Mayes v. City of Hammond (442 F. Supp. 2d 587, 2006)

OPINION AND ORDER

CHERRY, United States Magistrate Judge.

This matter is before the Court on (1) Defendants’ Motion to Strike the Plaintiffs Response Brief to the Defendants’ Motion for Summary Judgment and the Plaintiffs “Appendix A” [DE 190], filed by Defendants City of Hammond (“City”) and John and Jane Does 1 through 50 on May 4, 2006; (2) Defendant Detective Sgt. Raymond Myszak’s Motion to Strike the Plaintiffs Response Brief to Defendant’s Motion for Summary Judgment and the Plaintiffs Appendix A [DE 194], filed by Defendant Detective Sgt. Raymond Mys-zak on May 5, 2006; (3) Defendants Detective Michael Solan and Former Police Chief, Frank Dupey’s Motion to Strike the Plaintiffs Response Brief to Defendants’ Motions for Summary Judgment and the Plaintiffs Appendix A [DE 196], filed by Defendants Michael Solan and Frank Du-pey on May 5, 2006; (4) Defendant’s Second Motion to Strike as to the Plaintiffs Response to the Defendant’s Motion for Summary Judgment and the Plaintiffs “Appendix A” [DE 211], filed by the City on May 8, 2006; (5) Defendant Detective Sergeant Raymond Myszak’s Second Motion to Strike as to the Plaintiffs Response Brief to Defendant’s Motion for Summary Judgment and the Plaintiffs Appendix A [DE 217], filed by Myszak on May 12, 2006; (6) a Motion for Summary Judgment [DE 118], filed by the City on March 14, 2006; (7) Defendant Detective Sgt. Raymond Myszak’s Motion for Summary Judgment [DE 121], filed by Myszak on March 14, 2006; (8) a Motion for Summary Judgment [DE 132], filed by Dupey on March 14, 2006; (9) a Motion for Summary Judgment [DE 134], filed by Solan on March 14, 2006; and (10) Plaintiffs Motion for Oral Argument of Defendants’ Motions for Summary Judgment [DE 186], filed by the Plaintiff, Larry Mayes, on April 13, 2006.

PROCEDURAL BACKGROUND

Larry Mayes filed a Complaint in this matter on September 3, 2003.

On December 19, 2003, Mayes filed an Amended Complaint, containing the following counts: Count I (42 U.S.C. § 1983 4th Amendment Claim); Count II (42 U.S.C. § 1983 14th Amendment-Denial of Fair Trial Claim); Count III (42 U.S.C. § 1983 Supervisory Liability Claim); Count TV (42 U.S.C. § 1983 Monell Claim Against the City of Hammond); Count V (False Arrest and Imprisonment Claim under Indiana law); Count VI (Intentional Infliction of Emotional Distress Claim under Indiana law); and Count VII (Respondeat Superior Against the City of Hammond). Mayes has sued Dupey and Solan in their individual and official capacities for supervisory liability, and has sued Solan and Myszak in their individual capacities for their acts performed in the scope of their employment and under color of state law.

Defendants the City, Myszak, John Ra-tajczak, Solan, Robert Townsell, Sgt Dennis Williams, and John and Jane Does filed an Answer to the Amended Complaint on January 13, 2004. On March 26, 2005, DuPey and Solan filed an Answer to the Amended Complaint, and on April 5, 2004, Robert Seaman and Richard Tumildalsky filed an Answer to the Amended Complaint.

On September 22, 2005, a Motion to Dismiss Defendant Dennis Williams was filed, and on September 29, 2005, the Court granted the motion, dismissing Williams without prejudice.

On March 13, 2006, a Motion for Summary Judgment as to the Death of Detective Sergeant Robert Townsell was filed. Mayes filed a response, but subsequently withdrew the response. On May 8, 2006, the Court granted the motion for summary judgment and entered judgment in favor of Townsell against Mayes.

On April 13, 2006, a Stipulation to Dismiss Robert Seaman and Richard Tumil-dalsky was filed, which the Court granted on April 25, 2006, dismissing Seaman and Tumildalsky without prejudice.

On April 26, 2006, a Stipulation to Dismiss John Ratajczak was filed, and on May 8, 2006, the Court granted the stipulation, dismissing Ratajczak without prejudice.

The parties have consented to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Thus, this Court has jurisdiction to decide this ease pursuant to 28 U.S.C. § 636(c).

MOTIONS TO STRIKE

On April 14, 2006, Mayes filed responses to the motions for summary judgment filed by the City, Myszak, Solan, and Dupey. Attached to the Memorandum in Support of each response is a fifty-five page, single-spaced “Appendix” entitled “Exhibit A: Plaintiffs Statement of Genuine Issues of Material Fact” (“Appendix A”). Various defendants have filed two sets of Motions to Strike this Appendix A. The Court will address each set of motions in turn.

A. Motions to Strike [DE 190], [DE 194], and [DE 196]

In the first round of Defendants’ Motions to Strike the Plaintiffs Response Brief to the Defendants’ Motion for Summary Judgment and the Plaintiffs “Appendix A,” (“Motion to Strike”) Defendants City, Myszak, Solan, and Dupey argue that Mayes’ 55-page Appendix A, entitled “Plaintiffs Statement of Genuine Issues of Material Fact,” contains argumentative headings, lengthy interpretation, and in-depth analysis of the exhibits and in some instances is unsupported by evidentiary citation. Defendants generally contend that Appendix A is an inappropriate extension of Mayes’ Response Brief and, thus, both the Appendix and the Response Brief should be stricken. Defendants provide a few examples of the alleged violations.

Local Rule 56.1 provides that, in opposing a motion for summary judgment, the non-moving party shall file a “Statement of Genuine Issues” “setting forth, with appropriate citations to discovery responses, affidavits, depositions, or other admissible evidence, all material facts as to which it is contended there exists a genuine issue necessary to be litigated.” L.R. 56.1. The Rule permits the statement of genuine issues to be filed in the text of the response or as an appendix to the response. “The purpose of the 56.1 statement is to identify for the Court the evidence supporting a party’s factual assertions in an organized manner: it is not intended as a forum for factual or legal argument.” Malec v. Sanford, 191 F.R.D. 581, 585 (N.D.Ill.2000).

