People v. Guerra

No. 22327. [Crim. Nov. 1984.] PEOPLE,

THE Plaintiff and Respondent, al.,

JON MATTHEW GUERRA et Defendants and Appellants.

Counsel Court, Weedman, V. Michael Supreme Charles under appointment by Bonner, Ian & & Bonner and Thomas F. Garey, Garey Garey Crosby, Jr., for Defendants Crosby, Appellants. General, Louis

John K. Van de R. Attorney Harley D. Kamp, Mayfield, General, Hanoian, Attorneys M. Bloom and John Jay Carney, Deputy W. Plaintiff and Respondent. Philibosian, (Los Robert H. B. Sondheim Angeles), Harry District Attorney Leonard, Curiae Attorneys, and Roderick as Amici Deputy W. District behalf of Plaintiff and Respondent.

Opinion MOSK, J. (1982) Cal.3d 66-67 In People Shirley Cal.Rptr. 775], or improve 641 P.2d we held that the to restore use as a reliable memory procedure witness is not potential accepted a consensus of the relevant and hence testi community, scientific subject a were the such witness is inadmissible as to all matters that mony In the we left question, session. case address hypnotic present of that decision Shirley (id. 53), at fin. whether rule open 11, 1982). (Mar. its witnesses who were before date applies hypnotized must answered As will we conclude that the be appear, question as of the date affirmative—i.e., yet all cases not final applies retroactivity precedents it was decided. This conclusion is dictated settled by Court, court and and is supported of this the United States Supreme the Shirley consistent of our sister states on practice point. Applying bar, of such rule to the case we further introduction conclude before error on the record induced was hypnotically prejudicial us, and hence reversal of conviction. judgments compels

I. were Murkidjanian In count I of Guerra and the information defendants III II and each count counts with a of forcible jointly charged single rape; was with a count of forcible oral individually charged single cop- attempted ulation; and as to each count it that defendants “vol- was further alleged Code, (Pen. acted in concert” to commit the offense untarily charged. 264.1, 288a, declared (d).) subd. After two the court days §§ a mistrial as to of inadmissible Murkidjanian because of the introduction and evidence The trial continued as to prejudicial hearsay him. against Guerra and the only, convicted him on both counts him jury charged against and found true the in concert. The court released Guerra allegation acting held, on Abail. new trial of the was then and charges against Murkidjanian convicted jury him on both counts found true the allegation acting and defendant, in concert. The court denied motions for new trial each sen- I, tenced Guerra to the term on lower of five count years’ imprisonment sentenced Murkidjanian to the middle term of seven years’ imprisonment count, the same and sentence on the other counts stayed pending appeal and I, service of the sentences on count at which time the would become stay permanent. Defendants filed simultaneous notices of their appeal, ap- have been peals consolidated.

A. inAs Shirley, record of the case at bar discloses sharply conflicting stories.1 S. testified Judy she was 20 old and worked a years supermarket cashier while state On attending college. she finished February her shift at the market at watched a midnight, television fellow program house, worker’s then returned at 2 a.m. she shared with a apartment roommate. Shortly thereafter she went downstairs to an house” “open party held in being another in the There were 30 apartment same building. at the

people Guerra; party, of al- including Murkidjanian quantities drunk, cohol were being and marijuana was smoked. being Judy mingled with the crowd and met a number of to one guests, mainly but talked Tom hour, After about Logue. half an her back to her Logue accompanied apart- ment and was invited in. sat on the Judy floor and worked on a school that she poster moments, left for a few making. Logue subsequently her instructing not to lock the door. He with beer and a mar- reappeared ijuana cigarette, she declined to later he share. Ten minutes went back time, party second he that would home explaining riding with two and people needed to see if they Judy were still there. soon heard door; another in,” knock on her she said “Come and and Murkidjanian Guerra entered. said were They they for order to him looking Logue give home; a ride she remembered them at the and asked them to meeting party, 1In the factual narrative transcripts that follows we have drawn the of both from trials. The that each of the principal gave three witnesses in the Guerra trial was essen tially gave the same as he or Murkidjanian she in the few instances in which trial. difference, any significant there was it will be noted. work, Murkid-

have a Guerra watched her while seat. sat on floor and to from briefly get around the Guerra left janian tape wandered apartment. stereo; he the volume and his it on turned began up, car. her Judy playing on for a third resumed his seat the floor. then entered the Logue apartment time, bathroom, and Judy’s everyone departed used chatted with present, again. tes- Judy

At diverge. this stories of the three main point participants arms, lifted left, tified her under Murkidjanian that after Logue grabbed She feet, to her bedroom. carry her her and started to into roommate’s her mouth he his hand over her put and screamed for protested vigorously help; off, her sweater and bit began taking she his thumb. When Murkidjanian she she if her and so that get diaphragm asked she could to bedroom go arm, walked Murkidjanian would become her pregnant. Holding Guerra, on the her back room. who remained seated through had living events, them into Judy’s floor these feet and followed got his during and She Guerra closed locked bedroom. testified that she “believed” her; them, onto door behind because was Murkidjanian holding occupied off her cloth- she also testified that Guerra take helped Murkidjanian upper Thereafter, dresser and watched. Guerra leaned ing. simply against himself, of her While removed rest Murkidjanian Judy was undressing bed, her her clothes and inserted lifted onto Murkidjanian the diaphragm. Murk- but she her closed. tightly sat the headboard and up against kept legs her thighs her and to force idjanian sought straddled on his hands and knees with his apart elbows. testified, erec- however, was to achieve an unable

Judy Murkidjanian First he tried tion either then or at time events. ensuing during Next reach he tried an erection but was unsuccessful. by masturbating, he “scooted up” have him the same Judy orally copulate purpose: hard, to leave until the bed and told her him and he wasn’t going to “make however, and he managed She to resist did.” continued vigorously, [she] his resuming her before and only giving up his as far as neck get penis attempt to masturbate. in- next Murkidjanian

On testified that the question Judy penetration, asked, “Did feel you serted into then his her finger vagina. prosecutor answered, When told to de- his “Yes.” penis your vagina?” Judy felt, And when asked specifi- scribe how it she “round and soft.” replied, answered, hard or inside her she cally vagina, whether his flaccid penis He never “Flaccid.” ejaculated. on a chair rocking Guerra sat encounter

According Judy, during Guerra Judy At saw discomfiture. one point laughed Murkidjanian’s next; if he were he nodded his and she asked apparently unzipping pants, said, “No, bed, and then to the I’ll Thereafter Guerra came over pass.” and she took hand that Guerra told Murk- his and it. testified Judy squeezed idjanian, “Can’t see the in? don’t we leave?” After you Why just she’s pain a few minutes and exited from the room. Murkidjanian Judy gave up blanket; herself in locked the door be- she testified that Guerra wrapped her, hind and tried to “if he Murkidjanian to calm her. He also explained had tried to off that there would have been a help pull Murkidjanian just him and that I did the I she wanted to big fight best could.” told thing Judy her call and he left boyfriend, offered to dial the number for her. Guerra while she with her the latter took her to her mother’s spoke boyfriend; house, and six or seven later hours she called the events. police report

