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Hypnosis Case Analysis

By: dmc-admin//August 20, 2003//

Hypnosis Case Analysis

By: dmc-admin//August 20, 2003//

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As only the second court of appeals’ decision since Armstrong was decided to consider hypnotic testimony, the decision has great importance (the other is State v. Coogan, 154 Wis.2d 387, 453 N.W.2d 186 (Ct.App.1990)).

Furthermore, as a result of the decision, defense attorneys should consider it their duty to obtain an expert witness whenever hypnotically-induced testimony is used by the State.

The court expressly declined to state an opinion on whether Rene’s testimony should or should not have been admitted. This is not surprising, as the court of appeals will rarely be in a position to make such a decision.

The court in Armstrong stated, “The [nine factors] are merely guidelines, not imperatives; others could be equally helpful. If the state complies with these or similar guidelines, the trial judge’s task of assessing the presence of suggestiveness in the hypnotic session would be facilitated. However, compliance with the guidelines does not guarantee that the hypnotized witness’ testimony will be admitted. Nor does the failure to comply with the guidelines require exclusion. The central inquiry remains whether, as a result of events occurring during the hypnosis session, any subsequent statements made by the hypnotized subject should be considered so unreliable as not to be admissible at trial.” Armstrong, 110 Wis.2d at 571-172, n.23.

Given the broad discretion that trial courts have on this issue, it will be difficult in appeals to establish prejudice based only on a trial attorney’s deficiencies in challenging the admission of the evidence. It is a high burden to show that challenging the evidence based on the Anderson factors would have resulted in the trial court excluding the testimony.

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Wisconsin Court of Appeals

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However, pursuant to Armstrong, expert testimony can always be used to show the jury that the hypnosis was unreliable for failing to meet any of the nine Armstrong factors, as well as any other factor that may bear on reliability.

The court in the case at bar stated, “While we take no position whether the hypnosis session violated Armstrong’s requirements, counsel should have at least presented available expert testimony challenging the hypnosis session and the reliability of Rene’s testimony.”

As such, expert testimony should always be used when hypnotic testimony is presented, and the failure to do so should always be deemed ineffective assistance of counsel (barring some very sound trial strategy). The right to introduce expert testimony on hypnotic recollection, as recognized in Armstrong, should properly be viewed as a duty on the part of defense counsel to consult expert testimony, if not necessarily to present it.

As for the remaining errors — failing to consult an outside medical expert, and failing to elucidate that the DNA evidence was not merely inconclusive as to Zimmerman, but actually proved the presence of an unknown third party — the deficiency and prejudice is so clear that little needs to be said.

– David Ziemer

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David Ziemer can be reached by email.

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