Amicus Curiae Brief — Rock v. Arkansas

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

VICKIE LORENE ROCK,

Petitioner,

Vv.

STATE OF ARKANSAS,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Arkansas

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF

AMICI CURIAE PRODUCT LIABILITY ADVISORY

COUNCIL AND MOTOR VEHICLE MANUFACTURERS

ASSOCIATION IN SUPPORT OF RESPONDENT STATE

OF ARKANSAS

DAVID M. HEILBRON

Counsel of Record

CHRISTOPHER BERKA

MCCUTCHEN, DOYLE, BROWN &

ENERSEN

Three Embarcadero Center

San Francisco, California 94111

Telephone: (415) 393-2000

February 11, 1987 Attorneys for Amici Curiae

WILSON - Epes PrinTiNG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-130

VICKIE LORENE ROCK,

Petitioner,

v.

STATE OF ARKANSAS,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Arkansas

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE PRODUCT LIABILITY ADVISORY

COUNCIL AND MOTOR VEHICLE MANUFACTURERS

ASSOCIATION IN SUPPORT OF RESPONDENT STATE

OF ARKANSAS

The Product Liability Advisory Council (“PLAC”)

and the Motor Vehicle Manufacturers Association

(“MVMA”) move for leave to file the attached amicus

curiae brief in support of the respondent State of Arkan-

sas. The respondent has consented to the filing of the

brief; a copy of its written consent is filed with the

Court. The consent of the petitioner was requested but

refused. This motion is filed, therefore, in accordance

with Supreme Court Rule 36.3.

The nature of PLAC’s and MVMA’s interest in this

case, the factual and legal issues presented in their brief,

and the relevance of those issues to the case are identi-

fied in Part I of the brief, entitled Introduction and

Summary, which is incorporated herein.

PLAC and MVMA request that this motion be

granted.

Respectfully submitted,

DAVID M. HEILBRON

Ceunsel of Record

CHRISTOPHER BERKA

McCUTCHEN, DOYLE, BROWN &

ENERSEN

Three Embarcadero Center

San Francisco, California 94111

Telephone: (415) 393-2000

Attorneys for Amici Curiae

February 11, 1987

TABLE OF CONTENTS

Page

~ \ CR Fi, . x= ii

I. INTRODUCTION AND SUMMARY ................ 1

a! S Ff, en 3

lll. THE DANGERS OF HYPNOSIS....................... 6

a 10

A. The Exclusionary Rule; The Old Law and

ie TE TID accericcnsetnstscncrinibitanincciiineicinimgiiliailisihde 10

Fe BD nccceecnesccescnascnctcciesininiistiintamins 14

An: 0UlUllti(‘ay: CL ee 17

He, CE ceicctesiercisencteninencsntiictitcenscennentintitinsimeiines 19

ii

TABLE OF AUTHORITIES

Cases Page

Alsbach v. Bader, 700 S.W. 2d 823 (Mo. 1985)... 13

Bundy v. State, 471 So. 2d 9 (Fla. 1985) ............... 13

Chapman v. State, 638 P.2d 1280 (Wyo. 1982).... 14

Collins v. State, 52 Md. App. 186, 447 A.2d 1272

Rare renee 11, 12, 13, 14, 17

Commonwealth v. Kater, 388 Mass. 519, 447 N.E.

I tli 12, 13

Commonwealth v. Nazarovitch, 496 Pa. 97, 436

EE et a 13

Contreras v. State, 718 P.2d 129 (Ak. 1986) _....... 13

Frye v. United States, 293 Fed. 1013 (D.C. Cir.

eae A nee ae em Bate 11, 12, 14, 17, 19

Harding v. State, 5 Md. App. 230, 246 A.2d 302

(1968), cert. den. 395 U.S. 949 (1969) _............. 10, 11, 15

Harker v. State of Maryland, 800 F.2d 437 (4th

ROPERS SEI 2 te aRarves Oe eve 11

Harmon v. State, 700 P.2d 212 (Ct. Crim. App.

a aa ala icici 13

House v. State, 445 So. 2d 815 (Miss. 1984)... 16

Kline v. Ford Motor Co., Inc., 523 F.2d 1067 (9th

SEE ee eee ae ee 11

People v. Gonzalez, 415 Mich. 615, 329 N.W. 2d

TE ESE ee ee ae ar 13

People v. Hughes, 88 A.D.2d 17, 452 N.Y.S. 2d

RIEL EEL EE A ee ee 13

People v. Quintanar, 659 P.2d 710 (Colo. App.

RE EN Ee SE Re Se eR a 13

People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775

(1982), cert. den., 458 U.S. 1125 (1982) ......... 6, 11, 12,

13, 14, 18

Peterson v. State, 448 N.E. 2d 673 (Ind. 1983) .... 13

Polk v. State, 48 Md. App. 382, 427 A.2d 1041

SEARO See Ricken ane se 13, 14

Prewitt v. State, 460 So. 2d 296 (Ct. Crim. App.

EERE PEAR ae rr Re RRR A ECO 13

Rock v. State, 708 S.W. 2d 78 (Ark. 1986) ......6, 7, 8, 9, 10,

12, 15, 14, 17, 19

iii

TABLE OF AUTHORITIES—Continued

Page

Sprynczynatyk v. General Motors, 771 F.2d 1112

(8th Cir. 1985), cert. den. 106 S.Ct. 1263

EIT sccchiasssaneniiebieenpsiconensniiteltintiniebdameaniiihahidiiaanmbamnageiaied 3, 4, 5, 6, 16

State v. Armstrong, 110 Wis. 2d 555, 329 N.W.

