil or criminal case, the proponent of hypnotically-enhanced testimony bears

the burden of showing it is admissible.

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admitted. The magistrate judge committed manifest error in

admitting it.

CONCLUSION

The police officers have established that there is no

genuine issue of material fact, and they are entitled to judgment

as a matter of law upholding their qualified immunity. The only

evidence of their alleged excessive force was Mersch’s inadmissible

post-hypnosis testimony. Without that testimony, she has no case.

For these reasons, we REVERSE the district court and RENDER judgment

in favor of the defendants.

REVERSED and RENDERED.

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