UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11115
GLENDA MERSCH,
Plaintiff-Appellee
v.
CITY OF DALLAS TEXAS; ET AL
Defendants
ANDREW KLEIN; RAYMOND DETHLOFF
Defendants-Appellants
Appeal from the United States District Court for the
Northern District of Texas
March 21, 2000
Before JONES, BARKSDALE and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
In this §1983 excessive force case, the question of
qualified immunity hinges on whether a plaintiff’s hypnotically-
refreshed testimony is admissible to prove that two arresting police
officers assaulted her. The magistrate judge admitted the testimony
for summary judgment purposes, leading him to deny qualified
immunity. Because this testimony was uncorroborated and was based
on a hypnotic procedure lacking recognized safeguards, we conclude
that the magistrate judge abused his discretion in admitting it.
Absent any other evidence to prove that an assault occurred, the
plaintiff’s case fails, and the officers should have received
immunity.
FACTS AND PROCEDURAL HISTORY
At about noon on September 9, 1994, Dallas police officers
were summoned to a disturbance involving Mersch, James Gregory
Brown, and a neighbor of Mersch’s. Mersch and Brown had just come
from a bar, where Mersch admitted to having drunk six to eight
beers. While walking from the bar to Mersch’s nearby apartment
complex, Brown got into an argument with a neighbor across a fence.
When Mersch attempted to climb the fence separating Brown and the
neighbor, she fell about three feet down and landed on her buttocks.
Several witnesses observed the incident. One saw Brown
being rough and verbally abusive towards Mersch. The witnesses also
reported that Mersch was falling to the ground and unable to
maintain her balance. Her stockings were torn and she had abrasions
on her knees.
After the police and an ambulance arrived, Mersch was
cited for public intoxication, and she and Brown were taken off in
separate police cars. Mersch and the arresting officers, Dethloff
and Klein, differ as to what happened next. According to the police
officers, they drove Mersch straight to the detox center. There,
2
while the officers were momentarily distracted, Mersch fell into a
door and hit her head as she attempted to walk unassisted up a
handicapped ramp. The officers summoned emergency personnel, who
treated Mersch’s forehead bump. Mersch was then admitted to the
detox center and the officers left. Post-hypnosis, Mersch states,
however, that one of the officers jabbed her twice in the abdomen
with a flashlight or a nightstick during the ride to the detox
center. Then the officers stopped the vehicle, yanked her out, and
struck her on the top of the head. Knocked unconscious, she revived
lying face down on asphalt with a throbbing head and blurred vision.
She looked up and saw three or four officers standing around, and
someone in a white uniform shirt with blue letters on it sitting on
a short fence. At this point, she was put back in the police car
and driven to the detox center. She has no memory of being treated
by emergency personnel there.
At the detox center, Mersch complained of stomach pains
and blood in her urine. Late that evening, she was transported to
a hospital and treated for a ruptured bladder.
Mersch did not initially accuse the police officers of
beating her. In her deposition, she stated that when her sister
visited her in the hospital, her sister was suspicious that the
police had caused Mersch’s injuries. Mersch further stated that
although she was suspicious of the police officers before hypnosis,
3
she had no grounds for her suspicions other than the fact that she
had been in the custody of the police. Mersch and her sister
continued to discuss their suspicions of the police officers after
she went home from the hospital.1
Mersch visited Dr. Weiss, a licensed psychologist, to
undergo hypnotism as suggested by her attorney. During two
sessions, she “remembered” the alleged assault described above. At
her deposition, she testified that prior to undergoing hypnosis she
did not remember being beaten by the police officers. The hypnosis
was recorded on audiotape, but the tape has been misplaced and was
never made available to defendants’ counsel or the court.
Mersch filed suit against the City of Dallas, Police Chief
Ben Click, and officers Klein and Dethloff, alleging the use of
excessive force. The magistrate judge granted summary judgment to
the City of Dallas and Police Chief Click, but denied Klein and
Dethloff’s summary judgment motion after approving the admission of
Mersch’s post-hypnosis testimony. This interlocutory appeal ensued.
JURISDICTION
Mersch argues that this Court lacks jurisdiction because
whether the hypnotically-enhanced evidence is admissible is not a
1
In December 1994, Mersch reported to an investigating officer that
she had been assaulted from behind by an unknown suspect on September 9. At that
time, she did not state that she had been assaulted by police. She told the
responding officer that she made the report in order to receive money from a
state-sponsored Victim’s Compensation fund.
4
pure question of law, but rather concerns the sufficiency of the
evidence, an issue not cognizable on interlocutory appeal. This
reasoning is incorrect.