On cross-examination reiterated that the whole Judy throughout episode erection, never Murkidjanian to achieve an and that when managed except he to make attempted her him “he the rest of the time orally copulate spent an erection” trying get She also admitted that while by self-manipulation. Guerra left, was her after he her and she comforting Murkidjanian hugged him hugged back.2

Guerra’s testimony differed from in several material He Judy’s respects. old, was 21 years lived with his On family and worked for his father. evening February he and his friend met some Murkidjanian men drive-in, at a young and were invited to including Logue, party Judy’s there, While building. consumed of beer they two between six-packs them. At one in the point told them “there some action evening Logue If going we wanted upstairs. of it.” went any part They up Judy’s knocked, apartment, and entered when she said “Come in.” She offered seat, them a and Guerra down on the floor and on his side. “plopped” lay He testified that he left he briefly get but denied turned tape, up volume on the He stereo. described Logue’s visits frequent apartment, and said that he learned from one of those visits that there was a bathroom in Judy’s room. He testified that he any “wasn’t attention” really paying when lifted Murkidjanian from the floor because he was Judy up listening to his and he denied tape, her call for after Murkid- hearing help. Shortly and janian bedroom, went into her in order to use the Judy he entered bathroom. He denied take clothes off helping Murkidjanian Judy door; rather, deliberately closing he testified that the bathroom was door, behind located the bedroom the latter necessary it was push door closed in order to partly to the bathroom. After few get spending minutes the bathroom he came Judy out and saw Murkidjanian lying trial; Murkidjanian’s changed story 2She so testified at Guerra’s trial she her and denied hug. that she returned the an erection bed; did not have he confirmed that Murkidjanian naked on the to and was masturbate. attempting he was in the bathroom

Guerra further that as he from emerged testified him asked Judy his pants. in his shirt and zipping up process tucking he At her “No, I’ll request if he were next and he thanks. pass.” replied, there it; “was still down meanwhile took her hand and held Murkidjanian, Murkidjanian that when to erected.” Guerra testified himself trying get “like she had him, very became orally Judy upset, asked her to copulate confirmed Guerra Finally, from a bad dream or something.” wakened up that he leave the apartment, he to and to Murkidjanian urged stop intervened forc- he had not and why comforted subsequently Judy explained he and that each other as ibly, they hugged departed. old years He that he was was consent. testified defense

Murkidjanian’s Guerra’s business, He corroborated owned his own truck. catering and them what told Logue how were invited to the they party, as to however, stated, He about and the initial events at her Judy, apartment. drunk, he, and that was he had two of beer himself and consumed six-packs arrived. Believ- too, they after shortly used a bathroom in Judy’s apartment testified, “I sort fun,” just Murkidjanian wanted to “have some ing Judy resisted, and that she her off the floor.” He denied of playfully scooped volunteered confirmed when she said his belief in her was cooperation off her clothes he her take her He testified that “helped” get diaphragm. remainder of episode, and on the bed with her. Throughout got I could however, love with her. he erection to make was “Trying get in his drunk, attempt After failing never hard. I was too too drunk.” get masturbate, him for the same would orally copulate he asked if she Judy He testified that refused, and angry. reason. She and he became frustrated He the effort. him into giving up she and this scared suddenly began cry, the bath- had entered to use events Guerra also confirmed that these during leave her alone. room, him to thereafter held hand and Judy’s urged he denied that he ever achieved Finally, penetration.

B. case, with respect in this particularly We turn to the evidence of hypnosis the crucial issue penetration. Judy that he interviewed Police Officer Granados testified Fullerton had academy, He police after the assault. morning graduate in- seminars, rape 15 to 20 and had conducted preliminary attended rape the crime the elements of he had learned from this vestigations; experience if had been penetration, He asked there Judy of rape. specifically Guerra, she there further had not.3 With Officer Granados replied respect her; testified that did not had undress on the Judy state that Guerra helped told had to do contrary, she the officer that Guerra “at no time anything ,”4 with the actual . . . attempt[ed] rape Suffern, officer,

A that second Fullerton Detective testified investigating he interviewed two later and her if had Judy Murkidjanian asked days again achieved and He talked penetration, she answered “No.” nevertheless again weeks, with several more in and Judy finally times two asked ensuing her to come to the hall to be March Ac- juvenile 1979. hypnotized she knew cording Judy, before the session that his was hypnotic purpose to see if she could “remember” that she had been penetrated.5 was Fullerton in hypnotist Police Officer His Davinroy. training hyp- nosis consisted of course the Law Enforce- attending four-day given by ment Institute in Hypnosis and a course January three-day given by the same organization later.6 Before he had on the year this case testified subject once, hypnosis only Officer juvenile Davinroy court. stated that to the prior him session with Detective Suffern told hypnotic Judy, “what he needed was, to know.” When what that defense counsel asked Davinroy replied Suffern told him three were of an suspected people assault on Judy7 and he wanted information as to what each of “specific these had people done.” Suffern told him Judy having difficulty remembering because “there everything was a block there that she needed with.” When help wanted, asked what else Suffern Officer Davinroy testi- fied “there was some conversation about her not recalling penetration interview, 3In report his formal introduced an exhibit to Guerra’s motion for as trial, new Officer Judy’s description previous night; Granados reiterated of the events of regard with Murkidjanian’s testimony, actions her statement to her trial with was similar significant one penetration. omission—she made no mention whatever of On the form “Rape (Attempt).” officer identified the reporting crime he was 4According police to the report, Judy partici told Officer Granados that Guerra “did not pate event”; left, in the incident and nothing during Murkidjanian said and that after stayed Guerra with her okay sorry and “asked her if she was and said he was for what trial, [Murkidjanian] had attempted Judy to do.” At that at the time she was inter testified viewed Officer memory trying Granados her was fresh and she was to be truthful. following 5The colloquy place during Judy Murkidjanian took cross-examination at the trial: Well, [By you defense Did go hypnotist? “Q. he tell A. counsel.] reason yes. What did you you he tell go? “Q. was the reason So that I could remember should A. exactly happened. what had regards In to whether penetration? “Q. or not there was A. I believe so.” (31 35), 6As noted in proprietary Cal.3d at organization fn. this is a school Angeles in Los teaches police per courses and other law enforcement sonnel. 7I.e., Guerra, Murkidjanian, Logue. and session, Officer Judy recognized

When she for appeared hypnotic months earlier and a few he in her building, had lived Davinroy: apartment for his gratitude had expressed he had tried to fix her car for her. She De- basis. Fullerton efforts, friendly on a thus the session they began session, by oper- and assisted tective O’Brien was throughout present however, did they Davinroy, to Officer According recorder. ating tape O’Brien Detective because the whole succeed recording proceeding talked addition, Davinroy Officer into himself.8 going “kept hypnosis” the recorder few before was hypnotized with minutes she Judy the trance out of on, was brought was turned and for a few minutes after she and the recorder was turned off. entered a hypnotic Judy

