## Facts

- Clarence Moore was charged with burglary, robbery, and aggravated sexual assault arising from an attack on a victim, M.A.
- After the attack, a psychologist retained by the prosecution hypnotized the victim to improve her recall of the assailant’s appearance.
- After hypnosis, the victim identified Moore in a photo array and later identified him in court.
- At Moore’s trial, the court admitted the victim’s hypnotically refreshed testimony and identifications under then-existing New Jersey safeguards governing hypnosis-based evidence.
- On review, concerns were raised that scientific developments undermined the reliability assumptions behind the prior safeguard-based framework.
- A remand resulted in a plenary hearing with extensive expert testimony regarding hypnosis and memory.
- After the hearing, the trial court ruled hypnotically refreshed testimony should no longer be admissible, dismissed the indictment, and the Appellate Division affirmed.
- The State appealed to resolve whether hypnotically refreshed testimony should be admitted in criminal cases and whether the prior safeguards should be retained or abandoned.

## Issues

1. Whether hypnotically refreshed testimony by a witness in a criminal case is admissible in light of contemporary scientific understanding of hypnosis and memory.
2. Whether procedural safeguards for hypnosis-based evidence are sufficient to address reliability and fairness concerns, or whether exclusion is required.
3. Whether New Jersey should adopt a categorical rule barring hypnotically refreshed testimony in criminal trials.

## Decision

- The Supreme Court of New Jersey affirmed the judgment dismissing the indictment.
- The court held that hypnotically refreshed testimony in criminal trials is generally inadmissible.
- The court adopted a per se rule excluding hypnotically refreshed testimony, concluding it is inherently unreliable and not adequately cured by procedural safeguards.
- The court determined that the prior safeguard-based approach was no longer an acceptable basis for admission in criminal cases.

## Legal Principles

- Hypnotically refreshed testimony is excluded in New Jersey criminal trials because hypnosis poses reliability risks that cannot be adequately controlled through procedural protocols.
- Hypnosis can increase suggestibility and encourage confabulation, creating recollections that may feel authentic yet be inaccurate.
- Hypnosis may increase a witness’s confidence without increasing accuracy, risking undue weight by jurors and impairing effective credibility testing through cross-examination.
- When a technique’s probative value is substantially outweighed by risks of distortion and unfair prejudice, categorical exclusion may be warranted to protect fair adjudication.
- Courts may abandon earlier admissibility frameworks when subsequent scientific evidence shows the underlying assumptions about reliability are unsound.

## Conclusion

The New Jersey Supreme Court barred hypnotically refreshed testimony in criminal cases under a per se rule of inadmissibility, concluding that hypnosis-related distortion and false certainty are inherent and cannot be sufficiently mitigated by procedural safeguards, and it affirmed dismissal of the prosecution that relied on such evidence.


State v. Moore, 188 N.J. 182, 902 A.2d 1212 (N.J. 2006)