On certification to Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This case returns to this Court after remand for a plenary hearing in respect of the continued viability of State v. Hurd, 86 N.J. 525 (1981), wherein the Court established guidelines for the admissibility of hypnotically refreshed testimony proffered by a witness in a criminal trial.
At approximately 2:30 a.m. on the morning of January 14, 1986, twenty-five-year-old M.A. was sleeping in the bedroom of her Somers Point cottage when a man woke her by grabbing her neck and demanding money. The man repeatedly sexually assaulted and threatened her, telling her not to look at him. At one point, M.A. opened her eyes and looked up at the man, and the man immediately told her to close her eyes, which she did. After the assault, M.A. remained in her bed for four hours, fearing the man was still in the house. At daylight, M.A. sought the assistance of a neighbor, who contacted police.
According to the police report, M.A. stated to police upon their arrival that she thought her attacker might be an African-American man of medium build. Later that day, M.A. described her assailant as black in his late twenties to mid-thirties, with short hair and a short beard. She also indicated that she saw him only once and that he was wearing jeans. Because she was unable to provide sufficient information to develop a composite sketch, M.A. suggested hypnosis.
On January 30, 1986, M.A. visited the office of Dr. Samuel Babcock, a licensed clinical psychologist, to undergo hypnosis. In a pre-hypnosis interview, M.A. explained that there was not much light in the bedroom at the time of the assault -- only enough to see shadows and outlines of things, but nothing in detail. She also stated that she did not remember anything distinctive about her attacker, though she thought he had a light beard and a round face. Prior to being hypnotized, M.A. removed her contact lenses. Dr. Babcock asked M.A. how well she could see without the lenses, and she explained that if an object is "a couple feet away," all she saw was a "blur," but her assailant had been "close enough to see but not in detail." When hypnotized, M.A. stated for the first time that she thought her assailant wore a suede jacket and was a medium-skinned black male. Dr. Babcock advised her that after she came out of hypnosis, M.A. would remember the face of her assailant "very clearly."
A few days later, M.A. chose defendant Clarence Moore, who did not have a beard, from a photo array. Subsequently, she identified Moore from two more photo arrays, one of which was actually a photograph of a lineup. Moore was the only person common to all three arrays. A grand jury indicted Mooreon charges of burglary, robbery, and three counts of aggravated sexual assault. After pre-trial hearings, the trial court ruled that M.A.'s hypnosis complied with Hurd, and permitted M.A.'s testimony as refreshed recollection. The court further ruled that M.A.'s out-of-court and in-court identifications of Moore were sufficiently reliable to be admitted at trial.
At trial, Dr. Babcock and several police investigators testified for the State. The State played a portion of the tape of Dr. Babcock's hypnosis session with M.A. The State offered no corroborating evidence of M.A.'s identification of Moore. On the witness stand, M.A. made an in-court identification of Moore as the person who assaulted her. M.A. acknowledged that her recollection of her assailant had been altered by her hypnotic experience. She explained that hypnosis made her assailant's face much clearer with the features more detailed.
The jury convicted Moore on all counts and the trial court denied his motion for a new trial. The Appellate Division upheld Moore's conviction, although the matter was remanded for resentencing. This Court denied Moore's petition for certification in 1991. Moore sought relief in the federal courts. In 2001, the Third Circuit overturned the conviction based primarily on prosecutorial misconduct.
When the State sought to retry Moore, he made certain pretrial motions, including a motion to dismiss the indictment; and a motion holding hypnotically assisted testimony inadmissible or, alternatively, to suppress M.A.'s hypnotically assisted testimony. The trial court dismissed the indictment because the State had failed to inform the grand jury that M.A.'s memory had been hypnotically refreshed. The trial court denied Moore's other motions.
The State appealed the dismissal of the indictment and Moore cross-appealed the denial of his other motions. The Appellate division held there was no prejudicial prosecutorial error in the grand jury presentation, and also ordered the trial court to conduct a hearing on the admissibility of the hypnotically refreshed eyewitness testimony. In August 2003, Moore petitioned this Court for certification. He asked the Court to decide, among other things, whether Hurd remained viable law. The Court granted the petition without limitation. After oral argument, the Court determined that the record was inadequate for consideration of the continued validity of Hurd. The matter was remanded to the trial court for a plenary hearing.
