(THE COURT RECESSED FOR LUNCH, AFTER WHICH THE FOLLOWING ENSUED:)
BY JUDGE BAGERT:
Judge O'Hara believes that just one question doesn't convey the context of the thing. Would you read two or three questions?
BY JUDGE O'HARA:
Read the preceding one.
BY THE COURT REPORTER:
Without saying what was said, did you use essentially what was told to you by this member?
BY MR. DYMOND:
I would like to formulate my objection with this statement, if the Court please. The Court ruled that this doctor may give testimony as to the techniques which were used by him, the manner of questioning. But I don't think we can go so far as to get from this doctor the source of the questions which he used in connection with this technique.
BY JUDGE O'HARA:
I think we have so ruled, and it's our obligation to sustain it. That's my position.
BY JUDGE BAGERT:
We sustain the motion of the defense.
EXAMINATION BY MR. ALCOCK:
Q. Dr. Fatter, do you fell that on this first occasion that Perry Russo or were you successful in getting Perry Russo to regress at all?
A. I was.
Q. How many times, Doctor, during this first session, did you get him to regress in point of time from the date of the trance back?
A. He was in and out of regression several times.
Q. Were these regressions usually brought about by questions propounded by you while he was under hypnosis?
A. The regression was brought about by suggestions and ideas [text missing?]
Q. How long was he in this trance on this occasion?
A. I would say about an hour and a half. To him it appeared as though he was only there for five or ten minutes.
Q. Doctor, how did you bring him out of this trance?
A. By asking him to count.
Q. Do you recall how high you asked him to count to?
A. I usually ask them to count to either three or five. I specify three or five.
Q. And when he would reach the five?
A. His eyes would open; he would feel comfortable and perfectly normal.
Q. And did he do this in your presence?
A. Yes.
Q. Did you have an occasion to converse with him after he came out of this trance?
A. Yes.
Q. Do you feel that this hypnotic trance in any way refreshed his memory about certain events?
A. I feel that it did.
Q. Did you have occasion to question him in relation to certain events after he came out of this hypnotic trance?
A. Yes.
Q. Did you have occasion to question him in regard to certain events prior to putting him in this trance?
A. No.
Q. Do you feel, however, that this was a memory-refreshing agent, this hypnotic trance?
A. I feel that Mr. Russo was permitted to visualize certain experiences that he had had during his life, and he was able to visualize these experiences in much the same fashion that you would dream. He subjectively experienced the feelings of sight, hearing, touch.
Q. Doctor, how many times, all told, did you hypnotize Perry Russo?
A. Three times, sir.
Q. Where were you physically located the second time this happened?
A. The second time was in the District Attorney's office here in this building.
Q. Do you recall in what particular office within the main District Attorney's office?
A. No, I was led to the office.
Q. Do you recall on what date that was on?
A. Yes, I have it written down here. March 9th.
Q. Do you know what day of the week that was?
A. I think it was a Sunday.
Q. Would you like a calendar?
A. It was a Thursday.
Q. What was the first date you hypnotized Perry Russo?
A. It was on March 1st.
Q. What day of the week was that?
A. It was a Wednesday.
Q. And you say you hypnotized him on three occasions. What was the last occasion? What date?
A. The last occasion was Sunday, March 12th.
Q. Now, on this second occasion, Doctor, did you use essentially the same technique that you had used on the first occasion?
A. No.
Q. How was it different?
A. The second occasion, Mr. Russo was permitted to attain this trance state. I asked him to visualize and experience in his mind himself standing at the top of a staircase, looking down. And to indicate to me with his finger when he subjectively felt this experience. And, of course, his finger levitated in much this fashion that I am levitating now. I asked him to count the number of stairs. There were twenty-one stairs in the staircase that he visualized. It was partially carpeted. I asked him to descend this staircase one at a time, and as he went down step by step, he would go deeper and deeper and deeper into a trance state. This is a deepening technique, permitting him to go deeper into a trance state. At the bottom of the staircase, I asked him to go up the hall, which is about fifty feet, and he would see a door. And I asked him when he was in front of the door to indicate with the hand levitation, finger levitation. He so indicated. I asked him to open that door and go into a time tunnel, and he would feel himself spinning and spinning, and in this time tunnel, he would be thrown out in September . . .
BY MR. DYMOND:
I object to this now, if the Court please.
BY JUDGE O'HARA:
I just don't think this is necessary.
BY MR. DYMOND:
I don't think it's relevant.
BY JUDGE O'HARA:
I don't think all of these details are necessary. Was he in a trance state or wasn't he? That's good enough. How he got into it is immaterial.
