People v. Gonzales, 415 Mich. 615 (Mich. 1982)

Kavanagh, J.

Defendant Salvadore Gonzales and John Duncan Wallach were charged with the first-degree murder of Elmer Evans.1 Gonzales and Wallach were tried separately. Following a jury trial defendant was found guilty as charged and sentenced to a mandatory term of life imprisonment. The Court of Appeals reversed his conviction, holding that the trial court erred in admitting the testimony of a witness whose memory had been hypnotically refreshed.2 We affirm the opinion of the Court of Appeals for the reasons stated therein and for the additional reasons set forth below.

I

The case against defendant was based almost solely on the testimony of Rhonna Burns, summarized by the Court of Appeals:

by way of the front door — apparently to go to Evans’ car which Evans had said was parked in front of the bar. Wallach, Burns, and Evans exited through the back door of the bar and went to Wallach’s station wagon. The trio drove to a warehouse. Defendant was waiting there, standing in front of a small blue car. Defendant got into the back seat of the station wagon and sat next to Evans. They then drove to a house on a hill and stopped in front of a garage. Stating that he had to go to the bathroom, defendant got out and went out around the garage toward the right. Wallach and Evans then got out of the car and went toward the left, out of Burns’ view. After approximately 10 or 20 minutes, defendant returned. Wallach returned immediately thereafter. Evans, however, did not return. Wallach’s right hand was cut and blood was on his hand and pants. Burns and Wallach then dropped defendant oif downtown.” 108 Mich App 145, 147-148; 310 NW2d 306 (1981).

Rhonna Burns’ memory had been hypnotically refreshed prior to trial and was admitted over defendant’s objections that the hypnosis may very well have irreparably tainted her true memory so that she was merely parroting suggestions implanted by the police. A review of the events preceding the trial illustrates the fact that defendant’s objections were well-founded.

On March 5, 1979, Detectives Werner and Thompson of the Waterford Police Department conducted the first interview with Rhonna Burns. She conveyed the following description of the events of Saturday, January 27, 1979. At around 10 o’clock that morning, she and John Wallach went to the Liberty Bar. Shortly after their arrival, John left the bar with Fred Torres and a man named Chico. She remained at the bar and watched television. When John returned to the bar she went out to his car and fell asleep. Shortly thereafter John came out and fell asleep in the

car. Detective Werner asked Rhonna if she and John had given anybody a ride home. She said that they had dropped off someone at Voorheis Road, but she did not remember where or whom. The police drove Ms. Burns to Chico’s house located on Voorheis, and she identified it as the house where she and John Wallach had dropped someone off. She also remembered giving someone else a ride that night. The police asked Rhonna if she remembered John Wallach being covered with blood when he came back to the bar to pick her up that night, and she replied no.

On March 13, 1979, Detectives Werner and West conducted a second interview with Rhonna Burns. At this interview Ms. Burns reiterated substantially the same story:

On March 29, 1979, Detective Werner and Sergeant Dorrance conducted a third interview with Rhonna Burns. Initially, Ms. Burns failed to remember anything new about the night in question. Detective Werner asked Burns if she saw defendant at the Liberty Bar on the night of January 27, 1979. Burns replied she did not remember seeing him. Burns remembered Wallach stating that he was going to give Fred Torres and Chico a ride to the Wide Track Bar. She then remembered Wallach coming back to the bar and sitting in the booth with her. Detective Werner asked her if the defendant was sitting in the booth with her and John, and she replied that she did not remember. She then recalled that Wallach pointed to an old man sitting at the back of the bar, and said they should give him a ride home because he was drunk. She, Wallach, and the old man left the bar together, and they drove the old man home. Burns could not remember if they met anyone at the old man’s house. After dropping him off they met

Chico and drove him home. She and Wallach then returned to the Liberty Bar where Wallach left her alone for a while.