2d 386, cert. den., 461 U.S. 946 (1983) .............. 14

State v. Atwood, 479 A.2d 258 (Superior Ct.

EEO NEn | ana 13

State v. Beachum, 97 N.M. 682, 643 P.2d 246

+} ESC jag silalitadhial etalk tiaatiaiciataat 16

State v. Brown, 337 N.W. 2d 1388 (N.D. 1983).... 14

State ex rel. Collins v. Superior Court, 132 Ariz.

A ESSE eT en 13, 14

State v. Davis, 490 A.2d 601 (Superior Ct. Dela.

1985) ne PR nee aT 13

State v. Haislip, 701 P.2d 909 (Kan. 1985)........ i3

State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981)... 15, 16

State v. Mack, 292 N.W. 2d 764 (Minn. 1980).... 11, 12,

13, 14, 15, 17

State v. Martin, 101 Wash. 2d 713, 684 P.2d 651

Ue I tee caine daelpahibatihliatiiacengtiin 13

State v. Mena, 128 Ariz. 226, 624 P.2d 1274

| ETC en nee Sone» SON 13

- State v. Moreno, 709 P.2d 103 (Ha. 1985) .............. 13

State v. Palmer, 210 Neb. 206, 313 N.W. 2d 648

I iliac canine dictates aaiiaaieaialiiediisliames 13

State v. Peoples, 311 N.C. 515, 319 S.E. 2d 177

SEES a eS OL RN 13

State v. Weston, 475 N.E. 2d 805 (Ohio Ct. App.

EELS oer ae Se See ee ee wR 16

United States v. Adams, 581 F.2d 193 (9th Cir.

ET RENE Sere Sey ee a ar A ee Oe 11, 16

United States v. Awkard, 597 F.2d 667 (9th Cir.

a a cnsienleniiinatiel 11, 16

United States v. Kimberlin, 805 F.2d 210 (7th

ey ener ee ean nee 10

United States v. Valdez, 722 F.2d 1196 (5th Cir.

acetate ai ial ceeiiiaitltas anid 14, 15, 16, 17, 18

Walraven v. State, 336 S.E. 2d 785 (Ga. 1985)... 13

Wyller v. Fairchild Hiller Corp., 503 F.2d 506

(9th Cir. 1974) 1l

iv

TABLE OF AUTHORITIES—Continued

Statutes

Oregon Rev. Stat. § 136.675 (1981) ~..........................

Rules

Federal Rule of Evidence 4038 ....0.....0... 0. eee

Other Authorities

American Medical Association, Council on Scien-

tific Affairs, “Scientific Status of Refreshing

Recollection by the Use of Hypnosis,” 253

Journal of the American Medical Association

Bk Ee ae

B. Diamond, “Inherent Problems in the Use of

Pretrial Hypnosis on a Prospective Witness,”

68 Calif. L. Rev. 313 (1960).....................................

Dywan and Bowers, “The Use of Hypnosis to En-

hance Recall,” 222 Science 184 (October 14,

SIT icihicisdianiatonichiiinubninaiieaas inciiasieassibistibitiataaasinae

Laurence and Perry, “Hypnotically Created Mem-

ory Among Highly Hypnotizable Subjects,” 222

Science 523 (November 4, 1983) 0000000000000...

Orne, et al., Hypnotically Refreshed Testimony:

Enhanced Memory or Tampering With Evi-

dence? U.S. Department of Justice, National

Institute of Justice/Issues and Practices

GINNIY serstircibiississcmiicesnitiesiisgltnpsaitahdieiectilliati a sities,

Orne, “The Use and Misuse of Hypnosis in

Court,” in Critical Issues in American Psychia-

try and the Law, Vol. 2 (Richard Rosner, ed.)

NSE erm ORR RSE No ne aS

Orne, et al., “Hypnotically Induced Testimony,”

in Eyewitness Testimony: Psychological Per-

spectives (G.L. Wells and E.F. Loftus, eds.),

Page

16

14

10

7,9

TDD seavsessietpneenishenmndniahtetiiamaiiiaemndiiaheediinidlaes niin: 7, 9, 16

Orne, et al., “The Forensic Use of Hypnosis,”

U.S. Department of Justice, National Institute

of Justice/Research in Brief, December 1984....

8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-130

VICKIE LORENE ROCK,

Petitioner,

V.

STATE OF ARKANSAS,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Arkansas

BRIEF OF AMICI CURIAE

PRODUCT LIABILITY ADVISORY COUNCIL AND

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

IN SUPPORT OF RESPONDENT STATE OF ARKANSAS

I. INTRODUCTION AND SUMMARY

The Product Liability Advisory Council (“PLAC”)

and the Motor Vehicle Manufacturers Association

(“MVMA”) submit? this amicus curiae brief. PLAC

is a non-profit membership corporation? whose principal

1 A motion to file this brief is attached.

2 PLAC members are American Honda Motor Co., Inc., American

Telephone & Telegraph, Automobile Importers of America, Inc.,

Bell Helicopters Textron Inc., Black & Decker Co., the Budd Co.,

Clark Equipment Co., FMC Corp., Fiat Auto U.S.A. and Ferrari,

2

purpose is to submit briefs, as friend of the court, in

appellate cases involving significant issues affecting the

law of products liability. MVMA is a trade organiza-

tion * whose member companies build over ninety-nine

percent of all motor vehicles produced in the United

States.

The specific issue in this case is whether Arkansas’ ex-

clusion of a criminal defendant’s hypnotically induced

testimony violated that criminal defendant’s Constitu-

tional right to testify in his own behalf. MVMA and

PLAC do not have experience or expertise in the criminal

law, and therefore take no position on that specific issue.