Interlocutory orders denying summary judgment on the basis
of qualified immunity are immediately appealable when they concern
a conclusion of law. See Mitchell v. Forsyth, 472 U.S. 511, 530,
105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Such orders are not
immediately appealable if they are based merely on sufficiency of
the evidence, see Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct.
2151, 2156, 132 L.Ed.2d 238 (1995). Nonetheless, a question of law
may be presented despite the existence of a genuine, but subsidiary,
issue of material fact. See Behrens v. Pelletier, 516 U.S. 299,
312, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996).
In this case, before reaching the question whether a fact
issue exists, we must ascertain whether Mersch’s post-hypnosis
testimony embodies admissible facts at all. This is because Rule
56 states that a court may consider only admissible evidence in
ruling on a summary judgment motion. Fed. R. Civ. Proc. 56; see
Stults v. Conoco, Inc., 76 F.3d 651, 654 - 55 (5th Cir. 1996).
Where, as here, the admissibility of particular evidence is critical
to a summary judgment founded on qualified immunity, this court has
not hesitated to review the admissibility of the evidence on appeal.
5
See Hayter v. City of Mount Vernon, 154 F.3d 269, 274 (5th Cir.
1998).
MERSCH’S POST-HYPNOTIC STATEMENTS
Mersch’s post-hypnotic testimony is the only evidence that
implicates the police officers in her injuries. It is undisputed
that before she was hypnotized, Mersch had no recollection of being
jabbed in the abdomen or struck in the head by the officers. On the
other hand, she and her sister had discussed the possibility of such
an assault and she had seen the arrest report which named officers
Dethloff and Klein, though she had no independent prehypnotic memory
of their names. We review the admissibility of Mersch’s testimony
for manifest error. See Hayter, 154 F.3d at 273-74.
Although this Court has dealt with the admissibility of
hypnotically-enhanced testimony in the criminal context, it has not
done so in a civil case. While constitutional safeguards applicable
to criminal cases may suggest extra caution when hypnotically-
enhanced evidence is offered by the prosecution, there is no other
reason why the analyses should substantially differ, and other
courts have adopted a consistent approach to both civil and criminal
cases. This court will be guided by our earlier cases.
Hypnotically-enhanced testimony is not per se inadmissible
in the Fifth Circuit. See Wicker v. McCotter, 783 F.2d 487, 492
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(5th Cir. 1986).2 Rather, courts in this Circuit evaluate such
testimony on a case-by-case basis, weighing the probative value of
the testimony against its possible prejudicial effect. See id.
This approach requires consideration of a number of factors,
including whether: 1) the hypnosis is done by a psychologist or
psychiatrist trained in its use and independent of either party; 2)
the hypnosis is done in a neutral setting with only the hypnotist
and the subject present; 3) an audio or video recording is made of
all interrogations before, during and after hypnosis; 4)
corroborating evidence exists; and 5) the pre-hypnosis and post-
hypnosis statements substantially correspond. See Rock v. Arkansas,
483 U.S. 44, 60 - 61, 107 S.Ct. 2704, 2713 - 2714, 97 L.Ed.2d 37
(1987); White v. Ieyoub, 25 F.3d 245, 247 - 248 (5th Cir. 1994).
This Court has, however, identified one situation where
hypnotically-enhanced testimony is per se inadmissible. In United
States v. Valdez, a Texas Ranger participating in surveillance to
2
Courts have been cautious of hypnotically-enhanced testimony because
of the tendency of hypnosis to create inaccurate memories. Three characteristics
of hypnosis cause this risk. First, the subject becomes highly “suggestible”,
easily susceptible to cues from the hypnotist. Second, the subject is more
likely to “confabulate”, i.e., draw on the imagination to round out an incomplete
memory. Third, the subject’s memory becomes “hardened”, increasing the subject’s
confidence in both true and false memories and thus making cross-examination less
effective. See Rock v. Arkansas, 483 U.S. 44, 59-60, 107 S.Ct. 2704, 2713, 97
L.Ed.2d 37 (citing M. Orne et al., Hypnotically Induced Testimony, in Eyewitness
Testimony: Psychological Perspectives 171 (G.Wells & E. Loftus, eds., 1984) and
Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective
Witness, 68 Calif.L.Rev. 313, 333-342 (1980)). Courts around the country
accordingly differ on the standards of admissibility. See discussion in Borawick
v. Shay, 68 F.3d 597, 604-606 (2d. Cir. 1995).
