White v. Ieyoub

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-4417

MARVIN CRAIG WHITE,
Petitioner-Appellant,

versus

RICHARD P. IEYOUB, Attorney General,
State of Louisiana, ET AL.,
Respondents-Appellees.

Appeal from the United States District Court
for the Western District of Louisiana

(June 23, 1994)

Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.

POLITZ, Chief Judge:

Marvin Craig White, convicted in Louisiana of armed robbery,

appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus

petition. We affirm.

Background

While exiting the parking lot of his Sunset, Louisiana

business around 6:00 p.m. on July 30, 1982, Gayle White, president

and general manager of Louisiana Wholesale Drug, was hailed by a

man he later identified as Marvin Craig White. The man, in
apparent distress, asked to use the telephone. When Gayle White

replied that the office was locked the man drew a handgun. Two

accomplices appeared and the trio forced Gayle to open the company

warehouse from which they stole more than $4000 of controlled drugs

and other items. For 30 minutes or more Marvin Craig White

savagely beat and threatened to kill Gayle White. The robbers left

him in a pool of his own blood with his arms and legs bound

together.

Gayle White finally worked himself free and alerted the

St. Landry Parish sheriff's office and Sunset, Louisiana city

police. He told them of his ordeal and described his assailants as

three black men, the first being about six feet tall, of medium

build, wearing a dark blue, uniform-style shirt.

During the next several weeks Gayle White examined over 100

mug shots; none were identified as one of the assailants. On

September 21, 1982, Sgt. Charles Duplechain and Assistant Chief Roy

Mallet of the Opelousas, Louisiana police department used hypnosis

in an effort to review Gayle White's memory of the traumatic

robbery. The Opelousas police were not involved in the

investigation and Duplechain and Mallet were not familiar with any

of the details. During the course of the interview Gayle White

gave a narrative of the robbery including a more detailed

description of the first robber.1

Four months later the deputy sheriff in charge of the

1
In particular, Gayle White mentioned under hypnosis that the
first robber had short, neat hair, thick eyebrows, a narrow
straight nose, narrow-set eyes, small lips, and little or no facial
hair.
investigation received a photograph of Marvin Craig White who had

been arrested for a similar crime in another jurisdiction. This

photograph was placed with two score others and the array was shown

to Gayle White who immediately identified Marvin Craig White as the

first assailant. Over a year later, without doubt or hesitancy,

Gayle White picked Marvin Craig White from a live lineup whose

composition had been selected carefully by Marvin Craig White's

attorney.

In May 1985 Marvin Craig White was tried and convicted of

armed robbery and was sentenced to prison for 99 years. The

evidence linking him to the crime was Gayle White's testimony

identifying him as the first of the three robbers. After

exhausting state remedies the instant petition was filed. The

district court adopted the recommendation of the magistrate judge

and denied relief. We granted a certificate of probable cause.

Analysis

The primary contention presented to the state courts, the

federal trial court, and now this court, is that Gayle White's

hypnotically refreshed identification was admitted erroneously

because it violated confrontation and due process rights. We

reject the proposition that either due process or confrontation

guarantees require a per se bar to the admission of post-hypnosis

testimony.2 As we previously have noted, the two challenges really

2
See Biskup v. McCaughtry, 20 F.3d 245, 254-55 (7th Cir. 1994)
(finding it "clear from the authorities" that neither the
fourteenth amendment nor any "other provision of the Constitution

3
pose a single inquiry: was the memory of Gayle White likely

distorted by hypnosis to the point that the admission of his

testimony resulted in a fundamentally unfair trial of Marvin Craig

White.3 In considering similar challenges, we have balanced the

inherent dangers of hypnotically "refreshed" testimony4 against a

compendium of indicia of reliability.5

This case-by-case balancing approach6 requires consideration

of a number of relevant factors. In our leading opinion, Wicker v.

