Is a Hypnotized Witness Reliable?

For three years, Yale Law Professor Steven Duke has been working to correct what he calls "one of the most inexcusable, grotesque perversions of justice in the history of the federal criminal process." Without any compensation, Duke has devoted as many as 80 hours a week trying to reverse the narcotics conviction of a Connecticut hairdresser named James Miller. In 1964 Attorney General Robert Kennedy called Miller one of the main figures in the nation's largest narcotics smuggling ring, but Duke is convinced that Miller was the victim of a grievous error on the part of the Government's chief witness, a Canadian named Joseph Michel Caron.

Roman Nose. Caron was arrested and charged with bringing heroin from Mexico into the U.S. While he did not know the name of the man who was his contact in Connecticut, Caron described him initially as "a man of Italian or Jewish ancestry, Roman nose, curly hair, dark-complexioned." Miller is a light-complexioned man of Irish background who has wavy hair and a straight nose. Yet, when Caron was asked to look over some mug shots, one of two photos he picked out was that of Miller, who was known to federal authorities because of his friendship with a Mafia mobster. Later, Caron definitely identified Miller as the person who had picked up his heroin in Connecticut. At Miller's trial, Caron also recalled that the license plate on the pickup car was "AM 1826"--Miller's number.

After his conviction, Miller sought the services of Duke, who quickly became persuaded that his client was a victim of mistaken identity. For one thing, Duke claimed to have a bugged conversation in which another man, Mario Natalizio, had admitted that he was Caron's Connecticut contact. He eventually talked Natalizio into a confession. But Natalizio later repudiated the document, and Duke lost both the appeal and numerous motions for a new trial.

When the U.S. Supreme Court refused to hear the case, it looked as if the Yale professor's crusade was finished. As a last resort, he decided to see whether Caron would furnish any more clues to the real identity of his contact under hypnosis. The session provided an unexpected payoff. Before Caron went into a trance, he confided that Government prosecutors had also interrogated him under hypnosis just before Miller's trial.

Highly Suggestible. Once more Duke went to court to ask for a new trial. He produced expert witnesses, such as Dr. Herbert Spiegel of Manhattan (TIME, May 24), who have questioned the accuracy of any testimony given during or after hypnosis. Spiegel said that Caron's desire to cooperate with the Government, along with his own instability--he had tried suicide in his cell --made him a highly suggestible hypnotic subject. For example, Spiegel pointed out, Caron had remembered Miller's license plate only after all of the digits were suggested to him during the sessions. His identification of Miller, moreover, could have been reinforced through the power of suggestion.

While not necessarily implying that the jury verdict was wrong, the federal appeals court that covers Connecticut has just ordered a new trial for Miller. In his opinion, Judge Henry Friendly declared that some of Caron's testimony required the Government to disclose that it had hypnotized him. The Government must make this admission, Friendly indicated, whenever there is a "significant possibility" that it will affect the verdict. The ruling, one of the first of its kind, should help prevent abuse of hypnosis by overzealous prosecutors. "If the price of our decision should be the ultimate escape of a guilty man rather than the vindication of an innocent one," said the judge, "this is the kind of case where that price is worth paying."

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