Serial Murder: Future Implications for Police Investigations
The judgments of conviction and sentences of death were affirmed.
(1) The Florida Supreme Court found that, based upon Ms. Neary's testimony, the hypnotic session did not add to or change her essential description of the man she saw.21
The court stated:
From the time of her initial statements on the morning of the crimes, through all her interviews by police, through all her pretrial statements, up to and including her in-court description of the man she saw, Ms. Neary's description remained substantially consistent.22
The court further stated:
This is not a case where the state relied at trial on the technique of hypnosis to show how an improved recall of past events was obtained. It is not a case where the state sought to present an expert to state an opinion as to the accuracy or reliability of testimony derived from a hypnotic examination. It is not a case where the state sought to refer to the technique of hypnosis to bolster the credibility of a previously hypnotized witness. The matter of the hypnosis was only raised by the defendant's motion to suppress Nita Neary's testimony.
...Under these circumstances, we do not hesitate to hold that the fact that hypnosis took place was a matter relating only to the weight of the testimony and not to its admissibility. Furthermore, under these circumstances the burden was on the defense to establish that the hypnosis rendered the testimony so unreliable as to be inadmissible and this it failed to do.23
(2) Bundy claimed that Ms. Neary had seen a photograph in the newspaper which may have influenced her choice from a police array of photographs. The court related that in some previous cases an impermissibly suggestive photographic identification does not apply to situations where a witness had earlier observed a picture of a defendant in the news media. Others have found that there was not a substantial likelihood of misidentification where, as in this case, the witness asserted that seeing the suspect's picture in the news media did not influence his or her identification. Ms. Neary testified that the newspaper photographs had no effect on her because they were not profiles. Her view of the intruder was a profile and so was the picture she selected from the lineup. Because Bundy failed to show that the police used an impermissibly suggestive procedure in obtaining an identification, the court found the Ms. Neary's identification testimony was properly admitted.24
Additionally, Bundy claimed that the police made a suggestive comment when an officer asked her to "select the photograph of the person that resembled the suspect." The court stated, "This remark implying that the suspect's picture was included in the array of '10' photographs did not render the procedure impermissibly suggestive."25