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State High Court Told 1982 Ruling 'Goes Too Far' : Easing of Ban on Testimony by Hypnosis Urged

February 10, 1988|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The California Supreme Court was urged Tuesday to ease its barrier to testimony from previously hypnotized witnesses and to uphold statements from a rape victim who identified her attacker only after undergoing hypnosis by a police officer.

Deputy Atty. Gen. Edmund D. McMurray told the justices that a 1982 ruling virtually banning hypnosis-induced testimony "goes too far" and should be modified to permit testimony following hypnosis that was not "impermissibly suggestive."

McMurray asked the court to overturn a decision last year reversing the 1981 rape and murder convictions and death sentence imposed on Joe Edward Johnson.

The justices held then that it was improper to allow testimony from a victim who, only after hypnosis, identified Johnson as the man who raped and brutally beat her while she was praying in a Santa Rosa church.

Sharp Questions

And in Tuesday's 90-minute arguments before the court, the state's lawyer ran into a series of sharp questions from Justice Stanley Mosk, author of the 1982 ruling.

"You think the testimony should be allowed in this case, even though a police officer performed the hypnosis in the presence of a prosecutor and two detectives?" Mosk asked.

"Yes," replied McMurray, adding that a videotape of the session would show "there was no impermissible suggestiveness" in the process.

As the exchange continued with increasing intensity, Mosk rebuked the prosecutor for interrupting his questions. "That's a very bad habit," the justice said.

The case came to the court against a backdrop of controversy over the reliability of testimony from witnesses who have undergone hypnosis.

Prosecutors and other advocates say the technique can enhance the memories of victims or other witnesses to crime--particularly when the horror of an event prevents them from recalling its details. Critics contend that the technique has not proven scientifically reliable and that persons under hypnosis are open to suggestion, deliberate or not, by those performing it.

'Inherently Unreliable'

The justices in 1982 found the technique "inherently unreliable" and barred testimony from witnesses who had been hypnotized, except for defendants.

In 1984, the state Legislature passed a law authorizing the use of testimony by witnesses who have been hypnotized but only under highly restrictive guidelines. Among other things, the statute requires that the hypnosis be performed by an experienced physician or psychologist and says it may not be done in the presence of police, prosecutors or defense attorneys. The law has not yet been reviewed by the court.

Last year, the U.S. Supreme Court, while acknowledging that hypnosis may produce "incorrect recollections," ruled that the states at least must permit hypnotically induced testimony from a defendant. The court seemed to suggest that such testimony from other witnesses may also be permissible in some circumstances.

Meanwhile, in response to a petition from state Atty. Gen. John K. Van de Kamp, the new, more conservative California Supreme Court agreed to reconsider the ruling made in January under then-Chief Justice Rose Elizabeth Bird that invoked the 1982 decision to overturn Johnson's convictions and death sentence.

At issue is the testimony of a woman who was raped and beaten so severely about the head that doctors had to remove parts of her Rosary beads from her skull. While she was in the hospital, she was shown photographs, including one of Johnson, but could make no identification of her assailant.

Later however, in an effort to refresh her memory, the woman was hypnotized by a police officer whose avocation was hypnosis. She subsequently attended a police lineup and identified Johnson as her assailant.

Series of Crimes

Johnson was charged and tried for a series of crimes in Sonoma County, including the rape of the woman and the murder of Aldo Cavallo in a separate incident involving an attempted robbery. The woman, unshakable in her testimony, again named Johnson as the man who raped her.

In urging the court to uphold Johnson's conviction and death sentence, Van de Kamp argued in briefs to the justices that while the 1982 ruling should not be completely overruled, it "makes no sense" to exclude hypnosis-induced testimony in all cases. Where a witness is not improperly influenced, the testimony should be admitted, he said.

Other Evidence

But even if the rape testimony is found invalid, Van de Kamp said, there was other evidence in the case that was so overwhelming it would sustain Johnson's conviction for murder.

In Tuesday's hearing before the justices, Johnson's lawyer contended that the rape testimony not only was invalid and but was so prejudicial that the defendant's conviction for murder should be overturned as well.

"Her testimony was about a very brutal event," said Robert R. Bryan, a San Francisco attorney. "The jury obviously viewed her differently because she was a lady who had been tragically assaulted in a church."

Bryan argued further that despite the prosecutors' contentions, the other evidence in the case against Johnson was inconclusive. "Her identification of (Johnson) was the only direct evidence against him," Bryan said. "Everything else was in dispute."

A ruling by the justices in the case is expected later this year.

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