Amicus Brief — Quaglino v. California

ih dis dagaccis Coes

OF THE

Rnited States

Ocroser TERM, 1977

No. 77-1288

JOHN PHILIP QUAGLINO,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNTA,

Respondent.

|

|

EPHRAIM MARGOLIN,

NicHo.ias C. ARGUIMBAU,

445 Sutter Street, Suite 501,

San Francisco, California 94108,

Telephone: (415) 421-4347,

Attorneys for Amicus Curiae.

PERN AU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA 94105

A BOWNE COMPANY

Subject Index

Motion for leave to file brief amicus curiae ...............

ET IT EE

Ne uk eteeuebusc sacs

cnn pe cgcepact keel sénesedenege teens

I » tac oenneaeedssbdteeetpenneheandedestbonbnces

I DY eT 5 COREE OF hee Ee

I.

Permitting a prosecution witness to testify to identi-

fication of the accused after hypnotic memory “en-

hancement,’ absent proper safeguards, denies the

fendant his right to confrontation under the Sixth

Fourteenth Amendments to the United States

? j.0 25 «et umriekdees delw shee ede memes oe

iI. By reason of the hypnotie procedures used in this

ease, the eyewitness identification was not suffi-

ciently reliable to meet the requirements of due

PTOCOSH 2c cee ee eee eee meee reese se eeeeetons

ED titi eink wid bheirh eb OG SO0t Ch SEES bh ous

a ie ale ia

OO

Table of Authorities Cited

Cases Pages

California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.

I a a ie ee be 9

Clemons y. U.S., 133 App. D.C. 27, 408 F.2d 1230 (1968) 13

Codispoti v. Pennsylvania, 418 U.S. 506, 41 L.Ed.2d 912,

od aoe i ee bee alie calnws 11

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ..... 10

Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87

ee a oe ee eh ee ee in cg wail 9, 11,12

Manson v. Brathwaite, ...... a <r

REN SRE EE A Se RCI Or Ie SR Ae 11, 12, 13,14

Moore v. Illinois, ....... US. ....... 54 L.Ed.2d 424 (1977) ... 9

Napue v. Illinois, 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct.

EE ele cit ibid ide du ioedettdedadesadiede 11

Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 97 S.Ct.

I i i aa eee wees eiebude aes 12

People v. Kelly, 17 C.3d 24, 130 Cal.Rptr. 144, 549 P.2d

tee eee Ula ok aU Soh deen bay Gk bat 7,10

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d

PE Soc nSuaeh se baOsnAd ese awtes soa Nectar twaes 8

Rochin v. California, 342 U.S. 165, 96 L.Ed. 183, 72 S.Ct.

RSE ASF SE ea ee ae Geen 14

Simmons vy. United States, 390 U.S. 377, 19 L.Ed.2d 1247,

ee ED ein cen xbidd ceeidéaeddet donee we 12, 13, 14

State v. Saporen, 205 Minn. 358, 285 N.W. 898 (1939) .... 10

Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct.

EE ichonh dedddecdaerehehien nek éahidesete et 11,12

United States v. Addison, 498 F.2d 741 (D.C. Cir. 1974) .. 7

United States v. Wade, 388 U.S. 218, 87 S.Ct. 192-6, 18

ER RE Cc ae 9,11,12

Constitutions

United States Constitution:

SEAT ER EE TAR, OE 3, 14

EE, Accedcesinshc te « dnudes 64h éewu Cee

Fourteenth Amendment ..................cccceeeces 8

TaBLe or AUTHORITIES CITED iii

Texts Pages

Grano, “Kirby, Biggers and Ash: Do any Constitutional

Safeguards Remain Against the Danger of Convicting

the Innocent?” 72 Mich.L.Rev. 719-798, at 773-779 ...... 12,14

Hilgard, “Hypnosis Is No Mirage,” 86 Psychology Today

121-128, at 127 (November 1974) ..........--eeeeeees 4

“Hypnotism, Suggestibility and the Law,” 31 Nebr.L.Rev.

