(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).
Argued September 26, 1995 -- Decided January 4, 1996
POLLOCK, J., writing for a unanimous Court.
The sole issue before the Court is whether the State may use the hypnotically-refreshed testimony of
an independent witness at the pending trial of Frank Fertig for felony murder.
On December 12, 1969, Dominic Perri was shot and killed during a robbery of his restaurant, Caesar's,
on Route 40 in Hamilton Township, Atlantic County. Frank Fertig was indicted for the crime twenty-one years
later.
According to victims at the scene, the robber was a white male wearing dark clothes and a ski mask.
Approximately 2½ hours after the robbery, the Absecon police stopped a car traveling east on Route 30 about
twelve miles from the restaurant. The driver was Ralph Heath. Frank Fertig was the sole passenger. Four days
later, the police found a revolver, apparently the murder weapon, in the area where Heath's car was stopped.
In March 1991, Egg Harbor police arrested Heath on drug charges. In exchange for dismissal of those
charges and the return of over $10,000 seized by the police, Heath gave a statement that implicated Fertig in
Dominic Perri's death. Heath also stated that Dennis Spier had driven Fertig to the restaurant.
Prosecutor's investigators first interviewed Spier on March 20, 1991. In exchange for "conditional
immunity," Spier related that he had driven a man to Caesar's. He did not recall the man's name but described
him in a way that was consistent with Fertig's appearance in 1969. According to Spier, the man wore a ski mask
and carried a gun of some kind. Spier admitted that he was aware that the man intended to rob Caesar's and
that Spier was supposed to pick up the man after the robbery. The man did not show up and Spier never saw
him again.
The police showed Spier a photographic array that included Frank Fertig's picture, but Spier could not
identify anyone. In a March 25, 1991, interview, Spier told police that the man he had driven was named Fred
or Frank. Spier acknowledged that he and Ralph Heath had "mutual interests" in criminal endeavors.
Spier was interviewed again on April 17, 1991, when he remembered additional details. He was now
certain that the man he had driven to Caesar's was named either Fred or Frank. Further, Spier stated that
Heath had arranged the robbery and that the man who committed the robbery was a friend of Heath's. Spier
also recalled that Heath had called the day after the robbery to say that a man had been killed and that Spier
should forget about the event. Finally, Spier also remembered that Heath may have picked up the man after
the robbery.
Ralph Heath died before June 1, 1992, the date set for Fertig's trial. On May 29, 1992, a Prosecutor's
investigator met with Spier for pre-trial preparation. At that meeting, Spier told the investigator that he had
undergone hypnosis on April 11, 1991. The investigator later stated that Spier was not sure what he could
remember or what was possibly brought out from his being hypnotized. Spier also told the investigator that his
attorney, who had accompanied him to the session with the psychologist, had advised Spier not to tell the police
about the session.
On learning that Spier had been hypnotized, the Prosecutor immediately informed the trial court. The
court adjourned the trial for a hearing on the admissibility of Spier's evidence. The hearing was conducted
pursuant to State v. Hurd, a 1981 case in which this Court decided that hypnotically-refreshed testimony could
be used but only in the context of very specific procedural safeguards.
The trial court determined that Spier had been hypnotized and that the session did not comply with the
requirements of Hurd. Spier's post-hypnotic testimony was therefore inadmissible.
The Appellate Division denied the State's motion for leave to appeal. The Supreme Court granted the
State's motion and heard oral argument.
HELD: The proffered post-hypnotic testimony of the State's witness does not meet the requirements of State
v. Hurd,
86 N.J. 525 (1981) and is therefore inadmissible. The Hurd guidelines apply even when the
State plays no role in the witness's hypnosis.