However, Petitioner’s brief appears to go beyond that

issue, for it suggests that hypnotically induced testimony

ought to be admissible, in general, in any case; cross-

examination, it says, “is a better means of dealing with

invention of testimony under the guise of refreshing rec-

ollection than prohibiting the testimony.” (Petitioner’s

Brief, p. 13)

MVMA and PLAC oppose admission of hypnotically

induced testimony in general, and in particular in the

civil cases in which we are experienced. It is not reliable,

and the overwhelming consensus of expert opinion holds

that it is not. Trials are meant to find the truth. Hyp-

notically induced testimony subverts the search for truth

and, we believe, undermines the integrity of the trial

system.

N.A., The Firestone Tire & Rubber Company, Fruehauf Co., Great

Dane Trailers, Inc., International Playtex, Motor Vehicle Manu-

facturers Association of the United States, Inc., Nissan Motor

Corp., Otis Elevator Co., Porsche Cars North America, Inc., Sturm,

Ruger & Co., Subaru of America, Inc., and Toyota Motor Sales,

U.S.A., Inc.

*MVMA members are American Motors Corp., Chrysler Corp.,

Ford Motor Co., General Motors Corp., Honda of America Mfg.,

Inc., LTV Aerospace & Defense Co., AM General Division, M.A.N.

Truck & Bus. Corp., Navistar International Corp., PACCAR Ince.,

Volkswagen of America, Inc., and Volvo North America Corp.

3

This is not a view held in the abstract. We have seen

hypnotically induced testimony at work, and the prob-

lems with it are very earthy and very real. We believe

it may be helpful to share with the Court one example,

which, we believe, shows how hypnosis actually does its

job, and what it can do to a lawsuit. Then, citing to that

example, we discuss the dangers of hypnosis when used

to restore memory, review the law dealing with hypnoti-

cally induced testimony,* and comment briefly on the Rock

case so far as it concerns the admission of hypnotically

induced testimony in general.

Il. A CASE IN POINT

Sprynczynatyk v. General Motors, 771 F.2d 1112 (8th

Cir. 1985), cert. den. 106 S.Ct. 1263 (1986) (No. 85-

1045) is a case in point. The case received some national

attention, and was the subject of a session of “60 Min-

utes” (although not with regard to the hypnosis issue).

This is what happened:

The Accident

A fourteen year old boy drove a 1980 General Motors

Chevrolet Citation down a steep, washboard gravel road

near Bismarck, North Dakota. The car picked up speed.

The boy jerked the car back and forth across the gravel,

panicked, and lost control. The car went off the road.

His mother, who was with him, was very badly hurt.

She and her husband sued General Motors.

After the accident the boy said and swore three times

he had not touched the brakes.® But plaintiffs’ product

liability theory called for the boy to have hit the brakes.

The boy was then sent to Texas to be hypnotized. The

4 Most of which is not dealt with in Petitioner’s brief.

5 For example, twelve days after the accident the boy swore “I

didn’t apply the brakes at all. I just took my foot off the gas and

it started going over.” The boy was deposed before hypnosis, and

said again that that was his best recollection. See 771 F.2d at 1115.

4

hypnotist did business with plaintiffs’ counsel, and knew

what counsel was interested in.

The Hypnosis Session

When the hypnosis session began, the hypnotist put a

ring on a coffee table, and told the boy to focus on it

and be filled by it. “Let yourself go,” the hypnotist said.

Then he said you are going down some stairs, and the

door to your unconscious is at the bottom of them. The

boy replied that the door had a silver handle. The hyp-

notist said open iv. The boy raised his hand, and opened

it.

The hypnotist assured the boy that “the mind can reach

back and recollect things that you never thought were

possible,” and “we only have to reach back and recall it

. I’m going to let you show me how well you can

do that now.” Go back to the day of the accident “in a

time machine,” he went on.

The hypnotist took the boy through the accident day

and the evening, and then up the gravel hill, and down

it. The hypnotist praised the boy, and said he and his

family were proud of him, as they went along. When

they started down the hill, the hypnotist asked the boy

where his feet were. The hypnotist kept asking: Where

is your left foot, where is your right foot, where are

your feet? Thirty-two times he asked that, and (although

he did not mean to) his voice rose some as he did. The

boy did not answer that he had hit the brakes until,

finally, this happened:

“RODNEY: Uh-huh. And I see that I’m going to

go in the [left] ditch and hit the fence.

“HYPNOTIST: You see you are going to hit it.

What are you going to do? Where is your right foot?

“RODNEY: On the brake.

“HYPNOTIST: What are you doing with your

right foot and how much pressure are you putting

on the brakes?

5

“RODNEY: Pushing.

“HYPNOTIST: How hard?

“RODNEY: Hard.

“HYPNOTIST: As hard as you can?

“RODNEY: Uh-huh.”

See 771 F.2d at 1115.

Plaintiffs’ attorney was watching outside the room

through a one-way mirror. Shortly after that exchange,

the hypnotist left the boy, and went out to talk with

plaintiffs’ attorney. The hypnotist came back, asked a

few more questions, and said he was “very, very pleased.”

Then he told the boy to walk back through the door with

the silver handle and up the stairs. He said you will be

in a “beautiful place” when you get to the top, “where

you love everybody and everyhody loves you,” and “you

feel terrific.”

The boy and the hypnotist smiled and shook hands, and

the session ended. The boy felt greatly relieved after

hypnosis, as if a burden had been lifted from his shoul-

ders. This was all recorded on video tape.