Officer testified that his Davinroy opinion of February of the night related the events trance.9 While in the trance she then Davinroy began 25, 1979, Officer but did not mention penetration. to step trance level as preparatory the of her to a bringing lighter process came out her that when she he told her. other dehypnotizing Among things, little of the events much or as would be remember as she able to hypnosis said, “I feel Greg Judy [Murk- comfortable with.” At that you’re point “as Davinroy Officer soft.” very inside me ... a little . . . and it’s idjanian] He then felt, were equivocal. asked her “what she but her answers part” remem- “you’ll told her remembers after hypnosis, that information she He next ber important.” and for as as seems quite vividly accurately long in- “if recall more you that implanted suggestion specific posthypnotic call Detective later, like to just you formation often I’d very happens, Suffern.” after discussion their unrecorded

Officer testified that Davinroy during remem- “now to him that she had been she indicated Judy dehypnotized, Davinroy 8Officer as follows: testified Now, a time when was there [By during hypnotic session defense “Q. counsel.] on, running. always always but it wasn’t tape tape not on? The recorder was was A. recall, Detective I to you you by that? A. Yes. As seem explain Can what mean “Q. he didn’t time when periods of going and I think there were kept hypnosis O’Brien into tape realize that the had run out. off, we would need been might have length I see. As to the of time the machine “Q. be able think he would time? A. I don’t give us the actual amount of Detective O’Brien to to do that. sir, Yes, percep- have a different people and hypnotized? that he A. Is because was “Q. they hypnosis.” tion of time when are session, Guerra’s motion exhibit to introduced as an report hypnotic 9In his on the record trial, tape At trial the “medium.” the trance as new the officer estimated the level of court, recording was furnished transcript ing played open session part of the and are into evidence transcript were admitted jury. tape Both the and the appeal. record on there examination bered” had been At the sexual penetration. preliminary testified had achieved. Judy positively that penetration been to Prior trial both moved to on the Judy’s testimony defendants suppress that it induced evidence is so unreliable should ground hypnotically excluded from criminal trials this state. The prosecutor responded did “concededly, element of this entire crime she not recall to the only officers was the police something The she penetration. penetration accidentally recalled after she was then hypnotized.” prosecutor argued that counsel’s sole was to the witness remedy attempt impeach pointing motion, out the The court denied the inconsistency. apparently theory fact At the admissibility. rather than hypnosis goes credibility outset trial defendants objected again Judy’s proposed it, moved exclude it contending that was the rather product than of Judy’s memory of the events. After a brief court hearing again refused suppress testimony. trial

At the Judy admitted that first time she the there had police told been penetration was When the during asked whether hypnosis. prosecutor “Oh, she had also recalled it I kind hypnosis, before she of replied, just it blocked out of mind.” And when she could now my asked whether recall it because she had been or it the because she remembered from hypnotized events of the night asserted, of she can February “I remember it from that night.” defense called Dr. Cameron Donald to testify Pennock as expert

on Dr. hypnosis.10 Pennock is and who had physician has psychiatrist of years and training he used both practice hypnosis; hypnosis has for of purposes and as a he therapy has it to factfinding procedure; taught psy- chiatric resident the physicians, and has written Dr. Pen- subject. papers nock described the of phenomenon and the hypnosis, emphasized dangers of unconscious and confabulation when the suggestions is an au- hypnotist figure like a and thority officer is not an police professional experienced the or medical behavioral sciences. After of tape listening recording Officer session with Davinroy’s and hypnotic Judy reading transcript the recording, Dr. stated that in Pennock his session hypnotic opinion case of was a He that Officer “psychological brainwashing.” explained crimes, Davinroy may not have all the but “he known details of the certainly if was aware to trying unconsciously— he was thing prove”—even indeed, and that was penetration; it was “the that both of them very thing [i.e., Officer and knew that were after.” Dr. Pennock Davinroy Judy] they he had and testified discerned numerous in the tape instances transcript only Murkidjanian 10Dr. Pennock testified at the trial.

in which Judy expectations Officer his Davinroy expressed prehypnotic clues of what the would well as her subtle while giving session as produce, was in the influenced her Dr. Pennock she trance that answers.11 probably concluded that in more of what said under Judy his than opinion percent true, the claim but probably remainder—including hypnosis false. penetration—was Dr. Albert

At the on the motion new trial defense called hearing for is a clinical J. Rosenstein as an witness.12 Dr. Rosenstein testify expert it years extensively who has studied and used hypnosis psychologist Dr. views to the inherent risk his He confirmed Pennock’s practice. false inaccurate under because eliciting information hypnosis After subject’s hypersuggestibility eagerness please hypnotist. with tape Davinroy’s Judy, of Officer session hearing recording hypnotic (fn. 3, ante) and Officer of Officer Granados reading police report (fn. 9, ante), Dr. Rosenstein stat- Davinroy’s report session hypnotic [i.e., ed that in his “the in a opinion Judy] responded patient programmed manner as had been led though through arriving patient process at the conclusion He did not find indication “any that she was penetrated.” without without patient objectively, being pushed, spontaneously, believe that carried to the arrived a conclusion led me to being point, ” that if a patient she was Dr. Rosenstein testified penetrated. particular, that one knows of the reasons she is asked being undergo determine alone con- knowledge whether was sexually she penetrated, stitutes a And if that “recall” suggestion that she “recall” such penetration. very occurs after Dr. would be shortly “very, Rosenstein hypnosis, suspi- of it.” cious

II. rule of People controlled Both defendants contend case is 18, if Shirley (1982) Shirley v. 31 Cal.3d and that is this supra, applied deemed must be both record admission of Judy’s posthypnotic not take with latter erroneous and does issue Respondent prejudicial. but rule barring posthypnotic our point, vigorously urges before date of should not witness apply hypnotized decision. We with contention. begin 11 Davinroy were such state Among expressed the prehypnotic expectations that Officer just talking we if I was get [by hypnosis] “We’ll than will ments as more information gain normally”; conducting is to infor you “my only objective being here this session however, case”; private; we going gain information is mation that’s to be used in a “the law”; prose “from a in a possibility tapes

there a would be reviewed court of this”; particular hear “In this standpoint get jury it could cution we would love to so the type retrieving regarding of assault.” case we’re interested in information only for new

12Dr. Rosenstein on Guerra’s motion trial. testified

399 A. effect, To determine should whether decision be retroactive given the California courts first undertake a threshold does the decision inquiry: does, establish a new rule of If it not be may law? new rule or may retroactive, below; not, as we retroac discuss but if it does “no question arises,” (Donaldson tivity because there is no material in the law. v. change 704, (1983) 24, Court 35 Cal.3d 672 P.2d Superior 36 Cal.Rptr. [196 110] 539, (1984) Garcia 36 [plur. opn.]; People v. Cal.3d 547-548 [205 265, 826]; 684 Cal.Rptr. (1982) P.2d United v. Johnson 457 U.S. States 537, 202, 213-214, 2579].) 549 L.Ed.2d 102 S.Ct. that event the [73 state, decision body becomes of case law this simply part under ordinary of stare decisis all cases not final. principles applies yet rule, Indeed, “As a judicial decisions ‘retroactively.’ apply [Citation.] retroactivity.” a legal system based on has a built-in precedent presumption (S 586, v. (1984) 579, Stumes 104 U.S. 638 L.Ed.2d [79 olem 1338, 1341].) S.Ct.

