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Hypnosis Evidence Fought in 'Stalker' Trial

Women's Testimony Would Be Tainted, Attorneys for Md. Man Argue

By Ian Shapira
Washington Post Staff Writer
Thursday, March 3, 2005; Page B04

After a stranger pulled her over using a ruse on Route 29 in Culpeper County, Anne Fulcher had trouble recalling much about the man's truck or his license plate number.

Law enforcement authorities, who believed that the man was trying to abduct women that winter of 1996 along the highway by trying to convince them that they had car trouble, were eager for any information that could help their investigation.

Darrell D. Rice, 37, shown in 2002, is accused of a 1996 abduction that authorities say was the work of the "Route 29 stalker.'' His trial is set for next month in Prince William County. (Andrew Shurtleff -- AP)

So that spring, Fulcher underwent hypnosis for two hours, conducted by a licensed psychologist in a Holiday Inn. Once hypnotized, the then-30-year-old Culpeper woman described the truck -- it was maroon, she said -- and recalled that its license plate was white with blue letters, with perhaps an L and P.

Prosecutors are expected to argue today that Fulcher and another woman who was hypnotized should be allowed to testify in the upcoming trial of Darrell D. Rice, 37, the Maryland man accused of being the so-called "Route 29 stalker."

Rice's attorneys have said in court papers that the women should not be allowed to testify because their hypnosis has essentially tainted them. They said that the procedures are "suggestive" and that their testimony violates Rice's constitutional right to cross-examine witnesses because they have an "artificial confidence" in their memories.

And even though the two women did not identify Rice through their hypnosis procedures, the defense attorneys said the women's testimony is nonetheless inadmissible. They cite a Virginia Court of Appeals opinion that states that witnesses are incompetent to testify about any "facts or circumstances" recalled for the first time about the case "during, or subsequent to, hypnosis."

Defense attorney James G. Connell and Assistant Commonwealth's Attorney William Jarvis declined to comment, citing a court-imposed gag order restricting attorneys from discussing pending motions.

Legal experts say it is rare for prosecutors or defense attorneys to call as a witness anyone who has been hypnotized for investigative purposes.

"Usually you have better evidence than that," said Thomas L. Hafemeister, a law professor and director of legal studies at the Institute of Law, Psychiatry and Public Policy in Charlottesville. "I'd be cautious. It could be so prejudicial. The witnesses are likely, as a result of hypnosis, to be more certain about what happened and they could be more confident and persuasive" in front of juries, he said.

But Arlington County Commonwealth's Attorney Richard E. Trodden said that even though the women were hypnotized, they should be allowed at least to testify about their identification of Rice, which took place six years after they were hypnotized.

"How do you be suggestive to a witness [undergoing hypnosis] about someone who's never been arrested yet?" he asked.

Rice, a former computer technician, faces trial next month in Prince William County Circuit Court for allegedly abducting one female motorist in 1996 near Manassas.

But prosecutors want to introduce as witnesses other potential victims to show that there was a pattern.

Law enforcement officials believe that more than a dozen women were stopped; defense attorneys have put the number at closer to 30.

Rice has been charged with abduction with intent to defile, malicious wounding and robbery in the Feb. 24, 1996, attack on a Quantico woman on Route 234 between Manassas and Woodbridge. Rice, who is serving an 11-year sentence for trying to abduct a female bicyclist in an unrelated case in Shenandoah National Park, faces up to life in prison if convicted.

He did not become a suspect in the Prince William case until April 2002, when he was indicted on capital murder charges in the 1996 double slaying of two Shenandoah National Park hikers. Those charges were dismissed when DNA evidence did not link him to the killings.

Prince William prosecutors want Fulcher and another woman who was hypnotized, Janet Doyle Arsenault, to testify. The two women identified Rice in a photo lineup as the man -- or resembling the man -- who pulled them over, according to court documents.

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