Local Rule 7.1 governs motion practice and the length and form of briefs. Rule 7.1(b) requires that a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 be accompanied by a separate supporting brief. The Rule goes on to require that, “[ejxcept by permission of the court, no brief shall exceed 25 pages in length (exclusive of any pages containing a table of contents, table of authorities, and appendices), and no reply brief shall exceed 15 pages.” L.R. 7.1(d). The Rules provide no page limit for the statement of genuine issues.

A party who wishes to argue that portions of a statement of genuine issues contain errors or are inadmissible on evi-dentiary grounds may file a motion to strike those portions of the statement of genuine issues. Goltz v. University of Notre Dame du Lac, 177 F.R.D. 638, 640 (N.D.Ind.1997). “Pleadings that do not conform with the local rules may be stricken at the discretion of the court.” Id. at 640 (citing Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir.1990); Pfeil v. Rogers, 757 F.2d 850, 858 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Graham v. Security Sav. & Loan, 125 F.R.D. 687, 688-89 (N.D.Ind.1989), aff'd, 914 F.2d 909 (7th Cir.1990)). More importantly, it is the function of a court, with or without a motion to strike, to review carefully both statements of material facts and statements of genuine issues and the headings contained therein and to eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record offered in support of the statement. See, e.g., SEC v. KPMG LLP, 412 F.Supp.2d 349, 392 (S.D.N.Y.2006); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, *2 n. 2 (N.D.Ill. Apr.10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249, 2004 WL 2203418, at *16 (N.D.Ill. Sept.29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n. 1 (N.D.Ind.2004).

The remedy requested in the first series of Motions to Strike, which ask the Court to strike Mayes’ Response and Appendix A in their entirety, is overly broad because much of the Statement of Genuine Issues is a proper recitation of the facts with appropriate citations and because the Court is capable of redacting from the Statement of Genuine Issues and of disregarding all argumentative headings, interpretation or analysis of the facts, or unfounded assertions of fact found in the Statement of Genuine Issues. See, e.g., BASF AG v. Great Am. Assur. Co., No. 04 C 6969, 2006 WL 1235943 (N.D.Ill. May 8, 2006). The Court’s scrutiny of Mayes’ Statement of Genuine Issues applies equally to the Court’s review of the various Defendants’ Statements of Material Facts offered in support of the Motions for Summary Judgment. To the extent that Mayes cross-references arguments and analysis made in response briefs to other motions for summary judgment, the Court will consider each instance in the course of reviewing the given issue.

Accordingly, the Court denies the first series of Motions to Strike [DE 190], [DE 194], and [DE 196].

B. Second Motions to Strike [DE 211] and [DE 217]

As to the second series of Motions to Strike, Defendants City and Myszak specifically request that the Court strike all of the headings of Appendix A and ¶¶ 4 (including n. 2)—6, 10 (including n. 4), 12, 13, 17, 18, 24—93 (¶40 including n. 5), 111, 119—121, 123—125, 127, 129—146 (including ¶ 141, n. 9), 151-155, 172— 175, 178—180, 200—210, 212, 214, and 216—249 (including ¶ 244, n. 12). The Court considers each objection in turn.

First, Defendants assert that the headings for each section are argumentative. Overall, the Court finds that the headings organize the facts according to each of Mayes’ arguments or assertion of a genuine issue of material fact in opposition to the Defendants’ statements of facts. The headings are not taken by the Court as the asserted facts themselves, and the Court denies the motions to strike as to the headings.

Defendants next argue that Appendix A is rife with argument, often without evidentiary citation, pointing to ¶¶ 4, 6, 12, 13, 18, 24, 25, 33, 37, 38, 40, 46, 47, 68—93, 129—143 (including 141 (footnote 9)), 146, 172—174, 178—180, 200—210, 212, 214, and 244 (footnote 12). Having reviewed these paragraphs, the Court grants the second motions to strike as to the following paragraphs for containing argument or for containing facts not supported by the referenced cite or not supported by any citation whatsoever: the reference in ¶ 4 to “a line up identification on February 13, 1981;” the last sentence of ¶ 4; footnote 9; the last two sentence of ¶47 (the cited evidence does not indicate that she started with the black and white photos or that she picked out a black and white photo); all but the first sentence of ¶ 72 (Exh. L is an incorrect cite); the last five words of ¶ 80; the language in the first sentence of ¶ 81 after the number “17”; the last sentence of ¶ 87 (page 316 of Exhibit H is not attached); the first sentence of ¶ 93 starting with “and the prosecutor----” (Exh. OO does not reference the sentencing); the first sentence of ¶ 134; the first sentence of ¶ 135 (this information is not contained in Exh. N at 104); the second sentence of ¶ 142 (page 128 of Exh. N is not attached); the last sentence of ¶ 178 starting with “presumably as evidence ....”; the first sentence of ¶ 179 (this information is not contained in Exh. UU at 66-67); any references to O’Drobinak in ¶ 200 (Exh. D at 18 is an incorrect cite); first sentence of ¶ 202; ¶ 206 starting with “he did not take issue ....”; quotation in ¶ 208 (the quotation apparently continues on to page 245, and page 245 is not attached); second sentence of footnote 12. Paragraph 6 and the second sentence of footnote 9 have already been stricken by the Court in the Order denying in part and granting in part the Motion to Strike Plaintiffs DNA References and Evidence.

In instances in which the citation to the evidence of record is incorrect, but the Court comes across the proper citation in the course of reviewing the remaining facts, the Court will consider the facts to be supported by the correct citation. However, the Court does not have an obligation to search the record for evidence that is potentially relevant to the summary judgment motion. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir.2003) (citing Greer v. Board of Educ., 267 F.3d 723, 727 (7th Cir.2001)); Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir.1995) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The Court denies the second motion to strike as to the remaining paragraphs or portions of paragraphs on the basis that they are not argumentative or unsupported by citations in the record. To the extent some of the facts of record are different than as presented by Mayes in his Statement of Genuine Issues, even viewed in the light most favorable to Mayes, the Court considers the facts as supported by the record.