On remand, the trial court heard testimony from three experts. The court concluded that hypnotically refreshed testimony should be precluded; that, at the very least, the Hurd guidelines should be supplemented; and that, regardless of the decision on those two issues, M.A.'s testimony should be barred because Dr. Babcock did not comply with the Hurd guidelines.
HELD: Hypnotically refreshed testimony of a witness in a criminal trial is generally inadmissible and Hurd should no longer be followed in New Jersey.
1. Twenty-five years ago, in Hurd, this Court held that a witness who has been hypnotized in an attempt to improve his or her recollection may testify at trial subject to strict safeguards to ensure reliability of the hypnotic procedure. The safeguards were suggested by defense expert Dr. Martin Orne. Under the safeguards, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session; that person should be independent of and not regularly employed by the prosecutor or defense; any information given to the hypnotist by law enforcement personnel or the defense prior to the session must be recorded; the hypnotist must elicit a detailed description of the facts from the subject before hypnosis; all contacts between the hypnotist and the subject must be recorded; and only the hypnotist and the subject should be present during the hypnotic session. (pp. 12-18)
2. Other courts had considered the issue of the admissibility of hypnotically refreshed testimony prior to the Hurd decision. In early cases, courts refused to admit any such evidence. It was not until 1968 that any court concluded otherwise. Harding v. State, 246 A.2d 302 (Md. Ct. Spec. App. 1968). After Harding, a number of courts followed its lead in holding that a witness's testimony having been refreshed by hypnosis goes only to credibility and not admissibility. Other courts began to question the reliability of hypnotically refreshed testimony. Still other courts, applying the prevailing rule governing the admissibility of scientific evidence set forth in Frye v. United States,
The opinion of the court was delivered by: Chief Justice Poritz
Reargued October 24, 2005
Corrected August 21, 2006
This case returns to the Court after remand for a plenary hearing in respect of the continued viability of State v. Hurd, 86 N.J. 525 (1981), wherein the Court established guidelines for the admissibility of hypnotically refreshed testimony proffered by a witness in a criminal trial. Based on the record developed below, and the substantial body of case law that has considered the question since Hurd was decided, we have determined that a change in course is now warranted. We are no longer of the view that the Hurd guidelines can serve as an effective control for the harmful effects of hypnosis on the truth-seeking function that lies at the heart of our system of justice. Most important, we are not convinced that it is possible to know whether post-hypnotic testimony can ever be as reliable as testimony that is based on ordinary recall, even recognizing the myriad of problems associated with ordinary recall. We therefore conclude that the hypnotically refreshed testimony of a witness in a criminal trial is generally inadmissible and that Hurd should no longer be followed in New Jersey.
At approximately 2:30 a.m. on the morning of January 14, 1986, twenty-five-year-old M.A. was sleeping in the bedroom of her Somers Point cottage when a man woke her by grabbing her neck and demanding money. The man repeatedly sexually assaulted and threatened her, telling her not to look at him when, at one point, she opened her eyes. After the assault, M.A. remained in her bed for four hours, fearing that the man was still in the house. At daylight, she sought assistance from a neighbor, who contacted the police. According to the police report, when the police arrived, M.A. stated that she thought her attacker might be an African-American man of medium build.
Later in the day, M.A. provided a written statement to the police in which she described her assailant as black, about five feet ten inches, 175 pounds, in his late twenties to mid-thirties, with short hair and a short beard close to his face. She also indicated that she saw him only once and that he was wearing jeans. Because she was unable to provide sufficient information to develop a composite sketch of her attacker, M.A. suggested hypnosis. She anticipated that hypnosis might help her to remember her assailant's face in greater detail.
On January 30, 1986, M.A. visited the office of Dr. Samuel Babcock, a licensed clinical psychologist, to undergo hypnosis. Dr. Babcock first conducted a tape-recorded interview with Detective Gary Gray of the Somers Point Police Department to acquire background information on the assault. He then met privately with M.A to conduct a pre-hypnotic interview. In that tape-recorded interview, M.A. described the lighting conditions in her bedroom at the time of the assault. She explained that "[t]here's not much [light], some, a little bit of light comes through the window but there was no light in my house, no lights were on[,] it's pretty dark." She stated that a thin curtain covers the bedroom window and that the light was "enough to see . . . shadows and stuff . . . outlines of things, . . . but . . . nothing in detail."
