COM. v. NAZAROVITCH
496 Pa. 97 (1981)
436 A.2d 170
COMMONWEALTH of Pennsylvania, Appellant, v. Paul NAZAROVITCH. COMMONWEALTH of Pennsylvania, Appellant, v. Robert WHITELEATHER. COMMONWEALTH of Pennsylvania, Appellant, v. William D. DECKER.
Supreme Court of Pennsylvania.
Decided October 29, 1981.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellant.
Gary B. Zimmerman, Pittsburgh, for Nazarovitch.
John L. Doherty, Pittsburgh, for Whiteleather.
John T. Bender (court-appointed), Pittsburgh, for Decker.
Norma Chase, Pittsburgh, for amicus curiae Society for Investigative and Forensic Hypnosis.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.
OPINION OF THE COURT
O'BRIEN, Chief Justice.
This case raises the novel issue of whether hypnotically-refreshed testimony is admissible in a criminal trial when the witness has no present recollection of the facts prior to the hypnosis. For the reasons which follow, and because of the facts peculiar to this case, we find the trial court properly exercised its discretion in suppressing the testimony of the witness in question.
On the morning of September 18, 1976, twelve-year-old Heidi Morningstar of Ambridge, Pennsylvania, was found murdered on the front lawn of an Allegheny County home. Despite intensive investigation and interrogation of numerous suspects, the Beaver County police discovered no clues to the unsolved crime. Three years to the day of the murder, Pamela Wilfong entered the Ambridge police station and informed Chief George Kyragyros that she had been experiencing nightmares about Heidi Morningstar and felt that she might know something about the murder. Prior to that day, Ms. Wilfong had been interviewed several times about the murder but had never provided significant information concerning the crime.
Chief Kyragyros immediately informed her not to say anything more until he contacted Beaver County Detective Louis Marshionda. Detective Marshionda arrived at the Ambridge police station a short time later, and Ms. Wilfong reiterated her feelings concerning the Morningstar murder. The detective and Chief Kyragyros then asked Ms. Wilfong if she would voluntarily meet with a hypnotist who would attempt to hypnotically refresh her memory. Ms. Wilfong acquiesced in their request and thereafter left the police station without any further interrogation. Two days later, Ms. Wilfong was accompanied by the detective and Chief Kyragyros to the office of Dr. Russell Scott, a licensed psychologist with extensive experience in therapeutic and investigative hypnosis. When they arrived, Chief Kyragyros spoke privately with Dr. Scott and briefly explained the
On September 28, 1979, Ms. Wilfong gave a statement to the Beaver County District Attorney. The Allegheny County authorities, who had been involved in the investigation of the Morningstar murder, were thereafter notified of the emergence of a witness in the case. Detective Francis Murphy of the Allegheny County Police interviewed Ms. Wilfong and decided that another hypnotic session might provide additional information and clarify certain details. On October 12, 1979, Ms. Wilfong was again hypnotized by Mr. George Gimigliano, a self-styled "master hypnotist." Before the session began, Detective Murphy provided Mr. Gimigliano with a copy of the statement that Ms. Wilfong had given to him. Detective Murphy and Chief Kyragyros were present during this last hypnotic session, and in fact conducted some of the questioning of the witness.
On the basis of her hypnotically-refreshed recollection, Ms. Wilfong testified at the preliminary hearing on October 30, 1979, concerning the facts of the crime. As a result of her testimony alone, Paul Nazarovitch, Robert Whiteleather, and William Decker were held for court on the charges of Criminal Homicide, Kidnapping, and Conspiracy.
Appellees informed the prosecution that they intended to attack the credibility of the Commonwealth's main witness. Rather than select a jury, begin the trial, and then confront the defense challenge to her testimony, the Commonwealth agreed to a pre-trial hearing on the competency of Pamela Wilfong. Testimony and argument were heard
The Commonwealth argues that hypnosis must be viewed as simply another method of refreshing a witness' recollection in that it accomplishes the stimulation of a latent memory just as the more traditional aids of memoranda and document do.
