DR. NICHOLAS CHETTA, having been recalled as a witness by the State, did testify as follows:
* * * DIRECT EXAMINATION * * *
BY MR. OSER:
Q. Dr. Chetta, in speaking of the use of hypnosis as a diagnostic tool in the area of psychiatry, can you state, Doctor, as an expert, whether or not after a person undergoes hypnosis, does this person recall more or would he recall more in his conscious mind? In other words, would he recall more after he came out of hypnosis if he were questioned about a certain point in his life?
A. Yes, sir, this is quite true. The time interval will vary also. After the person comes out of a hypnotic state, they will have sometimes recall of a very important name, place, or thing. Now, this may occur as late as two weeks to a month that suddenly they begin to have a refreshment of their memory or recall.
Q. Now, why does this occur, Doctor, in your opinion?
A. To tell you a scientific reason, I really can't give you a good scientific basis for it, except that probably it has taken this person this length of time subconsciously to remove this block or log-jam that they had. But to give you a pure scientific reason for it, I couldn't.
Q. Now, Doctor, is it not possible for a subject to undergo hypnosis or to be placed under hypnosis and not recall what occurred under hypnosis?
A. That is quite true, yes, sir.
Q. Why is that, Doctor?
A. Because -- what you are dealing with with a person in a hypnotic state is that you have an individual in a semi-conscious state, and they will remember sketches of things, and other things they'll have a true amnesia for. Again, the explanation for this, I really don't know, but it is a fact; it happens.
Q. Now, Doctor, in a hypothetical question, taking a white male, age twenty-five, who has education background of high school education, college degree, was in attendance when an assassination plot was made to kill the President of the United States, was placed under a hypnotic trance, and the doctor administering the hypnosis in bringing this person out of hypnosis tells him, the subject, to count to five, when you get to five, you will awake. Is it not possible for this person to actually count, one, two, three, four, and on five, awake, yet not recall saying, one, two, three and four, and merely remember the number five and come awake?
A. Yes, sir, that's quite possible, because five was the so-called trigger number in which the thought was implanted, at five you're going to awake. The one, two, three, four business is sort of a mechanical thing. And it is not necessary that they remember the one, two, three and four. They will do it, because they were suggested to do it. But on five, which is the trigger number on which he comes out of his trance, he will remember the five.
Q. Doctor, can you give me the dates that Perry Russo was placed under hypnosis?
A. The first date was the 28th [sic].
Q. Of what month, Doctor?
A. Let's see. February, February 28th [sic]. Then the next time was a Thursday [March 9], and this was the time in Mr. Ward's office, and the last time was Sunday.
Q. This past Sunday? Would that be March 12th?
A. Yes, and this was in my office in the Coroner's Office.
Q. Of course, this is 1967, is that correct?
A. '67, yes, I'm sorry.
Q. Now, Doctor, in the area of hypnosis, if a subject is placed in a hypnotic trance, and a discussion concerns itself with a particular area in time of this subject, in regards to a particular month of a particular year, after this subject is taken out of this hypnosis or this hypnotic trance, would not this subject recall more about this particular month and this particular year than he would about some other month in this particular year?
BY MR. DYMOND:
Now, we object to this, if the Court please. This is getting completed without the realm of sanity or insanity. It is trying to bolster the credibility or at least the ability to testify accurately, and I don't think that this type of evidence is admissible at all for that purpose. In support of the objection, we would like to cite the case of Lindsay versus the United States, which is a Ninth Circuit, US Circuit Court of Appeals case.
BY JUDGE BRANIFF:
Mr. Dymond, he's only asking for an opinion here. It requires only a yes or no answer.
BY MR. DYMOND:
I fully understand that, sir. But it is my understanding and it was the statement of the State that they were here dealing with the question of sanity or insanity, claiming that that had been put at issue. Now, they are trying to bolster the credibility of this witness or to bolster their position with respect to his ability to testify accurately, and there is no authority in law for evidence as to these tests of these kinds to be admitted under those circumstances. The citation of Lindsay versus the United States is 237 Federal (2d) at page 893.
BY JUDGE BAGERT:
We all have it here. United States Circuit Court of Appeals for the Ninth Circuit on May 7th, 1966.
