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Counsel – Ineffective Assistance – Deficient Performance – Failure to Challenge Hypnotically Refreshed Testimony

State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School

Issue/Holding: Counsel’s failure to challenge a witness’s hypnotically refreshed testimony, as violating the guidelines of State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), was deficient:

¶45. To begin, we are not persuaded by counsel’s explanation of his trial strategy. Counsel said he let the testimony in because it was so inconsistent, yet he had tried earlier to exclude it was irrelevant and prejudicial. Even if it was inconsistent, counsel presumably still thought it was prejudicial. Furthermore, there was a basis to challenge the admission of the testimony under Armstrong. We cannot say whether the trial court would have, in its discretion, granted a motion to exclude the testimony, but counsel should have at least tried. At the postconviction hearing, Zimmerman presented the testimony of professor Alan Scheflin. He stated the hypnosis session did not comply with Armstrong and other standards for hypnotically refreshed testimony, such as being impermissibly suggestive, only videotaping Rene and not the hypnotist, and having the police give too much information to the hypnotist. If the trial court had agreed with Scheflin, it could have suppressed Rene’s testimony.

¶46. If the trial court did not suppress the testimony, an expert would have been able to challenge the hypnotic session as unduly suggestive. At the postconviction motion hearing, Scheflin testified that he found numerous violations of Armstrong’s standards in the hypnotic session, including failure to tape both the hypnotist and Rene. Scheflin also criticized the hypnotist’s oral, as opposed to written, briefing by the police and also noted police told the hypnotist that Rene “was the crucial witness, the key witness,” which violated Armstrong’s requirement that the hypnotist be given minimal information to conduct the session. Finally, Scheflin identified several areas in which the hypnotist added content and structure to Rene’s memories, including the color of the van and whether it turned in front or behind Rene. 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.

Note that deficient performance is found without reaching a conclusion as to inadmissibility of the challenged testimony. Deficiency held prejudicial, in combination with other deficiencies, ¶52, because this witness was the only one who placed Zimmerman in the area where the victim’s body was found, and the jury may have given undue weight to the testimony and its implications, “(g)iven the ‘popular misconception that hypnotized people always tell the truth,’ Armstrong, 110 Wis. 2d at 573.”

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