The use of writings or business records to refresh forgotten memories has long received approval and legal recognition in this Commonwealth. Dodge v. Bache, 57 Pa. 421 (1868), First Nat'l Bank of DuBois v. First Nat'l Bank of Williamsport, 114 Pa. 1, 6 A. 366 (1886), Nestor v. George, 354 Pa. 19, 46 A.2d 469 (1946); Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951), Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973), Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974). However, any means by which evidence is scientifically adduced must satisfy the standard established in Frye v. United States, 293 F. 1013 (D.C. 1923), which is generally accepted by many jurisdictions, including our own. In Frye, the court opined:
One proffered rationale for this standard is "fear that the trier of fact will accord uncritical and absolute reliability to a scientific device without consideration of its flaws in ascertaining veracity." Spector and Foster, "Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?", 38 Ohio L.J. 567, 583 (1977) (hereinafter "Spector and Foster"). We believe this same standard should be applied in resolving the question now before us of whether hypnotically-refreshed testimony is generally accepted in the scientific community as yielding reasonably reliable results.
In order to determine whether hypnosis is a reliable and trustworthy evidentiary device whereby memory can be sufficiently and adequately refreshed, it is necessary to understand the phenomenon of hypnosis. Although the use of hypnosis dates back to ancient times, the scientific community began to view the subject with less scepticism and a more discerning eye after World War II. Diamond, "Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness," 68 Cal.L.R. 313, 317-320 (1980) (hereinafter "Diamond"). In fact, hypnosis has become "a powerful medical technique that is useful as an anesthetic, in the treatment of various forms of mental illnesses, and in the treatment of amnesia." Spector and Foster, supra at 570. The main application of hypnosis today is for psychotherapeutic purposes by a minority of psychiatrists.
Although experts disagree about many aspects of hypnosis, all concur that hypnosis is a sleeplike state whereby
In order to discuss the degree of acceptance of hypnosis among members of the scientific community, it is necessary to distinguish the medical use of hypnosis from that use which the Commonwealth promotes herein.
Levitt, "The Use of Hypnosis to `Freshen' the Memory of Witnesses or Victims," Trial, April, 1981, at 56, 58. (hereinafter "Levitt").
Levitt, supra at 56. See also, Dilloff, "The Admissibility of Hypnotically Influenced Testimony." 4 Ohio Northern L.R. 1 (1974). (hereinafter "Dilloff").
Consequently, the subject may intercept and internalize any suggestions about the desired answer. The fact that the subject is eager to please the hypnotist does not imply that the subject would knowingly fabricate facts. However, in most cases involving forensic hypnosis, the subject is aware that the reason for the hypnotic session is an inability on his part to remember facts. A subject's awareness of the purpose of the hypnotic session, coupled with the hypersuggestibility which the subject experiences, amounts to a situation fraught with unreliability. Even when the hypnotist consciously attempts to avoid emitting signals, the problem may not be avoided. The hypnotic individual need not receive direct suggestions in order to try to please the hypnotist. Levitt, supra at 57. "The attitude, demeanor, and expectations of the hypnotist, his tone of voice, and his body language may all communicate suggestive messages to the subject." Diamond, supra at 333.
In addition to responding to conscious or unconscious suggestions from the hypnotist, a subject in a state of hypersuggestibility and hypercompliance will unconsciously create answers to the questions which the hypnotist asks if
While the historical accuracy of recall may not be significant for psychotherapy purposes, it is the very quality at stake in the controversy surrounding forensic hypnosis. Furthermore, the hypnotic subject, upon awakening, is often imbued with a confidence and conviction as to his memory which was not present before. Prehypnosis uncertainty becomes molded, in light of additional recall experienced under hypnosis, into certitude, with the subject unaware of any suggestions that he acted upon or any confabulation in which he engaged. The subject's firm belief in the veracity of his enhanced recollection is honestly held, and cannot be undermined through cross-examination. As one learned scholar observed, "The nature of hypnosis is such that the subject's critical judgment is suspended and he responds to the demand for exact, photographic recall even when his actual recall is vague and doubtful." Diamond, supra at 340. See also Levitt, supra at 57.
For the above reasons, i.e. the heightened suggestivity, the increased desire to satisfy the hypnotist, the tendency to confabulate, and the inability to distinguish in one's waking state the fact from the fantasy, some members of the scientific community hold the view that criteria have not yet been developed whereby the accuracy of hypnotically-adduced testimony can reasonably be assured. "Most authorities agree that a general rule of reliability of the veracity of statements elicited during hypnosis cannot be formulated." Spector and Foster, supra at 583. Dr. Bernard L. Diamond, a clinical professor of psychiatry at the University of California, San Francisco, and a professor of law at the University
Over the past two decades, many jurisdictions have been confronted with the problem of determining the admissibility of hypnotically-refreshed testimony.
