Hypnosis

In general

• A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. A witness does not have personal knowledge as to a matter recalled or remembered, if the recall or remembrance occurs only during or after hypnosis. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Evid. R. 602(emphasis added)

• Evidence derived from a witness while he is in a hypnotic trance is inherently unreliable and should, therefore be excluded as having no probative value.

Strong v. State, 435 N.E.2d 969, 970 (Ind. 1982)

• We have not barred other testimony from that same witness when it can be shown by clear and convincing evidence that the testimony is the product of a factual basis independent of the hypnosis.

Drake v. State, 467 N.E.2d 686, 688 (Ind. 1984)(emphasis added)

• We think the victim's in-court identification had an independent basis, free from any possible subsequent influences the hypnosis session might have had. … Thus, even though appellant did not object at the time, we think the prosecution presented clear and convincing evidence of an independent basis for the victim's in-court identification.

Merrifield v. State, 400 N.E.2d 146, 149-50 (Ind. 1980)

• [Eyewitness identified the defendant at trial. Defendant tried to exclude this eyewitness’ testimony based on a line in the eyewitness’ medical records which suggested that the eyewitness might have been hypnotized before she gave a recorded statement to the police. The trial court allowed the eyewitness identify the Defendnat in her testimony. Court of Appeals affirmed]

[Defendant] did not establish that [Witness] was hypnotized. Moreover, [Witness] unequivocally identified [Defendant] as her assailant before giving her recorded statements to police. To the extent [Defendant] argues on appeal that [witness’s] identification testimony was inadmissible under Indiana Evidence Rule 602, he has waived this argument. The trial court did not abuse its discretion in denying the mistrial because the facts do not demonstrate that [Defendant] was placed in a position of grave peril by [Witness’s] identification testimony.

King v. State, 799 N.E.2d 42, 47 (Ind. App. 2003), trans. denied, cert. denied, 543 U.S. 817 (2004)