McCotter, we upheld the constitutionality of hypnotically refreshed

of the United States is the basis for a per se exclusionary rule"
on hypnotically refreshed testimony; similarly, "Our research poses
no case in which the admission of hypnotically refreshed testimony
has been held to per se violate the Confrontation clause of the
Sixth Amendment."); Wicker v. McCotter, 783 F.2d 487, 492 (5th
Cir.), cert. denied, 478 U.S. 1010 (1986) ("The fact that a witness
has been hypnotized before testifying does not per se require
disqualification.").
3
See Wicker.
4
The three major dangers of hypnosis are: susceptibility to
suggestion by the hypnotist; confabulation -- when a subject fills
in unknown or uncertain details with fantasy to make the memory
coherent and complete; and hardening of memories -- the subject
gains great confidence in memories through the hypnotic retelling
even though those memories may be uncertain or false. Stafford v.
Maynard, _____ F.Supp. _____, 1994 WL 108446 (W.D.Okla. Mar. 31,
1994). See also Rock v. Arkansas, 483 U.S. 44 (1987); United
States v. Valdez, 722 F.2d 1196 (5th Cir. 1984).
5
See Wicker; Williams v. Armontrout, 877 F.2d 1376, 1379 (8th
Cir. 1989), cert. denied, 493 U.S. 1082 (1990) (post-hypnosis
testimony barred because "factors positively supporting proper
identification . . . are outweighed on evaluation of the remaining
factors").
6
Wicker, 783 F.2d at 492 (considering identical constitutional
challenges, we held: "The admissibility of [hypnotically
refreshed] testimony is to be evaluated on a case-by-case basis.
The probative value of the testimony is to be weighed against its
possible prejudicial effect.").

4
testimony, favorably noting several factors: the post-hypnosis

testimony corresponded substantially with the pre-hypnosis

statements; the identification of the defendant at trial was probed

fully on cross-examination; and the record reflected independent

evidence corroborating the identification. In United States v.

Harrelson,7 a case involving admissibility under the Federal Rules

of Evidence rather than a constitutional challenge, we commented

favorably on the absence of unduly suggestive hypnosis procedures

and the fact that neither witness had failed an opportunity to

identify the defendant before being hypnotized.

In United States v. Valdez,8 another Federal Rules of Evidence

case, we were stricter in our assessment of hypnosis, holding that

hypnotically refreshed testimony could not be used to identify "a

person known by the witness to be under suspicion, whom the witness

had nevertheless been unable to identify before being hypnotized."9

In that case a Texas Ranger had repeatedly interviewed a person as

the prime suspect in an investigation of an extortion attempt, part

of which the Ranger purportedly witnessed. The Ranger was

thereafter unable to identify that person in a lineup until after

undergoing hypnosis. In addition, the hypnosis session in Valdez

reflected an unreliability because the questioners were familiar

with the case and used suggestive cues to steer the answers of the

Ranger.

7
754 F.2d 1153 (5th Cir.), cert. denied, 474 U.S. 908 (1985).
8
722 F.2d 1196 (5th Cir. 1984).
9
Id. at 1202. Compare Harrelson.