Nonetheless, courts continued to be concerned about the reliability of hypnotically-refreshed memory, the possibility of bias or suggestion in the hypnotic procedure, and the probability of juries attaching undue weight to such testimony. See Safeguards, supra at 206; Note, "Probative Value
Id. at 543, 432 A.2d at 95. However, the court adopted strict procedural safeguards which must be met before hypnotically-refreshed recollections may be admitted. First, an independent psychiatrist or psychologist, not regularly employed by the prosecution or defense, should conduct the interview. Second, any information transmitted to the hypnotist concerning the case must be recorded in some manner. Third, the hypnotist should derive as detailed a statement as possible from the witness prior to induction. Fourth, all meetings between the hypnotist and subject must be recorded. Finally, only the hypnotist and the subject should be present during the hypnotic encounter.
In formulating these guidelines, the court recognized the problems raised by numerous experts concerning the use of hypnosis and the possible contamination of a witness' memory. The court acknowledged that:
Id. at 539, 432 A.2d at 93. In spite of these significant stumbling blocks in the reliability of hypnotically-induced recollection and in spite of expert testimony that hypnosis could not ensure the accuracy of a subject's recall, the New Jersey Supreme Court chose to permit the introduction of testimony so adduced.
The court, in not demanding that hypnosis be generally accepted as a method of reviving historically accurate recall, justified its decision by noting that unrefreshed eyewitness testimony was subject to similar shortcomings. Id. at 540, 432 A.2d at 94. The court concluded, with ample authority, that information from witnesses who testify from their memory share many of the same defects as hypnotically-induced testimony, including unconscious confabulation, suggestions emanating from the interrogator, subtle distortions of memory and false confidence. See generally Marshall, Marquis & Oskamp, "Effects of Kind of Question and Atmosphere of Interrogation on Accuracy and Completeness of
Herein, the Commonwealth urges us to adopt the thinking and the procedural safeguards enunciated by the Hurd court. The fact that pre-trial hypnosis was used to refresh the memory of a witness goes only to the weight of the evidence, argues the prosecution, and not to its admissibility. However, at this time, we remain unconvinced that the trier of fact could do anything more than speculate as to the accuracy and reliability of hypnotically-refreshed memory. The Hurd court's rationale that hypnotically-refreshed recollection might as well be admissible since ordinary eyewitness accounts are also vulnerable to error and inaccuracies does not do full justice to the fact that "the traditional guaranties of trustworthiness as well as the jury's ability to view the demeanor of the witness are wholly ineffective to reveal distortions of memory induced by the hypnotic process." Probative Value, supra at 615. It is unchallenged that a jury can more critically analyze a witness' ability to perceive, remember, and articulate his recollections when such testimony has not been hypnotically-refreshed. The probative worth of the hypnotically-adduced evidence cannot overcome the serious and fundamental handicaps inherent therein.
A judicial reluctance to render hypnotically-refreshed testimony admissible appears to be increasing. Recently, two courts have held that a witness who underwent pretrial
Similarly, we do not believe that the process of refreshing recollection by hypnosis has gained sufficient acceptance in its field as a means of accurately restoring forgotten or repressed memory. In this particular case, the Commonwealth introduced the testimony of two hypnotists on the reliability of hypnosis; only one of those was a psychologist with medical credentials to support his opinions. Both the Commonwealth's psychologist and a psychiatrist called by the court as an expert witness admitted that there is no truly objective scientific test for determining whether information related during a trance state is reliable.
Furthermore, the procedure involved in the hypnosis of this witness tends to impeach rather than support the integrity of the hypnotic sessions for which our approval is sought. There is no record as to Ms. Wilfong's unaided recollection prior to hypnosis. The hypnotists were both secured by the prosecution and were, in fact, assisted by police authorities in the actual questioning of the hypnotic witness. Dr. Scott had hypnotized the brother of the victim, albeit several years before he was engaged to hypnotize this witness, and Mr. Gimigliano received a full statement of Ms. Wilfong's hypnotically-refreshed testimony prior to his session
While we do not want to establish a per se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory. We believe that the facts of this case warranted the suppression by the trial judge of this witness' refreshed testimony.
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