The most common that do not examples decisions establish new rule of law in this sense are which those or refine the holding explain case, of a those prior to a fact apply existing different precedent situation, if even the may result be said to “extend” the or those precedent, which draw a conclusion that clearly was or implied anticipated pre vious opinions (e.g., v. Court People Superior (Kiefer) 3 Cal.3d 807 729, 449], 478 P.2d in Gallik v. Court Cal.Rptr. Superior explained 855, (1971) 5 573]; Cal.3d P.2d see also 859-860 Cal.Rptr. id. at fn. 4 [retroactivity Court Superior Mozzetti Cal.3d (94 84)]).13 Cal.Rptr. P.2d law,

If the decision rule establishes a new second question was, arises: there a rule to the If prior contrary? there the new rule— retroactive, below; again—may may as we if discuss there was not, the new rule all in is so applies yet cases not final. This for the obvious reason that there cannot have been justifiable reliance on an rule old when no old rule existed. And the crucial: word is emphasized “Unjustified ‘reliance’ is no bar (Solem (1984) v. Stumes 465 retroactivity.” supra, 579, 589, 1338, 1343].) U.S. 638 L.Ed.2d 104 S.Ct. It follows that [79 examples 13Other have gave statutory included a decision in we to a rule that which effect 389, (1971) the courts had theretofore 4 (People misconstrued v. Mutch Cal.3d 394 [93 721, Cal.Rptr. 633]) (1984) 482 definitively (People P.2d had or not v. Garcia addressed supra, 549), p. 36 at Cal.3d a apply decision that was our first occasion to certain binding (1968) precedents of the Supreme (People United States Court Sesslin Cal.2d v. 68 409, 321], (1969) 418 Cal.Rptr. explained People [67 439 P.2d in Groves 71 Cal.2d v. 1196, 745, 985]). 1 Cal.Rptr. 1198 & fn. [80 458 P.2d 400

“In all such cases the of ordinary assumption retrospective operation [cita- (Donaldson, takes full effect.” 35 at p. Cal.3d supra, tions] The latter a matter of normal judicial well settled: “As principle [i.e., even a one that cannot serve as non-retroactive decision operation, all basis for on final cases ordinarily governs collateral attack judgment] on v. (People still direct review when decision is rendered.” pending 681, 293, 221].) (1967) 685, 65 3 423 P.2d Rollins Cal.2d fn. Cal.Rptr. [56 518, (1965) 63 528-529 For v. Aranda Cal.2d People example, [47 353, 265], 407 barring we a new rule admission Cal.Rptr. adopted P.2d into of statement that extrajudicial evidence of a codefendant’s any portion 330, defendant; (1967) Charles 66 Cal.2d People implicates 545], 745, 425 held “cases still on pending 334 we Cal.Rptr. P.2d [57 direct review be in accord with adjudicated principles should conclusion, Aranda we adhere to settled established. In this reaching We Court.” Supreme both of this court and of the United States practice (ibid.) of the court’s current observed that “The pattern applying historic numerous of a cases finds appeal basic expression principle pending 260, illustrations,” (1956) 46 Cal.2d People classic v. Kitchens including final), and Linkletter v. yet 262 P.2d Cahan to cases not (applying [294 17] 601, 604, 618, 622, Walker 4 85 (1965) 381 U.S. footnote L.Ed.2d [14 Rollins, final). we S.Ct. not (Mapp Referring cases yet applies 1731] (at concluded we reaffirmed the 335) that “Earlier this p. year, principle or in all of and concluded that convictions should implicit these decisions then not law dinarily tested on under law appeal applicable, today at the We see no reason to prevailing depart time trial. [Citation.] we from from basic Nor have departed this review.” postulate appellate 595, (See, (1978) it since. 608-609 e.g., In re Cal.3d Jimenez Charles); v. Gainer Cal.Rptr. (citing People P.2d 672] (same).) P.2d Cal.3d Cal.Rptr. 997] there was no a new rule when of decisions that establish

Examples (35 Cal.3d rule are noted as follows Donaldson prior contrary 37): when we resolve con retroactivity “Neither is there p. any issue decisions, pre flict issue previously between lower court address course, in sented includes to the courts.”14 latter also category, in the decided stances in which issue but not squarely was presented it resolving decisions Appeal or in which Court opinions, prior prior were v. Garcia (People vacated this court by grants hearing rule was no clear 549). Cal.3d of these cases there supra, 36 each on which have relied. anyone could justifiably People v. authority is example resolving 14A a conflict in lower-court recent of a decision 60, 547, (1984) Cal.Rptr. 674 P.2d Beeman 35 Cal.3d 556-560 [199 1318].

401 This second class of defined reference to its by decisions further may i.e., the new when there was a opposite, prior decisions establish a rule at contrary (457 rule. to both U.S. 551 According Johnson p. [73 214, 215]) 37), at a (35 L.Ed.2d and at such Donaldson Cal.3d p. situations, i.e., “clear break with occurs in certain limited only past” (1) when the decision a of this court explicitly overrules precedent (e.g., 360, (1976) 101, v. Disbrow 16 Cal.3d 113 & fn. 14 People Cal.Rptr. [127 545 272]), (2) P.2d or sanctioned by a disapproves practice prior impliedly Donaldson, decisions of this court (e.g., 37), (3) 35 Cal.3d at or supra, p. and disapproves longstanding widespread practice expressly by approved a near-unanimous of lower-court authorities body People Busta (e.g., (1981) 88, 96, 576, mante 30 Cal.3d 102 634 927]). P.2d Cal.Rptr. [177 It (Johnson, is only this “narrow class of decisions” 457 U.S. supra, p. 216]) L.Ed.2d at that there can have been reli p. justifiable [73 ance on an old rule to the contrary, hence that the courts choose may make, on grounds ordinary to “the policy, exception assumption (Donaldson, retrospective 37).15 operation” supra, p. 35 Cal.3d at At the time present the California courts decide whether to make such an the three exception by weighing factors summarized in Stovall v. Denno (1967) 293, 1199, U.S. “(a) L.Ed.2d to be purpose [18 1203]: served by standards, (b) the new the extent of the reliance law enforce standards, ment authorities on the (c) old effect on administration justice of retroactive of the new Donald application (E.g., standards.” son, Cal.3d; of 35 (1980) In re Joe R. Cal.3d 511-512 927]; 612 P.2d Cal.Rptr. People v. Kaanehe 19 Cal.3d 1, 10 1028].) Cal.Rptr. 559 P.2d

The traditional of the Stovall test as how description “tripartite,” ever, with, is To misleading. begin the second and third factors it identifies are but two really sides of the same coin: when the retroactive application of a new rule causes a substantial effect on the administration it justice, is primarily because there was reliance on the old rule by substantial law authorities; minimal, enforcement when that reliance was ret conversely, roactive will application usually similarly have a minimal effect administration of justice. The second and third factors are thus du largely plicative; functionally, test is bipartite.