BY MR. DYMOND:
That is correct, sir. That is the decision which has been tendered to the Court.
BY JUDGE BAGERT:
This case, my interpretation of it, confirms the identical thing that I said yesterday afternoon at 4:00 or 4:30. It supports my position 100%. Is that right?
BY MR. DYMOND:
It's from your article, Judge.
BY JUDGE BAGERT:
Now, the question is: Can this expert physician testify as to these other factors? Now, we are not dealing with whether he can repeat what the subject said under hypnosis or sodium amytol or under sodium Pentothal. We are dealing with the question of his ability to remember after this type of treatment in connection with psychiatric examination. Is that right?
BY MR. DYMOND:
That is correct, Your Honor. We are dealing with ability to remember. That's what this question was aimed at.
BY MR. OSER:
That is not what this question was aimed at. Mr. Dymond does not have my mind. He is not thinking of what I am thinking of. He's on credibility. I'm on the question of sanity or insanity and orientation as to time, date and place of the subject of whom he is giving his opinion about.
BY JUDGE BAGERT:
I am satisfied that the memorandum that you furnished me from the case that I cited you yesterday covers the point, and I think my brothers are, too, that the physician cannot repeat what was said under the influence of sodium Pentothal and sodium amytol, but he can give this diagnostic report as to what happened as a result of it without actually saying what he said. Now, if he repeats verbatim or if he repeats in substance what was said, it is my opinion that that is corroborative evidence, which has been precluded in the case that you brought me here today and the citations I furnished you with yesterday. But I do believe that he can give the results, the analysis of it, as a result of his diagnosis.
BY MR. DYMOND:
I see. Your Honor, we have no objections whatsoever to his diagnosis but, as I understand the question propounded by the State, it was a question to the effect of would this witness remember more accurately events in the past which had been asked of him during the time he was under hypnosis. That goes beyond the realm of diagnosis and procedure during the administration of this hypnosis.
BY MR. OSER:
My question, Your Honor, to Dr. Chetta made no referral to a witness or to Perry Russo. I said, if a subject, and the question can be read back. I'm talking about a subject, not the witness.
(QUESTION READ TO THE COURT BY THE COURT REPORTER.)
BY MR. OSER:
There's no Perry Russo mentioned in that question.
BY JUDGE O'HARA:
I'm just wondering myself if you're not getting out of the field of the doctor's expertise, so to speak. We have Dr. Fatter here, for one thing. I don't think you presented this witness as an expert in the field of hypnosis, did you?
BY MR. OSER:
Your Honor, I qualified Dr. Chetta as an expert in the field of medicine, forensic medicine, psychiatry and the doctor has stated that one of the diagnostic tools is that of sodium Pentothal as well as hypnosis.
BY JUDGE O'HARA:
I might know that as a layman.
BY MR. OSER:
He has a right to testify about it, Your Honor.
BY JUDGE O'HARA:
He might know about it, but he may not be an expert in it.
BY MR. OSER:
But, Your Honor, he has stated his opinion as to sanity or insanity. He based this opinion on, besides sodium Pentothal, the hypnosis sessions at which he was present.
BY JUDGE O'HARA:
I agree with that part of it. But I don't know if -- have you ever hypnotized anybody?
A. On several occasions.
BY JUDGE O'HARA:
You have? Nobody asked him that question.
BY JUDGE BAGERT:
The objection is overruled.
BY MR. DYMOND:
To which ruling, counsel reserves a bill of exception, making the entire record, all of the testimony, all of the proceedings, the objection of counsel, the ruling of the Court parts of the bill.
BY MR. WARD:
May we have the question read back by the court reporter?
(QUESTION READ BY THE COURT REPORTER.)
A. The answer is yes.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, in a hypothetical question, take a twenty-five-year-old white male, who has the education background of high school and received a degree in political science, was present when three people planned the assassination of President Kennedy during the month of September 1963, that this hypothetical person was placed under hypnosis and a discussion was had while he was under hypnosis with regard to the month of September 1963 . . .
BY MR. DYMOND:
Object to that, Your Honor.
BY JUDGE O'HARA:
He's not finished yet.
