# People v. Shirley

> California Supreme Court · March 11, 1982 · 31 Cal. 3d 18

URL: https://www.frixlaw.com/law-library/cases/9577721

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DONALD LEE SHIRLEY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** March 11, 1982
- **Citations:** 31 Cal. 3d 18; 181 Cal. Rptr. 243; 723 P.2d 1354; 1982 Cal. LEXIS 157
- **Precedential status:** Published
- **Opinion:** Concurrence by Kaus
- **Judges:** Mosk, Richardson, Kaus
- **Cited by:** 247 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in People v. Alexander.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9577721

## How later opinions describe it (automated extraction)

- holding that under the strict "general acceptance" approach, novel scientific evidence should not be admitted if "scientists significant either in number or expertise publicly oppose [such evidence]... ."

## Opinion text

KAUS, J.
I concur in the reversal of the judgment, but feel compelled to dissent from several conclusions of the majority unnecessary to decide this appeal.
On the record before us, this is a relatively simple case. At the outset of the trial, defense counsel objected that a portion of the testimony Catherine was about to give — concerning a period of time during which she had previously testified that she had been asleep — was the result of the improper use of hypnosis, that “it is not in fact refreshing a witness’ recollection . .. but that it is ... manufactured evidence.” (My italics.) The trial court overruled the objection on the basis that the hypnosis only went to the weight of Catherine’s testimony.
That ruling was patently wrong, even if there may have been some out-of-state case law to support it. Section 702 of the Evidence Code demands that the testimony of any witness, except an expert, be based on personal knowledge and provides that “[a]gainst the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” Defendant clearly objected that the witness was about to testify from other than personal knowledge — that she was about to give “manufactured evidence.” This placed the burden of showing that the witness would testify from personal knowledge on the prosecutor, who did nothing except argue that People v. Colligan (1979) 91 Cal.App.3d 846 [ 154 Cal.Rptr. 389 ] “indicated that hypnosis did not as a matter of law render inadmissible the subsequent identification of a defendant by the witness.” Obviously the citation of a case is not a showing that a particular witness is about to testify from personal *74 knowledge, and, in fact, the Colligan decision does not purport to relieve a prosecutor of the burden of demonstrating the personal knowledge of a previously hypnotized witness in response to a proper objection. 1
Thus, on this state of the record, the trial court should not have admitted Catherine’s challenged testimony. Given the ambiguities and inconsistencies of Catherine’s additional testimony, and the substantial evidence presented by the defense, the error was clearly prejudicial and requires reversal of the judgment. This is all we need to decide in this case.
I recognize, of course, that we have about a dozen additional hypnosis cases pending before us, and that the majority has chosen to use this appeal as a vehicle for deciding the broader issues presented by some of the others. In my view, however, it is a mistake to adopt at this point the sweeping, “per se” rule that the majority proposes — excluding virtually all testimony of a witness who has undergone pretrial hypnosis— without more carefully considering the varied contexts in which hypnosis may take place and the many factors which may affect both the potential danger and the potential utility of hypnosis in a particular instance.
This is the first time we have been called upon to consider the admissibility of a witness’ posthypnosis testimony, and it is by no means clear to me that the facts of this case are typical of hypnosis cases in general. There are obviously a number of factors that render Catherine’s post-hypnosis testimony particularly suspect. Because she was at least somewhat intoxicated at the time of the alleged offense, there is a good possibility that she has no clear memory to be refreshed by hypnosis, and instead that she has simply constructed or “confabulated” a “memory” while under hypnosis. (Cf., e.g., Com. v. Nazarovitch (1981) 496 Pa. 97 [ 436 A.2d 170, 177-178 ].) In addition, at the time she was hypnotized she had already given a number of somewhat different accounts of the evening in question, and the academic literature suggests *75 that under such circumstances there is a particularly strong danger that hypnosis will simply serve to fix one particular version — not necessarily the historically accurate one — in the subject’s mind and render the witness impervious to cross-examination. (See Orne, The Use and Misuse of Hypnosis in Court (1972) 27 Internat. J. Clinical & Experimental Hypnosis 311, 332-334.) Finally, of course, the hypnosis in this case was not performed by an impartial hypnotist in a setting calculated to minimize potential suggestiveness, but by a deputy district attorney in the presence of the investigating police officers. Given all these facts, I can agree with the majority that, if this case is retried, Catherine should not be permitted to testify.
