## Facts

- N.T. was sexually assaulted and robbed in her home by an intruder.
- Immediately after the assault, N.T. gave police only a limited description (approximate height and weight; “white skin and light hair”) and could not identify anyone in an initial photographic array.
- Months later, N.T., acting on her own and not at police direction, underwent hypnosis by a certified hypnotherapist who was an acquaintance of her husband; others were present during the session.
- During hypnosis, N.T. described the assailant as “bald with a full beard,” a detail she had not provided earlier.
- Nearly a year after the assault, police searched Franklin Roark, Jr.’s residence for unrelated reasons and found items stolen from N.T.
- Police then showed N.T. a new photo array including Roark; she immediately identified him as her attacker.
- Police also administered a voice lineup; N.T. identified Roark’s voice as that of the assailant.
- Before trial, Roark moved to suppress the photo and voice identifications as unreliable due to hypnosis; the trial court denied the motion, finding the lineups not unduly suggestive.
- Roark was convicted and received two concurrent enhanced life sentences.

## Issues

1. Whether a witness who has undergone hypnosis is competent to testify and make an in-court identification when the testimony includes post-hypnosis recollections.
2. Whether post-hypnosis photographic and voice identifications must be excluded as unreliable or as the product of impermissibly suggestive procedures in violation of due process.

## Decision

- The Supreme Court of Kentucky affirmed the convictions and sentences.
- The court rejected a per se rule excluding hypnotically refreshed testimony or identifications.
- It held N.T. remained competent to testify; hypnosis affected weight and credibility, not admissibility by itself.
- It concluded the photo array and voice lineup were not unduly suggestive and, under the totality of circumstances, were sufficiently reliable to be admitted.

## Legal Principles

- Kentucky does not categorically bar hypnotically refreshed testimony; admissibility is governed by ordinary rules of competency, relevance, and reliability.
- Concerns about hypnosis (e.g., confabulation, increased confidence) are ordinarily addressed through cross-examination, expert testimony, and jury instructions.
- Identification evidence is evaluated for due process purposes by asking (1) whether the procedure was impermissibly suggestive and, if so, (2) whether the identification is nonetheless reliable under the totality of circumstances.
- The defendant bears the initial burden to show the identification procedure was impermissibly suggestive; absent suggestiveness, reliability disputes generally go to the jury.
- Privately arranged hypnosis not orchestrated by law enforcement does not, by itself, trigger suppression of later identifications.

## Conclusion

The court held that hypnosis did not render the victim incompetent or automatically taint later identifications; because the photographic and voice procedures were not unduly suggestive and the identifications were sufficiently reliable, the evidence was properly admitted and the convictions and life sentences were affirmed.


Roark v. Commonwealth, 90 S.W.3d 24 (Ky. 2002)