BY MR. DYMOND:
I'm sorry; go ahead.
BY MR. OSER:
Q. If, Doctor, this hypothetical person is questioned about the events specifically in September of 1963, after this hypothetical person is brought out of this hypnotic trance, would or would not this hypothetical person in 1967, after his hypnosis, recall more about what occurred in regards to him in September of 1963, than in July or October or November or December of 1963?
BY MR. DYMOND:
If the Court please, we object to that. First on the grounds that the hypothet goes outside the evidence. The Court did not permit the substance of the questions propounded to this witness, Russo, while under the influence of hypnosis to be brought out in evidence. So, we have here a part of the hypothet which is not in evidence. We object to it on that ground in addition to the ground set forth in the previous objection.
BY JUDGE BAGERT:
What is the objection?
BY MR. DYMOND:
My objection, Your Honor, is that the elements of a hypothetical question propounded to an expert must remain within the bounds of evidence which has been presented in the case.
BY JUDGE O'HARA:
That's correct.
BY MR. DYMOND:
Otherwise, while this usually arises in jury cases, there wouldn't be anything for the jury to apply the opinion of this expert. And the purpose of the expert testimony is to enable the jury to pass upon this evidence which has been furnished. But here no evidence on one of the elements has been furnished.
BY JUDGE BAGERT:
Which one? Which element did you speak of?
BY MR. DYMOND:
I beg your pardon, Judge?
BY JUDGE BAGERT:
Which element do you speak of as not part of the testimony?
BY MR. DYMOND:
The question as to what happened in the summer or September of 1963 which the Court ruled the State could not ask of this expert witness yesterday. They were not permitted to go into the details of the conversation or the questions asked.
BY MR. OSER:
I haven't asked him the details of the conversation.
BY JUDGE BRANIFF:
It was discussed under hypnosis. He's not asking that question. He's asking him if he would recall more facts under the hypnosis. Would it help him to remember when he came out.
BY MR. DYMOND:
No. The thing is, it has not been proven because this Court
[Page 371 is missing.]
[BY JUDGE BAGERT?]
All right. You want to read that last question?
(QUESTION READ TO WITNESS BY THE COURT REPORTER.)
A. I'm going to answer that yes, but do I have the privilege of amplifying it? To be able to fulfill all the requirements of a hypothet, this individual certainly, we take for granted he has been in a hypnotic trance, and secondly, you had brought him to a specific time, September 1963. The third requirement is that this man had to experience this particular experience, and if these three things that I just mentioned and as has been brought out in this hypothetical question, with a hypothetical person, are present and they are, then the answer is definitely yes.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, as an expert, am I correct in stating this question to you? Would not a person who is placed under hypnosis three times or more than once, does not this person usually recall more than if he had been placed under merely once? In other words, Doctor, the more a person is placed under a hypnosis, is it not a fact that he is able to recall more and more and perhaps better and more clearer [sic] with each session, so to speak?
A. Again, the answer to the question directly is yes, but it must have some explanation. If my explanation goes out of line, I'll wait and let you object, Mr. Dymond. The successive hypnotic trances in which you are dealing with specific time, specific events, this person will certainly have better recall on the successive occasions of a hypnotic trance.
Q. Tender the witness.
* * * CROSS EXAMINATION * * *
BY MR. WEGMANN:
Q. Dr. Chetta, my notes indicate that when you testified as to the sanity of this man, you stated that he fills all the requirements of legal sanity, is that right?
A. That's correct, sir.
Q. Now, exactly what is your definition of legal sanity?
A. Being accustomed to testifying in Criminal Court, I guess I used that definition. Legal sanity is one who fulfills the McNaughton Rule, that is, knowing right from wrong, the ability to choose right from wrong, and knowing the consequences of his acts, and to assist his counsel in his defense.
Q. You follow the McNaughton Rule?
A. Yes, sir, I think this is the only thing the courts will accept.
Q. Now, Doctor, under sodium Pentothal, the drug that you used . . .
BY JUDGE O'HARA:
Before you get into that, may I ask the doctor a few questions?
BY MR. WEGMANN:
Yes, sir.
