NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GEORGE MCGLAUFLIN, )
) Court of Appeals No. A-4356
Appellant, ) Trial Court No. 4FA-91-2789
Cr.
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1309 - August 6, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: James H. McComas, Schleuss &
McComas, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Following a bench trial in the Fairbanks superior
court, George "Biff" McGlauflin was convicted of several counts
of first-degree sexual abuse of a minor, AS 11.41.440(a)(2), and
first-degree sexual assault under former AS 11.41.410(a)(3) (the
older statutory provision covering consensual acts of intercourse
with children under the age of 16). McGlauflin appeals. We
reverse McGlauflin's convictions because we conclude that he
never validly waived his right to jury trial. We also rule that
the girl whom McGlauflin allegedly abused can testify at his
trial even though she was hypnotized before the incidents of
abuse were reported to the authorities.
McGlauflin's Purported Waiver of Jury Trial
McGlauflin was indicted on September 25, 1991. On
November 29, with McGlauflin's trial scheduled to commence the
following week, the superior court held a status conference in
McGlauflin's case. McGlauflin attended this status conference,
sitting in the back of the courtroom.
At the conference, the following exchange took place:
DEFENSE COUNSEL: It looks like [the]
McGlauflin [case] is going to go to trial.
Depending upon the State's preference, Mr.
McGlauflin is willing to waive jury.
THE COURT: Monday? Any problems with
going [to trial] on Monday?
PROSECUTOR: The only problem ... with
the [date], Your Honor, [is that] we have to
bring witnesses from California, and trying
to arrange ... for witnesses from California
to be here on Monday may be a problem.
THE COURT: You're willing to waive jury?
PROSECUTOR: Yes.
THE COURT: Okay. Mr. McGlauflin, are
you also willing to waive the jury?
McGLAUFLIN: (no audible response)
THE COURT: Yes? Mr. McGlauflin [is]
nodding in the back of the courtroom. It
looks like everything is resolving so that we
could go on Tuesday, if that isn't a problem.
The record does not contain a written jury waiver or any further
discussion concerning McGlauflin's waiver of his right to trial
by jury.
McGlauflin contends that the trial court violated
Alaska Criminal Rule 23(a) by not requiring McGlauflin to execute
a written waiver of his right to trial by jury. Criminal Rule
23(a) is explicit on this point:
Trial by Jury. Cases required to be
tried by jury shall be so tried unless the
defendant waives a jury trial in writing with
the approval of the court and the consent of
the state.
Yet even though Rule 23(a) calls upon the superior court to
obtain a written waiver of a defendant's right to jury trial, we
do not believe that this omission, of itself, requires reversal
of McGlauflin's convictions. Criminal Rule 23(b) likewise calls
upon the superior court to obtain a defendant's written consent
to proceed with a jury of less than 12, but the supreme court has
held that the rule's requirement of a writing is simply an
evidentiary preference, a device "to provide the best ...
evidence of the express consent of the defendant". A defendant's
otherwise valid consent will not be thrown out simply because it
was oral rather than written. Walker v. State, 578 P.2d 1388,
1390 (Alaska 1978). We interpret the sibling provision, Rule
23(a), in the same manner: even though the rule requires a
written waiver of the right to jury trial, we will not nullify an
otherwise valid waiver simply because it was oral.
However, Walker also stands for another proposition:
that a defendant's pre-trial waiver of jury trial must be
personal, knowing, and voluntary.
We believe that waiver of the right to
trial by a jury of twelve persons requires
that the court personally address the defen
dant, and that failure to do so is error per
se. ... "Not only must the right of the
accused to [jury trial] be jealously pre
served, but the maintenance of the jury as a
fact-finding body in criminal cases is of
such importance and has such a place in our
traditions, that, before any waiver can
become effective, the consent of government
counsel and the sanction of the court must be
had, in addition to the express and
intelligent consent of the defendant.
Walker, 578 P.2d at 1389-1390, quoting Patton v. United States,
281 U.S. 276, 312; 50 S.Ct. 253, 263; 74 L.Ed. 854 (1930)
(emphasis added).
In Walker, the defendant's attorney apprised the
superior court that the defendant wished to be tried by a jury of
6 rather than a jury of 12. The defendant, who was present and
heard his attorney's representation, said nothing. The supreme
court reversed the resulting conviction, holding that the defense
attorney's assertion, "even when coupled with the inference of
acquiescence drawn from [the] defendant's failure to protest",
was "insufficient to show that the defendant's consent ... was
given with the requisite degree of understanding." Id. at 1390.
Subsequently, in Walunga v. State, 630 P.2d 527 (Alaska 1981),
the supreme court elaborated on the requirement of a knowing and
voluntary waiver:
Alaska Criminal Rule 23(a) requires that a
defendant's waiver of the right to jury trial
be in writing, but it does not on its face
require the trial judge to make an inquiry
into the circumstances surrounding the ...
waiver. In Walker v. State, ... however, we
stated that the rule does require a personal
inquiry by the court to determine whether the
defendant's waiver is voluntary and knowing.
Walunga, 630 P.2d at 528. In footnote 6 of its opinion in
Walunga, the supreme court quoted an inquiry that it found
adequate:
THE COURT: [The] record will reflect
that the waiver of jury trial has been filed.
Let me ask you, Mr. Walunga, ... do you real
ize that, when you sign this, ... you [will]
not have a jury -- that I [will] decide the
case?
MR. WALUNGA: Yes.
THE COURT: Is that what you want?
MR. WALUNGA: Well, at this time, I
suppose, I do not know.
THE COURT: Well, do you understand what
you are doing when you sign the waiver of
jury trial?
MR. WALUNGA: Yeah.
THE COURT: You know [that] you -- [your
attorney has] told you [that] you have a
right to a jury trial?