1. As the proponent of the post-hypnotic testimony, the State bears the burden of proving that the psychologist's
attempts to hypnotize the witness were unsuccessful and that the testimony satisfies the Hurd guidelines. Neither
burden was sustained here. (pp. 11-12)
2. The Court notes a number of changes in the status of hypnotically-refreshed testimony in other jurisdictions.
In light of those changes, as well as the absence of a more complete record, the Court declines defendant's
belated invitation to reconsider and reject State v. Hurd. (pp. 12-15)
3. When trial courts admit hypnotically-refreshed testimony, they should instruct the jury on the effect that
hypnosis may have on that testimony. The Court asks the Committee on Model Criminal Jury Instructions to
draft an appropriate jury charge on the issue. (p. 16)
The judgment of the Superior Court, Law Division, is AFFIRMED and the matter is REMANDED to
the trial court for further proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
19 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRANK FERTIG, a/k/a FRANK
FERDIG,
Defendant-Respondent.
Argued September 26, 1995 - Decided January 4, 1996
On appeal from Superior Court, Appellate
Division.
James F. Smith, Assistant County Prosecutor,
argued the cause for appellant (Jeffrey S.
Blitz, Atlantic County Prosecutor, attorney).
Matthew Astore, Deputy Public Defender II,
argued the cause for respondent (Susan L.
Reisner, Public Defender, attorney; Mr.
Astore and Brad Wertheimer, Assistant Deputy
Public Defender, on the briefs).
The opinion of the Court was delivered by
POLLOCK, J.
The sole issue is whether the State may admit the hypnotically-induced testimony of an independent witness, Dennis Spier, at the trial of defendant, Frank Fertig, for felony murder. Finding that the hypnotist had refreshed improperly Spier's recollection in violation of State v. Hurd, 86 N.J. 525 (1981), the Law Division barred admission of the testimony. The
Appellate Division denied the State's motion for leave to appeal.
We granted the State's motion,
139 N.J. 437 (1995), and now
affirm.
On December 12, 1969, during a robbery at Caesar's Restaurant on Route 40 in Hamilton Township, someone shot and killed the owner, Dominic Perri. Twenty-two years later, on June 13, 1991, the Atlantic County Prosecutor's Office indicted defendant. Crucial to the State's case is the admission of the testimony of Spier, who allegedly drove Fertig to the restaurant on the night of the murder.
According to the robbery victims, who were restaurant
patrons and employees, the robber, a white male wearing dark
clothes and a ski mask, fled into nearby woods. Approximately
two-and-one-half hours after the shooting, the Absecon police
stopped a car traveling east on Route 30, about twelve miles from
Caesar's. The driver was Ralph Heath. Defendant was the sole
passenger. Four days later, a hunter discovered a revolver,
apparently the murder weapon, in the area where the police
stopped the vehicle.
In March 1991, Egg Harbor police arrested Heath on narcotics
charges. In exchange for dismissal of those charges and the
return of over $10,000, which the police had seized, Heath gave a
statement implicating defendant.
The prosecutor's investigators first interviewed Spier on
March 20, 1991. In exchange for "conditional immunity," Spier
related that he had driven a man to Caesar's. He did not recall
the man's name, but described him as thin and approximately
five-feet-eight-inches tall, a description that was consistent
with defendant's appearance in 1969. According to Spier, the man
wore a ski mask and gloves and carried a burlap bag. Spier also
remembered that the man had carried "an automatic or a six-shot
. . . I don't remember what the gun looked like." He had been
aware that the man had intended to rob the restaurant and had
arranged to pick up the man after the robbery. The man, however,
did not appear. Spier has never again seen him.
When the police showed Spier a photographic array that included defendant's picture, Spier could not identify defendant. At a subsequent interview, on March 25, 1991, Spier told the police that the man he had driven was named Fred or Frank. After reviewing his records, Spier stated that he had driven the man in
a blue Plymouth or Dodge. Spier recalled that he and Heath had
"mutual interests in the commission of crimes."
On April 17, 1991, the police again interviewed Spier.
Spier stated that he was certain that he had driven in his car
the man named "Fred" or "Frank" to the scene of the robbery. He
was certain also that the man carried a bag, had a revolver, and
wore a dark-colored ski mask. According to Spier, Heath had
arranged the robbery and the man was a friend of Heath's. Spier
recalled that Heath had called the day after the robbery to say
that a man had been killed and that Spier should forget about the
event. Spier also remembered that Heath may have picked up the
man after the robbery.