Third, Defendants assert that ¶¶ 6, 33, 69-71, 80, 119-121, 123-125, and 143 (including n. 11) include inadmissible opinions pursuant to Federal Rules of Evidence 701, 702, and 704 on three bases. Paragraph 6 has already been stricken by the Court in the Order on the Motion to Strike Plaintiffs DNA References and Evidence, and ¶ 121 has already been stricken in the Order on the Motion in Limine as to Steven J. Lynn.

Defendants argue that ¶¶ 33, 69-71, and 119-121 offer inadmissible speculative opinions. The Court denies the motion as to Rothlein’s expert opinions in ¶¶ 33 and 71 because Rothlein is making his opinion based on a failure to comply with minimally accepted police practices and not upon an application of the facts to the law. The Court denies the motion as to Solan’s statements in ¶¶ 69-71 because Solan’s testimony regarding the “tentative identification” goes to Solan’s state of mind regarding Townsell’s statement to him and to Solan’s own knowledge of those statements; these statements are not speculative and are within his powers of “perception.” The Court denies the motion as to ¶¶ 119-120 because Dr. Lynn is qualified to testify as to the rules governing the use of hypnosis in criminal investigations and whether such rules were followed in this case based on the evidence of record; he is not giving a legal opinion.

Defendants argue that ¶¶ 80, 123-125, and 143 contain impermissible legal conclusions. The Court denies the motion as to ¶ 80, noting that the last five words have already been stricken; ¶ 123; the first sentence and citation of ¶ 124; ¶ 125; and ¶ 143 because these statements by Thomas Vanes, the deputy prosecutor in Mayes’ criminal trial, are based on his knowledge of the facts and the decisions made in the case when prosecuting the case. The Court grants the motion as to the second half of ¶ 124 because the testimony constitutes expert opinion, and Mayes has not disclosed Vanes as an expert pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), even if no report is required under Rule 26(a)(2)(B).

Fourth, Defendants ask the Court to strike ¶¶ 151-155 because they are from treatises and are hearsay pursuant to Rule 802. Mayes argues that they are admissible under Federal Rule of Evidence 803(18) as a hearsay exception. However, Rule 803(18) provides that statements contained in learned treatises may be admitted as exceptions to hearsay when the treatise has been “established as a reliable authority by the testimony or admission of [a] witness or by other expert testimony or by judicial notice.” Fed.R.Evid. 803(18). In addition, Rule 803(18) applies only to the extent that the treatise is either relied upon by an expert witness during direct examination or is used to impeach the expert during cross examination. See id. Mayes has not identified any expert testimony showing that the treatise was relied upon for the expert testimony. Moreover, if admissible, Rule 803(18) permits the statements from the treatise to be read into evidence but the treatise may not be received as an exhibit. See id; see also Finchum v. Ford Motor Co., 57 F.3d 526, 531-32 (7th Cir.1995). Accordingly, the Court grants the motion to strike as to ¶¶ 151-155.

Fifth, Defendants argue that ¶¶ 34, 35, 37, 38, 40, and 175 contain mischaraeteriza-tions. The Court denies the motion as to ¶¶ 34, 35, 37, and 38, finding that the record citations support the facts asserted and reasonable inferences drawn therefrom. While contradictory inferences may be drawn from these facts, such arguments are not a basis for striking properly supported facts. The Court grants the motion as to the phrases “not in the morning as Townsell testified” and “that morning” in ¶ 40 because Townsell testified that Ms. Jaynes made identifications at the Hammond Police Department at approximately 1:00 p.m. and 5:30 but denies the motion as to the remainder of ¶ 40. The Court further grants the motion as to the phrases “was conducting hypnosis on witnesses in other cases and” in ¶ 175 as based on hearsay and speculation, not on firsthand knowledge, but denies the motion as to the remainder of ¶ 175.

Finally, Defendants argue that a significant number of passages in the Statement of Facts consist of fact that are irrelevant and immaterial on the basis that all of this information was available to Mayes to be litigated prior to or during his July 1982 criminal trial and conviction: ¶¶ 4(n. 2), 5, 10 (n. 4), 12, 13, 17, 18, 25-93 (n. 5), 125, 127, 141-145, 214, 216-249. Defendants provide no specific, individual analysis for any of these paragraphs. The Court denies the motion as to these paragraphs as it is too early in the proceedings to determine what evidence among these 118 paragraphs may be relevant or immaterial to the various claims and issues in this case.

Based on the foregoing, the Court grants in part and denies in part the Second Motions to Strike [DE 211] and [DE 217] as set forth herein.

MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are separate Motions for . Summary Judgment filed by Myszak, Solan, the City, and Dupey. The Court will consider each in turn.

A. Summary Judgment Standard

The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Sjummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe. Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotation marks omitted).

A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may discharge its “initial responsibility” by simply “ ‘showing’-that is, pointing out to the district court-that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. at 323, 325, 106 S.Ct. 2548; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials and thereby shift to the non-moving party the burden of showing that an issue of material fact exists. Kaszuk v. Bakery & Confectionery Union & Indus., Int’l Pension Fund, 791 F.2d 548, 558 (7th Cir.1986); Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir.1982).

Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. Fed.R.Civ.P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Rule 56(e) establishes that “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, to demonstrate a genuine issue of fact, the non-moving party must do more than raise some metaphysical doubt as to the material facts; the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir.1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of the witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 447 U.S. at 249-50, 100 S.Ct. 2124; Doe, 42 F.3d at 443.

B. Factual Background

In 1982, Larry Mayes was convicted of the October 5, 1980 rape, kidnaping, and robbery of Lisa Jaynes. In 2001, Ms. Jaynes was contacted by the prosecutor’s office, at which time she disclosed to them for the first time that she had been hypnotized by a Hammond Police Department (“HPD”) employee in the course of the criminal investigation. The employee was Detective Raymond Myszak. In 2001, Mayes’ conviction was vacated, and he subsequently filed this suit.