MR. WALUNGA: Yes, I realize that.
THE COURT: Okay. All right. [The waiv
er] will be filed.
This excerpt from Walunga differs significantly from the record
in McGlauflin's case. While the superior court did address
McGlauflin personally, the court's inquiry was cursory ("Mr.
McGlauflin, are you ... willing to waive the jury?"). More
important, the court did not seek to determine whether McGlauflin
understood the right he was relinquishing or the consequences of
his choice (that his guilt or innocence would now be determined
solely by the judge).
It may seem natural to assume that a defendant would
make a decision of this importance only after consulting with
defense counsel, and that any competent defense attorney would
carefully explain the right to jury trial and the reasons why, in
a particular case, it might further the defendant's interests to
waive this right.1 Nevertheless, Walker and Walunga clearly
stand for the rule that a defendant's waiver of jury trial cannot
be upheld upon such an assumption; instead, the record must
explicitly demonstrate that the defendant understood and
personally relinquished the right to trial by jury. The record
in this case does not demonstrate McGlauflin's knowing and
voluntary waiver of his right to jury trial. Accordingly, we
must reverse McGlauflin's convictions.
A.C.'s Hypnosis and the Admissibility of Her Trial
Testimony
Although we are reversing McGlauflin's convictions, we
must address an evidentiary issue that arose during McGlauflin's
trial and would doubtless arise again on retrial. The charges
against McGlauflin are based on allegations that he sexually
abused a young girl, A.C.. During McGlauflin's trial, the
parties became aware that A.C.'s mother had had A.C. hypnotized
for therapeutic reasons before the sexual abuse was reported to
the authorities. This revelation prompted McGlauflin's attorney
to ask the superior court to strike A.C.'s trial testimony. The
court held a hearing to determine the facts surrounding A.C.'s
hypnosis. After those facts had been ascertained, the superior
court ruled that A.C. would be permitted to testify.
On appeal, McGlauflin contends that the superior
court's ruling violates Contreras v. State, 718 P.2d 129 (Alaska
1986), in which the supreme court established rules limiting the
admission of testimony of witnesses who have previously been
hypnotized. To decide McGlauflin's claim, we must first discuss
the Contreras decision and then recapitulate the proceedings at
McGlauflin's trial.
a. The Contreras Decision
"When a witness is hypnotized by the police in an
effort to identify a suspect, is the witness' subsequent
testimony at trial, as to facts and recollections adduced during
hypnosis, admissible evidence?" This first sentence of the
Contreras opinion, 718 P.2d at 129, states the issue presented to
the supreme court in that case.
Joseph Contreras was indicted on charges of kidnapping
and sexual assault. 718 P.2d at 130.2 Before Contreras had been
identified as the perpetrator of these crimes, a police officer
hypnotized one of the victims, S.J., in an effort to gain further
information that would help the police identify a suspect. Follow
ing the hypnosis session, S.J. identified Contreras as her assail
ant. Id. Contreras asked the superior court, and later the
supreme court, to bar S.J. from testifying at his trial; he
asserted that S.J.'s hypnosis had irreparably tainted her memory
and that her testimony was therefore too untrustworthy to be
admitted in court. Id.
The supreme court, after reviewing the scientific
literature as well as court decisions from other states
discussing the use of hypnosis as a forensic tool, concluded that
there were three fundamental problems with admitting
"hypnotically induced statements or recollections":
[T]he three affected areas [are]: first,
that a person who has been hypnotized becomes
increasingly susceptible to suggestions con
sciously or unconsciously advanced by the
hypnotist or others present during the ses
sion; second, that the subject himself may
confabulate [i.e., unconsciously invent
details to fill gaps in the subject's pre-
hypnosis memory]; and third, that the subject
will experience an increased confidence in
his subsequent recollection of the incident
in question.
Contreras, 718 P.2d at 131-32 (footnotes omitted).
Expanding upon these three potential dangers of trying
to retrieve memory by the use of hypnosis, the supreme court
quoted with "full agreement" the discussion of the North Carolina
Supreme Court in State v. Peoples, 319 S.E.2d 177, 181-82 (N.C.
1984):
[S]uggestions can be entirely unintended and
even unperceived by the hypnotist as well as
the subject. Likewise, the subject experi
ences an overwhelming desire to please the
hypnotist and, hence, becomes even more sus
ceptible to suggestion. The subject may
unwittingly produce responses which he per
ceives to be expected [by the hypnotist].
Since a subject under hypnosis undergoes an
impair[ment of] critical judgment, he may
give undue credence to vague and fragmentary
memories upon which he would not have relied
outside the hypnotic state. A combination of
a susceptibility to suggestion and a compel
ling desire to please the hypnotist causes
the subject to experience an unwillingness to
admit that he cannot recall certain events.
Thus he becomes susceptible to creating the
event.
... [T]he dangers surrounding hypnotically
refreshed testimony become even more pro
nounced when we realize that it is virtually
impossible for the subject or even the train
ed, professional hypnotist to distinguish
between true memory and pseudo memory. ...
Absent objective, independent means to verify
[the subject's] recall, its accuracy must
remain both unknown and unknowable.
In addition to resulting in this inabili
ty to distinguish between actual and created
memory, the process of hypnosis tends to
enhance the subject's confidence in his memo
ry, whether genuine or invented. ... After a
subject experiences what he believes to be a
recall of events under hypnosis, he may devel
op an unshakable subjective conviction and
confidence in his refreshed recollection. ...
In short, hypnosis not only irrevocably
masks whether a subject's recall ... is true,
it also creates a barrier to the
ascertainment of [the memory's] truthfulness
through cross-examination _ [the] method
normally relied on in the courtroom to test
the truthfulness of testimony.
Contreras, 718 P.2d at 133.