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investigate an extortion attempt witnessed a man approach the money-
drop area and then turn away. He was later unable to identify the
man in a lineup. The Ranger knew that Valdez was the prime suspect
in the investigation. After undergoing hypnosis, the Ranger
identified the man he had seen as Valdez. There was no other
corroboration for the identification of Valdez at the drop site.
See United States v. Valdez, 722 F.2d 1196, 1197 - 1198 (5th Cir.
1984). This Court held that “when ... a hypnotized subject
identifies for the first time a person he has reason to know is
already under suspicion, the post-hypnotic testimony is inadmissible
whatever procedural safeguards were used to attempt to sanitize the
hypnotic session.” United States v. Valdez, 722 F.2d at 1203.
Mersch’s case appears to fit squarely within the holding
of Valdez. Mersch knew that her sister suspected the police
officers of being responsible for Mersch’s injuries. She also
admitted in her deposition that, pre-hypnosis, her own suspicions
of the police officers were based on the fact that she had been in
their custody rather than on any concrete memory of an assault.
Like the Ranger in Valdez, Mersch had a suspicion but no direct
evidence to substantiate her suspicion. Under such circumstances,
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as we recognized in Valdez, hypnotically-enhanced testimony is so
unreliable as to be more prejudicial than probative.3
Even if Valdez is somehow distinguishable from this case,
Mersch’s testimony would still be inadmissible under the totality
of the circumstances test. Mersch neglected to provide the trial
court with rudimentary information to support the objectivity and
lack of suggestion at her hypnosis sessions. For example, she did
not establish whether Dr. Weiss had any training in hypnotism or how
much he knew about the case before he hypnotized Mersch. Moreover,
those factors on which she provided information point against
admission. No recording of the session can be produced; there is
no corroborating evidence; and Mersch’s statements about the events
before and after hypnosis are quite different. Given these indicia
of unreliability and the dearth of evidence of procedural
safeguards, the totality of the circumstances weighs strongly
against admission of the post-hypnotic testimony.
The Second and the Eighth Circuits employ a similar
totality of the circumstances test for determining the admissibility
of hypnotically-enhanced testimony in civil suits. See Borawick v.
3
The magistrate judge held that Valdez was inapplicable, reasoning
that Mersch’s pre-hypnosis suspicions constituted sufficient pre-hypnosis
identification of defendants to avoid the Valdez rule. Mersch’s suspicions –
which she admitted were not grounded in any independent memory of the event –
cannot be considered a pre-hypnosis identification under Valdez. On the
contrary, her suspicions, drawn from the sheer fact of injury and having been in
police custody, are exactly the kind of prior suspicions that Valdez was
concerned about.
9
Shay, 68 F.3d 597, 608 - 609 (2d Cir. 1995); Sprynczynatyk v.
General Motors Corp., 771 F.2d 1112, 1119 - 1124 (8th Cir. 1985).
In addition, both circuits impose on the proponent of the
hypnotically-enhanced testimony the burden of proof during the
proceeding and recommend that district courts conduct pretrial
evidentiary hearings on the matter. See Borawick, 68 F.3d at 608 -
609; Sprynczynatyk, 771 F.2d at 1122 - 1123.4
We find these cases persuasive and concur in their
approach. If requested, the district court should hold a hearing
when a case presents a significant issue concerning hypnotically-
enhanced testimony. Such a hearing would have better enabled the
parties in this case to air their positions on admissibility.
Alternatively, in a case proceeding toward trial, the often complex
determination about the admissibility of such testimony can be made
on an evidentiary record compiled without the distraction and haste
that may occur before and during trial.
Whether considered under Valdez or the totality of the
circumstances, Mersch’s post-hypnosis testimony should not have been
4
In White v. Ieyoub, this Court stated that “the court should
determine whether the defendant has shown, from the totality of the
circumstances, that the post-hypnosis testimony is unreliable.” White v. Ieyoub,
25 F.3d at 248 - 249. White arose, however, in the habeas context, where the
petitioner bears the burden of showing constitutional error. In the ordinary
civil or criminal case, the proponent of hypnotically-enhanced testimony bears
the burden of showing it is admissible.
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admitted. The magistrate judge committed manifest error in
admitting it.
CONCLUSION
The police officers have established that there is no
genuine issue of material fact, and they are entitled to judgment
as a matter of law upholding their qualified immunity. The only
evidence of their alleged excessive force was Mersch’s inadmissible
post-hypnosis testimony. Without that testimony, she has no case.
For these reasons, we REVERSE the district court and RENDER judgment
in favor of the defendants.
REVERSED and RENDERED.
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