Before June 1, 1992, the date set for the trial, Heath died.
On May 29, 1992, an investigator from the Atlantic County
Prosecutor's Office met with Spier for pre-trial preparation. At
that meeting, Spier told the investigator that on April 11, 1991,
he had undergone hypnosis by a psychologist, Dr. Charles Babcock.
The interviewing investigator stated that Spier was not sure
"what he could remember or what was possibly brought out from him
being hypnotized." Spier also told the investigator that his
attorney, who had accompanied him to the session with Dr.
Babcock, had advised him not to tell the police about the
session.
On learning that Spier had been hypnotized, the prosecutor
immediately informed the trial court. The court adjourned the
trial to conduct a hearing to determine the admissibility of
Spier's hypnotically-refreshed recollection.
The abiding concern with hypnotically-refreshed testimony is its reliability. In Hurd, supra, 86 N.J. 525, we noted several inherent problems with such testimony. First, a person undergoing hypnosis is "extremely vulnerable to suggestions," and will "tend to shape his `recall' in response to intentional or inadvertent cues from the questioner." Id. at 539. Second, a hypnotized person loses critical judgment, and "is more willing to speculate and will respond to questions with a confidence he would not have as a waking person." Ibid. Finally, and most troubling, after hypnosis, a person has "the tendency to confound memories evoked under hypnosis with prior recall." Id. at 540. Because hypnotic recall is indiscriminately mixed with waking memory, a post-hypnotic witness "will have strong subjective confidence in the validity of his new recall, which will make it difficult for an expert or a jury to judge the credibility of his memory." Ibid.
Despite the problems with hypnotically-refreshed testimony, we concluded in Hurd that "a rule of per se inadmissibility [would be] unnecessarily broad and will result in the exclusion of evidence that is as trustworthy as other eyewitness
testimony." Id. at 541. Relying on the testimony of Dr. Martin
Orne, we adopted a set of procedural safeguards. Id. at 545. In
adopting those safeguards, we noted that the reliability of
hypnosis in reviving memory varies with the nature of the memory
loss. Id. at 544. Consequently, we directed trial courts to
consider first whether hypnosis is appropriate for the type of
memory loss encountered in a given case. Ibid. Hypnotically-refreshed testimony is more reliable when the cause of the
witness's memory loss is trauma rather than the passage of time.
Ibid.
At a Hurd hearing, the court must determine whether the
hypnosis complies with certain requirements:
First, a psychiatrist or psychologist
experienced in the use of hypnosis must
conduct the session. This professional
should also be able to qualify as an expert
in order to aid the court in evaluating the
procedures followed. . . .
Second, the professional conducting the
hypnotic session should be independent of and
not regularly employed by the prosecutor,
investigator or defense. This condition will
safeguard against any bias on the part of the
hypnotist that might translate into leading
questions, unintentional cues, or other
suggestive conduct.
Third, any information given to the
hypnotist by law enforcement personnel or the
defense prior to the hypnotic session must be
recorded, either in writing or another
suitable form. . . .
Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the
subject remembers them. The hypnotist should
carefully avoid influencing the description
by asking structured questions or adding new
details.
Fifth, all contacts between the
hypnotist and the subject must be recorded.
This will establish a record of the
pre-induction interview, the hypnotic
session, and the post-hypnotic period,
enabling a court to determine what
information or suggestions the witness may
have received during the session and what
recall was first elicited through hypnosis.
. . .
Sixth, only the hypnotist and the
subject should be present during any phase of
the hypnotic session, including the
pre-hypnotic testing and the post-hypnotic
interview.
Hurd also requires that "the party seeking to introduce the
hypnotically refreshed testimony has the burden of establishing
admissibility by clear and convincing evidence." Id. at 546. We
concluded that the allocation of such a burden was "justified by
the potential for abuse of hypnosis, the genuine likelihood of
suggestiveness and error, and the consequent risk of injustice."
Id. at 547.