Based upon these scientifically recognized dangers of
trying to enhance or reconstruct a witness's memory through
hypnosis, the supreme court ruled that the use of hypnosis as a
method of refreshing a witness's memory fails the Frye test3:
there is "[in]sufficient [scientific] consensus on the
reliability of hypnotically aided recall". 718 P.2d at 135-36.
These same dangers led the supreme court to hold that
hypnotically adduced testimony is uniformly more prejudicial than
probative and thus must be excluded under Evidence Rule 403. Id.
at 136-38.
Having concluded that hypnotically enhanced memory is
too untrustworthy to be admitted in court, the supreme court next
faced the question of whether to accept Contreras's argument that
a previously hypnotized witness should be completely barred from
testifying. The problems of suggestion and confabulation were
solved by restricting the witness's testimony to the facts he or
she demonstrably recalled before hypnosis. Contreras argued,
however, that because hypnosis can potentially increase
witnesses' subjective certainty of the accuracy of their memory,
the experience of hypnosis "may irreparably alter[]" a witness's
sincerity, thus abridging a defendant's confrontation rights by
making it "impossible to effectively cross-examine a previously
hypnotized witness". 718 P.2d at 138.
The supreme court recognized this potential danger of
hypnosis and concluded that "defendants are deprived of their
constitutional right of confrontation under the Alaska
Constitution when hypnotically adduced evidence is introduced".
718 P.2d at 139 (emphasis added). Nevertheless, the supreme
court refused to bar all testimony of previously hypnotized
witnesses. Despite the possibility that a previously hypnotized
witness might display an increased level of confidence in all of
his or her memories (not just the ones retrieved through
hypnosis), the court ruled that "[a] person who has been
hypnotized may testify as to facts which he related before the
hypnotic session". Contreras, 718 P.2d at 139.
Decisions from other states show that Contreras is the
favored rule in the United States. Only one state court, the
California Supreme Court, has adopted Contreras's argument that
previously hypnotized witnesses should be completely barred from
testifying because of their potentially increased level of
subjective certainty. People v. Shirley, 723 P.2d 1354, 1383-84
(Cal. 1982), cert. denied, 459 U.S. 860 (1982).4 Other states
have acknowledged the problem of a witness's potentially
increased level of subjective confidence in pre-hypnosis
memories, but all these states nevertheless take the position
that a witness can testify about facts that the witness demon
strably recalled before hypnosis. State ex rel. Collins v.
Superior Court (on rehearing), 644 P.2d 1279, 1295-96 (Ariz.
1982); Elliotte v. State, 515 A.2d 677, 679-681 (Del. 1986);
Commonwealth v. Kater, 447 N.E.2d 1190, 1197-98 (Mass. 1983);
People v. Nixon, 364 N.W.2d 593, 598-99 (Mich. 1984). The words
of the New York Court of Appeals are often quoted:
[W]e note our agreement with those courts
which have concluded that the pretrial use of
hypnosis does not necessarily render the wit
ness incompetent to testify to events
recalled prior to being hypnotized.
[H]ypnosis has proven to be a useful and
apparently essential investigative tool for
generating leads in cases where normal police
procedures have proven inadequate ... . It
also appears that hypnosis has become a
fairly standard course of medical treatment
for amnesia resulting from traumatic events,
including witnessing or being victimized by a
criminal act. A criminal trial for rape or
assault would present an odd spectacle if the
victim was barred from saying anything, in
cluding the fact that the crime occurred,
simply because he or she submitted to
hypnosis sometime prior to trial to aid the
investigation or obtain needed medical treat
ment.
People v. Hughes, 453 N.E.2d 484, 495 (N.Y. 1983).
Accord: Stokes v. State, 548 So.2d 188, 196 (Fla.
1989); State v. Moreno, 709 P.2d 103, 104-05 (Haw. 1985); State
v. Haislip, 701 P.2d 909, 926 (Kan. 1985), cert. denied, 474 U.S.
1022 (1985); State v. Koehler, 312 N.W.2d 108, 110 (Minn. 1981);
State v. Tuttle, 780 P.2d 1203, 1211 (Utah 1989), cert. denied,
494 U.S. 1018 (1990); Hall v. Commonwealth, 403 S.E.2d 362, 370-
71 (Va. App. 1991); State v. Martin, 684 P.2d 651, 656 (Wash.
1984).
b. The Proceedings at McGlauflin's Trial
A.C.'s mother testified that she and her husband moved
to Fairbanks in 1974; A.C. was born there in 1975. McGlauflin,
who rented a room in the home of A.C.'s babysitter, met A.C. when
she was five or six years old. McGlauflin took an active
interest in A.C.; he took her to ballet lessons, took her out to
eat, took her camping, and taught her photography.
In the spring of 1985, A.C.'s mother divorced her
husband and, with the two girls, moved from Alaska to Nevada. At
that time, A.C. was nine years old. After this move, A.C.'s
mother noted a change in her daughter's behavior. A.C.'s self-
esteem was very low, and she became hostile and depressed. She
started "partying", wearing black clothes, and wearing dark red
lipstick. She cried much of the time. A.C.'s mother attributed
this change in her daughter to the mother's recent divorce from
A.C.'s father and other family problems.
During the next three years, McGlauflin sent A.C.
several expensive gifts, among them a 35-millimeter camera and
binoculars. McGlauflin also telephoned A.C. every couple of
months. In the spring of 1988, after McGlauflin sent A.C. the
camera, McGlauflin telephoned A.C.. A.C. refused to speak to
McGlauflin; she asked her mother to tell McGlauflin that she
wasn't home. Then she began crying. A.C.'s mother asked her,
"Did he ever do anything to hurt you?" At that point, A.C.
became very quiet; her mother suspected that something had
happened between McGlauflin and her daughter, but she didn't know
what. When McGlauflin called back the next week, A.C.'s mother
told him not to call back, not to send any more gifts, and not to
communicate with her family in any way. A.C.'s mother "knew he
had done something to her, but [A.C.] wouldn't talk about it
yet."