5
 The Supreme Court's decision in Rock v. Arkansas10 is

instructive in the selection of the balancing factors, encouraging

procedural safeguards like those described by Dr. Martin T. Orne,11

the FBI,12 and, more recently, the Seventh Circuit13 to minimize the

10
483 U.S. 44 (1987).
11
Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J.
Clin. and Exp'l Hypnosis 311 (1979). Orne suggests six procedural
requirements: "(1) the hypnotist must be a qualified psychiatrist
or psychologist who has experience in the use of hypnosis; (2) the
hypnotist 'should' work independently, not as an agent for either
party to the litigation; (3) all information given to the hypnotist
before the hypnosis session must be recorded; (4) before hypnosis,
the subject must describe the facts to the hypnotist as he then
remembers them; (5) all 'contact' between the hypnotist and the
subject must be recorded, preferably on videotape; and (6) no
person other than hypnotist and subject 'should' be present during
any 'contact' between the two." Valdez, 722 F.2d at 1199.
12
Ault, FBI Guidelines for Use of Hypnosis, 27 Int'l J. Clin.
and Exp'l Hypnosis (1979). The FBI hypnosis guidelines are less
restrictive than Orne's. They do not mandate an independent
hypnotist. Additionally, they require only that the hypnotic
session be recorded.
13
The Seventh Circuit apparently borrows from both Orne and the
FBI, listing guidelines which, though "not written in
constitutional stone," are "informative of relevant due process
standards": "(1) The hypnotic session should be conducted by a
licensed psychiatrist or psychologist trained in the use of
hypnosis and aware of its possible effects on memory so as to be
able to aid in the prevention of improper suggestions and
confabulation. (2) The qualified professional conducting the
hypnotic session should be independent of either party and should
have little investment in the ultimate disposition of the case.
The qualified professional should have minimal preconceptions about
the case. (3) Any information given to the hypnotist by either
party should be noted in writing so that subsequently the extent of
information that the subject received from the hypnotist may be
determined. (4) Before hypnosis, the hypnotist should obtain a
detailed description of the facts from the subject, avoiding adding
new elements to the subject's description. (5) The session should
be recorded, and preferably videotaped, so that a permanent record
is available to ensure against suggestive procedures. (6) Only the
hypnotist and the subject should be present during any phase of the
hypnotic session." Biskup, 20 F.3d at 254.

6
danger of suggestion or confabulation. Other traditional

guarantors of testimonial reliability are considered important by

the Supreme Court.14 Verification by corroborating evidence,

cross-examination to reveal inconsistencies, expert testimony on

the dangers of hypnosis, and pre-hypnosis statements for purposes

of comparison engender greater confidence in a jury's ability to

weigh accurately the reliability of post-hypnotic testimony.15

These and other authorities16 reflect an emerging litany of

factors courts consider in determining whether the admission of

post-hypnotic testimony violates a defendant's rights to due

process and confrontation. We are persuaded that on a case-by-case

basis the court should determine whether the defendant has shown,17

from the totality of the circumstances,18 that the post-hypnosis

14
Rock. Accord Neil v. Biggers, 409 U.S. 188 (1972)
(suggesting factors to consider in evaluating likelihood of
misidentification including opportunity to view criminal at time of
crime, degree of attention, accuracy of prior description, level of
certainty demonstrated at initial identification, and length of
time between crime and initial identification).
15
Rock.
16
See also Biskup; Williams; United States v. Gatto, 924 F.2d
491 (3d Cir. 1991); Bundy v. Dugger, 850 F.2d 1402 (11th Cir.
1988), cert. denied, 488 U.S. 1034 (1989); United States v.
Kimberlin, 805 F.2d 210 (7th Cir. 1986), cert. denied, 483 U.S.
1023 (1987); Beck v. Norris, 801 F.2d 242 (6th Cir. 1986).
17
Gatto (burden of proving post-hypnosis testimony deficient
is on the defendant).
18
Cf. Neil (analyzing whether totality of circumstances
surrounding identification suggests a substantial likelihood of
misidentification); Idaho v. Wright, 497 U.S. 805 (1990)
(comparable totality analysis under confrontation clause).

7
testimony is unreliable.19 We agree with our Seventh Circuit

colleagues that it is preferable, although not constitutionally

mandated, that the hypnosis be performed by a professional trained

in hypnosis; that the hypnotist be independent of either party;

