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Univ. of South Carolina School of Law

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Thursday, January 31, 2008

I Put A Spell On you: Wisconsin Court Allows For Admission Of Hypnotically Refreshed Testimony

John Joseph Moore is currently standing trial, facing charges that he she shot and killed a young mother while she was driving down Interstate 20 in Wisconsin in 2004.  The young mother was Stephanie Dover, and the case is just reaching trial now because her fiance, Gene Derrick, was able to relay the facts of the shooting to police, but told police that he was unable to see the license plate number of the black pickup truck from which the gunshots emanated.  Police, however, eventually charged Moore after he told them that someone in Dover's car made an obscene gesture to him, altough he has denied shooting Dover. 

Despite Derrick's claims about not seeing the license plate number, investigators thought that they could trigger his memory through hypnosis, and apparently the hypnosis at least partially worked because the prosecution wanted introduce the tape of Derrick's hypnosis into evidence.  On Tuesday, the judge hearing the case said that in his 17 years on the bench, he'd never seen proferred hyponosis evidence, but he ruled that the prosecutor could admit it.  The judge's statement makes me wonder (and hope) that he followed the correct procedure for determining the admissibility of hypnotically refreshed testimony.

As I've noted before, courts are sharply split on whether and/or under what circumstances hypnotically refreshed testimony is admissible, with at least four different approaches being taken.. See State v. Johnston, 529 N.E.2d 898, 904-05 (Ohio 1988).  In State v. Armstrong, 329 N.W.2d 386, 394 n.23 (Wis. 1983), the Supreme Court of Wisconsin set forth nine factors for Wisconsin courts to consider when deciding to admit hypnotically refreshed testimony:

     -1. The person administering the hypnotic session ought to be a mental health person with special training in the use of hypnosis, preferably a psychiatrist or a psychologist.

     -2. This specially trained person should not be informed about the case verbally. Rather, such person should receive a written memorandum outlining whatever facts are necessary to know. Care should be exercised to avoid any communication that might influence the person's opinion.

     -3. Said specially trained person should be an independent professional not responsible to the prosecution, investigators or the defense.

     -4. All contact between the specially trained person and the subject should be videotaped from beginning to end.

     -5. Nobody representing the police or the prosecutor or the defendant should be in the same room with the specially trained person while he is working with the subject.

     -6. Prior to induction a mental health professional should examine the subject to exclude the possibility that the subject is physically or mentally ill and to confirm that the subject possesses sufficient judgment, intelligence, and reason to comprehend what is happening.

     -7. The specially trained person should elicit a detailed description of the facts as the subject believes them to be prior to the use of hypnosis.

     -8. The specially trained person should strive to avoid adding any new elements to the subject's description of her/his experience, including any implicit or explicit cues during the pre-session contact, the actual hypnosis and the post-session contact.

     -9. Consideration should be given to any other evidence tending to corroborate or challenge the information garnered during the trance or as a result of post-hypnotic suggestion.

I've seen issues of hypnotically refreshed testimony arising with much more frequency than in the past, and it will be intersting to see whether the the approaches taken become more uniform or varied.

-CM

 

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