BY MR. ALCOCK:
Mr. Dymond made quite a point of . . .
BY JUDGE O'HARA:
You say he made a lot of it. We will determine what the relevancy of all this is. I'm not interested in your appreciation of Mr. Dymond . . .
BY JUDGE BAGERT:
What's the purpose of the question, Mr. Alcock?
BY MR. ALCOCK:
The purpose of the question is to show the technique used in the second hypnotic session.
BY JUDGE O'HARA:
Well, I, for one, am not interested. I don't know whether I speak for anybody else.
BY JUDGE BAGERT:
The consensus is without going into all the variations of it, just ask the physician to tell us had he reached a deep trance, and we would like to know whether, in his expert opinion, what effect that would have on his sense of recollection, from this expert.
EXAMINATION BY MR. ALCOCK:
Q. Doctor, do you feel on this second occasion that you were successful in inducing in Mr. Russo a deep hypnotic trance?
A. I was able to induce in Mr. Russo a satisfactory trance state for the purposes for which we were working.
Q. In such a trance state, was the memory refreshed as to certain events?
A. Yes, it was.
Q. As an expert, would you feel that successive trance states would enhance a person's memory about a particular event or a particular time?
A. Yes, and the reason I say that is that this is a learning experience. The more times one participates in a learning process, the more adept he becomes at it.
Q. Now, particularly in reference to Mr. Russo, do you think successive trance states enhanced his memory about certain events?
BY MR. DYMOND:
If the Court please, I object here. We have the situation where we are trying to put this witness on the bench here to usurp the prerogatives of the Court. It is strictly within the Court's province as to the believability or credibility of a witness.
BY JUDGE BAGERT:
We are the finders of the fact here. We have an expert who is qualified in his field. Everybody has conceded his qualifications. The question is, what does he think the recollection of this man is in this deep trance. We are not asking him to recount what this man said. For that reason, your objection is overruled.
BY MR. DYMOND:
If Your Honor please, we're not asking to recount what the man said while in a trance. But we are asking him, at least the State is, to tell whether or not what he said when he came out of that trance is more likely to be accurate than what he said before he went into it.
BY JUDGE BAGERT:
That's what he's been qualified as an expert for.
BY MR. DYMOND:
No. That's the Court's prerogative to pass upon what weight should be given to the testimony of Russo, and they are trying to let this witness do it, Your Honor.
BY JUDGE O'HARA:
He's already answered the question by stating that the witness's recall is enhanced by several hypnotic states, prior hypnotic states. Now, what more do you want?
BY MR. ALCOCK:
The witness, Your Honor, the witness, Perry Russo. I asked him before generally. This is specific.
BY JUDGE BAGERT:
The objection is overruled.
BY MR. DYMOND:
To which ruling counsel reserves a bill, making all of the testimony, the ruling of the Court, all proceedings, parts of the bill.
BY MR. ALCOCK:
Read the question back, please.
(QUESTION READ BY THE COURT REPORTER.)
EXAMINATION BY MR. ALCOCK:
Q. Will you answer it, Doctor?
A. I don't know if I can answer that question yes or no. Mr. Russo was placed in a trance state. Mr. Russo regressed. Mr. Russo was able to visualize certain past experiences that he had had. In coming out of the trance state, an individual can remember or not remember what went on in that trance state. It is possible, however, for that individual at a later date to recall experiences that he had had in a trance state. This is true of also the wakeful state, except that he is more profound in a trance state. Anything that goes on in a trance state actually can also go on in a wakeful state, except that it is more profound. This is the only difference.
Q. Doctor, did you have an occasion to converse with Mr. Russo after he came out of these successive trance states?
A. Yes.
Q. As a result of these conversations and as an expert in this field, were you able to determine whether or not his memory had been generally refreshed as to these events?
BY MR. DYMOND:
I object to that, Your Honor. Once again it's letting this witness pass upon the believability of the other witness, Russo. I mean, he's going completely without the field for which he was put on the stand and for which the State says they have put him on the stand, in connection with sanity or insanity.
BY MR. ALCOCK:
I haven't said anything with respect to sanity or insanity in connection with this man. I haven't qualified him in the field of psychiatry.
BY MR. DYMOND:
Your Honor, he [sic] also trying to tell us what was in Russo's mind.
BY JUDGE O'HARA:
There's no way he can testify to that. Not before me, anyway.
BY JUDGE BAGERT:
Didn't he state that in a deep trance, he could recollect things better than if he had never been in a trance before?