BY JUDGE O'HARA:
Q. Would your answer to the last question be the same if the subject was not the defendant?
A. Yes, sir, I think I would. Of course, I think, also, I have elaborated on this subject by saying that this individual was a well-controlled, rational, and well-disciplined individual. I also stated the fact that he was hallucinated, delused [sic], or disoriented.
EXAMINATION BY MR. WEGMANN:
Q. Doctor, isn't it a well accepted fact with regard to this sodium Pentothal treatment that you gave that it not only lessens your inhibitions as to expressions of fact, but also as to expressions of fantasy and suggestion?
A. That's quite true. But it depends upon the person conducting the test, or treatment, if you want to use that word, to segregate the facts from the fantasies, and if you have had enough experience, you can do this. Just as I stated when I first took the stand that it is quite possible for these people to fake this test. It's quite possible for them to lie, and it's quite possible for them to have fantasies. But it's up to the individual who is doing the test and is experienced as to be able to define whether he is faking, lying, or in the state of fantasy. Now, we don't use the term, "truth serum." This is a misnomer. I think the laymen picked this up and gave it the label, "truth serum," because they felt when an individual was put under a short-acting phenobarbitol such as sodium Pentothal or sodium amytol or suritol, they have a tendency to tell the truth.
Q. Now, Doctor, I understand that you are not a psychiatrist, that you are a medical practitioner.
A. That's right.
Q. Isn't it a fact, Doctor, that there is disagreement amongst the psychiatric profession and the medical profession as to the reliability of information which is obtained while under the effects of this drug?
A. Now, you stated, Mr. Wegmann, isn't it a fact. I would say it is not a fact. There is disagreement maybe, but not between the medical profession and the psychiatric profession. It's the same. To be a psychiatrist, you have to be in the medical profession, but in different fields, I take it is what you meant. Sodium Pentothal is used quite frequently by some people doing psychiatric specialties and others don't. Some people in the psychiatric field swear by electric shock. Other people think it's outmoded and outdated. They would rather rely on the hemotherapy, such as the tranquilizers, etc. When we get into this field, it's like saying two lawyers; you all have been arguing all day long. One is looking at one set of rules and regulations and this is your opinion. And then the district attorney comes up with his rules and regulations and that's his opinion.
Q. Do I interpret you correct then that it is a matter of opinion amongst the medical profession?
A. No, it's not a matter of opinion; it's a matter of choice. And that's what you were doing. You were choosing a particular law that you thought fit. They chose a particular law that they thought fit the situation. So it's a matter of choice.
Q. Doctor, my notes are that you gave him the test on the same day that you first met Russo, is that correct?
A. Yes, sir.
Q. Now, how long had you talked to Russo before you administered the test?
A. I would say close to an hour.
Q. And that was the only time in your life that you had seen Russo?
A. Yes, sir.
Q. And you testified yesterday that the evaluation of this drug depends to a great deal upon how well the observer knows his subject, is that correct?
A. That's correct.
Q. So when you administered the drug the first time, you had only observed him for an hour?
A. Well, that sounds like a very short time. And I agree with you. And this is what you're trying to bring out. And I'm not going to quibble about that. I didn't spend a week, I didn't spend a month with this man. I spent an hour with him. But, you must remember this, Mr. Wegmann, after seventeen years of experience in dealing with this type of work, you do get to be able to break down the fine points in a short time, and, though I spent an hour with him, I went through quite a bit of his background.
Q. I'm not challenging you.
A. I know that; I'm just explaining it.
Q. But you haven't known Russo for seventeen years; you had only known him a short time.
A. You're right.
Q. And as I understand it, you have only known Russo since when? What was the first time that you saw him?
A. February 27th.
Q. And your sole relationship with this man was between the 27th of February and March 12th? As I understand it, you have not examined him since March 12th?
A. That's correct. I've spoken with him since then. Yes, sir.
Q. But you have not psychiatrically examined him?
A. No, sir. That's correct.
Q. What time on Sunday was this hypnosis performed, Doctor? Approximately what time.
A. I can remember because I almost missed my lunch. We met at 10:00 o'clock [sic] in the Coroner's Office, and it was about 3:00 or thereafter. And it was very vividly because I was trying to get up to Jesuit High School. They were having a meatball and spaghetti dinner for the seniors, and I got there too late. They even closed the doors. And they were closing down at 3:00 clock [sic], so it was after 3:00 that I got there. So, I can remember the time interval very vividly.
