I Put A Spell On You: Supreme Court Of Illinois Reveals That The State Per Se Precludes Hypontically Refreshed Testimony By Any Witness Besides The Criminal Defendant

In Rock v. Arkansas, 483 U.S. 44 (1987), 

Vicki Rock was charged with manslaughter in connection with the shooting death of her husband.  When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory. Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle. At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."   

The Supreme Court reversed, finding that the application of a per se rule precluding the admission of hypnotically refreshed testimony by a criminal defendant violates the right to present a defense. The Court's opinion, however, did not address the issue of whether courts can apply per se rules precluding the admission of hypnotically refreshed testimony by anyone besides criminal defendants, and the recent opinion of the Supreme Court of Illinois in People v. Sutton, 2009 (Ill. 2009), reveals that Illinois has such a per se rule.

In Sutton, Darryl Sutton was convicted of seven counts of murder for the sexual assault and fatal shooting of Monica Rinaldi and was sentenced to four 100-year extended-term prison sentences and three natural life sentences. The prosecution's sole eyewitness to the crime was David Janik, and his testimony/identification came only after his memory was hypnotically refreshed by Dr. Steven Ries. After he was convicted, Sutton appealed, claiming that Janik's testimony was improperly admitted, and his appeal eventually reached the Supreme Court of Illinois. That court agreed with Sutton, noting that it had previously adopted a per se rule precluding the admission of hypnotically refreshed testimony by any witness besides the criminal defendant in People v. Zayas, 456 N.E.2d 513, 519 (Ill. 1989). Specifically, after laying out this rule, the court in Zayas found that 

The ruling in this case is also consistent with the recent Supreme Court ruling in  Rock v. Arkansas....There, the Supreme Court ruled that a defendant may, by right, introduce hypnotic evidence because the defendant's right to testify on his own behalf, among other rights, outweighs the State's interest in excluding prejudicial evidence, and certain procedural safeguards will protect the integrity of the court. Our case, however, involves a witness for the State, not the defendant himself wishing to testify. As such, there are no constitutional implications and, therefore, Rock does not affect the decision in this case. While the Supreme Court did implicitly acknowledge that hypnotic evidence can have some probative value, its decision does not preclude this court from adopting a per se rule excluding the hypnotically enhanced testimony of a witness other than the defendant.

Applying this rule to the case before it, the court in Sutton noted that 

Janik testified that his memory of the offense and offender came back in bits and pieces during his therapy with Dr. Ries, until he regained his memory of the entire evening. Janik also testified that he did not regain any more memories of the offense after he stopped seeing Dr. Ries. In Zayas, this court recognized the problem with admitting hypnotically refreshed recollections, stating that, "having been hypnotized, the subject gains complete confidence in his 'restored' memory, forgets how it was 'restored,' and is unable to differentiate between that which he was able to recall before hypnosis and that which the hypnosis elicited...." Given that Janik's memory of the offense and the offender was restored solely through hypnosis, it follows that Janik's lineup identification of defendant was tied to his hypnosis therapy with Dr. Ries, even if that identification took place seven years after Janik discontinued therapy. Therefore,...Janik's identification of defendant was influenced by hypnosis making it per se inadmissible under Zayas.

The Illinois rule, as applied to witnesses for the prosecution, makes sense to me. That said, I would be very interested to see what might happen of appeal if a defendant claimed that application of this rule to preclude the testimony of a defense witness violated the right to present a defense.

-CM