The Trial and Appeal

The boy’s hypnotically induced memory replaced his

pre-hypnosis memory, and, over objection, the boy testi-

fied to his hypnotically induced testimony at trial. His

testimony established the first premise of plaintiffs’ lia-

bility theory, that the boy had hit the brakes. The jury

returned a verdict for plaintiff. 771 F.2d at 1116. The

Eighth Circuit reversed, finding that the trial court had

erroneously admitted a videotape of the hypnosis session

to establish the truth of what the boy said during the

session. The Eighth Circuit instructed the trial court

on remand not to admit the hypnoticaily induced testi-

mony if, after hearing, the Court found it “tainted.”

771 F.2d at 1123. This Court denied certiorari. 106

S.Ct. 1263 (1986) (No. 85-1045). The case is no longer

pending.

6

Ill. THE DANGERS OF HYPNOSIS

The decision of the Supreme Court of Arkansas in this

case is based in part on the writings of Drs. Bernard

Diamend and Martin Orne, 708 S.W.2d at 80-81; Dr.

Diamond filed an affidavit and Dr. Orne testified in the

Sprynczynatyk case. They are the “most persuasive

spokesmen for the relevant scientific community,” and

the “majority are in full agreement with [their] essen-

tial findings and conclusions.” See People v. Shirley, 31

Cal. 3d 18, 63, 641 P.2d 775 (1982), cert. den., 458 U.S.

1125 (1982).

Dr. Diamond is a professor of psychiatry and law at

the University of California, and “the author of numer-

ous articles in the area of psychiatry and the law.” Dr.

Orne has been president of the International Society of

Hypnosis, director of “one of the nation’s most active

laboratories of hypnosis research,” the editor of the

International Journal of Clinical and Experimental Hyp-

nosis, a “senior author of the article on hypnosis in the

Encyclopaedia Britannica,” and the “author of leading

articles on hypnosis research in the scholarly journals.”

His “eminence” has “repeatedly been recognized” in the

case law. See People v. Shirley, 31 Cal. 3d 18, 68, 641

P.2d 775 (1982).

As the Arkansas Supreme Court noted, “hypnosis may

have gained recognition [from experts] as an aid to

therapy,” 708 S.W.2d at 80; it may serve its therapeu-

tic goal regardless whether what the patient “relives” is

fact or fantasy.° But hypnosis meant to refresh or re-

* Hypnosis may also be a useful investigative tool, recognizing

that each item is merely a lead and nothing else. A lead is not testi-

mony. It can simply be followed, and may turn something up—or

prove an embarrassment. (Orne, “The Use and Misuse of Hypnosis

in Court,” in Critical Issues in American Psychiatry and the Law,

Vol. 2 (Richard Rosner, ed.) 1985, pp. 219, 227.) But see Dia-

mond, “Inherent Problems in the Use of Pretrial Hypnosis on a

Prospective Witness,” 68 Calif. L. Rev. 3138, 332 (1980): “[T]he

value of hypnosis for investigative purposes has been greatly over-

7

form one’s memory so he may testify to it is something

else; there it matters whether what the patient relives—

and testifies to—is fact or fantasy.

As the Arkansas court also noted, hypnosis “has not

gained general acceptance as a means of ascertaining

truth in the field of forensic law”, ibid., because hypnosis

as truth finder is unreliable. The experts, and in par-

ticular Drs. Orne and Diamond, have explained why.

These are the main reasons; the Rock court cited to each

of them.

Suggestion. One under hypnosis suspends critical judg-

ment, and wants very much to please the hypnotist. Con-

sequently, he is “extremely suggestible.” Rock, 708 S.W.

2d at 80 (quoting Diamond). That is the hallmark of

hypnosis. Suggestions may be implicit, and come from

tone of voice. When made they “contaminate” the pa-

tient’s memory, because they change it. (J/bid.; Orne, et

al., “Hypnotically Induced Testimony,” in Eyewitness

Testimony: Psychological Perspectives, G.L. Wells and

E.F. Loftus, eds.) 1984, pp. 174, 190, 196.

The suggestions may be very subtle. For example, the

Sprynczynatyk hypnotist’s 32 questions about the boy’s

feet were suggestions, for they told the boy what the

hypnotist was interested in. The hypnotist’s advice that

“the mind can reach back and recollect things .... We

have only to reach back and recall it” wes also a sug-

gestion—very powerful—that the subject has it “all in

his head”; that kind of suggestion encourages invention.

See Orne, “The Use and Misuse of Hypnosis in Court,”

in Critical Issues in American Psychiatry and the Law,

Vol. 2 (Richard Rosner, ed.) 1985, p. 219.

Suggestions can also be quite unintentional. A hypno-

tist is apt, by subtle cuing, unwittingly to suggest re-

stated ... [W]hatever can be done by hypnosis can also be done

without hypnosis; it merely takes longer and requires greater

skill and patience.”

8

sponses to the subject in hypnosis. (See Orne, “The

Forensic Use of Hypnosis,” U.S. Department of Justice,

National Institute of Justice/Research in Brief, Decem-

ber 1984, p. 4; Diamond, supra at 333; Laurence and

Perry, “Hypnotically Created Memory Among Highly

Hypnotizable Subjects,” 222 Science 523, 524 (Novem-

ber 4, 1983); Rock, 708 S.W.2d at 81.) For example,

the Sprynczynatyk hypnotist testified that he tried not

to suggest anything, although he did. Suggestions are

also very hard to detect. Even an expert examining a

videotape of a hypnosis session may not be able “to iden-

tify possible cues.” IJd., at 82, n.2.

Suggestions, witting or not, are effective. For example,

Dr. Orne testified that the Sprynczynatyk hypnotist’s

suggestions would “assure a change in memory.”

Confabulation. One under hypnosis may “confabulate.”