Here, the trial court conducted a hearing pursuant to the
Hurd requirements. The court found that before the hypnosis,
Spier's attorney had instructed Dr. Babcock that the purpose of
the session was to help Spier remember more details about Fertig
and the robbery.
Early in the session, Spier told Dr. Babcock that he had
used hypnosis tapes to put himself to sleep and to stop smoking.
Dr. Babcock told Spier that the "human mind never forgets" and
that hypnosis is a sleep-like state. The court also found that
Spier wanted the hypnotic session to help him to remember.
Concerning the conduct of the session, the court found:
Dr. Babcock elicited tentatively phrased
recollections and then restated them to Spier
as if they were fact. For example, Spier
said he "thinks" he picked up defendant at
Heath's house but is not sure. Later, Dr.
Babcock questions Spier about picking up the
defendant at Heath's house as if it were a
firm recollection.
Finally, the court observed that despite Spier's protestations
that he thought he had not fallen asleep, Spier had experienced
unusual numbness throughout his body, including his hands, a
sensation consistent with hypnosis.
On September 7, 1993, at the request of the State, Dr.
Herbert Spiegel, a psychiatrist, conducted a videotaped interview
of Spier to determine whether Dr. Babcock had hypnotized him.
Dr. Spiegel has developed a test, the Hypnotic Induction Profile
(HIP) test, which is designed to determine a person's
susceptibility to hypnosis. According to Dr. Spiegel, a HIP
score of six on a scale of zero to sixteen indicates that a
person is hypnotizable.
At the beginning of the session, Spier stated that he did
not want to meet with Dr. Spiegel, but feared losing his immunity
from prosecution. The session, which consisted primarily of
short-answer questions posed by Dr. Spiegel, lasted twenty-three
minutes. From the session, Dr. Spiegel assigned a score of 5.5
to Spier. Based on that score, Dr. Spiegel concluded that Spier
was not hypnotizable and that Dr. Babcock had not hypnotized him.
Defendant's expert, Dr. William London, a psychologist,
criticized the HIP test. According to Dr. London, the HIP test
is not as widely accepted or reliable as the Stanford or Harvard
hypnotizability tests. Further, Dr. London testified that the
HIP test does not indicate reliably whether Spier could be
hypnotized, especially considering that Spier had participated
willingly with Dr. Babcock, but not with Dr. Spiegel.
Contrary to Dr. Spiegel, Dr. London believed that Dr.
Babcock had hypnotized Spier. Dr. London qualified his belief by
stating that no one unless present at the session could determine
with certainty whether Dr. Babcock had successfully hypnotized
Spier.
Both Dr. Spiegel and Dr. London took a dim view of Dr. Babcock's conduct of the hypnotic session. Dr. Spiegel characterized Dr. Babcock's lengthy hypnotic procedure as ineffective and outmoded. Both experts agreed that Dr. Babcock
had erred by telling Spier that the "human mind never forgets"
and that hypnosis is a sleep-like state.
Confronted with conflicting expert opinions, the trial court
concluded that Dr. Babcock had hypnotized Spier. In reaching
that conclusion, the court relied on several facts: Spier's
belief that he had been hypnotized; his prior use of hypnosis
tapes to induce sleep and to stop smoking; and his complaint of
unusual numbness, particularly in his hands, at the end of the
session. The court found further that Dr. Babcock's questioning,
which the court found "highly suggestive," had influenced Spier's
recollection.
Consistent with the Hurd guidelines, the court first
considered the nature of Spier's memory loss. According to the
court, the loss was attributable to the passage of time.
Consequently, a "threshold doubt" existed "as to the validity and
usefulness of hypnosis in this case." The court then found that
the session with Dr. Babcock violated the Hurd guidelines:
Dr. Babcock is only questionably independent . . . as he was told to help Spier remember as much detail as possible . . . . The process was explicitly directed. Dr. Babcock was given a specific mandate and his highly suggestive and structured questioning complied with that mandate. Spier told Dr. Babcock that he felt guilty about his involvement because it resulted in the death of another, and by implication, that he would feel better if his testimony would result in a conviction. Dr. Babcock's unintentional
addition of detail to Spier's memory tainted
the hypnotically refreshed memory.
