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State v. Hurd

Decided: April 2, 1980.


Diana, J.s.c.


This is essentially a defense motion on 14th Amendment grounds to suppress a proposed in-court identification of defendant by the victim of a knife attack.

Pursuant to R. 3:13-1(b), and with consent of counsel, the hearing to determine the admissibility of the identification was held prior to the selection of a jury.

The basis of the challenge to the proposed in-court identification is that it is unreliable since the victim was unwilling or unable to identify defendant as her attacker following the incident and did so only after the improper importuning of law enforcement officers and an impermissibly suggestive hypnotic session, 21 days after the attack.

More particularly, defendant contends there is insufficient medical or scientific data to establish that testimony elicited through hypnosis is reliable and that acknowledged experts insist that such testimony is unreliable. Further, defendant contends that there is no precedent in this State for the admissibility of an identification allegedly induced by a hypnotic trance. Defendant further argues that even if it be held that identifications induced by hypnosis are not per se inadmissible, the facts of this case reveal that the process was so impermissibly suggestive as to taint the identification and render it inadmissible.

The issue may be stated as follows:

Can the victim of a crime be allowed to make an in-court identification of her attacker when she was unwilling or unable to make an identification until she submitted to a pretrial hypnotic procedure? A resolution of that question involves a consideration of a number of other issues:

(1) Is hypnosis a sufficiently reliable procedure to justify its use as a memory refreshener in litigation?

(2) Were the methods used and circumstances under which the hypnotic session was conducted unnecessarily suggestive so as to require suppression of the

in-court identification even if memory refreshed by hypnosis is not per se inadmissible?

(3) Whether, under the totality of the circumstances, the identification was reliable even if it be found that the hypnotic procedures employed were suggestive?

The essential facts of this case are that at or about 5:45 a.m. on June 22, 1978 Jane Sell was attacked as she slept in her ground floor apartment bedroom, suffering numerous serious knife wounds. Mrs. Sell occupied the apartment with her present husband, David Sell, and her three sons, two of whom were by her prior marriage to defendant, Paul Hurd. On the preceding evening, David Sell had fallen asleep on the couch and Mrs. Sell was alone in her bed at the time of the attack. There were no lights on in the bedroom, the curtains were drawn and the venetian blind was halfway down on the only window in the room. There is no evidence that the attacker sought to rob or sexually assault the victim.

Following the attack Mrs. Sell was unable or unwilling to identify her attacker, but in the hospital on the day of the attack she told police officers to "check out" her former husband, Paul Hurd.

Mrs. Sell did have two recollections of the attack which the police believe to be inconsistent. At one point she indicated the attacker approached her from the area of the dresser, which was located on a wall opposite the window, while on another occasion she stated the attacker entered from the window. There was also reference by Mrs. Sell to a "stranger." An investigation of the crime was commenced by the North Plainfield Police Department and the Somerset County Prosecutor's Office. The principal participants in the early investigation were Officers Van Winkle and Gilbert of the North Plainfield Police Department and Detective Pierangeli of the Somerset County Prosecutor's Office. From the inception of the investigation the police held the view that there were two possible suspects, the primary suspect being the victim's former husband, Paul Hurd, and the

other her present husband, David Sell. Although separated for over seven years, Mrs. Sell and her former husband continued to argue over financial and visitation matters, the most recent argument having occurred over the telephone the night before the attack in a conversation between Paul Hurd and David Sell.

At the suggestion of the Prosecutor's Office, or her husband, David Sell, or both, Mrs. Sell was convinced to undergo hypnosis in an attempt to improve her recollection of the incident, more particularly to identify her assailant.

Again, at the initiation of the Prosecutor's Office, Dr. Herbert Spiegel, a psychiatrist and acknowledged authority on hypnosis, was retained to conduct the hypnotic procedure, which took place in New York City on July 14, 1978. Both Detective Pierangeli and Dr. Spiegel tape recorded portions of the session. During this session five persons were in the doctor's office: the doctor, Pierangeli, Lieutenant Van Winkle, Mrs. Sell and a physician studying under Dr. Spiegel. David Sell, Mrs. Sell's husband, had accompanied her to New York City but waited in an outer office during the session.

While in a hypnotic trance Mrs. Sell was directed to relive the event (abreact) and was questioned about the details of the attack. In response to questions Mrs. Sell recounted the events and partially described the clothing and some features of her attacker. Mrs. Sell then commenced to cry hysterically. At that point Pierangeli asked Mrs. Sell if she knew the attacker. Mrs. Sell replied, "Yes." Pierangeli asked, "Is it David?" Mrs. Sell replied, "No." Pierangeli then asked, "Is it Paul?" Crying hysterically Mrs. Sell replied, "Yes." When Mrs. Sell was taken from the hypnotic trance to a so-called post-hypnotic state, there was further conversation between Mrs. Sell, Dr. Spiegel and the police officers during which Dr. Speigel and the officers sought to encourage Mrs. Sell to make an identification. Pierangeli continued to urge Mrs. Sell to verbalize the identification at dinner following the session.