Confabulation means making up details one does not

recall but that seem to fit. See 708 S.W.2d at 81.” Nei-

ther the hypnotist nor patient can tell what is confabula-

tion and what is real memory without checking what the

patient says against objective data. Neither can a trier

of fact, or anyone else. (See American Medical Associa-

tion, Council on Scientific Affairs, “Scientific Status of

Refreshing Recollection by the Use of Hypnosis,” 253

Journal of the American Medical Association 1918, 1922

(April 5, 1985); Rock, 708 S.W.2d at 80, 81, quoting

Diamond and Orne.)

For example, the Sprynczynatyk hypnotist could not

really tell what was real and wha. made up. But the boy

said three things which could be checked against objective

data. They showed he confabulated. Thus under hypnosis

he said he watched “The Price Is Right” on TV on the

accident day, but it was on before he got up; he said he

™The hypnotized person “translate[s] hunches, beliefs, and fan-

tasies into memories, recollections, and reported facts.” Orne, et al.,

“The Forensic Use of Hypnosis,” U.S. Department of Justice, Na-

tional Institute of Justice/Research in Brief, December 1984, p. 4.

9

watched “The Beverly Hillbillies” also, but it was not

on at all that day; and he said his sister fed the dogs,

but she was out of town.

Hopes. Hypnosis plays on hopes and fantasies, and in

hypnosis a strong hope very likely will become memory.*

(See Orne, “The Use and Misuse of Hypnosis,” supra at

216; cf., Rock, 708 F. S.W. 2nd at 81.)

For example, before hypnosis the Sprynczynatyk boy had

heard about some brake problem in Chevrolet Citations.

He wanted to be hypnotized to find out whether the acci-

dent was his fault or the car’s, and naturally he hoped

very much it was the car’s. He followed where he was

led; no doubt any human being would have wanted to get

there.

Altered Witness. One believes that what he relives in

hypnosis really happened, and with great conviction. Be-

lieving he has found truth, he will likely be a most con-

fident witness. Indeed, he “dissociates accuracy of mem-

ory from confidence” in memory (Orne, “Hypnotically

Induced Testimony” at 193,) and becomes “immune to all

cross-examination.” Diamond, supra at 336; Rock, 708

S.W. 2d at 81.

In sum, neither subject nor hypnotist can tell whether

what the subject says in hypnosis is fact or fantasy. That

is so no matter how conscientious the hypnotist.”

8 Cf. People v. Shirley, above, 31 Cal. 3d at 31-32 (where subject

has motive to distort truth “to make himself look better in the eyes

of others,” hypnosis gives him “permission” to distort).

® The Sprynczynatyk hypnotist repeatedly asked the boy to de-

scribe details as to what happened on the accident day. As Dr.

Orne testified, those questions elicit answers that convince the

patient that what he says “must have been so, because otherwise

why would I know all those details?” The patient believes, again,

that he has found truth. See Rock, 708 S.W.2d at 81.

10 That is also true even where one has no memory before hyp-

nosis. When one has memory of an event, it is extremely unlikely

10

IV. THE LAW

As the Supreme Court of Arkansas found, there is a

“current trend toward exclusion” of hypnotically induced

testimony. Rock, 708 S.W. 2d at 79. In fact, the majority

of jurisdictions to pass on the question since 1980 have

held the testimony inadmissible. As Rock also found, an-

other group of jurisdictions have held the testimony ad-

missible only if “certain safeguards have been followed

to minimize .. . [the] dangers” of hypnosis. Ibid. We

believe the exclusionary rule is the better rule and, ac-

cording to McCormick, it is now the “prevalent” rule.

(Cited at Rock, 708 S.W. 2d at 80). We discuss the ex- .

clusionary rule first (Part A, below), and then the safe-

guards rule. (Part B, below).

A. The Exclusionary Rule; the Old Law and the New

Law

In 1968 the Maryland Court of Special Appeals affirmed

the admission into evidence of hypnotically induced testi-

mony, the first court in the United States to do so. Har-

ding v. State, 5 Md. App. 230, 246 A.2d 302 (1968),

cert. den., 395 U.S. 949 (1969). Over the next decade,

several jurisdictions followed Harding, including the

Ninth Circuit, the first and, until the end of 1986, the

only federal circuit court, even arguably,” to follow it.

that a different memory generated by hypnosis will be the more

accurate one. For the waking memory is far more reliable than

the hypnotic memory which comes afterward, and the error rate

after hypnosis is three times the error rate in the wake state before

that. Dywan and Bowers “The Use of Hypnosis to Enhance Re-

call,” 222 Science 184 (October 14, 1983). The unreliability of

hypnosis is shown by “over two dozen scientific experiments during

the past fifty years.” Orne, et al., Hypnotically Refreshed Testi-

mony: Enhanced Memory or Tampering With Evidence? U.S. De-

partment of Justice, National Institute of Justice/Issues and Prac-

tices (1985).

11[n United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986),

an investigation in which witnesses were hypnotized occurred in

1978, and the trial in 1981. Jd. at 217. The Court noted that

11

Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509 (9th

Cir. 1974) ; Kline v. Ford Motor Co., Inc., 523 F.2d 1067

(9th Cir. 1975); United States v. Adams, 581 F.2d 193

(9th 1978) ; United States v. Awkard, 597 F.2d 667 (9th

Cir. 1979). Harding and its descendants did not consider

whether hypnosis as memory restorer is reliable or ac-

cepted generally or at all by scientists, and did not con-

sult the large body of scientific literature that said it is

not. They simply held that the fact a witness has been

hypnotized goes to credibility, not admissibility. See, e.g.,

Collins v. State. 52 Md. App. 186, 447 A.2d 1272, 1278

(1982) (commenting on Harding) ; People v. Shirley, 31

Cal. 3d 18, 35-36, 641 P.2d 775, cert. den., 458 U.S. 1125

(1982) (commenting on Harding’s descendants).

