Hypnosis use contested in Wolff murder trial

By Matt Pordum

Friday, Sept. 3, 2004 | 8:49 a.m.

The validity of hypnosis became an issue of contention Thursday when prosecutors moved to keep statements allegedly made by a defendant in a murder trial from being heard by the jury.

The statements are at issue in the trial of 35-year-old Daniel Wolff, who is charged with the December 2001 murder of 40-year-old Richard Marotto.

Deputy District Attorney Ross Miller said the hypnosis sessions Wolff underwent with certified hypnotherapist Lane Keck failed to meet the standards set by Nevada law for allowing hypnosis-based testimony into a trial.

District Judge John McGroarty was expected to rule this morning on the issue.

Miller said Keck failed to meet one of the three requirements regarding a "person who induced the hypnosis."

Nevada law says that for hypnosis induced statements to be introduced at trial, the hypnotist must either be "a provider of health care, clinical social worker who is licensed to pursuant to chapter 641B of NRS (Nevada Revised Statutes), or an officer or employee or former officer or employee of a law enforcement agency, who is trained in forensic hypnosis and who is not otherwise currently involved in the investigation of a case of action in which the witness is a victim, witness or defendant."

Keck told Miller he failed to qualify under any of the three requirements.

Additionally, Miller said, special public defender Bret Whipple failed to provide the prosecution with a written copy of "the entire session at which the hypnosis was induced" or a videotaped or audiotaped copy of the session.

Keck said he didn't have a written record of the sessions or a video or audiotape of the session to hand over.

Whipple argued it didn't matter whether Keck had a record of the sessions or not because Keck was paid to do the work by the defense, so asking him to turn over all his notes and the record of the session would violate attorney-client privilege.

Whipple said under Nevada law Keck is a "representative of the lawyer," which is a person employed by the lawyer to assist in the rendition of professional legal services. As such, Keck is not required to turn over any confidential communication to the court given by Wolff.

Whipple also said the U.S. Supreme Court had already ruled that prohibiting the admission of hypnotically refreshed testimony violated a defendant's constitutional right to testify on her own behalf as a defendant in a criminal case.

Whipple said since the 10th Amendment states federal law supersedes state law, the state law wasn't applicable in Wolff's case.

Prosecutors allege that after a night of partying, Wolff went home with Marotto and killed him then stole a variety of items from Marotto's house and pawned Marotto's jewelry at four different pawn shops in Las Vegas.

Whipple has said that Wolff reacted violently when he awoke at Marotto's home, high on the club drug GHB, and discovered that Marotto was raping him.

Wolff was expected to take the witness stand later today.