Hypnotically Refreshed Memories Unreliable, N.J. High Court Rules

The New Jersey Supreme Court has banned the use of hypnotically refreshed testimony in criminal trials by any witnesses other than defendants, finding the theory that hypnosis improves memory recall is not based on "sound, adequately founded scientific methodology."

The 6-1 ruling strikes down a 1981 high court precedent allowing witness testimony based on memories refreshed through hypnosis.

The recent decision effectively ends a 20-year legal battle for Clarence Moore, who spent 15 years in prison for rape before a federal appeals court overturned the conviction in 2001. The victim had identified Moore as her attacker after undergoing hypnosis.

Moore was subsequently released on $100,000 bail and has since been awaiting retrial on the charges, the opinion said.

However, prosecutors told the press that they will not purse the case any further as a result of the Supreme Court's recent decision.

According to the high court's opinion, the 25-year-old victim was asleep in her Somers Point home in the early morning hours of Jan. 14, 1986, when she was awoken by a man who sexually assaulted her repeatedly.

The assailant warned the victim not to look at him, but she did briefly open her eyes, the opinion said. However, the room was dark and the victim, who is nearsighted, was not wearing her contact lenses, according to the opinion.

The victim gave a vague description of the assailant to police but was unable to provide sufficient detail for a composite sketch to be made, the opinion said.

She underwent hypnosis two weeks after the incident and later picked Moore's picture out of a photo array, according to the opinion. She subsequently identified him in two additional arrays.

Moore was arrested and indicted by a grand jury on charges of burglary, robbery and sexual assault.

In a 1987 trial the victim testified that hypnosis made the assailant's face "much clearer," with the features "more detailed" despite her nearsightedness, the opinion said. According to the high court, she conveyed a "clear and strong conviction" that Moore was her assailant.

Moore was convicted on all counts and sentenced to 25 years to life in prison. He was imprisoned until the U.S. Court of Appeals for the 3d Circuit awarded Moore a new trial in 2001 based on several racist comments made in summation by the prosecutor.

The trial court subsequently dismissed the indictment, ruling that prosecutors failed to inform the grand jury about the victim's hypnosis, the opinion said.

After various appeals Moore asked the New Jersey Supreme Court to decide whether hypnotically refreshed testimony was admissible. The justices remanded the case for a hearing by the trial court, which found the testimony unreliable and inadmissible. The high court then granted review.

Since 1981, New Jersey has followed State v. Hurd, 432 A.2d 86 (N.J. 1981), which affirmed the admissibility of hypnotically refreshed testimony in criminal trials when certain guidelines for reliability were observed.

However, the high court chose to reverse its position, recognizing that there has been a major shift in expert opinion.

According to the court, the consensus among scientists is that such testimony is inherently unreliable and incapable of being corrected through controls on the hypnotic process.

The court said it was particularly troubled by the way hypnosis bolsters witnesses' confidence in their memories without empirical evidence supporting the notion that hypnosis improves recall.

Moore's trial was illustrative of the problems with hypnosis, the court said, noting that the victim went from virtually no recall of her assailant's facial features to supreme confidence in her identification without any corroborating evidence.

Despite finding hypnotically refreshed testimony inadmissible, the majority carved out an exception that allows criminal defendants to testify after undergoing hypnosis.

Justice Roberto A. Rivera-Soto issued a partially dissenting opinion, finding that the testimony was properly excluded due to failures to follow proper procedures for hypnosis.

However, he disagreed that all such testimony should be barred, arguing that victims should be afforded the same rights as defendants.