EvidenceProf Blog

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

Monday, January 14, 2008

Died In South Dakota: David Lykken Murder Trial Raises Interesting Evidentiary Issues

The upcoming murder trial in South Dakota for David Lykken has already proven to be chock full of interesting evidentiary issues.  Lykken's trial for allegedly killing two Vermillion girls in 1971 is scheduled to finally start in March, but there remain several questions about what evidence can be admitted at trial.  Here are some of the key pieces of evidence and my thoughts on them:

     -A prosecution witness wants to testify that Lykken's sister-in-law told him that her father, Lykken's brother, and Lykken's father all helped cover up the crime after David Lykken killed the girls.  The sister-in-law has denied making such statements.

My conclusion is that the prosecution witness cannot testify about the sister-in-law's alleged statement because it is hearsay under SDCL 19-16-1(3) in that it "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Furthermore, even if the sister-in-law were considered a co-conspirator of Lykken based on additional facts, her statements would not be admissible as co-conspirator's admissions under SDCL 19-16-3(5) becuase they would not have been made "during the course and in furtherance of the conspiracy."

     -The prosecution claims that police may have memory enhancement techniques that can help Lykken's sister recall what happened to the Vermillion girls, which will allow her to testify against her brother at trial.

Presumably, the prosecution is saying that it can hypontically refresh the sister's memory.  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. Boykin, 432 N.W.2d 60, 67-68 (S.D. 1988), South Dakota took its procedure from the EIghth Circuit Court of Appeals opinion in Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985).  Pursuant to this procedure, hypnotically refreshed testimony is admissible only if the following procedural safeguards are met:

     -1) Only an impartial licensed psychiatrist or psychologist trained in the use of hypnosis should conduct hypnotic sessions;

     -2) Any information given to the hypnotist should be noted, preferably in written form;

     -3) The hypnotist should obtain a detailed account of facts from the subject before hypnosis;

     -4) The session should be recorded, preferably on videotape; and

     -5) No one other than the hypnotist and subject should be present during the session, unless it is shown the other's attendance was essential and that steps were taken to avoid influencing the results.

Thus, if the sister's memory can be refreshed through hypnosis, the admissibility of her testimony will depend on whether these safeguards are followed.

     -An expected key witness is fellow inmate Aloysius Black Crow.  Lykken allegedly admitted the murders to Crow, who wrote notes about the confessions and recorded them by wearing a wire.  Defense counsel claims that the notes are hearsay and that the state can't prove that it is Lykken's voice on the tapes.

My conclusion is that Lykken's statements to Black Crow are admissions pursuant to SDCL 19-16-3(1) because they are statements by a party -- the criminal defendant -- offered against him at trial.  Furthermore, Black Crow's notes would likely constitute "recorded recollections" under SDCL 19-16-19, making them admissible as an exception to the rule against hearsay.  Furthermore, Lykken's voice could be authenticated throuh a variety of means, inlcuding Black Crow's testimony that he recorded Lykken making the confessions, the testimony of any lay witness with knowledge of Lykken's voice identifying his voice as the voice on the tape, and the testimony of an expert witness comparing the voice on the tape to Lykken's voice. See SDCL 19-7-1.



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The case has taken an interesting turn: the charges have been dismissed. The tape recording was a fake with another prisoner's voice (not that of the defendant).

What has been ignored in the media is that the State, in the persons of Assistant Attorney General Rod Oswald and the Cold Case agents, was told almost two years ago that the voice was not that of the defendant.

The State still attempted to enter this key evidence (and the only 'real' evidence they had) without any voice analysis.

I am sure the defense lawyer, a well-respected attorney in the state, could give you some eye-openers about the travesty of this case.

Posted by: Mike | Mar 1, 2008 8:48:43 PM

I bet these people feel pretty dumb now that they unearthed the girls in a wrecked studebaker..

Posted by: Magpie | Apr 15, 2014 6:48:10 PM

The case has now been solved. The bodies were found in a submerged car last September and it was announced today that the girls died in a car accident.

Posted by: Me | Apr 15, 2014 10:13:57 PM

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