Finally, the Court found that even if Spier had not been
hypnotized, "Dr. Babcock's session with Spier, according to Dr.
London, has a high risk of having permanently shaped his
recollection." The court concluded that Spier's post-hypnotic
testimony was inadmissible.
Substantial and credible evidence in the record supports the
trial court's factual findings. Roya Farms Resort v. Investors
Ins. Co.,
65 N.J. 474, 484 (1974); State v. Johnson,
42 N.J. 146,
162 (1964). Consequently, we accept them.
Initially the State contends that defendant, as the party urging the exclusion of the hypnotically-refreshed testimony, should bear the burden of proving that Spier had been hypnotized. The argument leads nowhere. The trial court, as a matter of fact, has found that Spier had been hypnotized. Allocating the burden of proof to defendant would not change that result.
Under Hurd, moreover, the proponent of hypnotically refreshed testimony bears the burden of proving its reliability. The Hurd guidelines apply, even to hypnotic sessions that fail. Allowing the proponent of post-hypnotic testimony to sidestep Hurd by contending that the session failed invites abuse. The
burden of proving that the hypnotic session was unsuccessful must
fall on the proponent of the testimony emanating from that
session. Furthermore, the Hurd guidelines apply even if the
State played no role in Spier's hypnosis. As the proponent of
that testimony, the State bears the burden of proving both that
Dr. Babcock's attempts to hypnotize Spier were unsuccessful and
that the testimony satisfies the Hurd guidelines.
In this Court, defendant requests that we reconsider Hurd and adopt a rule of per se inadmissibility of hypnotically-refreshed testimony. Alternatively, defendant requests that we require courts to instruct the jury about the problems with such testimony. Defendant did not raise those issues in the Law Division or the Appellate Division. Absent a more complete record, we decline to address them. We would be remiss, however, if we failed to note several significant developments since we decided Hurd.
In Hurd, we observed that "a majority of courts that have considered the question have held that hypnotically induced testimony is admissible." 86 N.J. at 535. Since our decision in Hurd, the tide has run the other way. Twenty-six courts now conclude that hypnotically-refreshed testimony is per se inadmissible. See Thomas M. Fleming, Annotation, Admissibility of Hypnotically Refreshed or Enhanced Testimony, 77 A.L.R. 4th 927, 943-47 (1990) (collecting cases); Michael J. Beaudine,
Growing Disenchantment with Hypnotic Means of Refreshing Witness
Recall,
41 Vand. L. Rev. 379, 400 (1988) (stating per se
inadmissibility is majority rule). Dr. Orne, on whose
recommendations we relied in Hurd, supra, 86 N.J. at 545-46, now
believes that procedural safeguards cannot fully protect against
admission of testimony in which the witness confuses hypnotic
pseudomemory with waking recall. Martin T. Orne, et al.,
Hypnotically Induced Testimony in Eyewitness Testimony:
Psychological Perspective 171, 205 (Gary L. Wells & Elizabeth F.
Loftus, eds. 1984). He concludes: "As has been pointed out,
hypnosis should not be used to prepare a witness to testify in
court, such as in an attempt to improve the recall of a
previously unreliable or uncertain witness." Id. at 205.
Today, only four states consider such testimony to be
generally admissible. State v. Brown,
337 N.W.2d 138, 151 (N.D.
1983); State v. Jorgenson,
492 P.2d 312, 315 (Ore. App. 1971);
State v. Glebock,
616 S.W.2d 897, 903-04 (Tenn. Crim. App. 1981);
Prime v. State,
767 P.2d 149, 153 (Wyo. 1989). Although mindful
of the problems posed by hypnotically-refreshed testimony, we
decline to abandon Hurd in the absence of a more complete record.
Many federal courts evaluate post-hypnotic testimony under a form of the totality-of-the-circumstances test. Bundy v. Dugger, 850 F.2d 1402, 1415 (11th Cir.), cert. denied, 488 U.S. 1034, 109 S. Ct. 849, 102 L. Ed.2d 980 (1988); McQueen v. Garrison, 814 F.2d 951, 958 (4th Cir.), cert. denied, 484 U.S. 944, 108 S. Ct.
