On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pashman, J. Sullivan, J., concurring in the result. Justice Clifford joins in this opinion. Sullivan and Clifford, JJ., concurring in the result.
This case presents the question, previously undecided in this State, whether the testimony of a witness who has undergone hypnosis to refresh her recollection is admissible in a criminal trial and, if so, in what circumstances. Although we recognize the problems raised by this use of hypnosis, we hold that, subject to strict safeguards to ensure the reliability of the hypnotic procedure, such testimony is admissible. In this case, we find that the State has failed to demonstrate the reliability of the hypnotic procedures it used. Therefore, we affirm the order of the trial court suppressing the challenged testimony.
At approximately 5:45 a.m. on June 22, 1978, Jane Sell was attacked and stabbed repeatedly while sleeping in the bedroom of her ground floor apartment. Her assailant apparently did not intend to rob her or commit a sexual assault. She ultimately
escaped her attacker, but only after sustaining many knife wounds.
Mrs. Sell lived in the apartment with her husband, David Sell, and her three sons, two of whom are children from a previous marriage with the defendant, Paul Hurd. Although at the time of the assault she had been divorced from the defendant for seven years, they continued to disagree over the disposition of jointly owned property and visitation rights. The most recent discussion had been a telephone conversation between David Sell and the defendant on the evening before the assault.
On that evening, David Sell had fallen asleep in the living room. He testified that he was awakened by his wife's screams and rushed to her aid. He met her in the hallway outside their bedroom. She told him that she had been stabbed by someone through the window which was at ground level. Without looking to see if the assailant was still there, he telephoned the police for help.
Immediately after the attack, Mrs. Sell was either unable or unwilling to describe her assailant. In the hospital emergency room a few hours after she arrived, she asked the police to "check out" her former husband, the defendant, and to watch her children, but she did not identify the defendant as the attacker.
The investigation by the police department and prosecutor's office centered on two suspects, David Sell and the defendant. Because Mrs. Sell stated that she was still unable to identify her attacker after she left the hospital on July 3, the prosecutor's office suggested that she visit a psychiatrist who might be able to enhance her recollection of the incident through hypnosis. Mrs. Sell agreed. On July 14, 1978, two officers from the prosecutor's office, Detective Marilyn Pierangeli and Lt. Laurence VanWinkle, drove Mrs. Sell and her husband to the New York City office of Dr. Herbert Spiegel. Besides Dr. Spiegel and Mrs. Sell, the only people present during the hypnotic session were the two officers and a medical student; David Sell waited outside the room.
Dr. Spiegel first conducted some tests to determine whether Mrs. Sell was capable of undergoing hypnosis. Once the doctor was satisfied that Mrs. Sell was hypnotizable, a tape recorder was turned on and the interview began. Before subjecting her to hypnosis, Dr. Spiegel questioned Mrs. Sell concerning her memory of the event and learned that she had images of a person standing near the dresser in her bedroom and a person leaning in the window. She also knew the name of one of the suspects in the case, but did not reveal which one. Finally, Dr. Spiegel instructed Mrs. Sell that while she was in a trance she should respond to questions from the officers as well as to his questions.
After this brief interview, the doctor induced hypnosis. Mrs. Sell began to relive the attack. In response to Dr. Spiegel's questions she described various facial features of her assailant and his clothing. Suddenly she began to cry hysterically. At this point Detective Pierangeli continued the questioning: "Jane, I want you to think very, very hard of what you are seeing right now. It's up to you to help me. It is up to you now to describe for me what you see. Is it somebody that you know, Jane?" Mrs. Sell answered, "Yes." "Is it David, Jane?" "No," Mrs. Sell cried. "Is it Paul?" "Yes," Mrs. Sell responded emotionally.
After Mrs. Sell was brought out of the trance and into a post-hypnotic state, she expressed mistrust "about her thinking." Dr. Spiegel and Detective Pierangeli in effect encouraged her to accept the identification she had made. They explained to her that unless she made an identification, the defendant would remain free to attack her again, possibly leaving her children without a mother. They also tried to convince her to make an identification, noting that she was indirectly implicating David Sell, who remained a suspect, by not identifying her assailant. Even after they left Dr. Spiegel's office, Detective Pierangeli continued the encouragement during dinner.
Six days later, on July 20, 1978, Jane Sell came to the North Plainfield Police Department and gave a statement identifying Paul Hurd as her attacker. On the basis of this statement, 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. Before the jury selection, defendant moved to suppress the proposed in-court identification by Mrs. Sell. He argued that testimony refreshed through the use of hypnosis is per se inadmissible because hypnosis fails to satisfy the standard for the admissibility of scientific evidence, see Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), according to which evidence derived through a scientific procedure may be introduced if it is generally accepted that such procedures yield reasonably reliable results. Even if such testimony is not per se inadmissible, he argued in the alternative, the hypnotic procedure in this case was so tainted by coercion and suggestion as to render the resulting identification inadmissible because it was likely to result in irreparable misidentification. See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
After hearing lengthy expert testimony concerning the reliability of hypnosis as a means of refreshing recollection and the likely effect of hypnosis on Mrs. Sell,*fn1 the trial court suppressed the proposed identification. 173 N.J. Super. 333 (Law Div. 1980). In a thoughtful opinion, it applied the Frye test for scientific evidence and declined to hold that hypnotically refreshed testimony is per se inadmissible. Nevertheless, it found that "the potential for the production of fantasy and confabulation during a hypnotic exercise militates against the automatic admissibility of hypnotically-induced recall until an acceptable level of reliability of that recall is established." Id. at 362. The court established a two-part test for admissibility. First, it adopted
procedural safeguards suggested by Dr. Martin Orne, an expert witness for the defense:
(1) The hypnotic session should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis.
(2) The qualified professional conducting the hypnotic session should be independent of and not responsible to the prosecutor, investigator or the defense.
(3) Any information given to the hypnotist by law enforcement personnel prior to the hypnotic session must be in written form so that subsequently the extent of the information the subject received from the hypnotist may be determined.
(4) Before induction of hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding adding any new elements to the witness' description of the events.
(5) All contacts between the hypnotist and the subject should be recorded so that a permanent record is available for comparison and study to establish that the witness has not received information or suggestion which might later be reported as having been first described by the subject during hypnosis. Videotape should be employed if possible, but should not be mandatory.
(6) Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and post-hypnotic interview.
The court imposed on the State the burden of establishing by clear and convincing evidence that it had complied with these standards. Id. at 365. If these procedures had been followed, the court held that the State would then have the additional burden of showing that "there was no impermissibly suggestive or coercive conduct by the hypnotist and law enforcement personnel connected with the hypnotic exercise," id. at 364, again by clear and convincing evidence, id. at 369. Applying these standards to the present case, the court found that the State had failed to satisfy the procedural safeguards and that Dr. Spiegel and law enforcement personnel had exerted pressure on Mrs. Sell to induce her to identify the defendant, both during and after the hypnotic session. Consequently, the court granted defendant's motion to suppress the identification.
The State filed a motion in the Appellate Division for leave to appeal the trial court's order. This motion was denied. The prosecutor then filed a motion in this Court seeking leave to appeal the lower courts' orders. We granted this motion in
order to address the novel questions raised in this case. 85 N.J. 133 (1980), and we now affirm ...