A.C. began seeing a counselor. After three years of
counseling, A.C. told the authorities that McGlauflin had
sexually abused her. This report led to an Alaska State Trooper
investigation and eventually a grand jury indictment against
McGlauflin.
One of the witnesses at McGlauflin's trial was R.B.S.,
the woman who had babysat A.C. in Fairbanks and who had lived in
the same house as McGlauflin. After A.C. had filed her report of
sexual abuse, Alaska State Trooper Theodore Norris contacted
R.B.S. and asked her to engage McGlauflin in conversation about
the alleged abuse so that the conversation could be recorded
pursuant to a Glass warrant.5 Apparently to prepare R.B.S. for
her telephone conversation with McGlauflin, A.C. spoke with
R.B.S. on a few occasions. R.B.S. testified that, during one of
these conversations, A.C. told her that she had been hypnotized
and that, following hypnosis, she had remembered many details of
the abuse that she had previously put out of her mind.
At this point, Superior Court Judge Mary E. Greene
notified the prosecutor that she believed the State faced a
problem under the supreme court's decision in Contreras v. State,
718 P.2d 129 (Alaska 1986):
THE COURT: [If] there was hypnosis that
related to memory, [A.C.'s] testimony is
inadmissible unless you can ... show what
[she] related before hypnosis. That part's
the only part that's admissible. ... The
hypnotized witness may not testify to any
fact not related by the witness before the
[hypnosis] session. ... [I]t looks to me [as
if you need A.C.'s] prior statements before
the hypnosis occurred.
. . .
THE PROSECUTOR: [I will make an] offer
of proof [that] she remembered all of this
long before that ...
THE COURT: [The] problem is, Contreras
...
THE PROSECUTOR: ... that she went to a
hypnotist and, she can tell you, it was a
rip-off, and she didn't remember anything
different.
THE COURT: [The] problem is, Contreras
doesn't allow that ... . There's an absolute
bar, except statements that you can show were
made prior to hypnosis. ...
THE PROSECUTOR: Even if you could show
that the hypnosis had absolutely no effect on
the witness's memory[?]
THE COURT: [The supreme court's] point
is that you can't make that showing. [The]
witness may believe that [the hypnosis had no
effect on the witness's memory], but [the]
witness's belief ... may not be true -- which
is their point in Contreras.
The court held a hearing the next day to determine the
admissibility of A.C.'s testimony. A.C. testified that she had
been hypnotized once, in 1988. She had not wished to be
hypnotized because she did not want to talk about being sexually
molested, but she eventually agreed to go to the hypnotist for
help in reducing her weight.
A.C.'s mother confirmed A.C.'s account. She testified
that, a few months after the incident in which A.C. had refused
to speak to McGlauflin over the telephone, A.C.'s mother asked
A.C. to come with her to a hypnotist she was consulting about her
own weight problem. A.C. became distraught; she told her mother
that she did not wish to see a hypnotist because "you have to
tell [hypnotists] everything." When A.C.'s mother asked her what
she meant by this statement, A.C. responded that she feared the
hypnotist "would get out of me what Biff [McGlauflin] did to me."
A.C. testified that, despite her expressed reluctance
to speak about being sexually abused, her mother nevertheless
informed the hypnotist at the beginning of the session that A.C.
had been molested. At one point during the session, the
hypnotist asked A.C. if she could see the man who had molested
her; A.C. answered yes. The hypnotist then asked A.C. if she had
anything to say to this man; A.C. answered no. Upon receiving
this answer, the hypnotist moved on to another subject. There
was no further mention of the sexual molestation during the
hypnosis session.
The hypnotist confirmed A.C.'s account of the hypnosis.
He testified that he had seen A.C. once, toward the end of August
1988. The session was designed to aid A.C. in dealing with her
weight problem and her low level of self-confidence.
The hypnotist did not ask A.C. to recall any details of
being sexually molested. Although his notes from the session
include the words "molested -- by a friend", the hypnotist
testified that this had not been the purpose of the session.6
The session concentrated on A.C.'s weight problem and her lack of
self-confidence. The hypnotist did not try to take A.C. "back"
to the acts of molestation, nor did he ask her to recall the
details of whatever might have happened to her. Finally, the
hypnotist testified that he did not give A.C. any post-hypnotic
suggestions to aid her recall of or change her attitude toward
the acts of sexual abuse. He had no independent recollection of
giving A.C. any kind of post-hypnotic suggestion, but he did
testify that, when treating people for lack of self-confidence,
he often suggests to them that they will feel more and more self-
confidence after the session.
At the conclusion of this testimony, the superior court
made formal findings of fact. The court found that, prior to the
hypnosis session, A.C. had told her mother that McGlauflin had
sexually molested her but had provided no details of the abuse.
The hypnosis session occurred at the end of August 1988, and,
prior to that session, the hypnotist knew nothing about any
allegation of sexual abuse. The hypnosis session was not
designed to enhance A.C.'s memory of the sexual abuse.
The court additionally found that, at some point during
the hypnosis session, A.C. said something about the molestation.
A.C.'s comment led the hypnotist to ask, "Can you see the man who
molested you?" A.C. replied, "Yes." The hypnotist then asked,
"Do you want to say anything to him?" A.C. replied, "No." The
court found that there was no other discussion of the sexual
abuse _ "no visitation of the facts of the molestation, and no
inquiry as to what happened when, where, or how." The court
further found that "the only post-hypnotic suggestion made during
the hypnotic session was for [A.C.] to be more and more self-
confident."
