EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 23, 2007

Capturing The Friedmans, The Aftermath: Hypnosis Evidence Should Not Overturn Convictions

A few years ago, some of you might have watched Andrew Jarecki's Academy Award nominated documentary, "Capturing the Friedmans." Jarecki initially wanted to make a documentary about children's birthday party entertainers in New York, including David Friedman.  Jarecki, however, learned that David's brother, Jesse, and his father, Arnold, had been convicted of sex crimes against children whom they taught in computer classes out of their Long Island home, and decided to shift the focus of his documentary to them.

Arnold Friedman committed suicide in jail, but Jesse, who pleaded guilty as a teenager to 243 counts of sex crimes against children after several alleged victims gave grand jury testimony, served 13 years.  Based upon the documentary, Jesse has now sought to have his convictions overturned and clear his family name, a la Randall Adams in the wake of Errol Morris' documentary "The Thin Blue Line."

It is extremely unlikely, however, that he was have similar success.  In Jarecki's documentary, a 24 year-old man stated that he remembered being abused by the Friedmans only after being hypnotized.  Upon seeing the doc, Jesse and his lawyer investigated and determined that several other youths making abuse allegations against the Friedmans only made these allegations after being hypnotized.  Hypnotically refreshed testimony is inadmissible in New York courts.

It seems that Jesse could raise two arguments, both of which would fail.  First, Jesse could claim that the fact that these individuals were hypnotized was material, exculpatory evidence under Brady v. Maryland, which prosecutors failed to disclose before their Grand Jury testimony, necessitating a new trial.  This argument would fail because in United States v. Williams, 504 U.S. 36 (1992), the Supreme Court found that Brady evidence does not need to be disclosed at the Grand Jury stage.

Jesse could also argue that his confession was not "voluntary" because it was given without him knowing that the alleged victim's statements against him would be inadmissible at trial.  This argument will also fail because New York courts, like other courts, have held that a confession is not rendered involuntary simply because the police or or others procure it through inadmissible evidence such as polygraoh results; in fact, the police can even procure a confession based upon deceptive or false statements as long as they are not fundamentally unfair. See, e.g., People v. Garcia, 284 A.D.2d 106, 107 (N.Y.A.D. 1 Dept. 2001).



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