Harding and descendants overlooked Frye v. United

States, 293 Fed. 1013 (D.C. Cir. 1923), and the fifty

(now sixty-four) years of precedent that followed it.

Frye held that the result of a scientific technique (there

a lie detector test) is inadmissible unless the technique

has “gained general acceptance in the particular field in

which it belongs.” 293 Fed. at 1014. Hypnosis is a scien-

tific technique, and hypnotically induced testimony its

result. Accordingly, State v. Mack, 292 N.W. 2d 764,

767-68 (Minn. 1980) held the Frye “general acceptance”

test applicable to hypnosis. Thereafter, case after case

followed Mack, and the “most recent decisions by other

Harding was then a “leading case.” Jbid. Although the Court aiso

noted “several dangers . . . associated with hypnosis,” and that

several jurisdictions had declined to follow Harding, it declined to

adopt the exclusionary rule or the safeguards rule. The Court

stated two reasons: (1) the safeguards were not developed at the

time of the Kimberlin investigation, and (2) there was “so little

probability that any testimony resulting from suggestion or con-

fabulation in the course of hypnosis affected the outcome [in the

case].” Jd. at 219. The Court therefore left to later cases “[w]hat-

ever rules may evolve in this circuit on this subject ....” Ibid.

See also discussion in Harker v. State of Maryland, 800 F.2d 437

(4th Cir. 1986).

12

jurisdictions have consistently applied” Frye. Collins v.

State, 447 A.2d 1272, 1279 (Md. 1982) ; Commonwealth

v. Kater, 388 Mass. 519, 447 N.E. 2d 1190, 1196 (Mass.

1983) (the “substantial majority” applies Frye) .”

Mack and its descendants exhaustively reviewed the

scientific literature and experts’ opinions—most promi-

nently Drs. Orne’s and Diamond’s—respecting hypnosis.

Upon that review, Mack and every case after it applying

Frye found that hypnosis, even if properly conducted,

fails Frye’s test: Hypnosis is not “generally accepted”

by the scientific community as a reliable means to restore,

refresh, or find memory. To the contrary, the “overwhelm-

ing consensus of expert opinion” is that it is not reliable,

and there is no “doubt” about that. People v. Shirley,

above, 31 Cal. 3d at 23, 40, 66.

Hypnosis as memory restorer or finder is not generally

accepted as reliable by experts in the field for the same

reasons Drs. Orne and Diamond have explained it is not:

(1) The hypnotic subject is “highly susceptible to sug-

gestion,” even “that which is subtle and unintended,” and

his “critical judgment” is impaired. (2) The subject

“has a compelling desire to please the hypnotist by react-

ing positively to these suggestions.” (3) Neither subject

nor hypnotist nor anyone else can tell whether a memory

generated during hypnosis is fact, fantasy, or confabula-

tion. (4) The subject becomes utterly “convinced of the

absolute truth of the account he made while under

hypnosis”, and it is “impossible to cross-examine such a

witness in a meaningful way”. E.g., State v. Mack,

above, 292 N.W. 2d at 768-69; People v. Shirley, above,

31 Cal.3d at 43-44; 65-66; Collins v. State, above, 447

A.2d at 1280.

12 The Rock court did not resolve whether Frye applied, because

it “would find the hypnotically induced testimony inadmissible by

either the Frye test, or some form of it, or by traditional evidenti-

ary concepts.” 708 S.W.2d at 80.

13

Accordingly, every case following Mack and applying

Frye holds hypnotically induced testimony inadmissible.

Prewitt v. State, 460 8.2d 296 (Ct. Crim. App. Ala. 1984)

(Alabama) ; Contreras v. State, 718 P.2d 129 (Ak. 1986)

(Alaska); State ex rel. Collins v. Superior Court, 132

Ariz. 180, 196, 644 P.2d 1266, 1282 (1982) (Arizona) ;

State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981)

(Arizona) ; People v. Shirley, 31 Cal.8d 18, 66, 641 P.2d

775, 796 (1982), cert. denied, 458 U.S. 1125 (1982)

(California); People v. Quintanar, 659 P.2d 710, 711

(Colo. App. 1982) (Colorado) ; State v. Atwood, 479 A.2d

258 (Superior Ct. Conn. 1984) (Connecticut); State v.

Davis, 490 A.2d 601 (Superior Ct. Dela. 1985) (Dela-

ware); Bundy v. State, 471 So.2d 9 (Fla. 1985) (Flor-

ida); Walraven v. State, 336 S.E. 2d, 785 (Ga. 1985)

(Georgia) ; State v. Moreno, 709 P.2d 103 (Ha. 1985)

(Hawaii) ; Peterson v. State, 448 N.E.2d 673 (Ind. 1983)

(Indiana) ; State v. Haislip, 701 P.2d 909 (Kan. 1985)

(Kansas) ; Collins v. State, 52 Md. App. 186, 447 A.2d

1272, 1283 (1982) (Maryland); Polk v. State, 48 Md.

App. 382, 427 A.2d 1401 (1981) (Maryland) ; Common-

wealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983)

(Massachusetts) ; People v. Gonzalez, 415 Mich. 615, 329

N.W.2d 743, 748 (1982) (Michigan) ; Alsbach v. Bader,

700 S.W. 2d 823 (Mo. 1985) (Missouri); State v. Pal-

mer, 210 Neb. 206, 313 N.W.2d 648, 655 (1981) (Ne-

braska) ; People v. Hughes, 88 A.D.2d 17, 452 N.Y.S.2d

929, 931 (1982) (New York); State v. Peoples, 311 N.C.