Detective Werner and Sergeant Dorrance left, but returned later to show Burns some photographs. They showed her photographs of Elmer Evans, but Burns was not sure that he was the same old man that she and Wallach had taken home. When asked if she knew where the old man lived, Burns described a big, new house with dark siding. This description fit the house located at 2610 Silver Down Court where Evans’ body had been found. Burns subsequently identified a picture of the house at 2610 Silver Down Court and said it looked like the house at which the old man had been dropped off. Werner then asked Burns if she had returned to this house at 5 a.m. on Sunday, January 28, and if she got out of the car, saw some bodies, and screamed. She replied that she could have, but that she did not remember. Either during or prior to this interview, Officer Werner told Burns that defendant was short, stocky, and of Mexican or Spanish descent. At some point in this interview, Werner showed Burns a photograph of defendant and asked her if she had seen him in the Liberty Bar. Burns still did not remember defendant being at the Liberty Bar.

Detective Werner held a fourth interview with Rhonna Burns on April 3, 1979. For the first time Burns remembered defendant sitting at the bar with her and Wallach on the night of January 27, 1979. She also remembered Wallach and defendant walking up to the old man and asking him if they could give him a ride home. The old man gave defendant his car keys. Burns, Wallach, and the old man left the bar together and picked up defen

dant on the way to what Burns believed to be the old man’s house. Both Wallach and defendant helped the old man out of the car and to the house. Wallach, Burns, and defendant then drove back to the Liberty Bar, picking up Chico along the way and dropping him off at home. When they arrived at the bar, Wallach and defendant got out of the car and left Burns there to sleep. Burns said that later Wallach came back to the car and the two of them drove to Tina Meston’s house. Officer Werner asked Burns whether she remembered Wallach picking up a shovel at Tina’s and putting it in the car. Burns replied yes. When asked whether she and Wallach drove back to the old man’s house so he could cover the bodies, and whether she got out of the car and saw the bodies and screamed, she answered that she must have seen the bodies to scream but that she could not remember surely. She was then asked if she saw Wallach cover the bodies with snow using the shovel, and she answered that she could have, but that she did not think so. At this interview, Burns consented to Officer Werner’s request that she undergo hypnosis to improve her memory.

On April 13, 1979, Werner and another officer picked up Burns to drive her to Lansing for the hypnosis session. En route, the officers drove Burns to the murder scene, where she stated that this was where she and Wallach had driven the old man. While walking around the grounds, she remembered various details of the night in question. The officers then drove Burns to the Crescent Machine Company where Evans’ car was found. Burns was not sure that this was the area where they had picked up defendant on the evening in question. They then proceeded to Lansing, where Dr. Donald Rossi, Director of Behavioral Sciences

for the Michigan Department of State Police, conducted the hypnosis session.

It is obvious that by the time Rhonna Burns was hypnotized by Dr. Rossi, the various interviews conducted by the police had already suggested to her their theory of the killing.

II

In People v Tobey, 401 Mich 141, 145; 257 NW2d 537 (1977), we reaffirmed our adherence to the rule of Frye v United States, 54 US App DC 46, 47; 293 F 1013, 1014 (1923), limiting the admission of scientific evidence to techniques which have gained general acceptance in the particular areas in which they belong. In determining the admissibility of the testimony of a witness whose memory had been hypnotically refreshed, the Court of Appeals employed the Frye test. The prosecutor contends that the Frye rule is inapplicable in this context, because the rule is concerned only with the admissibility of expert opinion deduced from the results of lie detector tests, truth serums, drunkenness tests, and narcotics tests. The prosecutor also contends that hypnosis is one of many methods of refreshing recollection, like reviewing notes. We find these arguments unpersuasive. Hypnotizing a witness to improve his memory is not in fact like any other method of refreshing a witness’s recollection. As the California Supreme Court pointed out in People v Shirley, 31 Cal 3d 18, 53; 181 Cal Rptr 243, 264; 641 P2d 775, 795 (1982), cert den 458 US 1125; 103 S Ct 133; 74 L Ed 2d 114 (1982),

to the inability of the witness (or anyone else) to distinguish between the two.”3

The prosecutor’s argument that the Frye rule is inapplicable proceeds from an unduly narrow reading of the opinions invoking the Frye rule. The purpose of this rule is to prevent the jury from relying on unproven and ultimately unsound scientific methods. The technique of hypnosis is scientific, and the testimony of the witness is the product of the use of the technique. The induced recall of the witness is dependent upon and cannot be disassociated from the underlying scientific method.4 Accordingly, we conclude that the Court of Appeals was correct in applying the Frye test in the instant case.