The superior court then ruled that the admission of
A.C.'s testimony did not violate Contreras. The court
interpreted Contreras to bar, not all post-hypnosis testimony of
any witness who has been hypnotized for any reason, but only the
testimony of a witness who has been hypnotized in an effort to
refresh or enhance her memory of the events being litigated.
Based on the court's findings that (1) A.C.'s hypnosis had not
been directed toward enhancement of her memory, and (2) the
subject of sexual abuse had come up only in passing, with no
attempt to delve into the details of the abuse, the court ruled
that Contreras did not require suppression of A.C.'s testimony.
c. The Admissibility of A.C.'s Testimony
On appeal, McGlauflin argues that the superior court
should have struck A.C.'s testimony in its entirety because A.C.
had previously been hypnotized and because, prior to that
hypnosis session, A.C. had not told any details of the alleged
sexual abuse to anyone else. (McGlauflin does not contest the
superior court's finding that, prior to the hypnosis session,
A.C. had confided to her mother, in general terms, that
McGlauflin had abused her.)
As described above, Judge Greene concluded that
Contreras did not bar A.C.'s testimony because (1) A.C. had not
been hypnotized in an effort to revive or enhance her memory of
the events being litigated, and (2) the subject of sexual molesta
tion had come up only tangentially during the hypnosis session,
with the hypnotist making no attempt to elicit details of the
occurrence. These factors do indeed distinguish McGlauflin's
case from Contreras, where the witness was hypnotized and
questioned by the police for the express purpose of retrieving
her memories of the kidnapping and assault. McGlauflin argues,
however, that these factual distinctions do not exempt his case
from the Contreras rule.
In Contreras, the supreme court described the issue to
be decided as whether a witness can testify concerning "facts and
recollections adduced during hypnosis" when the witness has been
"hypnotized by the police in an effort to identify a suspect".
718 P.2d at 129. While this language might be interpreted as
limiting the Contreras rule to situations in which the hypnosis
was conducted by the police (or a police agent) for avowedly
forensic purposes, we agree with McGlauflin that the hypnotist's
motive is not determinative of whether the witness can later
testify.
On virtually every page of the Contreras opinion,
either in text or footnote, the supreme court refers to the
questioned testimony as "hypnotically generated", "hypnotically
refreshed", "hypnotically adduced", "hypnotically induced", or
"hypnotically aided recall".7 While it is possible to read
Contreras as applying only to police use of hypnosis for the
purpose of investigating crimes8, we conclude that Contreras
applies to any situation in which a witness's memory has been
enhanced or altered by hypnosis, regardless of the motive of the
hypnotist. Under the facts of Contreras (a witness hypnotized by
the police in an express effort to retrieve memories of a
criminal occurrence), there was an obvious and substantial risk
that the witness's resulting testimony was hypnotically
"refreshed" or "adduced" _ i.e., that hypnosis had affected the
witness's memories of the occurrence. This risk led the supreme
court to bar the witness from testifying unless the State could
show that the witness had made pre-hypnosis statements containing
the same factual assertions. However, hypnosis performed for non-
forensic purposes may also result in altered memory; and, when
this is true, the Contreras rule should apply.
Given the flurry of judicial decisions concerning
hypnosis in the 1980s, one would expect that other states by now
would have confronted cases like McGlauflin's, in which a witness
hypnotized for a non-forensic purpose was later called to testify
in a criminal case. Surprisingly, few cases deal with this
issue. However, McGlauflin cites a New York case, People v.
Schreiner, 573 N.E.2d 552 (N.Y. 1991), for the proposition that a
witness's previous hypnosis has the same legal consequence
regardless of whether the hypnosis was performed for
investigative or medical purposes.
The defendant in Schreiner had been found not guilty of
attempted murder by reason of insanity and had been committed to
a hospital for the criminally insane. Several years later, the
hospital authorities recommended that he be transferred to a non-
secure facility. Preparatory to this transfer, Schreiner was
examined by a psychiatrist. During this examination, Schreiner
confessed to killing a man in a New York City alley in 1979.
After Schreiner was charged with this murder, he asked the court
to suppress his confession, asserting that it was the product of
hypnosis. Id. at 553.
It turned out that, while Schreiner was in the
hospital, he had been receiving therapy from a psychologist.
Schreiner had told the psychologist that he was "troubled" by an
incident that had occurred in an alley, but at the same time
Schreiner asserted that he did not believe he had committed
murder. The psychologist responded, "You know, Rick, I think you
probably did." 573 N.E.2d at 554.
The psychologist later received permission to hypnotize
Schreiner as part of a course of therapy to alleviate Schreiner's
feelings of guilt and depression. Not only did the psychologist
hypnotize Schreiner every few weeks, but she also taught him how
to hypnotize himself. She suggested to Schreiner that, "when he
was ready to deal with the events of whatever night it was, he
would begin to remember them". Id. at 554. Soon after, while
under self-hypnosis, Schreiner "recalled" that he had murdered
the man in the alley. At the pre-trial hearing, the psychologist
testified that she believed that Schreiner's confession to this
murder resulted from the hypnosis therapy or from post-hypnotic
suggestion. Id.
As noted above, New York follows the majority rule that
hypnotically adduced testimony is inadmissible. People v.
Hughes, 453 N.E.2d at 495. However, the trial judge in Schreiner
found, as a factual matter, that Schreiner's confession to the
murder had not been the product of hypnosis and therefore the
rule of exclusion did not apply. The New York Court of Appeals
reversed the trial court's decision because it concluded that the
trial judge's finding of fact was clearly erroneous. 573 N.E.2d
at 554-55, 556. The court stated:
The conclusion is ... inescapable that [the
defendant's] recollection was the result of
hypnotic therapy and posthypnotic suggestion.
Because such recollections are inherently
unreliable, the defendant's statement should
not have been admitted in evidence against
him.
People v. Schreiner, 573 N.E.2d at 556.
