"You Feel Very Sleepy ..."


Charge: murder in the first degree. Evidence for the state tended to show that Wilma Norris was the employer of Linda Lingle. The cause of death in each instance was a bullet wound in the back of the head.

The principal prosecution witness, Barbara Kiser, testified, "Sometimes I knew that I saw the defendant kill them and sometimes I really knew I hadn't seen him; I just know I couldn't remember." At her request she had been hypnotized a few weeks prior to trial. She testified, "When I was under hypnosis I was able to actually go back to that day five years ago and just relive the whole morning and see the whole day like it was right now, everything was fresh. I remember now that I saw those women being shot by Roger McQueen [the defendant]."

Defense counsel were given a tape of the hypnosis procedure the day before trial. It was not offered in evidence. The hypnotist was not called as a witness either by the state or the defense. The record contains no testimony concerning the hypnotic procedure or what the witness related while under hypnosis.

Defendant contended at trial that Kiser had killed Norris and Lingle and objected to Kiser's testimony on the grounds that it was false and the result of her pretrial hypnosis.

Did the court err in allowing Kiser's testimony? How would you cross-examine or otherwise defend against hypnotically recollected evidence?

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