Q. And you were the only qualified medical practitioner in the field of psychiatry who was present?
A. I wouldn't say that. I think Dr. Fatter has -- he has to be qualified -- I don't know whether I can state that fact. Let's say this. I have been qualified in the field of psychiatry on other cases and in this case, too. But as to Dr. Fatter's professional ability and his qualifications, I think that depends on the Court.
Q. Dr. Fatter was present only for the hypnosis. He wasn't present for the sodium Pentothal, was he?
A. That's right, yes, sir.
Q. As I understand it, Doctor, it's entirely up to the, I'll call him the operator, to separate the truth from the fantasy, is that correct, during these tests?
A. Yes, sir, and this is based on his knowledge and his experiences. I think it would be the same thing, again, I use you as an example, not meaning you as an individual but collectively. When an attorney sits down with his client and he begins having an interview with him, you can tell rather quickly as to the background of this individual, the veracity of the individual, and you can come to a conclusion of this individual's personality real fast, I am sure of that, because you have had quite a bit of experience, Mr. Wegmann.
Q. That's all, Doctor.
* * * REDIRECT EXAMINATION * * *
BY MR. OSER:
Q. Now, Doctor, Mr. Wegmann asked you a question in regards to your administering the test of sodium Pentothal, speaking of the area of . . .
A. I didn't hear you, Mr. Oser.
Q. I say, Mr. Wegmann asked you a question in regards to the test that you administered of sodium Pentothal, in the area of fantasies, whether or not this individual could be faking or whether or not this could be a fantasy. What is your opinion, Doctor, as to whether or not Perry Russo was a fantasy [sic] or whether he was faking?
BY MR. DYMOND:
Your Honor, we object. This is something that is completely within the province of this Court. No expert can be placed on the witness stand in a case like this and be asked to pass upon the veracity of a witness, which is what this amounts to.
BY JUDGE BAGERT:
I thought the question, now, if I'm in error, let me know. I thought that the question was directed to whether the physician and the expert thought that he was feigning or faking the effects of Pentothal, is that right?
BY MR. WEGMANN:
No. Can we have the question?
(QUESTION READ BY THE COURT REPORTER.)
BY JUDGE BAGERT:
I think you have to take the fantasy out. If you take the fantasy out, we'll let him answer it.
(QUESTION READ BY THE COURT REPORTER.)
Q. Now, Doctor, the defense asked you on cross examination the question about the test that you administered under sodium Pentothal, and about whether or not the subject could be faking. What is your opinion as to whether or not Perry Russo was faking and/or malingering?
BY MR. DYMOND:
If the Court please, we object on the grounds that this is not proper redirect examination. On cross examination we did not cross examine Dr. Chetta on the question of whether or not this witness, Russo, was feigning or faking being under the effects of sodium Pentothal nor hypnosis.
BY JUDGE BRANIFF:
As a matter of fact, that question was asked and answered by the doctor on direct examination.
BY MR. WEGMANN:
We didn't cross examine him on it.
BY MR. OSER:
There are three points, gentlemen. One, the defense asked about fantasy. By this they were inferring that it had been a fantasy on the part of Russo. Two, the defense questioned the interpretation of the test by the doctor when it was asked by Mr. Wegmann how long did he interview the doctor, I mean, how long did he interview Russo prior to administering the drug. Third, the defense asked about the qualifications of the operator, as Mr. Wegmann called him, or the administrator of sodium Pentothal. Now, I think the doctor now has the right to go into whether or not he thinks he was malingering.
BY MR. DYMOND:
If the Court please, none of those questions pertain to the issue of whether this witness was feigning being under the influence of hypnosis or sodium Pentothal. And you would have to stretch it pretty far to feel that they were aimed at that. They were not asked in that manner.
BY JUDGE BAGERT:
We feel that the question has already been answered on direct examination.
MY MR. OSER:
No other questions.
BY MR. WEGMANN:
That's all, Doctor.