We agree with McGlauflin that Schreiner stands for the
proposition that both forensic and therapeutic hypnosis can taint
a witness's memories and thus render the witness's testimony
inadmissible. However, it is important to note that, even though
the hypnosis in Schreiner was conducted for therapeutic purposes,
its avowed aim was memory enhancement: one of the explicit goals
of the hypnosis was to uncover or elicit Schreiner's memories of
what had happened in the New York City alley in 1979. Given this
fact, the New York court concluded that Schreiner's "recollec
tion" of the murder was "inescapabl[y] ... the result of hypnotic
therapy and posthypnotic suggestion".
The same is true of two other cases McGlauflin cites.
In both State v. Martin, 684 P.2d 651 (Wash. 1984), and State v.
Grimmett, 459 N.W.2d 515 (Minn. App. 1990), crime victims were
hypnotized by therapists, not police investigators. However, in
each case, the explicit purpose of the hypnosis was to uncover
the victim's repressed memories of the crimes being litigated; in
each case, the therapist apparently questioned the victim in
detail about the suspected crimes. Martin, 684 P.2d at 652-53;
Grimmett, 459 N.W.2d at 516-17. Thus, the courts in Martin and
Grimmett, like the New York Court of Appeals in Schreiner, could
justifiably conclude that the witnesses' resulting testimony was
presumptively hypnotically adduced.
This brings us to the second crucial aspect of
Schreiner. The New York Court of Appeals clearly viewed the
issue of whether a witness's memory had been enhanced or altered
by hypnosis as an issue of fact:
[W]e reject the People's contention that
there is factual finding that [Schreiner's]
statement was not the product of hypnosis,
which is beyond our power of review.
Although this Court is not empowered to [rede
termine] questions of fact, we may examine
the legal sufficiency of the evidence
purporting to support that [factual]
determination. ... Thus, we may determine
whether this record contains any evidence
sufficient to support the conclusion that
defendant's confession was "not the product
of hypnotic suggestion or confabulation."
Schreiner, 573 N.E.2d at 554-55. As we noted above, the New York
court ultimately concluded that the record "inescapabl[y]"
demonstrated that Schreiner's confession to the murder was "the
result of hypnotic therapy and post-hypnotic suggestion", and
that therefore the trial court's finding to the contrary was
clearly erroneous. However, the New York court's analysis of
this question also inescapably leads to the conclusion that, if
the trial court's ruling had been supported by substantial
evidence, the appeals court would have affirmed that ruling (even
if there had been conflicting evidence on this point).
Other courts agree with the New York Court of Appeals:
whether the circumstances and results of a hypnosis session
demonstrate a likelihood that the witness's memory has been
enhanced or altered by hypnosis is a question of fact. The issue
is to be decided by the trial court in the first instance, and
the trial court's decision is to be affirmed unless it is clearly
erroneous.
For instance, sometimes there is conflicting evidence
as to whether the witness ever actually went into a hypnotic
state during a hypnosis session _ obviously, a crucial factor in
the decision whether to allow the witness to testify. (If the
witness was not actually hypnotized, then the witness's testimony
is freely admissible.) Even California (which has probably the
country's strictest limitation on hypnotically adduced testimony)
views this question as a factual question to be determined by the
trial court. People v. Johnson, 767 P.2d 1047, 1064-65 (Cal.
1989), cert. denied, 494 U.S. 1038, 110 S.Ct. 1501, 108 L.Ed.2d
636 (1990), reh'g denied, 495 U.S. 941, 110 S.Ct. 2196, 109
L.Ed.2d 524 (1990); People v. Caro, 761 P.2d 680, 687-88 (Cal.
1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d
414 (1989). The New Mexico Court of Appeals also agrees with
this view of the matter:
Our task is not to reweigh the evidence
to determine whether the child was or was not
hypnotized during the sessions, but only to
determine whether the [trial] court's
decision is supported by substantial
evidence.
State v. Clark, 722 P.2d 685, 688 (N.M. App. 1986), cert. denied,
721 P.2d 1309 (N.M. 1986). Accord United States v. Bourgeois,
950 F.2d 980, 984-85 (5th Cir. 1992); Johnson v. State, 472
N.E.2d 892, 909 (Ind. 1985). See Garcia v. Scimemi, 712 P.2d
1094 (Colo. App. 1985), in which an appellate court reversed a
trial court's finding that a witness had become hypnotized during
a hypnosis session because the appeals court found that the trial
court's ruling was clearly erroneous.
Similarly, even when it is undisputed that the witness
was previously hypnotized, a second question of fact remains: do
the circumstances and results of the hypnosis session demonstrate
a likelihood that the witness's memories of the events being
litigated were enhanced or altered by hypnosis? In People v.
McKeehan, 732 P.2d 1238 (Colo. App. 1986), cert. dismissed, 753
P.2d 243 (Colo. 1990), the Colorado Court of Appeals confronted a
case in which a witness had undergone hypnosis to ease her
anxiety before taking the witness stand at the defendant's trial.
As the court stated the facts:
[T]he victim had undergone hypnotic
relaxation therapy by a mental health
counselor before testifying. This "hypnosis"
consisted of physical relaxation, deep
breathing, and visualizing being in a
pleasant place. She was not questioned and
no suggestions were made to her under
hypnosis; rather, the sole purpose of the
hypnosis was to allow her to relax and
overcome her anxiety about testifying.
People v. McKeehan, 732 P.2d at 1239. The Colorado Court of
Appeals upheld the trial court's finding that, because this
hypnosis session did not include techniques likely to enhance or
alter the witness's memory, the hypnosis had not produced or
affected the witness's memories of the crime, and thus the
witness could testify. Id. at 1239-1240.9
Similarly, in People v. Clark, 722 P.2d at 690, the New
Mexico Court of Appeals allowed a previously hypnotized witness
to testify when the trial court found that the hypnosis session
had not affected the witness _ that the witness's memories were
not the product of hypnosis:
Here, in addition to the overwhelming
evidence that the hypnotic procedure was
inept and ineffective, we have uncontroverted
testimony that no information of any kind was
conveyed to, or elicited from, the child. ...