I think, however, that we should be very wary about establishing a broad, generally applicable exclusionary rule for all posthypnosis testimony on the basis of the rather egregious facts of this case alone. In other instances, hypnosis may arise in a completely different setting, as, for example, when a victim or a witness to a crime is hypnotized shortly after the offense to aid a police artist compose a sketch of the suspect. In such a case, none of the participants to the hypnosis may have any preconceived bias which would pose a special danger of suggestiveness, and in some cases the witness’ posthypnosis statements may not differ at all from his or her prehypnosis statements, or the suspect may be later caught with incriminating evidence corroborating the reliability of at least some of the witness’ posthypnosis memory. If, in such a case, an adequate record of the hypnosis session exists and demonstrates the session’s basic fairness, it is not clear to me that the mere fact that the victim or witness has at one time been hypnotized necessarily mandates the total exclusion of the potentially crucial testimony at a later trial.
*76 Contrary to the majority’s conclusion, I do not believe that faithful adherence to the Frye standard compels the all-encompassing per se exclusionary rule adopted in its opihion. Just last year, in State v. Hurd (1981) 86 N.J. 525 [ 432 A.2d 86 ], the New Jersey Supreme Court, in a thoughtful and scholarly opinion by Justice Pashman, applied the Frye standard to posthypnosis testimony and concluded that “a rule of per se inadmissibility is unnecessarily broad and will result in the exclusion of evidence that is as trustworthy as other eyewitness testimony.” ( 432 A.2d at p. 94 .) In Hurd , a number of preeminent authorities in the field of hypnosis — including Dr. Orne — testified in person at a pretrial evidentiary hearing. On appeal, the New Jersey court, after reviewing both this testimony and much of the same academic literature discussed by the majority in this case, pointed out that while the experts had made it clear that hypnosis is not \a tool which can in any way guarantee the accuracy or historical “truth” of a subject’s recall, they had at the same time indicated “that in appropriate cases and where properly conducted the use of hypnosis to refresh memory is comparable in reliability to ordinary recall.” ( 432 A.2d at p. 95 ; italics added.)
Although keenly aware of the potential problems of “confabulation” and possible interference with cross-examination posed by hypnosis, the Hurd court recognized that recent psychological research has demonstrated that similar problems inhere in eyewitness testimony in general, particularly when — as is , very often the case — a witness has been repeatedly interrogated and has recounted his proposed testimony several times before trial. (Id., at p. 94.) 2 Indeed, given the majority’s own rendering of modern views concerning the nature and fallibility of unhypnotized human memory (see, pp. 57-62, ante), it may not be entirely facetious to suggest that if we are to exclude eyewitness testimony unless shown to be scientifically reliable, we may have little choice but to return to trial by combat or ordeal.
Observing that courts have never required “historical accuracy as a condition for admitting eyewitness testimony,” the Hurd court concluded that, under Frye, hypnotically aided testimony should properly be *77 admitted in a criminal trial if the party proffering the evidence demonstrates “by clear and convincing evidence” (id., at p. 97) “that the use of hypnosis in the particular case was reasonably likely to result in recall comparable in accuracy to normal human memory.” (Id., at p. 95.) The court then went on to discuss in some detail various factors — e.g., the kind of memory loss encountered, the apparent motivations of the hypnotized witness, and the procedural safeguards under which the hypnosis session was conducted — that are likely to affect the reliability of posthypnosis testimony in a given case. (Id., at pp. 95-97.)