that the hypnotist's pre-session knowledge of the case be kept to

a minimum and recorded as a check on suggestion; that the hypnotist

obtain a description of the case from the subject before inducing

hypnosis as a check on confabulation; that the session be recorded,

preferably videotaped; and that only participants in the hypnotic

session be present.20

We find in the instant case that the use of Gayle White's

post-hypnosis testimony was constitutionally permissible. Although

neither Duplechain nor Mallet was a professional psychiatrist or

psychologist, each had taken both a basic and an advanced course in

hypnosis from qualified experts. Neither knew any of the details

of the case, limiting the possibility of suggestion. Neither had

any law enforcement responsibility in the investigation of the

crime in question. The session was audiotaped and a recording was

made available and played for judge, jury, and defense counsel,

ensuring an opportunity for fair challenge to the techniques and

procedures used. Gayle White gave a narrative description of the

crime and its perpetrators without any suggestions or pressure from

Duplechain or Mallet. Gayle White and the two hypnotists were

cross-examined vigorously on the circumstances and procedures

19
See Williams.
20
Biskup.

8
surrounding the session.21 Although the deputy in charge of the

investigation was present during the session, there is no

indication that he spoke or in any way became involved.22 The

deputy and the other law officers were not aware of the existence

of Marvin Craig White until months after the hypnosis session,

negating any suggestion that Gayle White's accurate description

could have been created, in whole or in part, by the sort of

impermissible particularized suggestion found in Valdez or

Williams.23 Gayle White's post-hypnosis testimony, though more

detailed than his brief description at the crime scene, was wholly

consistent therewith. Additionally, Gayle White had a very close

view of his assailant, under good lighting, for nearly 30 minutes.24

We are mindful that the testimony of Gayle White is the sole

21
Wicker. See also Bundy (playing of session tape to jury and
opportunity to cross-examine hypnotists and subject about session
weaken due process and confrontation claims); Beck (same).
22
The presence of others during hypnosis, while discouraged,
will not by itself render post-hypnotic testimony unconstitutional
absent indications that the presence was distorting. See Bundy
(although several people walked in and out during session,
post-hypnotic testimony was nonetheless admissible).
23
Williams (subject was shown photo of defendant before being
hypnotized and was hypnotized by investigating officer). Indeed,
as in Harrelson, at the time of hypnosis Gayle White had not yet
identified Marvin Craig White because he had had no opportunity to
do so. Compare Harrelson with Valdez and Williams.
24
Neil; Gatto, 924 F.2d at 500 ("[E]ven if [the witness] were
hypnotized, the probative value of his identification could not be
significantly discounted in light of the district court's findings
that [the witness] had an opportunity to view the assailants,
possessed a high degree of attention when he responded to [the
victim's] screams, offered a description of the assailants that
could include [the defendant], and had known [the defendant] for
approximately fifteen years at the time of the murder.").

9
evidence linking Marvin Craig White to the crime,25 but we are not

persuaded from the totality of the circumstances presented that his

testimonial evidence was unreliable and that its admission was

error. We note that the Louisiana Court of Appeal found "that no

suggestion was made during the hypnosis session"; that Gayle White

"identified the defendant's picture without hesitation" and

"expressed no doubts when he picked the defendant out of a lineup";

and gave a description at the crime scene consistent with his

post-hypnotic description.26 That court concluded: "It does not

appear that the session affected White's ability to identify his

assailant."27 Those findings of fact by the state court are

presumed correct.28 Considering this statutorily-required

deference, and the foregoing factual balancing, we conclude that

hypnosis did not alter Gayle White's memory so as to taint Marvin

Craig White's trial by depriving him of an opportunity to confront

his accuser or by denying his due process rights to a fair trial.

The remaining contentions lack merit.29

25
See, e.g., Kimberlin (preferring post-hypnosis testimony to
be corroborated by other circumstantial or direct evidence).
26
State v. White, 498 So.2d 1100, 1102 (La.Ct.App. 1986), writ
denied, 506 So.2d 109 (La. 1987).
27
Id.
28
28 U.S.C. § 2254(d).
29
Marvin Craig White also claimed that he received ineffective
assistance of counsel and that the prosecution withheld exculpatory
evidence. As to the former claim, counsel's failure to hire an
expert does not fall outside a range of reasonable effectiveness
under Strickland v. Washington, 466 U.S. 668 (1984). And absent
evidence to support the allegation that the produced photo lineup
differed from the first photo book shown to Gayle White, Marvin

10
 The judgment of the district court is AFFIRMED.

Craig White fails to establish a violation of Brady v. Maryland,
373 U.S. 83 (1963).

11