Criminal – First-Degree Murder And Kidnapping – Hypnotized Witnesses

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Where a defendant was convicted of kidnapping and murder, the convictions should be affirmed because (1) the evidence was sufficient to support the convictions, (2) the integrity of the grand jury proceedings was not impaired, (3) the trial judge committed no error in declining to exercise individual voir dire questioning of the jurors regarding “prior bad act” evidence, (4) the fact that some of the witness had been hypnotized did not require suppression of their testimony regarding facts that were documented in the record before the hypnosis procedures were performed, (5) the defendant was not unfairly prejudiced by missing evidence and (6) a curative instruction was sufficient to remove any chance of prejudice resulting from the prosecutor’s improper statements.

Hypnosis Issue

“Exceeding our directive in [prior appeals involving the same defendant] in a manner more favorable to the defendant, the judge permitted previously hypnotized witnesses to testify only to facts that were documented in the record before their hypnosis procedures were performed. We believe that such limitations on the witnesses eliminated the risk that their testimony might be affected by hypnosis. To the extent that [defendant James M.] Kater was faced with the difficult choice of either refraining from asking a question on cross-examination or risk opening the door to damaging evidence, his choice was no different from those faced by other defendants who succeed in suppressing certain evidence. They either forgo certain areas of cross-examination or forfeit the benefit of suppression. The defendant raises no issues here that this court has not already considered. There was no error.”

Commonwealth v. Kater (Lawyers Weekly No. 10-174-00) (30 pages) (Spina, J.) (SJC) Cases tried before Lauriat, J., in Superior Court. Joseph F. Krowski and Michael A. Bergeron for the defendant; Elspeth B. Cypher for the commonwealth (Docket No. SJC-07967).