The evidence before the trial court provided
a substantial basis for the trial court's con
clusion that the child's identification [of
the defendant] was not a product of hypnosis.
A third instructive case is United States v. Gatto,
924 F.2d 491, 495-97 (3rd Cir. 1991). Gatto involved a
prosecution for a murder that had occurred in 1979. Shortly
after the killing, a witness was hypnotized by the police in an
attempt to retrieve his memories of the men he saw running away
from the scene of the homicide. Ten years later, the federal
government indicted the defendant for the murder, and the
defendant asked the trial court to bar the previously hypnotized
witness from testifying at trial.
Responding to the defense motion, the government
presented the testimony of Dr. Martin Orne, a recognized
authority on hypnosis. Dr. Orne told the federal district court
that the effects of hypnotic suggestion decrease over time, and
that it was "just almost impossible" for a 10-year-old hypnosis
session to produce a suggestive effect on a witness's recollec
tion. 924 F.2d at 497. Based on this testimony and the
consistency of key aspects of the witness's account before and
after hypnosis, the Third Circuit reversed the trial court's
decision barring the witness from testifying at the defendant's
trial. Treating the issue of whether the hypnosis session had
affected the witness's memory as an issue of fact, the Third
Circuit pointed out that "the government's unrebutted testimony
is inconsistent with a finding that the hypnotism had an effect
on [the witness's] account of the ... murder"; thus, the trial
judge's finding to the contrary was clearly erroneous. Id. at
497.
We believe these cases point to the proper
interpretation of the scope of the Contreras decision. The rule
of prohibition announced in Contreras unquestionably applies when
the circumstances and results of the hypnosis session demonstrate
a likelihood that the hypnotized witness's memories of the events
being litigated have been enhanced or altered by hypnosis. This
will be true whenever a witness has been hypnotized for forensic
purposes and interrogated concerning the events being litigated
(as was the case in Contreras).
In such circumstances, Contreras holds that the
witness's memories are presumed hypnotically adduced. The State
can overcome this presumption only by showing that the witness,
prior to being hypnotized, had those same memories.10 If the
State fails to overcome the presumption that the witness's
memories are hypnotically adduced, then the witness cannot
testify about the events being litigated _ because any memory
that is hypnotically adduced is, under Contreras, conclusively
unreliable. (Contreras does not allow a party to try to show,
through extrinsic corroboration, that a witness's hypnotically
adduced memories are reliable.)
On the other hand, there are times when, even though a
witness has been hypnotized, the circumstances and results of the
hypnosis session make it likely that the witness's memories have
not been enhanced or altered by hypnosis. In such cases _
exemplified by McKeehan, Clark, and Gatto _ there is no
presumption that the witness's memory is untrustworthy, and thus
the witness will be allowed to testify.
In McGlauflin's case, A.C. was undisputedly hypnotized.
However, the superior court found that A.C. had been hypnotized
only once, and that this hypnosis had been conducted, not to
elicit or enhance A.C.'s memories of sexual abuse, but to help
her deal with a weight problem and to increase her self-
confidence. The superior court further found that, even though
the hypnotist had been apprised of A.C.'s assertion that she had
been sexually abused, the only mention of sexual abuse during the
hypnosis session were the two questions, "Can you see the man who
molested you?" (to which A.C. answered "yes") and "Do you want to
say anything to him?" (to which A.C. answered "no"). These
findings are not clearly erroneous.11
Judge Greene found, from these circumstances of the
hypnosis session, that A.C., though hypnotized, had not been
questioned about sexual abuse in a way that would enhance or
alter her memories of the abuse. Judge Greene therefore
concluded that the prophylactic rule established in Contreras did
not apply to A.C..
We agree. The Contreras rule is designed to insulate
judicial decision-making from the false "memories" that can be
created when hypnosis is employed to refresh or enhance a
witness's recollection of events. But, as the courts ruled in
McKeehan, Clark, and Gatto, this danger does not arise from the
simple experience of hypnosis itself. Rather, the danger is
created when the hypnosis session is aimed at reviving or
enhancing a witness's memories, or when (regardless of the
hypnotist's subjective aim) the session is conducted in a manner
that makes it likely that hypnosis has enhanced or altered the
witness's memories of the events being litigated.
In McGlauflin's case, the superior court concluded that
A.C.'s hypnosis experience had not created or altered her
memories of the sexual abuse. The record supports this
conclusion. A.C. had gone to the hypnotist seeking help for her
weight problem and her lack of self-confidence, not to be
counseled for sexual abuse. The hypnotist was cursorily
informed, at the beginning of the session, that A.C. claimed to
have been sexually abused; during the time that A.C. was under
hypnosis, the subject of sexual abuse was mentioned in only a
tangential, limited way. (We also note that, because the
hypnosis session occurred three years before A.C. reported the
alleged sexual abuse to the authorities, the hypnotist clearly
did not learn any facts or theories concerning the sexual abuse
from any police or prosecution agency.)
On appeal, McGlauflin argues that even the single
question, "Can you see the man who molested you?", might have
created false memories of abuse or might have caused A.C. to
merge her memories of McGlauflin with memories of sexual abuse
she had suffered at someone else's hands. This court does not
possess the scientific expertise to evaluate McGlauflin's
argument unaided. It is conceivable that McGlauflin's assertion
has some scientific basis, but he has not provided us with any
testimony or scientific literature to evaluate the plausibility
of his assertion.