BY MR. DYMOND:
Your Honor, I submit that this witness may be able to tell what customarily happens, what is the general belief of a person skilled in hypnotism, but for him to tell us that this particular man was able to recollect more clearly than he had before is completely impossible. This witness would have to be convinced that this particular subject of the hypnotism was remembering something that actually happened. That would be a necessary assumption before answering this question.
BY JUDGE BAGERT:
All right. The objection is sustained.
EXAMINATION BY MR. ALCOCK:
Q. Doctor, as an expert in this area, and having viewed Mr. Russo while in his trance state, do you feel that he was actually experiencing events, past events, that happened to him while he was in this trance state?
BY MR. DYMOND:
I object to that, if the Court please, on the same ground. It's tantamount to asking this witness whether certain things actually happened to Russo in the past and whether he had experienced certain things.
BY JUDGE BRANIFF:
Hasn't the doctor already testified that that's the purpose of hypnosis? Anybody who is put into a hypnotic trance and is made to regress back to a certain period of time in their lives.
BY MR. DYMOND:
Anybody, yes.
BY JUDGE BRANIFF:
And that repetitions of this would make them remember it more clearly and enhance their memory. Didn't he just testify to all of that?
BY MR. WEGMANN:
Once again, the objection is not to the theory of hypnosis, and the conclusions that you can draw from the theory. It's the specifics. What you are saying . . .
BY JUDGE BAGERT:
As to this individual you are talking about, or any individual.
BY MR. WEGMANN:
Yes, in other words, what we are saying now is that you can go into my mind and know what conclusion I'm reaching?
BY JUDGE BAGERT:
We all agree that this doctor is very amply qualified. Let's ask him to find out if anybody under repeated, any subject under repeated hypnosis would recollect better after the repetition of hypnosis. Get in that area. If you've got something new, let's proceed with that area.
EXAMINATION BY MR. ALCOCK:
Q. Doctor, do you feel that, having observed Mr. Russo in these trance states, that he was feigning being in this trance state, or faking being in this trance state?
A. I feel that, having observed Mr. Russo and with my past experience with hypnosis, I feel that Mr. Russo was in an authentic trance state.
Q. Doctor, what is post-hypnotic suggestion?
A. Post-hypnotic suggestion is an idea that is presented to an individual while he is in a trance state, with the idea in mind of him responding to that idea at a future date.
Q. Would a person under a post-hypnotic suggestion be a more or less slave to that suggestion, or could he will to do other than what was suggested to him while under a hypnotic trance?
A. It is my opinion that no one will do anything in a hypnotic state that he would not ordinarily do in a wakeful state that is against his morals and principles.
Q. Doctor, did you have occasion to be in Court at any time that Mr. Russo testified before this Court?
A. Off and on I have been in this Courtroom, yes.
Q. As an expert, and having viewed Mr. Russo on the witness stand, do you feel that at this time, he was under hypnosis?
A. Mr. Russo was, as far as I know, was not under any hypnotic state while he was on this stand.
Q. Dr. Fatter, on the 12th day of March, 1967, the last time that you induced a hypnotic trance on Mr. Russo, did you give him a post-hypnotic suggestion?
A. I did.
Q. And what was that?
BY MR. DYMOND:
I object to that, if the Court please.
BY JUDGE BAGERT:
The objection is overruled.
BY MR. DYMOND:
May I state my reason for the objection?
BY JUDGE BAGERT:
No, let's go. We've been going along with this business of letting you make speeches. There's no appeal from this.
BY MR. DYMOND:
I realize that.
BY JUDGE BAGERT:
Well, we've been letting you make speeches and quoting the Constitution, the fifth, and sixth, and fourteenth. Why don't we expedite things and say the whole Constitution, all the amendments, the Bill of Rights, period, and conclude it. These speeches have no place here. This is not going to the United States Supreme Court from here.
BY MR. DYMOND:
I'm going to make an objection to the . . .
BY JUDGE BAGERT:
All right. You have objected, and it was overruled.
BY MR. DYMOND:
I would like to reserve a bill of exceptions, the exception being based upon the ground that when a person is given a post-hypnotic suggestion while under hypnosis, he is more likely to follow that suggestion. The witness has now been asked whether this particular witness, Russo, was subjected to a post-hypnotic suggestion. We object to that on the ground that it is tantamount to making this witness pass upon the credibility of the witness, Russo, making all of the testimony, all of the proceedings, the ruling of the Court, the objection, parts of the bill.
BY JUDGE BRANIFF:
Answer the question, Doctor.
A. May I refer to my notes?
BY JUDGE BAGERT:
Sure.
A. I would like to read from my notes the exact suggestions that were given to Mr. Russo on March 12th, 1967. I quote: "That's right. Go deeper. Relax. Anytime you want to . . ."