515, 319 S.E.2d 177 (N.C. 1984) (North Carolina) ;

Harmon v. State, 700 P.2d 212 (Ct. Crim. App. Ok. 1985)

(Oklahoma) ; Commonwealth v. Nazarovitch, 496 Pa. 97,

110, 436 A.2d 170, 177 (1981) (Pennsylvania) ; State v.

Martin, 101 Wash.2d 713, 684 P.2d 651 (Wash. 1984)

(Washington); and this case, Rock v. State, 708 S.W.2d

78 (Ark. 1986) .*

13 All courts hold that the witness may testify to his prehypnosis

recollection, see, e.g., State ex rel. Collins v. Superior Court, 644

14

As for Harding and descendants, by 1982 that was

“moribund precedent.” For in 1981 and 1982 the same

Maryland court which decided Harding in the first place

repudiated it, held that Mack and Frye govern instead,

and so dealt the Harding line its “coup de grace.” See

People v. Shirley, above, 21 Cal.2d at 48; Collins v. State,

above, 447 A.2d at 1278; Polk v. State, above, 427 A.2d

at 1046. See Rock, 708 S.W.2d at 80."

B. The Safeguards Rule

The Fifth Circuit was the second Circuit, after the

Ninth, see p. 11 above, to address the hypnosis issue,

and the first since Mack. United States v. Valdez, 722

F.2d 1196 (5th Cir. 1984). Valdez declined to follow

Frye, Mack et al., on the ground that Frye applied to

testimony of experts, not lay witnesses (like a hypnotized

subject.)'®* Instead, Valdez looked to Federal Rule of

Evidence 403.

Rule 403 provides for exclusion of evidence whose “pro-

bative value” is substantially outweighed by the “danger

of unfair prejudice, confusion of the issues, or misleading

the jury ... .” Valdez reviewed the literature and case

law, and found the same shortcomings respecting hypnoti-

P.2d at 1295, although one holds that he may not testify to his

prehypnosis recollection of the event which was the subject of

hypnosis. People v. Shirley, above. All hold that hypnosis may be

used as an investigative tool. See, e.g., State v. Mack, 292 N.W.2d

at 771.

14 There have been a few cases which have followed Harding

since 1980. See, for example, Chapman v. State, 638 P.2d 1280

(Wyo. 1982); State v. Armstrong, 110 Wis. 2d 555, 329 N.W. 2d

886, cert. denied, 461 U.S. 946 (1983); and State v. Brown, 337

N.W. 2d 138 (N.D. 1983) (but noting importance of safeguards

and corroboration.)

15 However, the testimony of the hypnotized subject is the result

of a scientific technique, hypnosis. Therefore that testimony is

subject to the Frye test, and hypnosis fails the test. See subpart A,

above.

15

cally induced testimony that Mack did: The subject’s

suggestibility, his desire to please the hypnotist, the im-

possibility of telling memory from confabulation, the inef-

fectiveness of cross-examination. 722 F.2d at 1201-02.

Consequently, Valdez found the probative value of hyp-

notically induced testimony low, and the danger of it

causing prejudice and confusion high.

Valdez concerned an officer who after hypnosis identi-

fied one as the person whom he’d seen at the scene of the

crime. The officer knew the person was under suspicion.

Valdez held (1) where 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.” Valdez said

(2) in other cases, “if adequate procedural safeguards

have been followed, corroborated post-hypnotic testimony

might be admissible’—uncorroborated testimony being,

according to experts, “useless.” Id. at 12038.

Valdez pointed to State v. Hurd, 86 N.J. 525, 482 A.2d

86 (1981). Hurd struck a middle course between Mack

and Harding. It held that hypnotically induced testimony

might be admitted if the hypnosis session followed “rigor-

ous procedural safeguards” meant to guard against “the

hypnotic creation of pseudomemories.” Valdez at 1199.

These are the Hurd safeguards Valdez pointed to:

“(1) the hypnotist must be a qualified psychiatrist

or psychologist who has experience in the use of hyp-

nosis; (2) the hypnotist ‘should’ work independently,

not as agent for either party to the litigation; (3)

all information given to the hypnotist before the

hypnosis session must be recorded; (4) before hyp-

nosis, the subject must describe the facts to the hyp-

notist as he then remembers them; (5) all ‘contact’

between the hypnotist and the subject must be re-

corded, preferably on viodeotape; and (6) no per-

son other than hypnotist and subject ‘should’ be pres-

16

ent during any ‘contact’ between the two.” Valdez,

722 F.2d at 1199; Hurd, 432 A.2d at 89.

Sprynczynatyk essentially followed Valdez and Hurd.

Compliance with those safeguards is a “condition prec-

edent for the admissibility of hypnotically induced rec-

ollection” under Hurd-Valdez. 432 A.2d at 96; 722 F.2d

at 1203."*

The safeguards were originally proposed by Dr. Orne.

He believed that, for example, the hypnotist should re-

cord what he was told before the interview, so there is

no doubt what he knew about it; for a hypnotist who

knows what is at issue is more apt, by subtle cuing,

unwittingly to suggest responses to the subject by

hypnosis. Dr. Orne also believed the hypnosis session

should be recorded, so there is no doubt what is said

during it; that makes it easier to determine when a

hypnotist suggests a response during it. Orne, “Hypnoti-

cally Induced Testimony,” supra, at 206.