1. The Original Crime

On October 5, 1980, Ms. Jaynes, then an eighteen-year old female, was working as a cashier at the Martin Oil Company gas station at the 7300 block of Kennedy Avenue, Hammond, Indiana, in Lake County. At approximately 8:30 p.m., two men entered the store. The taller of the two men approached the counter, asked for two packs of Winston Light cigarettes, displayed a gun, placed a blue denim bag on the counter, and demanded money from the cash drawer. Ms. Jaynes removed the money from the cash drawer, placed it in the bag, and gave it to the taller of the two men. Meanwhile, the shorter of the two men took cigarettes, bags of candy, and auto accessories from the two displays located in the gas station. The smaller man was wearing a hooded blue parka, kept his back or side to Ms. Jaynes, and kept pulling his hood up. Ms. Jaynes did not have a good opportunity to see the smaller man inside the store.

The two men then forced Ms. Jaynes to accompany them to an automobile. Specifically, the taller man told Ms. Jaynes to come with them. Before leaving, Ms. Jaynes grabbed her purse. As they were walking to the car, a four door, the taller man had Ms. Jaynes by the arm and the smaller man was walking in front. They all got into the car. The taller of the two men got into the back seat with Ms. Jaynes and the shorter of the two men got into the driver’s seat and drove the car away from the gas station.

The car pulled out onto Kennedy Avenue heading south toward Interstate 94. The car entered the expressway and proceeded east toward Gary. The taller man told Ms. Jaynes to take off her pants, then hit her on the head with the gun when she questioned him. The taller man again hit her on the head with his gun, and Ms. Jaynes started taking off her pants. The taller man then forced Ms. Jaynes to perform oral sex and forced her to have sexual intercourse.

The car then stopped, and the two men switched seats. The shorter man forced Ms. Jaynes to perform oral sex and to submit to sexual intercourse while the car was moving and the doors were closed. While the smaller man was raping her, his face was only three to four inches from her face, and she could see him clearly during this time. However, the car was dark, as the car’s interior lights were only illuminated when the doors were open. Also, her head was bleeding profusely from having her head split open by the butt of the gun. While the smaller man was on top of her, Ms. Jaynes noticed that he had a gold-rimmed tooth at the upper right side of his mouth. Ms. Jaynes testified at trial that the smaller man ejaculated after he forced her to submit to intercourse, but she now says that she may have been mistaken that the smaller man did in fact ejaculate.

They drove around a while longer and finally stopped in a dark area in the Black Oak section of Gary at which time the men told Ms. Jaynes she could leave. Before leaving, Ms. Jaynes put on her clothes except for her socks which, along with her purse, she left in the back of the car. After she exited the car, Ms. Jaynes walked behind it to see the license plate number, and repeated the number over and over to herself in an attempt to memorize it. Ms. Jaynes then made her way to a house near 24th and Hovey in an area north of Burr Street and Black Oak, where she called the police and reported the license plate number. Ms. Jaynes then called the Martin station, finding that the police were already there, and the police sent a car to pick her up.

2. Preliminary Investigation

HPD Detective Townsell spoke with Ms. Jaynes for the first time while she was at 24th and Hovey. Upon returning to the Martin station, Ms. Jaynes, while in the back of a squad car, answered questions for Hammond Patrol Officer Steve Ridgely, who was taking the offense report. Ridgely prepared two offense reports, one for armed robbery and the other for kid-naping and rape, and recorded the information directly onto the offense reports. However, detectives held off from questioning her further because she was “incoherent and upset” and “very upset and unable to relay information,” so Townsell told them “to hold off on information.” The police reports note the license plate number of the car as relayed by Ms. Jaynes, but one letter is incorrect as the police later learned.

The initial police report taken on the night of the incident by Ridgley describes the larger offender as a 25-year-old black male, 6-2" and 200 lbs, while the smaller offender is described as 5'-7", slim, 150 lbs with a “possible gold tooth.” At trial, Ms. Jaynes testified that she noticed a gold tooth while the smaller rapist was on top of her and that she recalled the location and that it was gold rimmed; she acknowledged that initially she told the officers that it could have been a gold tooth around the rim yet the police report says “possible gold tooth.” Ms. Jaynes’ parents drove her to the hospital, where a rape kit was performed and specimens were taken. Later testing of the specimens showed the presence of semen both in Ms. Jaynes vagina and on her clothing. Larry Mayes had a gold tooth at the time that Lisa Jaynes was raped and robbed, in the upper right front.

Detective Townsell and Detective Ra-tajczak were assigned as the lead detectives for the investigation into the rape and robbery of Ms. Jaynes on October 5, 1980, and they remained the lead detectives in the case through Mayes’ arrest and up to trial.

3. The October 6, 1980 Identification

Since the sequence of events regarding the investigation following Ms. Jaynes’ release from the hospital are somewhat in dispute, the Court will consider the facts in the light most favorable to Ms. Jaynes.

The following day, October 6, 1980, Ms. Jaynes, her father Phil Jaynes, and Town-sell met at the Gary Police Station. At the Gary Police Station, a Gary Police Officer assisted Ms. Jaynes in looking through approximately five books of photographs, containing hundreds of photographs with each page containing approximately twelve photographs. Ms. Jaynes did not make any positive identification on that occasion.

Later that day, around 1:00 p.m., Ms. Jaynes and Townsell went to the Hammond Police Department to view more photographs. Townsell showed Ms. Jaynes an array or two of photographs each containing between eight and ten photographs. According to Townsell, from this group of photos, Ms. Jaynes identified the picture of Mayes as the smaller of the two men. Ms. Jaynes testified at Mayes’ trial that she picked two pictures of Mayes from two arrays of eight to ten photos each. According to Ms. Jaynes’ trial testimony, however, she did not identify the two pictures of the smaller rapist until later that evening. Townsell testified that later that same day, around 5:30 p.m., Ms. Jaynes identified a different photo of Mayes.

In the course of the criminal court proceedings against Mayes in 1981-82, both Townsell and Ms. Jaynes testified that Ms. Jaynes made a positive photographic identification of Mayes on October 6, 1980.