Also pre-hypnosis, M.A. remembered seeing the perpetrator's face only once, when he was standing over her bed. She stated that the assailant "kept telling [her] over and over to keep [her] eyes closed and not to look at him[,] which [she] did." She further stated that "at one point . . . [she thought she] looked up at him and he immediately told [her] to not look up and to close [her] eyes[,] which [she] did and that was the only time [she] really saw him[;] . . . [she] was afraid to look at him." As a result, besides knowing that he was black, and that he had "what looked like a real light beard or more like shadows on his face[,] . . . nothing about his face caught [her] attention." She did not remember anything distinctive about either his eyes or his nose, but she thought he had a round face and that his legs looked as though they were muscular and stocky.
Dr. Babcock switched off the tape recorder for two minutes before initiating hypnosis. During that period, he observed M.A. remove her contact lenses. Consequently, with the recorder again switched on, he asked how well she could see without them. M.A. responded that if an object is "a couple feet away . . . all I see is blur," and that her assailant had been "close enough to see but not in detail." While hypnotized, M.A. stated for the first time that she thought her assailant wore a tan suede jacket with a zipper and that he was a medium-skinned black male. As the session was ending but prior to bringing M.A. out of hypnosis, Dr. Babcock advised her that she would not be able to remember what they talked about, but that she "will remember the face [of her assailant], crystal clear, very clearly." Then, to ease her transition to a waking state, Dr. Babcock told her to sleep and switched off the tape during the last minutes of the session.
A few days later, M.A. chose defendant Clarence Moore from a photo array. Subsequently, she identified him from two more arrays, one of which was actually a photograph of a lineup. Moore was the only person common to all three. When she looked at the initial array, M.A. advised detectives that she recalled dirt near or on the pockets of her assailant's tan suede jacket.
On February 20, 1986, a grand jury in Atlantic County charged Moore with burglary in violation of N.J.S.A. 2C:18-2, robbery in violation of N.J.S.A. 2C:15-1a(2) (robbery with threat of immediate bodily injury), robbery in violation of N.J.S.A. 2C:15-1a(3) (robbery with commission of or threat to commit a first- or second-degree crime), and three counts of aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(3). Following pretrial hearings, the trial court ruled that M.A.'s hypnosis complied with this Court's decision in Hurd, supra, which established standards for the admission of hypnotically refreshed testimony at criminal trials. The court therefore permitted M.A.'s testimony as refreshed recollection. The court also permitted the State to play a substantial portion of the recording of the hypnotic session for the jury. After a Wade*fn1 hearing, the court further ruled that the victim's out-of-court and in-court identifications of Moore were sufficiently reliable to be admitted at trial.
Moore's jury trial began on February 18 and concluded on March 5, 1987. Dr. Babcock, M.A., and several police investigators testified for the State. As permitted by the court, the State also played a portion of the audiotapes of Dr. Babcock's session with M.A., including the pre- and post-hypnotic interviews, and provided transcripts of the tapes to the jury. Other than this testimony, the State offered no corroborating evidence of M.A.'s identification of Moore.*fn2
On the witness stand, M.A. made an in-court identification of Moore as the person who assaulted her. She admitted that during the attack she caught only a "glimpse" of his face in what could have been but a "split second" or "could have been more than that." M.A. maintained, however, that the glimpse was "enough to remember" and that Moore's face "was the same face." She further stated that there was "no question" but that the person she identified in the photo arrays was her assailant, recounting that when she picked Moore's photo she "recognize[d] that face, everything about it." Although she had described a person with a light beard during the police investigation (Moore actually had a mustache at the time of the assault), when she first identified Moore's photograph, M.A. testified, she "wasn't concerned with a beard or a mustache or any kind of facial hair[;] [she] was just looking at the whole face." In respect of the lighting conditions in her bedroom, M.A. testified that there was enough light to see facial features and to "remember someone." She also indicated that she was not wearing her contact lenses during the ...