TB CIBER) cn ccccccccccciccctececesccsccccvesecccsce 4

“Hypnotized Witnesses May Remember Too Much,” 64

ABAJ 187 (February 1978) ..........eeseceeeeeecers 7

Orne, “The Simulation of Hypnosis: Why, How and What

it Means,” 19 Int.Jour.Clin. & Exp. Hypnosis 183-210

(WOTA) a ccccccccccdccccces:-comcceccoccececccccgcees 4

Orne, “The Nature of Hypnosis: Artifact and Essence,”

58 Jour. Abnormal and Social Psychology 277-299 ..... 4

Weinstein, Abrams and Gibbons, “Validity of the Polygraph

with Hypnotically Induced Repression and Guilt,” 126

Am.Jour. Psychiatry 143-146 (1970) ...............55- 5

Iu the Supreme Court

OF THE

United States

OcTOBER TERM, 1977

No. 77-1288

JOHN PHILIP QUAGLINO,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

CALIFORNIA ATTORNEYS FOR CRIMINAL

JUSTICE (“CACJ”), by its attorneys EPHRAIM

MARGOLIN and NICHOLAS ARGUIMBAU hereby

move the Court for an order permitting them to file

the within brief in support of the petition for writ of

certiorari in this case. This brief is being filed and

serve” contemporaneously with the filing of the re-

sponse to the petition requested of the Solicitor Gen-

eral by this Court.

The petitioner assents to this motion. It is opposed

by the People of the State of California.

Dated, San Francisco, California,

June 1, 1978,

EPHRAIM MARGOLIN,

NicHo.as C, ARGUIMBAU,

By Eruratm Maroons,

Attorneys for Amicus Curiae,

INTEREST OF AMICUS

CALIFORNIA ATTORNEYS FOR CRIMINAL

JUSTICE (“CACJ”) is a statewide organization of

attorneys active in criminal defense, CACJ represents

approximately 1500 lawyers in California. We appear

amicus in cases of wide significance, especially when

they raise novel constitutional issues of significant

import to the criminal bar.

In addition, CACJ filed an amicus brief in support

of the petition for hearing in the Supreme Court of

California.

QUESTIONS PRESENTED

1, Whether the admission of the identification tes-

timony of an eyewitness who has been subjected to

hypnotic memory “enhancement,” either generally or

on the facts of this case, violates the defendant's right

to confront the witnesses against him, in violation of

the Sixth Amendment of the United States Constitu-

tion.

2. Whether the admission of the identification tes-

timony of an eyewitness who has been subjected to

hypnotic memory “enhancement,” either generally or

on the facts of this case, violates the due process stand-

ards under the Fifth Amendment of the United States

Constitution for admissibility of evidence of eyewit-

ness identifications,

ae nT ET ee

4

The use of hypnosis as a tool in criminal prosecu-

tions is rapidly on the rise throughout the country.

For the Court’s enlightenment, one of the world’s

leading authorities in the field, Dr. Martin Orne,’ has

provided an affidavit (submitted under separate cover

by this party) briefly reviewing the use and abuse of

hypnosis in the criminal field. Of special concern to

the amicus and to this Court should be the widespread

problems this law enforcement “tool” is creating. As

Dr. Orne points out, there are so few true authorities

in the field and so many law enforcement agencies

(and defense attorneys) using it to “augment” the

_memories of witnesses, that uniform nationwide guid-

ance by the courts is necessary to prevent miscarriages

of justice by the thousands,

There is a consensus among the authorities that

hypnosis is at best a dangerous procedure which is

“like a sealpel; you wouldn't want it wielded by your

janitor, only by your surgeon.’” And at worst, hypno-

sis can produce undetected and undetectable perjury,

because the subject may be so completely convinced

‘Nearly three decades ago Orne published the first discussion

of hypnosis and the law; “Hypnotism, Suggestibility and the

Law,” 31 Nebr.L.Rev, 575 (1952). See als. Orne, “The Nature of

Hypnosis; Artifact and Essence,” 58 Jour. Abnormal and Social

Psychology 277.299, and Orne, “The Simulation of Hypnosis:

Why, How and What it Means,” 19 Int.Jour.Clin, & Exp. Hypno-

sis 183-210 (1971),

*Erika Fromm, quoted in Hilgard, “Hypnosis Is No Mirage,”

86 Psychology Today 121-128, at 127 (November 1974),

of a false memory implanted through hypnosis that

he or she can pass a lie detector test.’

The refusal of the California Supreme Court, by a

4-3 vote, to hear the present case was reported in the

American Bar Association Journal, which stated in

part:

The master trial lawyer must be a kind of

hypnotist, able to draw judge and jury into a

world where only his words hold truth,

But the time is fast approaching when hypno-

sis will assume an out-front role in the courtroom,

and it is not the jurors, but the witnesses, who

will be entranced.

The California Supreme Court refused by a 4-3

vote in December to hear the appeal of a murder

conviction in which testimony induced under

hypnosis played a major role.

The court’s decision is “incredible” and “hor-

rible” to Dr. Ernest R. Hilgard, former president

of the International Society of Hypnosis and di-

rector of the Stanford University Laboratory of

Hypnosis Research, Dr. Martin T. Orne, current

president of the society and a professor at the

Universaty of Pennsylvania, agrees... .