Even that is description inadequate cases which the first many factor—the purpose new towards rule—points plainly retroactivity one, exception retroactivity 15Even that is a limited sense that the normal rule of always applies adjudicated appeal being to “the individual defendant whose the court” (People supra, 88, 102). v. Bustamante 30 Cal.3d 402 the beginning is then both The determination of that

prospectivity. purpose on the admin- and burden and the end of the “the factors of reliance inquiry: of when the only of are relevance significant question istration of justice is considered.” of the new rule retroactivity is close one after purpose 841]; 569, 475 P.2d (In (1970) 404, re 3 410 Cal.Rptr. Johnson Cal.3d [90 248, 244, L.Ed.2d accord, (1969) v. 394 251 Desist United States U.S. [22 256, 1030].) favors clearly retroactivity 89 S.Ct. When that purpose weight it effect without regard will be prospectivity, given (Ibid.) essentially unipartite. In such cases the test is remaining factors. all

B. been in has the most consistent of this Perhaps application principle reliable of the new rule is promote cases in which the primary purpose Court has States determinations of or innocence. The United Supreme guilt the major its “Where purpose characterized in event: aptly operation trial of the criminal new is to overcome an aspect constitutional doctrine raises serious its function so substantially impairs truth-finding trials, the new rule accuracy past about the verdicts guilty questions reliance by Neither good-faith has been retroactive effect. given complete law or accepted practice, constitutional state or federal authorities on prior has sufficed justice require nor severe on the administration of impact ” omitted.) (Fn. (Williams in these circumstances. prospective application 388, 395, 646, (1971) 91 S.Ct. v. United States 401 653 L.Ed.2d U.S. [28 so 1148].) holding prior federal court high Numerous decisions of the Johnson, 3 Cal.3d supra, Williams are summarized our opinion 411.16 p. Williams, this held a new rule retroactive

Since court has high 407 (1972) In New York City three more Ivan V. instances. ground 659, 1951], retroactivity was the the issue U.S. 203 L.Ed.2d 92 S.Ct. [32 368, 90 S.Ct. (1970) 358 L.Ed.2d rule of re 397 U.S. Winship [25 be- 1068], proof with the standard the states to comply required The court observed in juvenile a reasonable doubt yond proceedings. convic- risk of reducing rule was “a instrument Winship prime 375]); and L.Ed.2d at (id. 363 tions on factual error” at p. [25 resting Williams, that “the concluded the court foregoing language quoting a reasonable beyond of proof of the constitutional standard major purpose trial of a criminal an aspect doubt announced in was to overcome Winship 508, 540]; 16See, (1969) S.Ct. 314 L.Ed.2d 89 e.g., Berger v. 393 U.S. [21 California 2, 32]; v. Massa (1968) Arsenault Rhay 89 S.Ct. McConnell v. 393 U.S. L.Ed.2d [21 (1968) 35]; 392 U.S. Roberts v. Russell 393 U.S. 5 L.Ed.2d 89 S.Ct. chusetts 510, 523, 1291]; Witherspoon v. 391 U.S. Illinois 88 S.Ct. [20 L.Ed.2d 1770]. footnote L.Ed.2d S.Ct. function, Winship is thus substantially impairs truth-finding (407 be at retroactive effect.” U.S. at 205 L.Ed.2d given complete p. [32 661-662].) pp. 306,

In Hankerson 233 (1977) v. North Carolina 432 U.S. L.Ed.2d [53 2339], 97 S.Ct. the issue of the rule of retroactivity Mullaney was (1975) 508, 1881], Wilbur 421 U.S. 684 L.Ed.2d S.Ct. which barred [44 from states the defendant the burden of on any shifting persuasion V., element of the crime. The under Ivan court held the rule retroactive that “In reasoning as in the rule to di Mullaney, Winship, designed minish the probability that an innocent would be convicted and thus person to overcome an of a criminal trial that the truth- aspect ‘substantially impairs ” (Id. finding 315].) function.’ at L.Ed.2d at The state p. p. sought [53 Ivan V. distinguish by of reliance and on the stressing factors impact administration of justice.17 Because of of Mul truth-finding purpose rule, however, laney court declined to these factors high give The (at court weight. 315-316]) 243-244 L.Ed.2d at explained pp. [53 that “It is true that we have said that the whether the question purpose of a new constitutional rule is to enhance the integrity factfinding is a process question [citation]; when the ‘degree,’ to which degree small, the rule enhances the of the integrity is factfinding process sufficiently we have looked to of reliance questions the State on the old rule and the of the impact new rule on the administration of whether justice deciding the new rule is to be But we have never applied retroactively. [Citations.] deviated from the rule stated in Ivan V. that the major purpose ‘“[w]here of new constitutional doctrine is to overcome an of the trial criminal aspect that substantially its impairs function and so raises serious truth-finding trials, about the questions accuracy verdicts the new rule guilty past given complete retroactive effect.”’ [is] The reasonable-doubt [Citation.] standard of proof as ‘substantial’ a under it requirement Mullaney as was ” (Fn. omitted.) Winship.

Finally, Brown v. Louisiana 447 U.S. 323 L.Ed.2d [65 2214], 100 S.Ct. court high retroactive effect to the rule of Burch gave v. Louisiana 1623], U.S. 130 L.Ed.2d 99 S.Ct. [60 required unanimity conviction of a nonpetty offense six-person jury. issue, The court reviewed the various formulations of the here in doctrine and found their denominator be common rule which “any raises substantial reliability doubts about the verdict jury’s should applied example, application pointed Winship 17For it out that retroactive only juvenile affected eourts, Mullaney while the would applieation same invalidate the eonvictions of murder ers. (447