Among the remarks made to Mrs. Sell by Pierangeli and Dr. Spiegel following the hypnotic procedure were several to the effect that unless she identified her attacker he would remain free to attempt to attack again, and that should a subsequent attack prove successful her children would be without a mother. Further, they urged that by not making an identification her current husband, David Sell, could not be eliminated as a suspect. It should also be noted that David Sell had voluntarily submitted to one or more polygraph examinations shortly after the attack. There was brief reference to the effect that these tests failed to eliminate him as a suspect, although the result of these tests was not admitted into evidence.

On July 20, 1978 Mrs. Sell, accompanied by her husband, David Sell, appeared at the North Plainfield Police Department where she made a tape-recorded, later transcribed statement in which she first described her attacker and then identified her former husband, defendant Paul Hurd, as her attacker. In the following month defendant was indicted and charged with assault with intent to kill, atrocious assault and battery, assault with a deadly weapon, possession of a dangerous knife and breaking and entry with intent to assault.

Although we have found no reported cases in New Jersey dealing with the use of hypnotically induced recall for trial purposes, several decisions in federal courts and other jurisdictions have considered these issues. Annotation, "Admissibility of Hypnotic Evidence at Criminal Trial," 92 A.L.R. 3d 442 (1979). In this case we are primarily concerned with the issues relating to the use of hypnosis to refresh the recollection of a witness.

Our starting point must be an attempt to describe the hypnotic phenomenon, its uses and its limitations as explained by the expert witnesses. We must then examine the procedures employed in this case by those persons involved in the evidence-gathering process.

As defined by the State's expert, Dr. Herbert Spiegel, a hypnotic state is a heightened or intense state of concentration which enables the subject to recall past events that for a variety of reasons the subject was unable to remember. According to Dr. Spiegel, a substantial percentage of the population has the capacity to be hypnotized; however, this capacity differs in degree in each individual. The significance of this difference in capacity is that persons with greater capacity for or susceptibility to hypnosis may be more responsive to hypnotic suggestion or requests than those with lesser capacity or susceptibility. Dr. Spiegel testified that he had developed a clinically acceptable method to quickly measure an individual's capacity to achieve a hypnotic state, which he called the "Hypnotic Induction Profile." He contends that the previously accepted test for measuring capacity, known as the "Stanford Scales," have recently been questioned by one of the psychiatrists who developed those scales. Dr. Spiegel's Hypnotic Induction Profile employs a rating or grading from 0 to 5, with 0 representing a virtual inability to experience hypnosis and 5 representing the maximum capacity to experience hypnosis. In this instance he had classified Mrs. Sell as a 2 to 3 range individual which he defined as "mid range."

As explained by Dr. Spiegel, to achieve the objective of assisting a person to remember a specific past event or series of events, the hypnotic process seeks to reduce the subject's usual peripheral awareness of vast amounts of information, thus enhancing the subject's ability to devote full attention and concentration to a specific event or series of events which took place in the past. In addition, if the specific event or series of events was unanticipated and was particularly catastrophic, and the subject develops an amnesia to the event (a condition he described as traumatic neurosis), the hypnotic process can be employed to convince the subject that he or she no longer needs the protection of amnesia and can relive the experience in safety and can recall the events. Dr. Spiegel expressed the opinion

during the hearing that Mrs. Sell had suffered a traumatic neurosis by virtue of the unanticipated catastrophic nature of the attack.

Dr. Spiegel defines traumatic neurosis as an unexpected or unanticipated catastrophic assault on the ego resulting in a breakdown of the usual sense of executive control that one normally possesses. The consequence of the breakdown in executive control is a partial or total amnesia to the trauma itself. Individuals suffering this trauma will insist he or she does not remember the event; however, when they recover from the neurosis they realize that they did remember the event but did not or could not verbalize the incident. The objective of hypnotic treatment for the condition is to convince the patient that she can separate the memory of the catastrophe from the catastrophe itself, and when this is accomplished the patient no longer finds it necessary to maintain the protection of amnesia. This treatment requires that the psychiatrist create an atmosphere of protection and support so that the patient feels she can relive the experience in safety. Frequently the patient will try to avoid remembering, and the therapist must encourage, if not force, the patient to relive the event. During this process the patient will often correct previous recollections made at the time the terror of the event distorted her perception of the event.

Dr. Spiegel believes that Mrs. Sell's failure to have identified her attacker immediately after the attack even though she knew his identity is totally consistent with the condition of traumatic neurosis. In his view, under the circumstances of this case it was natural for her to have been overcome by her terror and by her natural concern for self-preservation, and to have lacked the composure to give specifics concerning the attack. When, through hypnosis, she was relieved of the traumatic neurosis, she was able to achieve a restoration of her usual memory facilities and was able to recall what she saw.

Dr. Spiegel summarized his opinion of what had occurred to Mrs. Sell with the following statement:

I think that Mrs. Sell compressed the panic of pending annihilation with the memory of it. Thus, she became psychiatrically crippled with an acute traumatic neurosis.