Hypnosis, even as an investigative tool, is un-

reliable and unpredictable, say the doctors, People

can flat-out lie under hypnosis, and the examiner

is no better equipped to detect the hypnotic lie

"Weinstein, Abrams and Gibbons, Mn y of the Polygraph

with Hypnotieally Induced Repression and Guilt,” 126 Am.Jour,

Psychiatry 143-146 (1970),

than any other kind. Even more serious, a willing

hypnotic subject is more pliable than he normally

would be, more anxious to please his questioner.

Knowing even a few details of an event, often

supplied in early contacts with police, may pro-

vide the subject with enough basis to create a

highly detailed “memory” of what transpired,

whether he was there or not.

After the hypnotic session, the subject may re-

call the hypnotically induced memory as an au-

thentic one. It well may be authentic, but neither

the subject nor anyone else can separate the “re-

production” from the “production,” says Orne,

Memory distortion occurs under hypnosis in the

same ways it ordinarily occurs, but it is exagger-

ated, says Hilgard.

Dr. Martin Reiser, director of the Los Angeles

Police Department's behavioral-sciences services,

does not dispute what Orne and Hilgard say. But

he argues that those problems should not prevent

the use of a valuable investigative tool. Reiser

also runs Law Enforcement Hypnosis Institute,

Inc., a private profit-making corporation in Los

Angeles. It has now trained nearly 300 persons,

mostly police but also a few lawyers and one

judge, in hypnosis.

Reiser says his students are highly trained and

professional investigators, from all ranks of po-

lice, who are instructed not to trust the hypnotic

information but to corroborate everything with

independent proof. But there was no corrobora-

tion that Quaglino had bought the hit-and-run

car in the Santa Barbara police case... .

7

[With witnesses “contaminated” by the hyp-

notic process, totally convinced of the accuracy

of their recall, Orne and Hilgard fear hypnotic

evidence will assume unwarranted significance in

the nation’s courts as a magic test for truth.

“Hypnotized Witnesses May Remember Too

Much,” 64 ABAJ 187 (February, 1978). (Empha-

sis added.)

For reasons which follow, this Court can and should

intervene to prevent the threat to criminal justice

noted by the American Bar Association Journal from

becoming a reality.

The facts of the case are set forth in detail in the

petition filed on behalf of Quaglino;' consequently,

this brief will concentrate on what the amicus per-

ceives as the guiding legal principles,

‘lt should be noted that the record was augmented in the

California Supreme Court to include, in particular, expert tes-

timony on hypnosis from the first trial, which resulted in a hung

jury. That part of the record is properly before this Court, It

should also be noted that the scientific publications relied upon

by the petitioner were placed before the California Supreme

Court and that under California and federal law such publica.

tions are judicially noticeable, See, ¢.g., People v. Kelly, 17 C.3d

24, 35, 190 Cal. Rptr, 144, 549 P.2d 1240 ( 076); United States

vu. Addison, 498 F.2d 741, 744-745 (D.C, Cir, 1974), Conse-

quently, these publications are properly relied upon in this

proceeding.

I. PERMITTING A PROSECUTION WITNESS TO TESTIFY TO

IDENTIFICATION OF THE ACOUSED AFTER HYPNOTIC

MEMORY “ENHANCEMENT,” ABSENT PROPER SAFE-

GUARDS, DENIES THE DEFENDANT HIS RIGHT TO OON-

FRONTATION UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

The Sixth Amendment provides that “In all erimi-

nal prosecutions, the accused shall enjoy the right...

to be confronted with the witnesses against him.” The

Confrontation Clause is made applicable to state

criminal prosecutions through the Fourteenth Amend-

ment. Pointer v. Texas, 380 U.S, 400, 408, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965).

Basic to the right of confrontation is the right of

cross-examination, Pointer, supra, 380 U.S. at 404,

As the Court said in Pointer,

There are few subjects, perhaps, upon which this

Court and other courts have been more nearly

unanimous than in their expressions of belief that

the right of confrontation and cross-examination

is an essential and fundamental requirement for

the kind of fair trial which is this country’s con-

stitutional goal.

380 U.S. at 405,

This Court, in requiring that counsel be present at

pretrial lineups, relied in part on the threat to effee-

tive cross-examination which pretrial identification

procedures frequently present:

Insofar as the accused's conviction may rest on

a courtroom identification in fact the fruit of a

suspect pretrial identification which the accused

is helpless to subject to effective scrutiny at trial,

the accused is deprived of that right of cross-

9

examination which is an essential safeguard to

his right to confront the witnesses against him.