In his criminal proceedings deposition taken on January 25, 1982, Townsell testified concerning the first photo array on October 6, 1980, and conceded that he chose the pictures randomly and other than race and age made no effort to ensure they were similar. He further testified that Ms. Jaynes was shown 20 to 24 pictures during this array. At Mayes’ July 1982 criminal trial, Townsell also testified that in the “morning,” on October, 6, 1980, Ms. Jaynes was shown a photo array that included ten to twelve pictures and that she identified a single picture of Mayes. Townsell then identified the picture of Mayes and it was produced to the jury. At the criminal trial of James Hill, Mayes’ purported confederate in the October 5, 1980 robbery and rape, in February 1982, Townsell testified that during this first photo array, Ms. Jaynes was actually shown and “selected two (2) photographs” of Mayes, “[o]ne a side view, and one of a straight face of the same individual.” PI. Br., Exh. FF, p. 520. Although this second picture was never testified to or produced at the Hill trial, the attached side view of Mayes was part of the police file produced to Mayes in discovery. The only two pictures contained in the police files from this case that fit the description provided by Townsell during the Hill trial, “one a side view and one of a straight face,” are the single side view picture of Mayes in the top right corner of Exhibit GG, and the straight view picture which was actually produced at Mayes’ trial. See Pl. Br., Exhs. EE, GG.

At the trial of Hill, Ms. Jaynes testified that she identified Mayes, the smaller of the two assailants on October 6, 1980, and that her identification of Mayes was positive. She also testified that she saw Mayes’ gold tooth while he was raping her. Ms. Jaynes testified that she identified Mayes twice on October 6, 1980, from two different photo arrays. Townsell also testified at Hill’s trial that Ms. Jaynes identified Mayes on the afternoon of October 6, 1980, on two occasions from photo arrays.

There is no indication that there were multiple photographs of any other persons in the group of as few as eight photographs shown to Ms. Jaynes as part of this initial photo array. Townsell described during the criminal proceedings deposition how he chose the pictures for the first photo array, stating, “I reached in my desk and I picked out a packet of pictures,” and responding that there was no reason as to why he chose those pictures. Pl. Br., Exh. Y, p. 5. Mayes infers that Townsell’s description that he reached into his desk and pulled out a packet of pictures at random suggests that Mayes was the sole person with multiple pictures in the same array.

According to Ms. Jaynes, she could not have identified Mayes until viewing the second group of photos that included Mayes in the evening, at 5:30 p.m., and only after viewing two photos of Mayes. Based on Townsell’s testimony at the Hill trial, the defendants did not disclose to Mayes that Ms. Jaynes made no positive identification of Mayes the first time she viewed his picture in the earlier photo array.

According to Defendants’ police practices expert, Michael Fleming, there is no legitimate reason to show two pictures of the same person in one photo array; showing two pictures of the same person in different photo arrays might cause the victim to make an identification based upon seeing the picture twice rather than remembering the actual perpetrator; separate photos of the same person in one photo array would be suggestive; and there is no legitimate reason to, and that he would never show two photo arrays with a picture of the same person. More generally, Fleming understood in 1980 that it was essential to eliminate suggestiveness to the extent practicable, in any identification procedure including a photo array. Fleming agreed that he had never seen two pictures of the same suspect purposely shown to a victim in consecutive photo arrays in any of the approximately 900 murders and rapes he investigated.

According to Defendants’ other expert, Dr. Ralph Edward Geiselman, it is important that only one photo of an individual suspect be utilized, whether in a mugbook or photo array, because to do otherwise would signal to the witness that there is something special about the person being shown more than once and it would be suggestive. Geiselman further stated that if a victim is first shown a photo array with pictures of a single suspect and is subsequently shown another photo array with a picture of the same suspect, there are “carryover effects” and “[t]hey’re, uh, very, very likely to continue to pick the person they’ve already picked.” Pl. Br., Exh. AA, p. 68. He agreed that showing Ms. Jaynes three pictures of Mayes on October 6 could have had a carryover effect throughout the investigation.

According to Mayes’ police practices expert, Steven Rothlein, showing two pictures of the same individual in a photo array could be extremely suggestive and lead to the witness identifying the photo as opposed to the assailant. He testified that in all his years supervising and conducting photo arrays in Miami and working with police officers and police departments around the country, he had never seen a photo array employed with two pictures of the same individual. Based on the evidence in this case, Rothlein opined that there may have been no positive or absolute identification made on October 6 sufficient to establish probable cause and that the identification procedures utilized on that day could have been unduly suggestive.

Lieutenant Solan, Townsell and Ratajc-zak’s direct supervisor, testified that the only legitimate reason he knew for showing a victim multiple pictures of the same person is “if that officer just deep down just felt like the identification was wrong, and he just — just didn’t feel right with it,” and that this would be consistent with HPD policy. PI. Br., Exh. H at 348-49. Townsell admitted that once Ms. Jaynes identified Mayes “there was no reason to show her another picture of him.” PI. Br., Exh. Y, p. 7. Solan understood that showing a witness photos of the same person in consecutive photo arrays might cause the witness to identify the person based upon having seen the picture rather then remembering the person as the assailant. However, Solan testified that it was appropriate to show pictures to a victim before taking a detailed Q & A from the victim; that it was appropriate to show multiple pictures to a witness of the same suspect if the officer believed the witness was wrong; as a 30(b)(6) witness, that the reason why an HPD officer might wait as long as 5 weeks to take a Q and A of a victim is “[mjisidentification, where you feel the girl is wrong,” Pl. Br., Exh. H, p. 322; Pl. Br., Exh. G, p. 187-88; and that a statement or Q & A is only required if there is an absolute identification.

In response to Solan’s testimony concerning showing multiple pictures of the same suspect, Fleming reiterated the “last thing he would do” is show a second picture of the same suspect to a victim who has made any type of identification, particularly if he had doubts about the first identification. Pl. Br., Exh. W, p. 214-18. Fleming acknowledged that Solan’s understanding of permissible photo array procedures might explain why two photo arrays were shown on the same day in this case.

The photo arrays that Ms. Jaynes viewed and from which she allegedly identified Mayes on October 6 were not preserved and maintained in the police file, and, although Ms. Jaynes viewed three pictures of Mayes, only one picture of Mayes was produced at his trial. The fact that two of the as few as eight pictures in the first photo array were pictures of Mayes was never documented or disclosed during Mayes’ trial. The City, but not the individual defendants, admit that the October 6 identifications were never documented. Richard Wolter, Mayes criminal defense attorney, did not recall being provided with any witness statement prepared by Townsell that documented the October 6, 1980, identification. He believed that Ms. Jaynes’ formal statement was taken later.

Both experts and numerous HPD detectives agreed that it was essential to maintain and preserve the photo array, so that the array could be scrutinized by the prosecutor and potentially the defense attorney to ensure it was not unduly suggestive. Preservation is important, particularly where there is an alleged positive identification and particularly where there are irregularities in the process. Mayes’ and Defendants’ experts agree that documentation of identification procedures and the statements made during identification procedures is essential and must be carefully recorded.

At the time of his criminal proceedings deposition, Townsell testified that he could not remember what1 description Ms. Jaynes gave of her attackers other than that it was general. Fleming, Defendants’ police practices expert, agreed that if Townsell actually had taken notes or created documents from October 6, he would have expected Townsell to review them prior to giving sworn testimony in a criminal proceedings deposition.

Fleming could not recall a single instance in his twenty-seven years as a Chicago Police Department detective where a positive identification was made and there was no documentation of the process. Fleming further acknowledged that, if the victim expressed uncertainty or indecisiveness in an identification procedure, the detective was required to document and disclose that evidence to the prosecutor, and that failure to document an identification procedure or procedures could be evidence that there was some other problem with the identification procedure utilized.

Solan understood that it was essential to meticulously document the course of all photo array presentations, including everything the victim says about the identification itself and that normally there should be a Q & A immediately following the identification or within a day thereafter, all of which would be put into a supplemental report. More generally, he understood that careful documentation is one of the most basic and key aspects of any criminal investigation; and that it is essential to meticulously document both inculpatory and exculpatory evidence, without exception. Solan admitted that documentation is one of the best ways to ensure exculpatory evidence is disclosed. Solan further testified that he reviewed the file in preparation for his deposition and did not believe that anything was missing from the file as it existed in 1981 and 1982. Solan admitted that documentation is a key method to ensure compliance with Brady, particularly on critical investigative activities, and that investigators should take a broad view of disclosing exculpatory evidence.

Geiselman agreed that it is important that the person conducting the identification procedure document the procedure including the witness’s own words concerning the identification because it is important to see if confidence is increasing over time. Geiselman agreed that there are circumstances in which it can be very difficult for the witness to differentiate between what is the actual recollection of the event and what is some after-acquired information that has changed the apparent recollection of the event.

Townsell also did not take the statement of Ms. Jaynes on either October 5 or October 6, 1980. According to Rothlein, Mayes’ police practices expert, it was commonly understood since the 1970s that:

A rape investigation almost always begins with interviewing the victim to determine the essential information of what happened, where it happened, when it happened, how it happened, and who the assailant was. This interview is carefully documented in official reports and sometimes tape recorded. It is extremely important to document any statements made by the victim or witnesses to maintain the integrity of the investigation and also determine any inconsistencies which might be revealed.

Pl. Br., Exh. V, p. 6. Geiselman, Defendants’ expert, emphasized that, “what goes on early in an investigation is very, very critical because it affects everything that happens later on” and that memory fades with time. PI. Br., Exh. AA, p. 20-21. In this regard, he stated, “[I]t’s always been my contention that the nature of the interview, the initial interview and even the follow-up interview, is critical toward preserving an accurate record of what their memory really is.” Id. at 23-24. Detective Mak, one of the officers who did a photo array for Ms. Jaynes on November 17 also understood before 1980 that it was essential to obtain a detailed statement from the victim as early as possible in a rape investigation.

Vanes testified that anytime there was a positive identification, he expected to see a report that was prepared contemporaneously with the identification.

I. “Tentative” Identification

Townsell testified at Mayes’ trial and during his criminal proceedings deposition that Ms. Jaynes positively identified Mayes twice on October 6, 1980. However, for the first time during his deposition in this civil case, Solan testified that on October 6, or within days thereafter, Townsell told Solan that he “had a tentative identification.” Pl. Br., Exh. G, p. 126-27. In his deposition, Solan subsequently suggested that Townsell wanted to confirm that Mayes had a gold tooth and that is what he meant by tentative. Yet, Solan also testified that understood “tentative” to mean that “he had no absolute identification.” Id. Solan never asked Townsell what he meant by tentative identification. Solan did not ask any follow-up questions, stating, “tentative identifications happen all the time. This is nothing that is shocking that’d come to a supervisor and say____” Id. at 127. When asked to describe what he meant when he said “tentative identifications happen all the time,” Solan replied, “People say, T think this is him, I’m not sure,’ ” Id., or “This is him. I’m not positive,” “I’d like to see him in person.” Id. at 204. Solan acknowledged that, pursuant to his definition, a tentative identification is no identification at all and is clearly Brady material. A tentative identification as Solan understood it may provide a lead but “absolutely” could not provide the basis for an arrest. Id. at 100-01.

According to Rothlein, “If there is any uncertainty about an identification, then it is not a positive identification.” Pl. Br., Exh. V, p. 11.

During his criminal proceedings deposition in 1982, prior to Mayes’ trial, Solan did not disclose that Townsell had described the October 6, 1980 identification as “tentative.” During this deposition, So-lan was asked the following questions and gave the following answers:

Q. When was she first shown a picture or display with Larry Mayes’ picture in it?

A. You’ll have to talk to Detective Townsell.

Q. Okay. To your knowledge, do you know whether or not Lisa Jaynes picked out Larry Mayes’ picture on each occasion she was shown that photographic arrangement?

