Nature of the Case
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Facts
M.A. was sleeping in her cottage when a man woke her by grabbing her neck and demanding money. The man repeatedly sexually assaulted and threatened her, telling her not to look at him. She did get a look at him. After the assault, M.A. remained in her bed for four hours, fearing the man was still in the house. At daylight, M.A. sought the assistance of a neighbor, who contacted police. M.A. thought her attacker might be an African-American man of medium build. Later that day, M.A. described her assailant as black in his late twenties to mid-thirties, with short hair and a short beard. She also indicated that she saw him only once and that he was wearing jeans. Because she was unable to provide sufficient information to develop a composite sketch, M.A. suggested hypnosis. She stated that there was not much light in the bedroom only enough to see shadows and outlines of things, but nothing in detail and that she did not remember anything distinctive about her attacker, though she thought he had a light beard and a round face. Prior to being hypnotized, M.A. removed her contact lenses. When hypnotized she thought her assailant wore a suede jacket and was a medium-skinned black male. The doctor advised her that after she came out of hypnosis, M.A. would remember the face of her assailant “very clearly.” M.A. chose Moore (D), who did not have a beard, from a photo array. She identified D from two more photo arrays, one of which was actually a photograph of a lineup. D was the only person common to all three arrays. D was indicted, and after pre-trial hearings, the trial court ruled that M.A.’s hypnosis complied with Hurd, and permitted M.A.’s testimony as refreshed recollection. The court further ruled that M.A.’s out-of-court and in-court identifications of D were sufficiently reliable to be admitted at trial. P played a portion of the tape of the hypnosis session with M.A. P offered no corroborating evidence of M.A.’s identification of D. M.A. made an in-court identification of Moore as the person who assaulted her. M.A. explained that hypnosis made her assailant’s face much clearer with the features more detailed. D was convicted, and it was affirmed. D sought relief in the federal courts. In 2001, the Third Circuit overturned the conviction based primarily on prosecutorial misconduct. This time D made a motion to hold hypnotically assisted testimony inadmissible or, alternatively, to suppress M.A.’s hypnotically assisted testimony. P appealed the dismissal of the indictment and D cross-appealed the denial of his other motions. The Appellate division held there was no prejudicial prosecutorial error in the grand jury presentation, and also ordered the trial court to conduct a hearing on the admissibility of the hypnotically refreshed eyewitness testimony. D petitioned to decide whether Hurd remained viable law.
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