On 27 March 1982, defendant, while driving a large, white, four-door car with a black vinyl roof, offered the complainant a ride. She accepted, initially intending to be taken to a nearby bus stop, but thereafter accepting defendant’s offer to take her a few blocks further. The complainant described the defendant as a man of medium build, medium to fair-skinned, scruffy or unshaven, and with blondish hair and blue eyes; that defendant wore a blue gas station uniform, had greasy hands and fingernails and smelled of liquor. As they drove, defendant told the complainant that he worked at an Exxon station in Elmont and that he had attended, but had not graduated from, Carey and Van Buren High School; and that he was divorced and had two children, a seven-year-old son and a two-year-old daughter. The complainant noticed a baby seat in the backseat of the car. Thereafter, defendant drove into an empty parking lot where he sodomized the complainant at knifepoint (sex crimes). The entire incident lasted approximately 35 to 40 minutes. After she was released, the complainant called her aunt and uncle, who notified the police.
Consequently, defendant was arrested approximately three months later when observed by the police in his girlfriend’s white, four-door Ford Torino with a black vinyl roof and a baby seat in the back. At that time, defendant had a moustache and was wearing a blue shirt with an Exxon patch. After waiving his Miranda rights, defendant stated that he worked at an Exxon station in West Hempstead, that he lived in Floral Park, that he had worked on the day of the crime and that on his usual route to and from work he drove by the intersection of Plainfield Road and Jericho Turnpike where the complainant had been picked up. Defendant also told the police that he had attended, but not graduated from, Carey and Van Buren High School and that he was divorced and had two children, a son and a daughter. On the day of defendant’s arrest, the complainant identified the defendant’s voice and also identified him in a lineup, notwithstanding that she had never described her attacker as wearing a moustache.
Subsequently, the defendant was indicted.
At defendant’s arraignment, defense counsel was advised that as part of the police investigation, the complainant had undergone hypnosis approximately three weeks after the crime. After arraignment, but prior to trial, the court held that a witness’ testimony is inadmissible to the extent it was influenced by prior hypnosis and that a defendant was entitled, upon motion, to a hearing to determine the admissibility of testimony of a previously hypnotized witness. County Court sustained the prosecutor’s objection to the possible use of the complainant’s hypnotic statements, reasoning that the rule prohibited the admission of such testimony whether on direct or cross-examination.
Defendant was then convicted of sodomy in the first degree, a felony.
The Appellate Division reversed, for reasons unrelated to the instant appeal, and ordered a new trial. However, the court noted that at the new trial, the defendant could not seek to impeach the complainant with her prior statements made under hypnosis.
More than four months later, defense counsel sought a Hughes-Tunstall hearing to determine if the complainant’s proposed trial testimony was affected by her prior hypnosis. County Court denied the application, noting that defense counsel had been aware of both the facts and the law relating to the complainant’s hypnosis well before the first trial but had not then sought such a hearing. The court declined to exercise its discretion to excuse counsel’s delay in seeking the hearing.
Prior to the second trial, the prosecutor revealed that any videotape or other record of the complainant’s hypnotic procedure had been inadvertently lost in the five years since the procedure had been conducted. The prosecutor also noted the possibility that a preinduction statement had been taken from the complainant prior to her hypnosis and that such a statement, if it existed, was lost as well. Defendant, in effect, renewed his Hughes-Tunstall motion, seeking to preclude the complainant’s trial testimony because the loss of the records of the hypnotic session made it impossible for the People to demonstrate that her trial testimony was not affected by the pretrial hypnosis and, alternatively, moved to preclude the complainant from testifying to posthypnotic recollections. Both motions were denied, although the trial court ruled that defendant could litigate the Hughes issue at trial.
Thus, the parties stipulated that the records of the complainant’s hypnotic session were irretrievably lost through no fault of the District Attorney’s office. At the close of the People’s case, defendant moved for a trial order of dismissal, arguing that the People had failed to establish, by clear and convincing evidence, that the complainant’s trial testimony was unaffected by her prior hypnosis. The motion was denied, and, on his direct case, defendant presented expert evidence of the unreliability of hypnosis and argued that without a proper record of the complainant’s hypnosis, it was impossible to tell to what extent her testimony was affected by the prior hypnosis. In addition, defendant again sought to impeach the complainant’s trial testimony by introducing her prior hypnotic statements. County Court denied the application, ruling that the Appellate Division determination of the issue on the prior appeal was the law of the case.
Prior to summations, defendant moved to strike the complainant’s testimony on the ground that the loss of her preinduction statement violated the ruling in People v. Rosario. The prosecutor represented that it was not known whether a preinduction statement had ever been taken in this case and County Court denied the motion.
