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The "totality of the circumstances" test is a hybrid that neither automatically admits nor excludes posthypnosis evidence but determines admissibility on a case-by-case basis from the totality of the circumstances. An illustrative list of those circumstances could include: (1) whether the purpose of the hypnosis was therapeutic or investigative, the latter tending to indicate pressure on the subject to remember; (2) whether procedural safeguards were employed with respect to the hypnotic session; (3) whether independent corroborating evidence exists to substantiate the witness's refreshed recollection; (4) whether the witness's posthypnotic recollection was substantially the same as the witness's prehypnotic recollection as actually related; (5) the likelihood that the witness's memory has been tainted by outside influences, or not; and (6) whether, under Ky. R. Evid. 403, the probative value of the evidence is substantially outweighed by its prejudicial effect. Ordinarily, admissibility will be determined at an in limine hearing at which the proponent of the evidence must prove its reliability by a preponderance of the evidence. Ky. R. Evid. 104(a).
Weeks after someone broke into a woman's home and stole money and jewelry, an intruder sexually abused her and stole money and jewelry. She submitted to hypnosis to help her recall the intruder's appearance. In an unrelated investigation, police discovered jewelry stolen in both burglaries in defendant's home. The victim then identified defendant in a photo lineup, identified his voice from an audiotape, and viewed him in a "showup." The trial judge overruled defendant’s pretrial motion to suppress the victim’s photograph and voice identifications of him as the perpetrator, finding that the photo and audio lineups were not unduly suggestive so as to violate the defendant's rights. The trial judge also found that the failure to provide a physical lineup and the fact that the victim was subjected to hypnosis prior to her photo and voice identifications were simply part of the totality of circumstances to be considered in determining the validity of the identification. The grand jury rendered separate indictments for the two incidents, but they were subsequently consolidated for the purpose of trial. Defendant was then convicted of burglary in the second degree, robbery in the first degree, and sexual abuse in the first degree. Defendant appealed.
The supreme court held that, as evidence necessary to prove each offense was admissible to prove that defendant was the perpetrator of the other, joinder of both offenses for trial was proper. That the victim observed defendant by way of a suggestive showup did not make her identification inadmissible, as she had previously identified him in the photo and audio lineups; further, her identification was corroborated by defendant's possession of her jewelry. Adopting the "totality of circumstances" test, the supreme court held that the victim's posthypnotic identification of defendant was admissible, as it was corroborated by defendant's possession of the jewelry, and it was unlikely the victim's memory was tainted by suggestion or confabulation.