Saturday, April 26, 2008
You're Getting Very Sleepy, Take 2: Baltovich Case Reveals Canada's Hostile Treatment Of Hypnotically Induced Evidence
Here on the EvidenceProf Blog, I've had a few opportunities to address how courts across this country treat hypnotically refreshed testimony. In New York, hypnotically refreshed testimony is per se inadmissible. Wisconsin uses a nine factor test in evaluating whether to admit hypnotically refreshed testimony. South Dakota courts and courts in the Eighth Circuit Court of Appeals allow for the admission of hypnotically refreshed testimony as long as five procedural safeguards are satisfied. And other courts across the country apply a variety of different tests in evaluating the admissibility of hypnotically refreshed testimony.
And what of our neighbors to the north? This week's decision of a Crown prosecutor to concede the case against Robert Baltovich and not retry him provides an opportunity to address the issue. In 1992, Baltovich was convicted of murder in the second degree in connection with his alleged killing of his girlfriend Elizabeth Bain. In addition to other evidence, the testimony of two witnesses -- Marianne Perz and Suzanne Nadon -- helped lead to Baltovich's second degree murder conviction in 1992.
Bain was last heard from at 4:00 P.M. on June 19, 1990, after telling her mother she was going to check the schedules at the tennis court at the Scarborough campus of the University of Toronto. At trial, Perz testified that on the 19th, she saw Bain with a man at about 5:40 P.M. at picnic tables near the tennis courts. Three weeks after Bain disappeared, Perz agreed to be hypnotized. At this point, Bain was already aware that Baltovich was a suspect and had seen his photo in a local newspaper. After being hypnotized, Perz viewed a photo lineup and said the picture of Baltovich was the "closest" to looking like the man she saw at the picnic table. Suzanne Nadon, who was also hypnotized, testified that she saw a couple arguing in the early morning hours of June 18th. According to Nadon, the woman looked like Bain, and a car she saw was similar to a photo of the automobile Bain owned.
After Baltovich was convicted of murder in the second degree and served about eight years in jail, his lawyers appealed his conviction, and Baltovich was released on bail pending the outcome of his appeal. Finally, on December 2, 2004, the Ontario Court of Appeal set aside Baltovich's conviction, delivering what news reporters called "a scathing attack" on the conduct of the original trial judge. Baltovich was set to be re-tried, but, as I noted above, this week a Crown prosecutor to concede the case? Why?
Well, the single worst blow to the prosecution was Canadian law's increasingly hostile treatment of evidence obtained through police-supervised hypnotism of prosecution witnesses. Specifically, the Supreme Court of Canada adopted a hard line against prosecution hypno-evidence in their 2007 ruling in R. vs. Trochym, in which it adopted a new doctrine that such evidence should be generally excluded because of the potential for abuse. In that case, the Court observed that "the officer who drove [a] witness to the hypnotist's office may have had a copy of the Toronto Sun on the seat of his cruiser. The front page of that edition had a large photo of the accused and identified him as the prime suspect in the murder. During the hypnosis session, the witness described the abused." This struck the Court hearing Stephen Trochym's appeal as powerful evidence that hitherto existing judicial safeguards, which were focused narrowly on what happens inside the hypnosis room, were not enough to ensure fairness to the accused.
Based upon this precedent, in pre-trial rulings in the Baltovich re-trial, the testimony of Perz and Nadon was ruled inadmissible because it was made after they were hypnotized, prompting the Crown prosecutor to drop the case. While I don't know that much about hypnosis, I generally agree with the concern expressed in a Canadian article on the Baltovich case, which noted that "[a]ny stage hypnotist can tell you that hypnosis involves freeing the imagination and, above all, making the subject more suggestible. You don't need a doctorate in psychology to see why this might be a dangerous thing to do with a witness who is naturally eager to cooperate, play a heroic role and come up with the "right" answer the police are looking for. Thus, I lean more toward the Canadian "hard line" approach to hypno-evidence than the American approach, which seems to freely admit the evidence as long as certain safeguards are satisfied.