In my view, if we are to reach the broad question of the general admissibility of posthypnosis testimony at this time, we should adopt the more cautious approach of the Hurd decision, rather than pronounce a general rule excluding virtually all posthypnosis testimony regardless of the facts of a particular case. Perhaps in the future, as we gain more experience in this area, we will find that posthypnosis testimony is so often unreliable that “the game is not worth the candle” (see p. 40, ante) and that a broad, prophylactic exclusionary rule is warranted. At this point, however, I think such a judgment is premature. 3
Finally, it seems to me that if the majority opinion is correct, then the exception which the opinion establishes for previously hypnotized defendants who wish to testify is unsupportable. Whether the right to testify in one’s defense is “fundamental” (People v. Robles (1970) 2 Cal.3d 205, 215 [ 85 Cal.Rptr. 166 , 466 P.2d 710 ]) or constitutional (cf. Washington v. Texas (1967) 388 U.S. 14, 20-22 [ 18 L.Ed.2d 1019, 1023-1025 , 87 S.Ct. 1290 ]), there can be no right to offer testimony which suffers from all of the potential vices which have triggered the majority’s total ban on the testimony of hypnotized witnesses. While I have tried to explain why, in my opinion, the majority goes much too *78 far, if the majority’s reasoning is correct, I can see no basis for excepting the defendant on trial.
Respondent’s petition for a rehearing was denied June 4, 1982, and the opinion was modified to read as printed above. Reynoso, J., did not participate therein. Richardson, J., and Kaus, J., were of the opinion that the petition should be granted.
In Colligan, a witness to á robbery was hypnotized shortly after the crime to help her recall the license plate of a car used in the robbery, and during the hypnosis the *75 witness also gave a description of the robber. At trial, the witness identified the defendant as the robber, apparently without objection, but on appeal the defendant contended that the possibility of suggestion by the hypnotist was so substantial that the in-court identification was necessarily tainted, warranting a reversal of the conviction.
The Colligan court rejected the contention, explaining: “In People v. Johnson (1974) 38 Cal.App.3d 1 ... we held that a claim of improper pretrial identification will not be considered on appeal absent an objection in the trial court, because the trial court has no reason to inquire into the independent recollection of the witness if the issue is not before it. ( 38 Cal.App.3d at p. 6 .) In that case, as here, faulty identification was at the heart of the defense and the witness was subjected to vigorous, detailed cross-examinatian on that issue. Furthermore defendant does not contend that hypnotic suggestions were actually made to [the witness] which affected her identification; thus no reason to depart from the view expressed in Johnson exists. We decline to hold that the use of hypnosis to help a witness remember a license number per se invalidates the identification of a person seen and heard by that witness....” ( 91 Cal.App.3d at p. 850 .)
In this regard, the court cited Marshall et al., Effects of Kind of Question and Atmosphere of Interrogation on Accuracy and Completeness of Testimony (1971) 84 Harv.L.Rev. 1620; Levine & Tapp, The Psychology of Criminal Identification (1973) 121 U.Pa.L.Rev. 1079; Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan.L.Rev. 969.
I note that the expansive exclusionary rule fashioned by the majority in this case is considerably broader than the rule adopted by the out-of-state decisions on which the majority purports to rely. As the Supreme Court of Arizona explained in its very recent decision in State of Arizona ex rel. Collins v. Superior Court (Collins II) (May 4, 1982) 644 P.2d 1279 , 1295, virtually all of the jurisdictions which have announced a general rule excluding testimony of memory “refreshed” or “created” by hypnosis, have nonetheless held that under appropriate circumstances a previously hypnotized witness is not precluded from testifying about events which the witness remembered and reported before undergoing hypnosis. (See, e.g., Collins II, supra; State v. Koehler (Minn. 1981) 312 N.W.2d 108, 110 ; State v. Wallach (1981) 110 Mich.App. 37 [ 312 *78 N.W.2d 387, 404-405 ]; Com. v. Taylor (1982) 294 Pa.Super. 171 [ 439 A.2d 805, 806-808 ]; cf. Polk v. State (1981) 48 Md.App. 382 [ 427 A.2d 1041, 1048-1049 ]; State v. Palmer (1981) 210 Neb. 206 [ 313 N.W.2d 648, 655 ] (cone. opn. signed by equal number of justices as lead opn.).) Although it is unnecessary to reach the issue in this case, the majority — in dictum — apparently rejects even this moderate limitation on its sweeping “incompetency” rule. (See ante, p. 48, fn. 29, pp. 67-68.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577721. Public record. Not legal advice.