Pointer v. Texas, 380 US 400, 13 L ed 2d 923, 85

S Ct 1065. .

Umited States v. Wade, 388 U.S. 218, 236, 87

S.Ct. 192-6, 18 L.Ed.2d 1149 (1967).

Moreover, the Court has recently reaffirmed that

Wade and Gilbert v. California, 388 U.S. 263, 18

L.Ed.2d 1178, 87 S.Ct. 1951 (1967), sought to preserve

the right of confrontation from undue pretrial manip-

ulation of witnesses. Moore v. Illinois, ........ SPUN ume

54 L.Ed.2d 424 (1977).’

The danger perceived in Wade and Moore was that

a pretrial procedure might so solidify a witness’ views

as to prevent effective cross-examination, thereby de

priving the defendant of the Sixth Amendment right

to confront his accusers. In other areas too, the Con-

frontation Clause is read to prevent reliance upon

testimony which is solidified by pretrial suggestions.

For instance, this Court noted in California v. Green,

399 U.S. 149, 159, 90 S.Ct. 1930, 26 L.Ed.2d 489

(1970), which considered the applicability of the Con-

frontation Clause to the admissibility of prior incon-

sistent statements,

... The main danger in substituting subsequent

for timely cross-examination seems to lie in the

*See particularly the Court’s reference to the danger that a

witness who has once made an identification “will be predis-

posed to adhere to this identification in subsequent testimony at

trial,” and the suggestion that one function of counsel at a

lineup could be “to cross-examine the [witness] to test [his or

ro identification before it hardened.” Note 5, 54 L.Ed2d at

435.

10

possibility that the witness’ “[f]alse testimony is

apt to harden and become unyielding to the blows

of truth in proportion as the witness has oppor-

tunity for reconsideration and influence by the

suggestions of others, whose interest may be, and

often is, to maintain falsehood rather than truth.”

State v. Saporen, 205 Minn. 358, 362, 285 N.W.

898, 901 (1939).

There is no practice in which false testimony is more

“apt to harden and become unyielding to the blows of

truth” than hypnosis. Absent a validation procedure

such as that suggested by the petition below (1.e., con-

firmation of the reliability of the procedure as viewed

by the scientific community, under People v. Kelly,

17 C.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 [1976]

and Frye v. United States, 293 F. 1013 [D.C. Cir.

1923]) testimony of a prosecution identification wit-

ness who has undergone hypnosis on the subject of

his testimony must be viewed as inadmissible as in

violation cf the defendant’s rights of confrontation

and cross-examination.

Il. BY REASON OF THE HYPNOTIC PROCEDURES USED IN

THIS CASE, THE EYEWITNESS IDENTIFICATION WAS NOT

SUFFICIENTLY RELIABLE TO MEET THE REQUIREMENTS

OF DUE PROCESS.

It is too well-established a principle to be ques-

tioned that:

The duty of this Court to make its own inde-

pendent examination of the record when federal

constitutional deprivations are alleged is clear,

11

resting, as it does, on our solemn responsibility

for maintaining the Constitution inviolate.

Napue v. Illinois, 360 U.S. 264, 271, 3 L.Ed.2d

1217, 79 S.Ct. 1173 (1959).

The principle is still very much alive. See, e.g., Codi-

spott v. Pennsylvania, 418 U.S. 506, Note 6 at 517, 41

L.Ed.2d 912, 94 8.Ct. 2687 (1974). This Court’s will-

ingness to review the facts in eyewitness-identification

cases is illustrated by the detailed factual discussion

in Manson v. Brathwaite, ....... ee ee el

53 L.Ed.2d 140, 154-156 (1977).

There has been a great deal of ferment in the area

of eyewitness identification in the last decade. In the

famous “Wade Trilogy” of United States v. Wade,

388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967) ;

Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178,

87 S.Ct. 1951 (1967) and Stovall v. Denno, 388 U.S.

293, 18 L.Ed.2d 1199, 87 S.Ct. 1967 (1967), this Court

recognized that the Constitution requires more than

mere relevance to permit the admission of possibly

unreliable eyewitness identifications, and that special

safeguards such as presence of counsel are necessary

during pretrial identification. In Stovall the Court

held that it was a “recognized ground of attack upon

a conviction” that a pretrial identification procedure

was “so unnecessarily suggestive and conducive to

irreparable mistaken identification” as to deny due

process.