retroactively.” U.S. at fn. 6 L.Ed.2d at [plur. p. p. 167] then Burch designed concluded that the rule was opn.].) opinion verdict, to trial of its by jury and assure preserve right reliability (Id. and hence that its retroactive purpose “clearly requires application.” 169].) L.Ed.2d at p. the has twice two United States Court During years Supreme past more with in United v. Johnson grappled retroactivity States questions, (1982) 537, 465 (1984) 457 U.S. and v. Stumes supra, supra, in Solem U. S. 638 has succeeded regrettably, S.Ct. Neither opinion, [104 1338]. they because to perhaps definitive answers all such questions; providing do not even of different represent viewpoints majorities, opinions however, we need to be For consistent. our appear wholly present purposes, efforts;18 that both it is to note not these two attempt enough reconcile Ivan like agree on the continued of the doctrine of cases opinions vitality Amend Fourth V. Thus Johnson to limit rule of retroactivity its purports that “The decisions, ment but observation immediately significant adds however, of our giving is inconsistent with our logic ruling, not precedents to over rules whose is retroactive effect constitutional complete purpose truth-find substantially its impairs come of the criminal trial that aspect function,” 562, (457 fn. 21 Hankerson Ivan V. U.S. at ing p. and citing 544, & fn. 11 222]; L.Ed.2d also at 548-549 at see id. pp. [73 p. [73 “Com 209-210, turn, Solem reiterates that 212-214].) L.Ed.2d at retroactive effect most where new constitutional plete prin is appropriate trials,” Wil citing is of criminal designed accuracy to enhance ciple 1342].) And 587, (465 L.Ed.2d 104 S.Ct. at p. liams. 638 at p. U.S. [79 “the rule is not sort of decision opinion holds that the there in issue function, consistently have we goes heart of truthfinding Hankerson, retroactive,” Brown, (Id. held to be Arsenault. at and citing 588, 1343].) 645 104 L.Ed.2d at p. p. S.Ct. p. [79

C. with the federal foregoing decisions of this court are in full accord 695, (1970) Cal.Rptr. doctrine. Thus in In re Cal.3d 863 Montgomery [87 15], Page Barber v. 471 P.2d we full retroactive effect to the rule of gave i.e., de- (1968) 1318], L.Ed.2d 88 S.Ct. U.S. 719 [20 general, majority 18InJohnson a held that Fourth Amendment decisions five-member 1371], (1980) partic Payton 445 U.S. 573 L.Ed.2d v. New 100 S.Ct. York ular, they yet apply appeal judgments are on direct all not retroactive in the sense decision, majority held that a Sixth Amendment final. In Solem a five-member different 1880], prospective 451 U.S. L.Ed.2d S.Ct. is Edwards v. Arizona corpus judgments. on to final apply habeas in the sense that not it does view of Johnson in the 10 of paragraph second of footnote expressed preliminary We our Donaldson, 35 Cal.3d. page 38 of and cross-exami- fendant denied his constitutional of confrontation right when he the preliminary hearing nation is convicted transcript witness, has made a of an unless the good- absent prosecution We faith effort to secure the trial. reasoned that the witness’s attendance at if even rule the error “a of that impact may significant, presents serious risk that the have been guilt reliably issue of innocence may (2 866.) determined.” “The Cal.3d at We observed that United States Court Supreme consistently retroactivity has accorded full rules crim- inal procedure fashioned to correct serious flaws in fact-finding process at trial. The denial to confrontation cross-ex- right [Citations.] amination is such a serious flaw.” at p. {Id. 404, 413,

In In re Johnson 3 Cal.3d after a review supra, thorough of federal we the new rule in precedents, directly concluded “the more serves to the the conviction of innocent more question preclude persons, likely Further, it is that the rule will be afforded application. retrospective if the rule relates to characteristics of the which are essential judicial system innocent, to of the minimizing convictions it will re- apply retroactively law, of the gardless reliance and regardless of on former of the prosecutors ” burden which (Italics will system. the retroactivity place upon judicial added.) We “The of recent explained that concern retroac- overwhelming tivity decisions with the relation of the rule in to the of reliability question the at trial the truth-determining corollary is but a to ultimate test process of the of integrity to ensure the judicial process: its capacity acquittal of the 416.) innocent.” at p. {Id.

In People 306, 488, v. (1975) Burnick 332 535 Cal.3d Cal.Rptr. [121 352], we P.2d held federal that the and state due clauses process require standard a reasonable doubt in to proof beyond proceedings leading offender, involuntary commitment as a disordered sex and “be- mentally cause major of this rule purpose aspect is to overcome those function,’ which proceedings ‘substantially our de- impairs truth-finding effect,” cision must be today (Ac- retroactive Ivan V. given complete citing cord, People (1977) 630, 594, v. Thomas 19 Cal.3d 644-645 Cal.Rptr. P.2d reasonable (holding requirements beyond proof 228] and doubt in narcotics jury addicts commitment are unanimity proceedings fully retroactive V.).) under Burnick and Ivan (1977) 835, v. People supra, Gainer Cal.3d we held it error to give so-called “Allen instruction” deadlocked potentially juries, primarily

because it right defendant’s impaired independent judgment verdict, juror each unanimous and exerted undue truly on pressure with to vote dissenting jurors majority reach a verdict of simply 848-851.) We further (Id. kind. held at this new any rule to be retro active, (at 853) at error judicial sig that “it is aimed p. explaining Given this crit infects at trial. nificantly fact-finding process [Citation.] endorsements reliance on judicial previous appellate ical neither purpose, justice the administration of of the this state nor effects on charge now on appeal.” us to the benefit of this rule cases deny pending require to new constitutional doctrine only We noted that applies this principle necessarily which are not consti but also to new declared rules “judicially (Id. 853, 18.) at fn. tutionally required.” p. 25 Cal.3d Pryor Cal.Rptr. v. Court

Finally, Municipal (a), 636], we Code section subdivision 599 P.2d construed Penal committed only as “lewd conduct” certain acts to criminalize or dissolute 244.) We further in a limited manner and with a intent. specific p. {Id. retroactive, of the that the reasoning purpose declared this new rule innocence, for conduct which holding “implicates guilt questions older definition may trier of fact have found criminal under the might vague in the case.” present fall of the construed clearly beyond statute scope Gainer, {ibid.) rule concluded would we Relying {Id. final, degree at least reliance yet regardless all cases not apply on the of justice on the old rule and the burden administration placed 36 Cal.3d (See Garcia People supra, such also application. 549.)19

III. to testi holding We the our apply foregoing analysis or his mem improve of to restore mony a witness who has been hypnotized of subject hypnotic is inadmissible as to that were ory all matters session.

A. it law: did First, a new rule of it that Shirley established undisputed to existing an merely holding precedent more than a explain prior apply facts, decisions by previous it was not foreshadowed clearly different this of court. was no of it there

Second, the case law careful review appears upon of the retroac- within contrary, meaning California rule previous (See, People v. e.g., so held in a have also number contexts. Appeal 19The Courts 365, 541]; Faught Cal.Rptr. People v. (1981) Cal.App.3d 369-370 [179 127 Hickman 848, 637]; (1979) Cal.Rptr. (1981) People Cooper v. 94 Cal.App.3d [177 856-857 124 646]; (1977) People 672, Cal.Rptr. Whittington Cal.App.3d v. Cal.App.3d 680 [156 742].) 806, Cal.Rptr. 823-824 [141 tivity precedents. Few had mentioned the opinions phenome- our courts non of we and fewer Shirley, before it in still hypnosis depth discussed had of a reliability addressed its as device to restore witness. memory One of the earliest of these set the for decades to come. In tone opinions 652, v. People (1897) 1049], Ebanks the defendant 117 Cal. 665-666 P. [49 to offered he had been and while prove hypnotized by expert hypnotist, under had hypnosis made on the basis of was expert statements to that he innocent. The trial court refused the offer on prepared testify was “ ground that ‘The law of the United States does not sweeping recognize hypnotism,’” and this court with the confident upheld ruling equally observation that “We add the argue only shall not stop point (Italics court was right.” in original.)