When in an atmosphere of security with the physician -- myself, and the police, she was able to re-experience the assault with the enhanced concentration of hypnosis and was, thus, able to disconnect the horror of the event from the memory of it, getting a historical, perspective. This enabled her to recall details and remember the assault sequence with her customary critical faculties which had been paralyzed by the traumatic neurosis. Thus, for the first time since the attack was she able to recall and report about it subjectively with her full executive control and conscience. Her reduced ego functioning with amnesia, recurrent nightmares, irritability and tendency for emotional outburst was in fact contained and reversed with the subsequent ego rehabilitation and I might say even a cure of her traumatic neurosis, which led her to reach her previous level of ego integration. Her pre-assault level of ego integration. And this I think is significantly different from simply using hypnosis alone to recall less emotionally charged events. When her ego integrity is intact and unchanged before, during and after the hypnotic -- or when the ego integrity of a person is intact and unchanged before, during the after the hypnotic experience, that is a different domain than the one we are considering here when we are releasing somebody from a crippled emotional state.

At one point in his testimony Dr. Spiegel viewed his efforts with Mrs. Sell as primarily therapeutic, namely, attempting to treat her traumatic neurosis. He insists that the procedure used was not coercive or suggestive and that both during and following the hypnotic trance she was given options as to remembering or not remembering and as to what she could remember.

Dr. Spiegel acknowledged the limitations of hypnosis as a truth-seeking technique. He testified that it was possible to implant in the mind of a grade 5 subject while in a hypnotic trance a completely false notion or idea, which the subject would, for a short period following the trance, accept and innocently espouse as absolute truth. Additionally, he testified that by subtle suggestions a hypnotist could cause the subject to recount or recall events in a manner sought by the hypnotist. Dr. Spiegel was of the opinion that the procedure followed by

him as well as the officers present was completely free from seduction, suggestion, coercion or taint of any kind and that the recollections expressed by Mrs. Sell were completely authentic. He emphasized that Mrs. Sell, suffering a traumatic neurosis and being a mid-range subject, was not susceptible to suggestion or coercion.

Defendant offered the testimony of Dr. Martin Orne, an equally qualified and recognized psychiatrist, who also had devoted over 20 years to the study of hypnosis. In his testimony Dr. Orne also described the phenomenon of hypnosis, numerous past laboratory hypnotic experiments and the various conclusions drawn from these experiments. The major premise of Dr. Orne's testimony is that hypnotic recall is often unreliable by reason of the factors inherent in the nature of hypnosis and the properties of the human memory system.

Dr. Orne first attacked the validity of Dr. Spiegel's Hypnotic Induction Profile (HIP) as a valid assessment of the extent of a subject's hypnotizability. Dr. Orne testified that laboratory experiments undertaken to test the validity of Dr. Spiegel's profile failed to support his (Dr. Spiegel's) thesis and established that the profile was unreliable and inadequate for use as a method to measure hypnotic susceptibility as compared with what Dr. Orne believed to be the generally accepted so-called "Stanford Scales." The significance of this dispute is that if Dr. Spiegel, by using his Hypnotic Induction Profile, failed to properly assess Mrs. Sell's susceptibility to hypnosis, then any conclusions, especially as to the absence of suggestivity in the hypnotic session, may be questioned.

According to Dr. Orne, a widely used hypnotic technique is what is termed "age regression" which appears to enable an individual to relive some past event that might have occurred years ago or a more recent event that involves some trauma motivating the subject to forget the incident.

The age-regressed individual will often appear to spontaneously, and sometimes emotionally, elaborate details which apparently

could only be brought forth by someone actually observing the events as they transpired. Dr. Orne insists, however, that laboratory studies establish that much of what is allegedly recalled is not historically accurate. In his view, the hypnotic suggestion to relive a past event, particularly when accompanied by questions about specific details, puts pressure on the subject to provide information for which there are few, if any, actual memories. This situation may jog the subject's memory and produce some increased "recalls," but it will also cause him to fill in details that are not actually recalled but consist of memories or fantasies from other times. Determining which details are facts and which have been confabulated is often difficult to establish. By reason of this frequent inability to distinguish fact from fiction, Dr. Orne felt it was essential that the subject's statements be independently verified before they can be accepted as reliable.

In Dr. Orne's view, the apparent increase in recall during deep hypnosis is the product of the subject's decrease in critical judgment. Thus, the subject is willing to accept approximations of memory as being accurate. Whereas in the wake state the subject is unwilling to accept these approximations, in hypnosis he alters his criterion of what is acceptable and brings forth fragments mixed with confabulation. At that time neither the subject nor the hypnotist can distinguish between confabulation and accurate recall, and the only way to determine which is which is by external corroboration. If, prior to hypnosis, the subject is told that following hypnosis he will be able to recall previously forgotten events, he will often awake and confuse his hypnotic memories with his waking memories. Instead of being able to differentiate between his earlier fragmentary recall, and the gaps he has filled in through hypnosis, he will now report both as his "memory," often with consistency and conviction.

It is Dr. Orne's belief that during hypnosis free narrative recall will produce the highest percentage ...

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