BY MR. DYMOND:
Your Honor, I object to this.
BY JUDGE BAGERT:
You've already objected.
BY MR. DYMOND:
I'm objecting again to this line of testimony right now going into details of the conversation that took place either during hypnosis or in the course of putting this man under hypnosis.
BY MR. ALCOCK:
What conversations?
BY JUDGE BAGERT:
Wait a while. I'm handling this thing; I'm handling it. Didn't you ask this man if he was under hypnosis at the time he was on the stand? And this occurs to be, is a complete refutation of that. Just like you said, you asked him did he try to jump out the window. You said that wasn't a question to determine his sanity. Or didn't he try to commit suicide. You tried to say that it wasn't a reflection on the condition of his mind. That's the same thing here. You asked this man was he under hypnosis while he was on the stand and he said no. Now the man who had put him in this state of hypnotic trance is on the stand. The question of hypnotic suggestions has arisen. And the district attorney is trying to find out what hypnotic suggestion did you give him, the inference being did you tell him what to say when he came out of the hypnotic trance.
BY MR. DYMOND:
If the Court please, the witness has already testified that the man was not under a state of hypnosis when he testified.
BY JUDGE BAGERT:
Well, he's telling you why.
BY MR. DYMOND:
As long as he doesn't go into any details of a conversation that took place.
BY JUDGE O'HARA:
This entire line of questioning is irrelevant and legally impossible.
BY JUDGE BAGERT:
Objection overruled.
BY MR. DYMOND:
To which ruling, counsel for defendant reserves a bill of exception, making all of the testimony, the objection and the ruling of the Court parts of the bill.
EXAMINATION BY MR. ALCOCK:
Q. Continue, Doctor.
A. May I continue?
BY JUDGE BAGERT:
Yes, Doctor.
A. That's right. Go deeper. Relax. Anytime you want to, you may permit yourself to become calm, cool and collected. I want you to know that you have a task that you have voluntarily gone into. You can let yourself do this task well. You can let yourself, and you will be amazed at how acute your memory will be in the next few weeks. Days will seem to pop into your mind, and it will be only the truth as you saw it. And it will be nothing more or nothing less. And you can permit these truths to come into your mind exactly as you have seen them without fear and without remorsefulness. That's right. Because all you will be doing is telling the truth, Perry, as you see it. Nothing more and nothing less. Now, when you get ready, Perry, I would like for you to count to five out loud. There's no rush about it. When you count to five, let your eyes spring wide open becoming wide awake and I'd like you to open your eyes with a smile on your face. Remember, now that you have a task that you, yourself, have elected to perform. You can do it well and you will do it well. And remember, Perry, the truth always wins out. There is no question about that in my mind and you may also find that to be true also. Whenever you are ready, count to five, let your eyes spring wide open and you will be wide awake.
Q. Doctor, do you follow this procedure with all of your patients when you put them under a hypnotic trance?
A. I always remove my patients from a hypnotic trance with a non-directive type of suggestion, to permit them to function in a manner that they see fit.
Q. Doctor, being an expert in this particular field, is it conceivable when you ask a patient to count to five and they will wake up on this number five, is it possible for this patient to only recall the number five, and not the first four numbers?
A. It is possible for an individual to remember everything that has been done in a trance state, or he can develop amnesia for everything that has been done in a trance state. This is true in general of all patients that I have seen.
Q. Tender the witness.
* * * CROSS EXAMINATION * * *
BY MR. WEGMANN:
Q. Doctor, do I understand what you -- and correct me, now -- I'm not trying to mislead you, do you understand? Do I understand what you have just told us is that when you last had Russo under observation on March 12th, that you left him with a post-hypnotic suggestion?
A. I presented that idea to him, yes, a post-hypnotic suggestion.
Q. If your treatment took, when he testified on this stand, he testified under a post-hypnotic suggestion, is that correct?
A. He could have and he could not have. There's no way of me telling whether the post-hypnotic suggestion took with Mr. Russo.
Q. My question was, Doctor, if your treatment took, he testified under a post-hypnotic suggestion.
A. He could have, yes.
Q. If the treatment took.
A. He could have if he accepted the suggestion and the idea. He coul have, yes.
Q. All right. Now, speaking hypothetically, Doctor, not about Russo; just about anybody under hypnosis. I understand that one of the things that you do, or one of the things that a person in your field does, as a result of this is that a patient receives suggestions, is that right? In other words, part of this treatment is that suggestions are given to him and then he reacts to these suggestions.