In its opinion, the Court of Appeals reviews the literature and case law available on this subject. There is no need to repeat here the exhaustive summary of articles on the use of hypnosis to refresh recollection. At this point, we need make only the following observations by way of summary. The hypnotic state is a condition of altered consciousness marked by heightened suggestibility. A subject in a hypnotic state may not have accurate recall. A hypnotized subject is highly susceptible to suggestion, even that which is subtle and unintended. Such suggestion may be transmitted either during the hypnotic session or before it by such persons as, in this case, the policemen inves

tigating the killing. The person under hypnosis experiences a compelling desire to please either the hypnotist or others who have asked the person hypnotized to remember or who have urged that it is important that he or she remember certain events. The subject may produce the particular responses he believes are expected of him.5 In this state of hypersuggestibility and hypercompliance the subject will unconsciously create answers to the questions which the hypnotist asks if he cannot recount the details being sought. This process of filling the gaps of memory with fantasy is called confabulation. Neither the person hypnotized nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. Finally, a witness who is uncertain of his recollections before being hypnotized will become convinced through the process that the story he told under hypnosis is true and correct in every respect. This effect not only persists, but the witness’s conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story.

Despite the problems associated with hypnotically refreshed or created memory, at present the majority of jurisdictions which have considered the question have allowed the testimony of one who has had his memory "refreshed” through hypnosis. Some courts have held that such testimony is admissible only if stringent safeguards are followed, State v Hurd, 86 NJ 525; 432 A2d 86 (1981), being the leading case in this area. Nonetheless,

the Court of Appeals did not believe that even the Hurd standards provide sufficient safeguards.6

The Court of Appeals concluded that hypnosis as a technique to enhance memory recall has not received sufficient scientific recognition of reliability to allow the posthypnotic "recollections” of witnesses to be introduced into evidence. This conclusion is reinforced by the recent trend of authority which holds that the use of such testimony is so fraught with danger that its admission is prohibited. See People v Shirley, supra; Strong v State, 435 NE2d 969 (Ind, 1982); Commonwealth v Nazarovitch, 496 Pa 97; 436 A2d 170 (1981); State v Mena, 128 Ariz 226; 624 P2d 1274 (1981); People v Palmer, 210 Neb 206; 313 NW2d 648 (1981); State v Mack, 292 NW2d 764 (Minn, 1980). We agree with the conclusion that the process of hypnosis and its outcome is inherently unreliable. Hypnosis has not received sufficient general acceptance in the scientific community to give reasonable assurance that the results produced under even the best of circumstances will be sufficiently reliable to outweigh the risks of abuse or prejudice.

Ill

The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or re

pressed memory, and to permit posthypnotic testimony would unfairly denigrate the defendant’s right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.

We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool. A party could preserve a witness’s prehypnatic testimony by using an MRE 804(b)(1) deposition. After the hypnotic session, the subject would be considered "unavailable as a witness”.

Affirmed.

Fitzgerald, C.J., and Williams, Levin, Coleman, and Ryan, JJ., concurred with Kavanagh, J.

Riley, J., took no part in the decision of this case.

Order

Entered on April 25, 1983. — Reporter.

On order of the Court, the Court on its own motion has reconsidered its opinion in this matter. On reconsideration, it is ordered that the following language be added thereto:

This opinion should not be read as determining the question of the admissibility of this witness’s testimony concerning facts she was able to recall and relate prior to hypnosis, a question which is reserved until raised on an adequate record in an appropriate case.