332,
98 L. Ed.2d 359 (1987); United States v. Kimberlin,
805 F.2d 210, 219 (7th Cir.), cert. denied,
483 U.S. 1023,
107 S. Ct. 3720,
97 L. Ed.2d 768 (1986); Sprynczynatyk v. General Motors
Corp.,
771 F.2d 1112, 1122-23 (8th Cir.), cert. denied,
475 U.S. 1046,
106 S. Ct. 1263,
89 L. Ed.2d 572 (1985); United States v.
Valdez,
722 F.2d 1196, 1203 (1984). Several state courts have
expressly adopted such a test. State v. Iwakiri,
682 P.2d 571
(Idaho 1994); State v. Johnston,
529 N.E.2d 898, 906 (Ohio 1988);
Walters v. State,
680 S.W.2d 60, 63 (Tex. Ct. App. 1984). Under
this test, courts have considered a variety of factors, including
procedural safeguards, presence of suggestive statements, nature
of memory loss, importance of the testimony to the case,
corroboration of the testimony with independent evidence, and
others. See Charles A. Wright & Victor J. Gold, Federal Practice
and Procedure: Evidence § 6011 (1990 & Supp. 1995) (endorsing but
noting problems with totality-of-the-circumstances test). These
courts recognize, as we did in Hurd, that a per se inadmissible
rule may exclude otherwise reliable evidence. See Valdez, supra,
722 F.
2d at 1203 (rejecting rule of per se inadmissibility).
Furthermore, a significant number of courts use procedural safeguards similar to those in Hurd to determine case-by-case whether hypnotically-refreshed testimony is admissible. Chamblee v. State, 527 So.2d 173, 175-76 (Ala. Crim. App. 1988); People v. Romero, 745 P.2d 1003, 1016-17 (Colo. 1987), cert. denied, 485 U.S. 990, 108 S. Ct. 1296, 99 L. Ed.2d 506 (1988); Brown v. State, 426 So.2d 76, 93-94 (Fla. Dist. Ct. App. 1983); House v.
State,
445 So.2d 815, 826-27 (Miss.1984); State v. Beachum,
643 P.2d 246, 253-55 (N.M. Ct. App. 1981); State v. Adams,
418 N.W.2d 618, 624 (S.D. 1988); State v. Armstrong,
329 N.W.2d 386, 394-95
(Wis.), cert. denied,
461 U.S. 946,
103 S. Ct. 2125,
75 L. Ed.2d 441 (1983).
Still other courts have held that, because the scientific
community does not generally accept hypnotically-refreshed
testimony, such testimony is inadmissible under Frye v. United
States,
293 F. 1013 (D.C. Cir. 1923). See, e.g., Contreras v.
State,
718 P.2d 129, 135-36 (Alaska 1986); People v. Zayas,
546 N.E.2d 513, 517-18 (Ill. 1989). The foregoing changes in the
status of hypnotically-refreshed testimony in other
jurisdictions, combined
with the absence of an adequate record, lead us to decline
defendant's belated invitation to reject the Hurd guidelines.
Finally, as we noted in Hurd, people who have been
hypnotized are vulnerable to intentional or inadvertent
suggestions made by the interviewers, lose critical judgment
while under hypnosis, tend to confound hypnotic recall with
waking memory, and have increased confidence in their testimony
after hypnosis. 86 N.J. at 539-40. Accordingly, when trial
courts admit hypnotically-refreshed testimony, they should
instruct the jury of the effect that hypnosis may have on that
testimony. Towards that end, we request our Committee on Model
Criminal Jury Instructions to develop an appropriate charge.
The judgment of the Law Division is affirmed, and the matter
is remanded to that court for further proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion.
NO. A-19 SEPTEMBER TERM 1995
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRANK FERTIG,
a/k/a FRANK FERDIG,
Defendant-Respondent.
DECIDED January 4, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY