BOSTON--Drifting along the border between reality and the dream world, the sleeping 10-year-old girl said, "Jorge, get off me. Jorge, get off me."
Prosecutors say it was evidence that was rightfully allowed at the trial of the man convicted of sexually assaulting the girl.
But defense attorneys say it was wrong to let the jury hear sleep talk, or "somniloquence." The defense argues there is no evidence that people speak the truth in their sleep.
Now Massachusetts' highest court will decide.
The state Supreme Judicial Court will hear oral arguments tomorrow. The case is the first of its kind in the state. Courts around the country have confronted similar issues and have not been able to agree.
The Massachusetts case began in 1996, when two girls in Milford, 30 miles outside Boston, asked their neighbor, Jorge Almeida, to let them into the cage in his back yard where he kept rabbits. Prosecutors say Almeida joined the girls in the pen and then grabbed and fondled them before they escaped.
The father of one girl testified that on the night of the attacks, after he had brought the girls back from the police station, he heard the other girl, who was sleeping at their house, having a nightmare.
"She was repeating, `Jorge, get off me. Jorge, get off me,' in her sleep," the father testified.
In 1998, Almeida was convicted of two counts of indecent assault and battery on a child under 14. He was sentenced to five years in jail.
The utterance was not the only piece of evidence; the girl herself took the stand and accused Almeida of fondling her.
Almeida appealed, challenging the judge's decision to allow the sleep-talk evidence.
Neither defense attorneys nor Worcester County District Attorney John Conte returned a message seeking comment yesterday..
In court papers, the defense argued that the father's testimony "created prejudice and undue emotion in the jury." The defense suggested that allowing the sleep-talk testimony denied Almeida his constitutional right to confront his accuser, because she could not be cross-examined about something she couldn't remember saying.
Prosecutors said the evidence was properly allowed, not as proof the incident actually happened but as corroboration of the testimony the girl gave in court.
In a 1981 case in Minnesota, the sleep talk of a 6-year-old about her fear of another attack by the defendant was allowed at a trial. In 1980 in New York, a court threw out a manslaughter and arson conviction of a man whose girlfriend testified about what he said while asleep.
Sam Dash, a professor at Georgetown University and an expert on criminal law, was skeptical about admissibility of sleep talk.
"Our degree of knowledge and science has not permitted us to answer that question. There's a big hurdle here and it's got a tremendous danger to it," he said.
"We don't know how the mind works in sleep. It's inviting the jury to speculate as to the meaning of the words--when nobody knows what they mean in any event."
Experts on sleep were also leery of the idea of sleep talk being allowed as evidence.
"Being able to say which is real and which is fantasy--that's a coin toss," said D. Alan Lankford, vice chairman of Sleep Sciences in Atlanta, which conducts sleep-disorder research, education and treatment.
Dr. Mark Mahowald, director of the Minnesota Regional Sleep Disorders Center at Hennepin County Medical Center and a professor at University of Minnesota Medical School, said those who talk in their sleep are essentially half asleep and half awake.
"I think it would be very, very unlikely that all sleep talking was talking the truth," he said. "Clearly, consciousness is clouded during sleep talking. You wouldn't want to put a lot of credence to what somebody said during sleep talking."