hypnotized witness may testify as to facts recalled before hypnosis as long as detailed record of pre-hypnotic memory is preserved
How later courts described this case
- hypnotized witness may testify as to facts recalled before hypnosis as long as detailed record of pre-hypnotic memory is preserved
- also filed the same day as the first Coe opinion
- concluding same regarding hypnosis evidence
- rejecting hypnotically induced testimony
Written by the judges who cited it.
The opinion
Stafford, J.
(concurring) — I concur. I am concerned, however, that there exists a real danger in admitting testimony of prehypnotic memory absent strong corroboration.
The majority attempts to distinguish between prehypnotic and posthypnotic memory, finding the witness' recollection of only the former admissible. A previously hypnotized witness may be unable to distinguish between prehypnotic memory and posthypnotic confabulations, however. See Beaver, Memory Restored or Confabulated by Hypnosis— Is it Competent?, 6 U. Puget Sound L. Rev. 155 , 199-200 (1983). As a result, the witness may be incompetent to testify.
A previously hypnotized witness does not lack competency because of a failure to understand the duty to tell the truth. See People v. Shirley, 31 Cal. 3d 18, 67 , 641 P.2d 775 , 181 Cal. Rptr. 243, 273 , cert. denied, 459 U.S. 860 , 74 *725 L. Ed. 2d 114 , 103 S. Ct. 133 (1982). Rather, the witness may be incompetent due to an inability to know what the truth is. The witness may sincerely believe that facts recalled are from prehypnotic memory. Yet, because the witness was once hypnotized, this sincere belief may be completely erroneous. Further, cross examination may be ineffective due to the witness' subjective conviction in the truth of his testimony. See Beaver, at 200-01. Absent some independent verification that the witness' testimony consists of prehypnotic memory, the propriety of its admission is questionable.
Williams, C.J., and Pearson, J., concur with Stafford, J.