A. You’ll have to talk to Sergeant Townsell.

Pl. Br., Exh. JJ, p. 217. In his civil deposition in this case, Solan admitted that, when he gave that testimony, he knew that Townsell had described a tentative identification soon after October 6. When asked why he did not provide information about the tentative identification in response to those questions he stated, “I don’t know.” Deputy prosecutor Vanes testified that So-lan was meticulous and one of the reasons he had him sit at trial was that Solan would be very aware of the details of the testimony that was being presented.

Solan agreed that he was intimately familiar with the Jaynes investigation, particularly after he determined that evidence emerged that the case might be connected to another case involving the murder of Larry Pucalik, an off-duty Hammond police officer. Solan testified that he was asked to be lead detective at the Jaynes trial because of the possible link to the Pucalik murder.

Fleming, Defendants’ police expert, testified that, based upon Solan’s sworn testimony during his deposition, it appeared that Solan understood, in substance, that there was no absolute or positive identification on October 6, and thus Solan had an obligation to ensure that the tentative nature of the identification was documented and produced to the prosecutor. Fleming agreed that Solan had the same responsibility as Townsell to document the tentative identification or to ensure it was documented and make sure that the information was provided to the prosecutor.

Regarding Solan, Rothlein opined,

As [Townsell’s] immediate supervisor, he should have asked him what he meant by tentative ID, but he failed to do so. Absent an explanation of what Townsell meant by tentative, which Solan did not seek or receive, Solan himself had a duty to disclose this information to the prosecutor as exculpatory information, based upon his own understanding of when an identification is referred to as tentative.

Pl. Br., Exh. V., p. 21.

Vanes was never told the October 6 identifications were tentative or equivocal in any fashion. Vanes testified that if he had been so informed, at a minimum he would have investigated the circumstances of the identification, and if the October 6 identification was tentative, Vanes would have likely dismissed the case. Vanes acknowledged in his deposition that the fact that the victim allegedly stated that if the suspect opens his mouth you will see a gold tooth does not suggest that anything about the identification was not tentative. Wolter, Mayes’ defense attorney at trial, also was never informed that the October 6 identifications were tentative.

5. The “Hypnosis” Session

When contacted by the prosecutor in 2001, Ms. Jaynes revealed for the first time that she had been hypnotized during the rape and robbery investigation. Although the hypnosis session was never documented and never disclosed by the Defendants, the session must have occurred between October 6 and October 19, because the hypnosis session was intended to, among other things, help Ms. Jaynes remember the license plate number of her assailants’ car, and the car was identified by October 20, 1980. Although Phil Jaynes, the victim’s father testified that he believed the hypnosis occurred between two to four weeks after the rape, he volunteered that his memory as to the timing of events was “pretty fuzzy.” Pl. Br., Exh. XX, p. 19-20.

When asked at deposition in 2004 what had happened in relation to the hypnosis session, Ms. Jaynes stated that, prior to the session, she knew that she was going to undergo hypnosis since the detectives discussed it as a possibility to help her with identifying the license plate number of the car and with the description and identification of the suspects. Phil Jaynes testified that he, his wife, and Ms. Jaynes discussed as a family whether or not she should proceed with hypnosis and Ms. Jaynes decided that she would since “Lisa had, by this time, indicated that she wanted to cooperate with the police to find the perpetrators of the crime and see that they got appropriately punished. And, frankly, I felt very proud of her for this and wanted to support her in it every way I could.” Id. at 19-21. Ms. Jaynes and her father went to the Hammond police station knowing that she was to be hypnotized.

When Myszak entered the police station that day for his afternoon shift, Townsell yelled down the hallway to him, “Here comes the Department hypnotist now.” Ms. Jaynes and her father were with Townsell. According to detective Myszak at his civil deposition, Townsell then asked him to hypnotize Ms. Jaynes but he refused, telling Townsell that any statements obtained through hypnosis might be inadmissible in court and that Solan had told him he could not use hypnosis for police work. Eventually Myszak agreed to just relax Ms. Jaynes. That was the first time that Myszak ever saw Ms. Jaynes.

Myszak, Townsell, Ms. Jaynes and Phil Jaynes then went into an interview room. Ms. Jaynes described the session:

We sat in an interview room.... There were just a couple tables and a chair, an air conditioning unit was in there, and I sat in the chair and the hypnotist gave me instructions asking me to relax, close my eyes, kind of a guided imagery thing.

I was asked to relax, to close my eyes. I was kind of following his voice, listening to his voice, just concentrating on that, and then he told me to imagine walking into an elevator and the elevator would go down, and as the elevator went down I would become more and more relaxed, and when the doors of the elevator opened I would see a room with a-comfortable chair in it, and so I visualized the elevator door opening and walking into a room and I imagined a chair. I could describe the chair to you, but it wasn’t anything anybody said, it was what my mind created as a comfortable chair, and Pm still looking for that chair by the way. So, I went and sat in the chair and they asked me to visualize like a movie screen, and depict on the movie screen the events that happened that night as if I was observing it watching a movie, and ... then they took me back to, you know, the scene of the crime, and started with there, and kind of would fast forward to different parts of the event so I can focus on the license plate, and focus on the description of the individuals and focus on the face, and remember the face of the individuals involved in the event, and then once we had kind of gone through some of those details he asked me to keep that picture in my mind so that I could remember that picture, and it helps you separate out the emotion that was attached to the particular looking at the faces.

So in one case I looked at the face of the person as they were standing in the gas station holding the gun, because that was the best light, and it was the best look I got of his face, and the other individual I focussed [sic] on the face as he was on top of me, so that I could remember his face, and then they brought me out of that-he instructed me to go back up the elevator, and stuff like that---- I kind of woke up and [he] said you will be back in the room and we’ll be with you, and everybody was still in the room that was there when they went.

I was aware of what was going on in the room as I was hypnotized, noticing different things, sort of how the little bleep think [sic] that went off, even though I was focusing on the questions that the interviewer was asking me. I could hear and notice — I could hear the air conditioner running, a couple of times I assume it was Townsell flipping his Bic lighter, and I would hear it go, click, click, click. I would notice it, but I wouldn’t focus on it. I was keeping my attention on the words that I was hearing, keeping my attention on the vision in my brain, the memories, and those kinds of things, so if anybody would rustle or move I was aware of it, I could hear it and notice it, but I was very aware.