Over 60 years before in a decision of passed again issue this court. In Cornell Superior v. Court 52 Cal.2d P.2d 447], the counsel for a defendant trial a writ of mandate to sought awaiting the sheriff to compel allow an his client in to examine expert hypnotist jail for the purpose of This learning his whereabouts on the the crime. night court granted writ on the that the defendant’s ground constitutional right to counsel the right includes to consult with his and the before trial attorney latter’s right reasonable facts order discover opportunity prepare a defense. We recognized that Ebanks held inadmissible statements defendant makes while under but that such hypnosis, reasoned statements might nevertheless serve as leads other discovery evidence that itself be might admissible and might constitute a defense to the charge. People Busch 56 Cal.2d Cal.Rptr. 314], P.2d a defense physician offered to of the defendant’s give opinion his crimes, mental state the time examinations of the based pretrial defendant that had included The on the hypnosis. prosecution objected ground that hypnosis was a not a scientific means sufficiently of exploring mind, state of person’s and that the witness was not The trial qualified. court ruled that the a witness to medical testify was as doctor on competent condition, the defendant’s mental testify but not to as opinion insofar his was based on the of results This court affirmed the on the hypnosis. ruling that ground “the trial did act judge not in his determination unreasonably that a foundation not proper reliability was established as to the of an ana- lytical tool still in the field seeking of recognition psychiatry, as of qualifications this witness to particular give an on the state of opinion mind of the accused . . .". 59 Cal.2d People v. Modesto Cal.Rptr. 33],

P.2d a defense psychiatrist the trial court allowed to give her opinion crimes, of state the time of the defendant’s mental based on pretrial but the court examinations of the defendant that had included hypnosis, that defendant made excluded under Busch a of statements tape recording in the on the that ground while This court Busch distinguished hypnotized. and that before it the was as an expert psychiatrist, case witness qualified of in evidence all the data in Busch “would nothing preclude introducing however, conceded, that the on which court she based her opinion.” of exercise the trial have been excluded recording might tape properly risk of prejudice, value probative against discretion judge’s weigh held it error not have exercised that discretion. 640, 665 Cal.Rptr. v. Blair Finally, Cal.3d People state- 738], recording 602 2d we a P. a upheld ruling excluding tape and offered under ments made a defense witness while hypnotized We Modesto hearsay distinguished recollection recorded. exception past basis for an a on the that such statements admissible ground may in- otherwise they reaffirmed Ebanks rule that are opinion, and expert reliability “because the admissible for the truth of the asserted matters de- was Even the witness though such statements is questionable.” observer, “The fact that she fendant a explained but disinterested we statements under falsify a and had no her neutral reason person obviously truth are insufficient and that she intended to tell the hypnosis is there establish in the reliability, especially expert light relating no is actual way to determine under person facts." if (Italics added.) 665-666.) (Id. at pp. hold, did this court decisions

It is obvious that none the foregoing has been hypnotized a witness who contrary Shirley, Shirley Thus of California. to restore his the courts memory admissible court—the first category did not overrule a of this precedent explicitly under Johnson with the past” decisions that can constitute “clear break and Donaldson. decisions, i.e., those it of such category

Nor does fall within the second this decisions of sanctioned prior disapprove practice impliedly “intimated” court. that none argues foregoing opinions Respondent rule; new, Shirley rule was merely proves but that fact Rather, a rule. the contrary not that our cases had prior impliedly approved inadmissibility and unreliability opinions references those repeated it could anyone make inconceivable that testimony of induced hypnotically use to refresh a wit- the of encouraging hypnosis read them as have fairly memory. ness’s within the of break” fall third “clear

Nor, Shirley category does finally, a i.e., and decisions, disapprove longstanding widespread prac which those

409 tice authority. a near-unanimous of lower-court expressly by body approved with, To begin while we not doubt that there were a do prior number of used instances in which certain California police departments in an to restore or a witness’s it does hypnosis memory, attempt improve not that it was both a and appear “widespread” practice “longstanding” within the the former meaning Contrary retroactivity precedents. tests, routine destruction of the of for re breathalyzer evidence example, spondent fails to show that witnesses was “the standard of pretrial hypnosis and almost uniform law officials throughout for enforcement procedure state” (People (1974) v. Hitch 654 527 Cal.Rptr. Cal.3d [117 361]). P.2d

More there no important, was of such express any practice by approval near-unanimous body lower-court relies on precedents. Respondent only two first, cases. v. People Colligan Cal.App.3d 389], a Cal.Rptr. robbery victim was hypnotized by police car, to have her recall the attempt getaway license number and plate while under hypnosis she also robber. Thereafter gave description she identified the defendant at a at the photographic lineup, preliminary hearing, On trial. the defendant that the latter appeal complained contention, identification was tainted by Rejecting the pretrial hypnosis. the Court of relied Appeal rule that “a claim principally improper pretrial identification will considered on absent an objection appeal in the trial court .. . .” The court added that in event “defendant does not contend that hypnotic suggestions were made to actually [the witness] identification”; affected her dictum, the court remarked “We decline hold that the use of witness remember a license help number se per invalidates identification of a seen and heard person by witness.” case,

In the second People Diggs Cal.App.3d 386], Cal.Rptr. an assault victim was memory- hypnotized police enhancement after the first trial ended in a Prior to purposes hung jury. retrial the defendant moved to victim’s because it suppress was the product of At the Dr. Bernard Diamond testified hypnosis. hearing for the unreliable, defense that induced is inherently hypnotically memories, creates false and makes the witness resistant cross-examina- tion; his testimony experts. pros- affidavits other supported however, ecution psychiatrist, expressed opinion hypnotic memory reliable, enhancement is and described the he used to procedure hypnotize the victim in the The trial case at hand. court refused to the testi- suppress and the convicted. The mony, defendant was Court of reversed the Appeal at a judgment postindictment for lack counsel 528- lineup. {Id. case, a third For in the event of trial in guidance the court also 410 testimony, the of posthypnotic

addressed the of question admissibility (id. at in California” “an issue not decided correctly yet it described as Kelly-Frye the 530). by court that the issue was governed The reasoned p. 144, 549 P.2d rule (People Kelly Cal.Rptr. Cal.3d i.e., 1923) that evi- 1240]; (D.C.Cir. 1013), F. Frye v. United States showing on a only dence based on a new is admissible technique scientific in which community that it is in the scientific generally as reliable accepted 531) (at that “Dr. Diamond’s it The court then concluded developed. p. prosecution the contrary,” testimony psychiatrist memory- reliability “sufficient of the of hypnotic amounted to evidence” general on the enhancement to the trial court’s ruling, apparently support is (see Code, 411) enough of one witness Evid. theory § fact.20 prove any they is that Diggs most say Colligan The is able to respondent a witness’s mem- for the use of to restore “implied gave support” hypnosis be ex- But the such ory. practice retroactivity precedents require of this court a contrary ruling the lower courts before pressly approved by if And even Diggs can be said to break with the past.” constitute “clear all could be read broadly memory-enhancement as approving hypnotic it, not its lone voice did cases rather than on the record before merely on authority body” amount to the “near-unanimous of lower-court required the issue.21 lower federal courts invokes a number of decisions also