A. An idea is presented to an individual in a manner that he can accept it, and if the individual accepts the idea, he himself will let it be a reality. And this is also true of the wakeful stage just as well as it is for the -- now, when the witness takes the stand, you tell him, "Do you solemnly swear to tell the truth, the whole truth and nothing but the truth," you are presenting an idea tp him. He can accept that idea or he can reject it. And all I presented to Mr. Russo was that he tell the truth, the whole truth and nothing but the truth. This was the idea, the suggestion that I presented to him.
Q. Once again, we are speaking hypothetically, Doctor. We are not speaking about Mr. Russo.
A. All right.
Q. But in the field of hypnotism, the chore or the responsibility of the person administering this treatment is to give suggestions to the person in the hope that they will follow these suggestions and come forth with some response to them, isn't that correct?
A. Yes.
Q. And the response that you get is in the field of a suggestion, and not in some other field, isn't that correct?
A. Well, actually, the idea is presented in a manner to let the individual function as he sees fit to function.
Q. But you guide him to a certain area, isn't that correct?
A. That's right.
Q. Now, let me ask you, Doctor, and, once again, if I'm wrong, tell me. I understand from your testimony is that when a person in a post-hypnotic suggestion [sic] is that you can't make them do something that they would not ordinarily do, isn't this correct?
A. That's right.
Q. In other words, you can't make a truthful person say an untruth, is that correct?
A. Correct.
Q. And by the same token, you can't make an untruthful person say a truthful statement, isn't that correct?
A. Right.
Q. Now . . .
A. In fact, I think I qualified that before by saying that you can't make anybody do anything. You present the idea. If they accept the idea, they themselves let it be a reality.
Q. Well, going back to what I originally said, Doctor, and I thought we had understood each other. My whole theory, my whole questioning is based upon the proposition that if your treatment was successful, he did what he was post-hypnotically suggested that he should do, if it was successful. If it wasn't, it makes no difference, is that correct?
A. Say that again, sir.
Q. If the treatment was successful, he will do what you have suggested that he do.
A. Yes.
Q. Now, once again, I'm in a field about which I know nothing. And if I make a false statement, tell me. As I understand your testimony, there are all different types or ways of putting a person in a trance.
A. Yes.
Q. It depends on the circumstances and what you are trying to accomplish.
A. Yes.
Q. Now, am I also correct that a trance -- to put a person into a trance, is there any specific location that you have to be to this person?
A. No, no specific location.
Q. I could be in the back of the courtroom, halfway up the courtroom, or I could be directly in front of you, and you could accomplish the same thing?
A. Let me see if I can -- let me digress for a minute. All of us go into a state of trance at least twice a day. When we go from wakefulness into physiological sleep, we must pass through this trance state. And I'm going to recall to you, and you probably can remember having gone to bed one night when it was hot; the covers having been on the bed, you put the covers at the foot of the bed. Morning comes along; a change in the weather has come about. You are lying in the bed; you are very, very comfortable. You know it's daylight. You know that you are cold. You know that you are lying in bed, but yet you are so comfortable, you don't do anything about it. You don't go down to reach to get the covers to pull them over you. This is a trance state. And most of us have experienced this. I see chuckles around the courtroom. This is a trance state.
Q. And I understand, Doctor, that your relationship with Perry was that of a doctor and patient, is that right?
A. Right.
Q. Now, once again, tell me if I'm wrong. My notes indicate that you said that a state of regression was similar to a dream state or to a reliving of an experience, isn't that right?
A. Right.
Q. So, regression is just like a dream state?
A. Comparable to a dream state.
Q. Comparable to it. That's all the questions we have.
* * * REDIRECT EXAMINATION * * *
BY MR. ALCOCK:
Q. Doctor, I have just one question. Mr. Wegmann asked you if you were successful in you hypnotizing Mr. Russo and in your post-hypnotic suggestion that he would do ideas or thing that you suggested to him in this post-hypnotic suggestion, isn't that correct? If you were successful in your post-hypnotic suggestion, he would do what you suggested, is that correct?
A. I presented ideas to Mr. Russo while he was in a post-hypnotic suggestion, which ideas are similar to and equivalent to the ideas that are presented to me when I took the witness stand. I said, "Do you solemnly swear to tell the whole truth and nothing but the truth," and this is all I suggested to Mr. Russo, that he tell the truth, the whole truth and nothing but the truth, and that he would be calm, cool and collected, which is all what we want to do, we all hope this to be done, and this I thought was a good post-hypnotic suggestion to give to anybody. This is what we all want.
Q. No further questions.
BY MR. WEGMANN:
No questions.
BY JUDGE BAGERT:
Thank you, Doctor Fatter.