The crucial feature of McGlauflin's case is that,
unlike the situation presented in Contreras, the circumstances
surrounding A.C.'s hypnosis do not, in themselves, give rise to a
presumption that A.C.'s memory was hypnotically altered or
enhanced. The question of whether A.C.'s memory was adduced by
hypnosis is therefore an issue of fact to be decided by the trial
court in the first instance. The question confronting this court
is whether Judge Greene's findings of fact are clearly erroneous.
Judge Greene recognized the Contreras problem as soon
as it surfaced, and she held a full hearing on the circumstances
of A.C.'s hypnosis. From the evidence presented at that hearing,
Judge Greene concluded that the events of the hypnosis session
had not affected A.C.'s memories of the sexual abuse. The
judge's conclusion is supported by substantial evidence.12
In the trial court, though McGlauflin argued that even
a single question asked under hypnosis might have tainted A.C.'s
memory, he presented no evidence (expert testimony, lay
testimony, or scientific literature) to support his assertion.
We must evaluate Judge Greene's findings in light of the evidence
she heard. Based on that evidence, we cannot say that her conclu
sion is clearly erroneous. We therefore affirm the superior
court's ruling that the hypnosis session did not enhance or alter
A.C.'s memories of the events being litigated at McGlauflin's
trial. Because the facts and recollections contained in A.C.'s
testimony were not "adduced during hypnosis", Contreras, 718 P.2d
at 129, the Contreras rule does not bar A.C.'s testimony.
Conclusion
McGlauflin's convictions are REVERSED. The superior
court's ruling on the admissibility of A.C.'s testimony is
AFFIRMED.
_______________________________
1 See Rule 1.2(a) of the newly promulgated Alaska Rules of
Professional Conduct, which requires a defense attorney "to abide
by the [defendant's] decision, after consultation with the
lawyer, ... whether to waive jury trial".
2 Contreras was ultimately convicted of these crimes.
Contreras v. State, 767 P.2d 1169 (Alaska App. 1989).
3 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
adopted by the Alaska Supreme Court in Pulakis v. State, 476 P.2d
474, 478 (Alaska 1970). But see Daubert v. Merrel Dow
Pharmaceuticals, Inc., ___ U.S. ____, 53 Crim.L.Rptr. 2313 (June
28, 1993), in which a unanimous Supreme Court declared that the
Federal Rules of Evidence have superseded Frye.
4 The California legislature has altered the result in
Shirley. California Evidence Code 795 allows a previously
hypnotized witness to testify if: (1) the witness's testimony is
confined to facts that the witness demonstrably recalled before
being hypnotized, (2) the hypnosis session was conducted with
certain safeguards, and (3) the totality of circumstances
indicates that the witness's testimony is reliable.
5 See Glass v. State, 583 P.2d 872 (Alaska 1978).
6 The hypnotist testified, in response to a leading
question on cross-examination, that the sexual abuse "was
something that [A.C.] brought up" spontaneously. However, the
hypnotist had no independent recollection of how he learned of
the sexual abuse; he based his response on the notation "molested
-- by a friend" that he found in his written notes of the
session. This notation could also be viewed as corroboration of
A.C.'s testimony that her mother (not she herself) had mentioned
sexual abuse to the hypnotist during the session.
7 Like our supreme court in Contreras, courts from other
states describe the problem as the use of hypnosis to "aid"
memory, to "retrieve" memory, to "restore" memory, to "expand" or
"improve" memory, or to "enhance" or "refresh" memory. Perhaps
the Minnesota Supreme Court best described the perceived danger
when it referred to using hypnosis "to create a witness". State
v. Mack, 292 N.W.2d 764, 771 (Minn. 1980).
8 The court decisions from other states that the supreme
court quoted and relied on in Contreras _ People v. Hughes, 453
N.E.2d 484 (N.Y. 1983), State v. Peoples, 319 S.E.2d 177 (1984),
and the many decisions listed in footnote 14 of Contreras, 718
P.2d at 133-34 _ all deal with hypnosis employed as an
investigative tool for forensic purposes.
9 As noted on the first page of the reported decision in
McKeehan, the Colorado Supreme Court granted certiorari of the
court of appeals's decision. However, after the case was briefed
to the supreme court, the supreme court decided that certiorari
had been improvidently granted. 753 P.2d 243.
10 But see United States v. Gatto, 924 F.2d 491 (3rd Cir.
1991), discussed above, suggesting that the presumption may be
more broadly rebuttable (an issue we need not address here).
11 McGlauflin argues that Contreras bars the superior court
from relying on A.C.'s testimony to determine the content of the
hypnosis session. Contreras does not directly question the
reliability of a witness's memory of the hypnosis session (as
opposed to the witness's memories of prior events adduced under
hypnosis). However, even if a hypnotized person's account of an
hypnosis session should be viewed with suspicion, the superior
court could properly credit A.C.'s testimony in this case.
The hypnotist himself testified; his account of the session
did not vary materially from A.C.'s. In particular, the
hypnotist corroborated A.C.'s assertion that the discussion of
sexual abuse had been both cursory and peripheral to the purposes
of the hypnosis. In fact, until he was prompted, the hypnotist
did not even recall that the subject of sexual abuse had been
discussed during the session.
12 The Alaska Supreme Court recently addressed the concept
of "substantial evidence" in Smith v. Sampson, 816 P.2d 902, 904
(Alaska 1991):
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Storrs v. State Medical Board, 664 P.2d
547, 554 (Alaska 1983), cert. denied, 464 U.S. 937, 104
S.Ct. 346, 78 L.Ed.2d 312 (1983). In applying this
standard, "the reviewing court does not reweigh the
evidence or choose between competing inferences; it
only determines whether such evidence exists." Id.
(Citing Interior Paint Co. v. Rodgers, 522 P.2d 164,
170 (Alaska 1974)).
