The credibility of Steven J. Cook’s testimony elicited under hypnosis is emerging as a key legal issue in his sexual-abuse lawsuit against Cardinal Joseph Bernardin and another priest, according to defense lawyers.
Cook already faces a major legal obstacle because his suit may have been filed too late under the law in Ohio, where the case will be tried in federal court.
Now, questions are being raised by defense attorneys about whether the therapist who hypnotized Cook was qualified or used reliable techniques. After undergoing hypnosis, Cook, who lives in Philadelphia, said he remembered incidents of clerical sexual abuse while he was a high school student in Cincinnati in the late 1970s.
Federal and state courts have held that evidence gathered through hypnosis is admissible only if it meets specific requirements. Among those are that the therapist be properly trained and use widely recognized techniques with safeguards to prevent the therapist from introducing a false memory.
Defense attorneys, who would not publicly discuss details of the case, interviewed Cook’s therapist, Michele Moul, for several hours last week in Philadelphia. In giving a sworn statement, Moul told of her sessions with Cook in September and October, just a month before he filed his $10 million suit, according to the attorneys.
After those sessions, Cook said he recalled abuse 17 years earlier by Bernardin and Rev. Ellis Harsham.
Harsham was a priest at a Cincinnati seminary where Cook was enrolled in a program. Bernardin, now head of the Chicago Roman Catholic Archdiocese, was then head of the Cincinnati archdiocese.
Moul is not a licensed psychiatrist, defense lawyers said. The lawyers said they expect to challenge the techniques she used in her hypnosis of Cook, saying they do not meet the standard necessary for admission as evidence.
According to court documents, there is no evidence that Cook had any recollection of Bernardin before the therapy sessions. That raises questions about whether the memories were introduced during the course of therapy, attorneys said.
Neither Moul nor Cook’s attorney, Stephen C. Rubino, could be reached for comment.
Moul received a master’s degree in applied psychology from the University of Santa Monica, an unaccredited institution, in 1988, said registrar Marla Keesee. Moul has since operated a graphic arts studio.
If U.S. District Judge S. Arthur Spiegel agrees to exclude the evidence, the attorneys could then ask him to rule on the case before it went to trial in a motion for summary judgment.
That would provide Bernardin with perhaps his best legal strategy of proving his accuser has no case and avert the painful publicity sure to come with a trial, which is set for May 9.
The argument may be less useful for the other defendants, including Harsham.
“This evidence, which may be the only convincing evidence, would control whether the case (against Bernardin) could even proceed,” said Louis A. Jacobs, a professor of law at the Ohio State University College of Law and author of “Ohio Evidence: Objections and Responses.”
“If admitted, it (the evidence) could suffice,” he said. “If excluded, it could demolish.”
A ruling for Bernardin would mean a victory on the merits of the case, not just a dismissal on a technicality, because Spiegel would have to say there is no dispute about the facts and Bernardin would win as a matter of law.
Winning on the merits has been a concern with another possible legal strategy for Bernardin.
Such a ruling would be more desirable than persuading the judge to dismiss the case on what is viewed as a technicality, that the suit was filed too late under Ohio law. Legal experts say such a ruling still would leave doubts because issues of evidence would not be addressed.
“It’s a very deft strategy if it works,” said Robert Burns, a professor at Northwestern University Law School who teaches evidence. “The problem is that they’re going to have to get a judge to say there is not a substantive issue of material fact when the core issue is the credibility of a witness.”
As Burns noted, that is no small task. Because the case is in U.S. District Court, the federal rules of evidence apply. Those typically are more liberal than most state-court regulations, including those in Ohio, in terms of allowing a witness to testify in court.
The first issue attorneys will confront is the degree to which Cook was hypnotized and if his recollections were the result of the therapy. Then attorneys are expected to debate the validity of testimony induced or refreshed by hypnotism.
While hypnotism was recognized in 1958 as a valid therapy by the American Medical Association, no consensus exists regarding its use to refresh memory, as the U.S. Supreme Court noted in a 1987 case.
While some courts initially rejected such testimony, the Supreme Court rejected a flat rule that it is always inadmissible. It noted the approaches taken by other courts in handling the evidence, such as requiring various safeguards, but it did not establish a set of guidelines.
The Ohio Supreme Court, for example, has directed trial courts to focus on six specific safeguards to ensure reliability. Those safeguards include requiring the hypnosis be done by a licensed psychiatrist or psychologist, as well as requiring detailed recordings of a client’s memories before the session.
Federal courts, however, have taken various approaches. The U.S. Court of Appeals for the 6th Circuit, whose jurisdiction includes Ohio, has not ruled on the specific point. It approved the procedures used to hypnotize a witness in a 1986 Tennessee criminal case.