In a number of subsequent cases relying upon

Stovall, it was held that “unnecessarily” suggestive

12

pretrial identification procedures would be subject to

an exclusionary rule. Following the holding of Sim-

mons v. United States, 390 U.S. 377, 384, 19 L.Ed.2d

1247, 88 S.Ct. 967 (1968) that (at least in the context

of a pre-Stovall conviction) exclusion will only be

required when the pretrial identification procedure is

“so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification,”

and the holding of Neil v. Biggers, 409 U.S. 188, 199,

34 L.Ed.2d 401, 97 S.Ct. 375 (1972) that the more

stringent “unnecessarily suggestive” standard is in-

applicable to pre-Stovall identifications because it is a

prophylactic rule, the circuits split on the question

of whether a post-Stovall identification procedure may

be attacked as ‘‘unnecessarily” suggestive (Stovall)

if it is not ‘‘impermissibly” suggestive (Stmmons).°

That narrow question was settled, however, in Man-

son v. Brathwaite, supra, this Court concluding that

the Simmons standard was applicable to both pre- and

post-Stovall identifications. Manson might be inter-

preted, as did the dissent, as one in which the Court

“dismantle[d] the protections against mistaken eye-

witness testimony erected a decade ago in [ Wade,

Gilbert, and Stovall].” However, the Court continued

to recognize the Simmons standard of inadmissibility

where there is “a very substantial likelihood of ir-

reparable misidentification” 53 L.Ed.2d at 155 and

*See, e.g., Grano, “Kirby, Biggers and Ash: Do any Constitu-

tional Safeguards Remain Against the Danger of Convicting

the Innocent?” 72 Mich.L.Rev. 719-798, at 773-779.

13

left open to attack identification procedures which, vy

interfering with the right of cross-examination, “go

to the very heart—the ‘integrity’"—of the adversary

process.” Note 14, 53 L.Ed.2d at 140, quoting the con-

curring opinion in Clemons v. U.S., 133 App. D.C. 27,

48, 408 F.2d 1230, 1251 (1968).

For reasons which are made very clear in the

fact statement of the petition in this ease, this is not

the sort of case in which it is sufficient to rely upon

“the good sense and judgment of American juries,”

Manson, supra, 53 L.Ed.2d at 155, to rectify mis-

identification, because hypnosis gives the semblance

of reliability and scientific certainty where in fact

there is none, and by its very nature interferes with

the ability to cross-examine witnesses.

The key phrase in the Simmons standard is “ir-

reparable misidentification.” The Court has recog-

nized in all the cases that the true danger of

suggestive pretrial identification procedures is that an

initial] misidentification may not be rectifiable through

the ordinary device of cross-examination, and that the

purpose of the stringent rules adopted in the Wade

Trilogy and subsequent cases is to mitigate that

danger. The essential defect of hypnosis is that if

there is misidentification it is inevitably irreparable.

The California Court of Appeal’s decision is incom-

prehensible unless read as having ignored the word

“irreparable.” A reversal by this Court is essential

to demonstrate that the Simmons standard cannot be

so construed.

14

Even under the best of circumstances, examples of

convictions based upon false identification are iegion.’

When the unnecessarily suggestive procedure of

single-photo show-up is combined with subsequent

hypnotic memory “enhancement,” those dangers are

so great that the procedure “offend[s] those canons

of decency and fairness which express [our] notions

of justice,” and truly “shocks the conscience.” Rochin

v. California, 342 U.S. 165, 169, 172, 96 L.Ed. 183, 72

S.Ct. 205 (1952), cited in Manson, supra, 53 L.Ed.2d

at 153. The present case gives this Court the oppor-

tunity and duty to demonstrate that it has not aban-

doned those principles.

CONCLUSIONS

The totality of the circumstances in this case de-

mand that the decision of the California Court of

Appeal be overturned, as in violation of the petition-

er’s Fifth and Sixth Amendment rights. While a flat

rule that hypnotically-induced identifications are in-

admissible may prove necessary, that issue need not

be reached by the Court. Because of the widespread

threat to the criminal justice system which hypnosis

presents, however, the Court should hold that hyp-

notically-induced eyewitness identification is “imper-

"For numerous examples, see Grano, supra, 72 Mich.L.Rev.

719-798, Notes 112-114, 420-421 and accompanying text.

oe oe OS SEIS 9

15

missibly suggestive,” Simmons, supra, except under

clear safeguards such as those suggested by Dr. Orne

in the accompanying affidavit.

Dated, San Francisco, California,

June 1, 1978.

EPHRAIM MARGOLIN,

NicHoias C, ARGUIMBAU,

By EpHratM Marco.in,

Attorneys for Amicus Curiae.