On appeal from Superior Court of New Jersey, Law Division, Bergen County.
J.h. Coleman, Dreier and Landau. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The novel issue presented in this appeal is whether the procedural safeguards regarding the use of hypnotically-enhanced evidence articulated in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), should apply to a defendant or defense witnesses. We hold that they should apply, but additional safeguards must be followed.
This case deals with an insanity defense based on expert testimony which may rely, at least in part, on hypnotically-aided statements of the defendant. We must decide how the Hurd procedural safeguards must be implemented to aid the trial court in deciding the reliability and admissibility of hypnotically-affected testimony of defendant and opinion testimony from her examining psychiatrists. As this is an interlocutory appeal that is being prosecuted before the trial commences, we are unable to define the expected testimony with any precision. Indeed, some of the psychiatric examinations have not yet been conducted. From the present record, it appears that the insanity defense may be based on multiple personality disorders (MPD), and defendant will contend that it was one of her other personalities called "Angel" who was acting when the alleged offenses occurred.*fn1
Defendant was arrested on October 24, 1988 for allegedly murdering her father and aunt on October 22, 1988. A Bergen County Grand Jury returned Indictment No. S-382-89 against defendant for the two alleged murders, contrary to N.J.S.A. 2C:11-3a(1) and (2); for conspiracy to murder her father, her aunt and her nine-year-old brother, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) and (2); for two counts of attempting to murder her aunt and father, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); and for attempting to murder her brother, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1). Because of her inability to post bail, defendant remains in custody pending disposition of these charges.
On October 11, 1989, defense counsel advised the trial judge and the prosecutor that defendant would rely on the defense of insanity. See N.J.S.A. 2C:4-1. This was followed by a formal written notice. See R. 3:12. On November 14, 1989, the defense furnished the State with copies of reports of psychiatric examinations conducted by Dr. Dorothy Lewis and Dr. Robert Sadoff in preparation for the insanity defense. These reports indicated that L.K. was the victim of severe sexual abuse by her father and that she was legally insane at the time of the crimes because she suffered from MPD.
On November 27, 1989 the State notified defense counsel and the defense psychiatrists of its desire to have all future interviews of defendant videotaped because of the uniqueness of an insanity defense based on MPD. The State also inquired whether any of the interviews by the defense psychiatrists had been videotaped. On January 31, 1990, the State filed a motion (1) to compel discovery of all video and/or audio tapes and all notes of psychiatric interviews with defendant wherein the alleged multiple personalities asserted themselves; (2) to direct that all future psychiatric interviews of defendant be conducted on videotape and that during the State's psychiatric examination, only the State's psychiatrist be present; and (3) to compel
discovery of all of defendant's medical and psychiatric records, psychiatric reports that would be used in furtherance of the defense, notes of interviews in which the multiple personalities asserted themselves, and other discovery mandated by R. 3:13-3(b).
The motion was argued on March 30, 1990.*fn2 The trial judge denied the motion in an order dated April 18, 1990. Defense counsel, however, was directed to deliver to the prosecutor a copy of Dr. Lewis's supplemental report as soon as defense counsel had reviewed it. A copy of Dr. Lewis's final report was delivered to the prosecutor on April 19, 1990. On April 23, 1990, the prosecutor requested further discovery consisting of various medical and psychiatric records of defendant detailing alleged sexual abuse of defendant by her father. Apparently, the prosecutor had reason to believe that not all of such records had been given to the State.
To assist with preparation of what all parties recognize as a novel insanity defense in this State, the trial judge arranged for the psychiatric experts selected by the defendant and by the State to meet. The defense experts, Drs. Lewis and Sadoff met with the State's experts, Dr. Martin Orne and Dr. Steven Simring on May 16, 1990. Two days later, the State filed a motion for reconsideration of the April 18 order. The certification of Dr. Orne which accompanied the motion stated that since Dr. Lewis and Dr. Sadoff concluded that defendant has MPD, "it would be very important to know the details of their examinations and the basis for their diagnosis." Dr. Orne further stated his "understanding that the psychiatrists state that patient was not hypnotized, and it is therefore especially important to obtain the details of how the patient was treated during the actual evaluations, particularly the antecedent
events which led to the manifestation of alters such as Angel and Angelique."
The motion for reconsideration was denied by order dated May 31, 1990. That order permitted Dr. Orne to file a supplemental certification, since he was not permitted to testify at the hearing on the reconsideration motion. Defendant was granted five days to respond. In a supplemental certification, Dr. Orne states:
6. On May 16, Dr. Steven Simring and I met with the defense psychiatrists, Dr. Dorothy Lewis and Dr. Robert Sadoff. This meeting was arranged pursuant to a ruling by Judge Madden.
7. At that meeting, the defense psychiatrists revealed that a videotape had been made of one of their interviews with defendant wherein multiple personalities asserted themselves. It is possible that there are additional videotapes or audiotapes which were not discussed.
8. Dr. Sadoff informed me that he has no objection to turning over this videotape to the State.
9. Dr. Lewis informed me that the multiples began to assert themselves only after she had relaxed the defendant who then went into a dissociative trance-like state. This is a form of hypnosis. (See S-2 attached, "Hypnosis" by Martin T. Orne and A. Gordon Hammer from the fifteenth edition of Encyclopedia Britannica).
11. All psychiatrists agreed that the State's psychiatric interviews with defendant should be videotaped and both Dr. Sadoff and Dr. Lewis agreed that they would view the interviews as they were conducted but they would be outside the defendant's presence. This would conform to the guidelines of State v. Hurd, 86 N.J. 525 [432 A.2d 86] (1981) and would ensure that whatever information was obtained could be assessed by all mental health professionals.
Pursuant to the court's order of May 31, the defense submitted an opinion letter written by Dr. Lewis dated November 7, 1989 in response to Dr. Orne's supplemental certification. While it does not appear to be responsive, we nonetheless refer to it to complete the record. That letter states:
I have now interviewed [L.K.] on four different occasions and have spent several hours with her each time we met. I have also reviewed the materials you provided me which included medical and educational records, and statements made by [L.K.] and others to the police.
Based on my psychiatric evaluation and review of records it is my clinical opinion that, for an extended period of time, including the evening prior to [L.K.'s] father's and Aunt's deaths and the day of their deaths, [L.K.] was
suffering from a serious psychiatric disorder, namely, multiple personality. Because of this disorder, [L.K.] herself was not able to understand the nature of her behaviors; nor was she able to appreciate the wrongfulness of her behavior. As such, in my clinical opinion, she meets the standard for insanity according to the McNaughton rule.
In order to complete my examination I shall need to meet with her several more times. Once the evaluation is finished I shall prepare a more detailed psychiatric report for you.
Significantly, the defense has not denied Dr. Orne's assertion that defendant was under hypnosis by Dr. Lewis when the multiple personalities asserted themselves. Our decision assumes the correctness of that assertion since the defendant does not contend otherwise in this appeal.
On July 6, 1990, we granted the State leave to appeal and we ...