Pl. Br., Exh. E, p. 22-25. Ms. Jaynes described how Myszak would direct her to various parts of the event while she was hypnotized:

He said to first take a look at — I was referring to them as the bigger and the smaller, so, he would say take a look at the bigger guy, go to the place ... in the experience when you saw his face the clearest, and then when I would say okay, I’m there, then he would say where are you, and I would describe I was in the gas station, that kind of stuff, and then he would say go to the place where you see the face of the smaller of the two, and I remember in that instant. ... I could feel my face scrunching up and he would say where are you now, and I would describe to him that I was in the process of being raped, and he said, you know, focus on the face, keep a picture of the face, try to separate it from the event, but just keep a picture of that face, and then fast forwarded me away from it as soon as possible so I didn’t have to kind of stay-focusing on that particular event, but keeping the picture in mind, keeping the face in mind.

Id. at 31-32.

Ms. Jaynes testified that she “gave a detailed description of the person after being hypnotized, so they told me to take the picture, keep it in my mind, brought me out of hypnosis and then I described what he looked like,” Id. at 33, and further stated:

I think after coming out of the hypnosis we sat down and reviewed what had happened, we talked about the description again, I think we looked at pictures again after that. It was either — I think it might have been the next day that I looked at pictures again. They went away and took me home or whatever, and I think the next day they came back with pictures. It’s my recollection that it was the very next day that I identified Mayes — that’s what I remember, I don’t know if that’s accurate, but that’s my best recollection. I remember being amazed that now I could find a picture of him when I couldn’t before.

Id. at 37-38. Ms. Jaynes estimated that the hypnosis session lasted about an hour, although she said it could have been for hours.

At her deposition in this case, Ms. Jaynes testified that after the hypnosis session with Myszak and Townsell, she was interviewed by Townsell and either Myszak or Ratajczak. During this interview, Ms. Jaynes described the people who raped her to Townsell. Townsell did not document and did not disclose any documentation of this post-hypnotic interview.

Ms. Jaynes also testified in her deposition that when she was contacted by the Lake County prosecutor in 2001, she informed the prosecutor that she was unable to identify the shorter of the two rapists before she was hypnotized. The prosecutor’s notes from that conversation read, “w/ some help hypnosis ... before I ever ID’d any picture of Mayes I was hypnotized ... looked at pics immediately after ... does feel she was hypnotized and it helped.” Pl. Br., Exh. MM. Ms. Jaynes also testified that she was unable to make a photographic identification of the smaller of the two men until after she had been hypnotized.

Ms. Jaynes testified in her 2004 deposition, and Myszak largely agreed, that she participated in the hypnosis session for reasons including that she wanted to remember the faces of both of her assailants. Myszak acknowledged during his civil deposition that during the session with Ms. Jaynes he had her visualize the faces of the persons who had raped her. Vanes agreed that if, in fact, the hypnosis procedure conducted by Myszak and Townsell involved attempts to have the witness focus on the faces of the perpetrators of the rape, that would suggest that at the time of the hypnosis there had been no positive identification of the perpetrators.

Dr. Steven Lynn, Mayes’ hypnosis expert, noted that “[hjypnosis is not a reliable means of ascertaining the historical accuracy of a witnessed event,” PI. Br., Exh. WW, p. 8, because it increases the volume of incorrect information recalled, produces false memories, and increases a subject’s confidence in her memory, even though that memory is inaccurate. Dr. Lynn testified that

“[ejxeessive confidence in what is remembered warrants special concern in legal settings insofar as the confidence expressed by a witness is the single most important factor in persuading subjects-jurors that a witness correctly identified the culprit” (Wells & Bran-ford, 1998). As Steblay and Bothwell (1994) have argued, “... hypnosis may be a source of inaccurate information provided with confident testimony” (p. 649).

Id. at 9. Dr. Lynn explained the Hurd rules, which were specifically approved by the Indiana Supreme Court prior to the determination of Mayes’ appeal and which required that if hypnosis were performed, six procedural rules be followed, including that 1) the hypnosis be conducted by a psychiatrist or psychologist experienced in the use of hypnosis; 2) the professional conducting the session should be independent of and not regularly employed by the prosecutor, investigator or defense; 3) any information given to the hypnotist by law enforcement personnel or the defense pri- or to the hypnotic session must be recorded, either in writing or another suitable form; 4) before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them; 5) all contacts between the hypnotist and the subject must be recorded; and 6) only the hypnotist and the subject should be present during any phase of the hypnotic session. Dr. Lynn noted that “nothing approximating the Hurd guidelines were followed” in this case. Id. at 13. Geiselman agreed that the typical outcome of hypnosis is that people become more certain in their identifications.

The Court notes that there is a disputed question of fact as to whether the hypnosis session was in fact a hypnosis, as asserted by Mayes and his expert, or simply a relaxation session, as argued by the Defendants and their experts. Because the Court views the facts in the light most favorable to Mayes for purposes of summary judgment, the Court will characterize the session as a hypnosis for this purpose. Accordingly, all other facts offered by the parties as to the nature of the session will not be set forth in this Order but may appropriately be argued at trial.

There is no dispute that neither the hypnosis performed by Myszak nor the interview with Townsell immediately after-wards was disclosed to the prosecutor in the criminal case and that both were kept from Mayes until Ms. Jaynes reported the session in 2001. Wolter, Mayes’ defense attorney, did not learn of the hypnosis or the tentative identification until Ms. Jaynes’ disclosure in 2001.

Vanes, the deputy prosecutor at Mayes’ criminal trial, was unaware of the session and signed an affidavit in this case in which he stated that:

Whether the actions of Detective Mys-zak at this session were merely an attempt to relax Ms. Jaynes (as stated by Myszak), or to hypnotize her (as stated by Jaynes), I should have been informed of those actions by the