However, Dr. Orne proposed the safeguards to reduce

the danger that hypnosis might intentionally suggest the

recollection of helpful facts in jurisdictions where hyp-

notically induced testimony is admitted, and in connec-

tion with the use of hypnosis in investigations. See, e.g.,

16 Hurd’s following includes House v. State, 445 So.2d 815. (Miss.

1984); State v. Beachum, 97 N.M. 682, 643 P.2d 246 (1981);

State v. Weston, 475 N.E. 2d 805 (Ohio Ct. App. 1984); and the

Oregon legislature. (Or. Rev. Stat. § 136.675 (1981.)

Virtually all cases admitting hypnotically induced testimony re-

quire a showing that the hypnosis session meets some safeguards,

even if not the Hurd safeguards. For example, the Ninth Circuit,

perhaps the most aggressive jurisdiction, recognizes that hypnosis

“carries a dangerous potential for abuse,” and requires “at a mini-

mum, complete stenographic records of interviews of hypnotized

persons who later testify ....” United States v. Adams, 581 F.2d

at 198-99, n.12. The Ninth Circuit also requires the trial court to

hear “objections to the ... testimony on the ground that such

procedures [minimum standards] were not followed.” United States

v. Awkard, above, 597 F.2d at 669, n.2.

es

re re

17

Valdez, 722 F.2d at 1200. He recognized, however, that

the safeguards do not eliminate the risk of confabulation

inherent in hypnosis. Indeed, his opinion is that “[t] here

is no way ... by which anyone (including an expert

with extensive experience in hypnosis) can for any par-

ticular piece of information obtained in hypnosis deter-

mine whether it is an actual memory or a confabulation.”

Quoted at Rock, 708 S.W.2d at 81.

In sum, compliance with the safeguards helps, and is

essential if hypnotically induced testimony is to be ad-

mitted. But compliance does not change the truth that

hypnotically induced testimony is inherently unreliable.

Therefore Mack and its following, including Rock,’ ex-

clude hypnotically induced testimony entirely; the safe-

guards alone do not solve the problem. See, e.g., Collins

v. State, above, 447 A.2d at 1280-81; Rock, 708 S.W.2d

at 82-83.

The Mack rule is the majority rule and the better

rule: It is firmly grounded in the “overwhelming con-

sensus” of the scientific community, it protects the integ-

rity of the judicial process, and it ensures that the

search for truth is not subverted by what is, ultimately,

manufactured evidence.

V. COMMENTS ON ROCK

The consensus among experts is that hypnosis is not

reliable to restore memory; Frye and traditional evidence

concepts require its exclusion. The Petitioner in Rock

argues, nevertheless, that “the test of intelligent cross-

examination is a better means of dealing with” hypnosis

than is exclusion. (Petitioner’s Brief, p. 13) But hypno-

sis destroys the ability to cross-examine ,pp. 9-10, 12-13,

17 Rock also points out, quoting Shiriey, above, that questions as

to whether the guidelines have been complied with “would provide

a fertile new field for litigation,” and concludes that “the game is

not worth the candle.”

18

above, and no one—neither subject, hypnotist nor trier

of fact—can determine whether hypnotically induced re-

call is fact or fantasy.

Petitioner also argues that the exclusion of hypnoti-

cally induced testimony “assumes an untruthful and

devious hypnotist.” (Petitioner’s Brief, p. 13) But the

dangers of hypnosis are inevitable and are not cured by

a well-meaning hypnotist; the dangers are inherent in

the process itself.

Finally, petitioner argues that “the burden should be

on the prosecution to establish that the testimony is likely

the product of improper suggestion.” (Petitioner’s Brief,

p. 6) But Frye requires the proponent of the scientific

evidence to prove its general acceptance, not the opponent

to prove its unacceptance. And Valdez-Hurd require the

proponent to prove the safeguards were met, not the

opponent to show they were not. That is only fair; the

proponent sponsors the hypnosis in the first place, and

is in the best position to ensure that his hypnotist com-

plies with the safeguards.**

In sum, hypnosis as memory restorer is unreliable.

Petitiener does not challenge that fact, or meet the case

law which excludes hypnotically induced testimony be-

cause of that fac:.

18 The pevitioner also suggests that whether hypnotically induced

testimony is admissible is a competence question. (Petitioner’s

Brief, p. 8) It is not. A “previously hypnotized witness is not in-

competent in the strict sense of being unable to express himself

comprehensibly or understand his duty to tell the truth... or of

lacking the general capacity both to perceive and remember .. .”

People v. Shirley, above, 31 Cal.3d at 67. The exclusion of hypnoti-

cally induced testimony “does not make incompetent a witness.”

United States v. Valdez, above, 711 F.2d at 1204. Rather, the ques-

tion is what a competent witness—like the hypnotized witness in

Rock—could testify to. The answer is she could, like other com-

petent witnesses, testify to some things but not others. She could,

and apparently did, for example, testify to her pre-hypnotically in-

19

VI. CONCLUSION

The Rock court’s analysis of hypnotically induced tes-

timony accords with the analysis of the scientific com-

munity; it accords with the best reasoning of current

case law; and it accords with the majority rule in this

country.

Respectfully submitted,

DAVID M. HEILBRON

Counsel of Record

CHRISTOPHER BERKA

MCCUTCHEN, DOYLE, BROWN &

ENERSEN

Three Embarcadero Center

San Francisco, California 94111

Telephone: (415) 393-2000

Attorneys for Amici Curiae

Dated: February 11, 1987

duced recollection, but she could not testify to hearsay or some

opinions. And she could not testify to her hypuvtically induced

recollection under Frye and, as Rock found, “standard rules of evi-

dence.” 708 S.W.2d at 85.