Finally, on summation, defendant argued the unreliability of statements made as a result of improper hypnotic procedures. He urged the jury to discredit the complainant’s identification of the defendant contending that the identification was the product of suggestion or confabulation caused by the hypnosis.
Defendant was again convicted of sodomy in the first degree, a felony. The Appellate Division affirmed and defendant appeals by leave of an Associate Judge of the court.
Did the County Court abuse its discretion in denying defendant’s application for a Hughes-Tunstall hearing? Did the court’s ruling precluding defendant’s use of the complainant’s hypnotic statements for impeachment unconstitutionally restrict his cross-examination of her?
The primordial question is whether or not the general rule articulated in the case of People v. Hughes (supra) may be extended to preclude defendant’s use of the complainant’s hypnotic statements on cross-examination.
The court rejects defendant’s contention that County Court abused its discretion in denying his belated application for a Hughes- Tunstall hearing.
Here, defendant has made no showing of good cause for his failure to bring the motion either before the first trial or even within 45 days of the Appellate Division order directing a new trial. Defense counsel was advised of the complainant’s hypnosis at defendant’s arraignment and is chargeable with knowledge of the court’s decisions in People v. Hughes and People v. Tunstall at the time they were decided; months before the first trial. By failing to timely request a Hughes-Tunstall hearing to determine the admissibility of the complainant’s proposed trial testimony, defendant has waived the issue.
In the case of People v. Hughes, the court held it inadmissible as direct evidence posthypnotic testimony affected by the hypnosis because hypnosis was not, at that time, generally accepted as reliable in the scientific community. Statements made during the hypnosis itself are inadmissible on direct, at least to the extent that they differ from the witness’ prehypnotic statements. As with hypnotically refreshed recollections, the unreliability of such hypnotic statements has been well documented.
In the instant case, defendant has not submitted any evidence that the consensus within the scientific community as to the unreliability of hypnosis has changed since the court’s decision in Hughes and, thus, tenders no basis for the court to reconsider the determination that posthypnotic testimony, to the extent affected by the hypnosis, is not admissible as evidence-in-chief. Moreover, the court sees no reason to limit the rule of Hughes to permit a litigant to introduce on cross-examination, even for the limited purpose of impeachment, hypnotic statements which are inadmissible on direct. In either situation, the probative value of the hypnotic statement is directly related to its reliability. The first two dangers of hypnosis recognized in Hughes, suggestion and confabulation or fabrication, relate to all hypnotic statements, whether they are sought to be introduced as evidence-in-chief or as prior inconsistent statements for the purpose of impeachment.
Notwithstanding the general rule of Hughes precluding the use of hypnotically induced testimony on direct, a necessary exception exists when a criminal defendant testifies in his own defense. A State’s per se rule prohibiting the admission of posthypnotic testimony could not be applied to all criminal defendants seeking to testify in their own defense absent some consideration of whether indicia of reliability supported the admission of the hypnotic statements. Significantly, the court recognized the State’s legitimate interest in excluding unreliable evidence such as hypnotic statements, but held that the State could not preclude a defendant’s testimony to such statements without proving the unreliability of the statements sought to be offered. A sufficient demonstration of the unreliability of a defendant’s hypnotic statement in a particular case, however, would justify exclusion of the testimony.
The right to cross-examination, like the right to present evidence, is integral to our adversary trial process and a fundamental right secured to a criminal defendant by the Confrontation Clause of the Sixth Amendment. It is argued therefore, that a defendant’s right of cross-examination may not be arbitrarily infringed by a per se rule of evidence excluding the use of hypnotic statements to impeach a prosecution witness. On the other hand, unlike the relevant testimony to be proffered by a criminal defendant, the scope of cross-examination is within the sound discretion of the Trial Judge and like the exclusion of a physically coerced statement, the exclusion of an inherently unreliable hypnotic statement may be within the Judge’s discretion.
The court need not resolve the issue in this case because even assuming that the Constitution requires an exception to the general exclusion of hypnotic statements, it is clear that the State may constitutionally exclude hypnotic statements which have been demonstrated to be unreliable. The defendant, at his second trial, conceded the unreliability of the complainant’s hypnotic statements. In an effort to undermine her trial testimony, defendant presented expert evidence to the jury to demonstrate the suggestiveness of hypnotic procedures and argued that without a videotape of the hypnotic session, it was impossible to determine the extent to which her trial testimony was tainted by the prior hypnosis. Having argued that the complainant’s hypnotic statements are unreliable as the product of an inherently suggestive procedure, defendant was not free to introduce some of those same hypnotic statements for the purpose of impeachment.
On defendant’s remaining contentions, the court finds them to be without merit.
Accordingly, the order of the Appellate Division is affirmed, upholding defendant’s conviction.
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