Respondent testi induced hypnotically and the courts of other that had admitted states on the with without certain mony Shirley, “safeguards,” either or prior admissibility” not the that the fact of theory “goes weight, hypnosis from whether cases not reach the of such evidence.22 We need question court should restrict can if of this other determine a decision jurisdiction law on California, hyp case foreign ed to effect in because the prospective at the time body nosis did not precedents constitute “near-unanimous” Shirley, pointing that “the holding Diggs in out expressly disapproved the 20We latter expert personally believes one Kelly-Frye merely evidence that requirement is not fulfilled reliable; is procedure find that challenged must be able to procedure court originated. community in which it larger scientific generally accepted as reliable 30-32, Cal.3d].) finding be made no could (Kelly, It is obvious that such [of (31 p. fn. Diggs.” record in Cal.3d Justice, 21Indeed, Department publication in an official California casenote 31), (Feb. published opin Diggs “the first Report described as Peace Officer Law issue,” pointed Supreme the California out that ion in California on this controversial pending yet it but addressed the issue. before had Court had several cases throughout justice agencies criminal state. Report Peace Officer Law is distributed bar, Diggs Colligan Judy in the case at Obviously rely on police did not decided. hypnotized before either was (31 35-39.) at pp. Cal.3d Shirley. 22The cases are cited While the Shirley. cases relied on have constituted by respondent may (31 rule” when the to trial Cal.3d at “prevailing Shirley case went 33), (id. 32). p. fn. law was nevertheless “in a of flux” at p. state In the four line years Shirley our decision there arose preceding contrary of cases from still other states that induced testimony holding hypnotically test, was inadmissible under the the time we decided Kelly-Frye by Shirley there were such as tes approximately many jurisdictions rejecting timony it.23 we allowing Accordingly, even if had the “resolve” power in Shirley law, that conflict in case the existence of the conflict foreign ipso facto meant that our decision be would still “the governed by ordinary assumption (Donaldson, at retrospective supra, operation” p. 3d).

Cal. We could end our at analysis this because there was no “old rule” point: California, contrary Shirley did not a “clear constitute break with and hence past” must be given normal to all cases not application yet final.

B. Out of an caution, however, excess of we shall further and assume go arguendo that did amount to a “clear which in break” appropriate circumstances could limited to prospective under the Stovall operation test. We proceed apply test. (Part

As II, above explained ante), the first is to determine the major step of the new purpose rule. On point this Shirley opinion itself. speaks After establishing that the aided admissibility recall is to be hypnotically test, determined the Kelly-Frye we reviewed numerous on articles hyp- nosis scientific review,” concluded, treatises and journals. “From we this “it clearly appears voices in the major scientific community oppose use of restore the witnesses, memory with or with- potential out procedural safeguards, ground of its unreliability.” (31 intrinsic Cal.3d at We then identified a number of causes reported unreliability.

First we noted studies of human that a witness memory showing often subconsciously alters his recollection of an event in later infor- response mation or so questioning, does that are ways both irreversible and (Id. impossible detect. 57-62.) Next we reviewed the scientific literature that “each of establishing found such research phenomena 23The rejecting hypnotically (Id. cases Shirley. induced are also cited in pp. 40-51.) more in a normal unreliability memory reappears the of

to contribute to of improving for the purpose the extreme form when witness is hypnotized the conclusions 63.) We salient (Id. at summarized p. his recollection.” to sugges- is hyperreceptive A hypnotized person that literature as follows: nonverbal, verbal or or the whether by express implied, tions hypnotist, himself. unintended, the by hypnotist or even unperceived deliberate desire to hypnotist a experiences compelling please hypnotized person is judgment his critical he are believes giving responses expected; by not have relied he credit would him to recollections causing vague impaired, will event he produce recall an actually on before and if he cannot hypnosis; facts from an of irrelevant bemay compounded a that “pseudomemory” unconscious- fantasized material “confabulations” or unrelated experience, cannot memory claimed lies. If the invented to fill the conscious ly gaps, nor a means, nor an expert neither the subject verified by be independent and the fore- recollections between accurate observer can lay distinguish afterwards, or session either during hypnotic going pseudomemories, of an memory i.e., a uncertain of his the trial. witness who is Finally, by process will become convinced being hypnotized event before true; grows that conviction entirely he told under is story trial, the resulting time of he until story, “by as stronger repeats such techniques traditional legal fixed in his mind that ‘memory’ may so unreliability.” ineffective to expose,its as cross-examination bemay largely thus literature (Id. (ibid.) that the professional We concluded the use of hypnosis time doubt that at the beyond any present “demonstrates generally accepted not of a witness is memory to restore potential testimony that the and hence community,” reliable relevant scientific by is inad- by hypnosis a been with tampered of witness whose has memory session. of the subject hypnotic were the missible as the events that under the evidence decisions excluding need not decide whether all We to such factfinding process of the reliability test Kelly-Frye promote evidence The kind of effect. should be retroactive degree they given technical dry, explanation rule is Shirley simply addresses (See, criminalist. a disinterested arcane method of scientific proof Cal.Rptr. 250-255 (1978) 80 Cal.App.3d v. Palmer e.g., People studying residue (analysis gunshot particles 1 A.L.R.4th 1056] microscope equipped electron scanning chemical characteristics with their case at Shirley and the Rather, it is often—as X-ray spectrometry).) actual victim by the bar—emotionally charged highly personal directly identifying prosecuted, or to the crime eyewitness being evidence piece crucial some furnishing defendant as the perpetrator irremediably is when it excludes such him. A rule that against “ an aspect “‘to overcome manifestly designed by hypnosis tainted criminal trial that its function and so substantially truth-finding impairs raises serious about the verdicts questions accuracy guilty past (Hankerson trials”’” v. supra, North Carolina U.S. 306, 316]). L.Ed.2d Under the federal and California dis- precedents earlier,

cussed rule yet therefore to all cases not final. applies “Neither reliance” law or “nor severe good-faith prior practice accepted on the impact administration of justice has sufficed to require prospective (Williams in these application circumstances.” United States su- pra, 395].) U.S. L.Ed.2d [28

In a fruitless effort to the distinguish retroactivity respondent precedents, contends that on hypnosis is different because its effects the witness can be identified assertedly at trial and be counteracted cross-examination. But both of these claims were the the expressly rejected by consensus of 65-66, scientific community (31 68-69); at the time Shirley Cal.3d at pp. (Part as will IV, appear post), fails to show that the respondent consen- has sus significantly changed today. also Respondent argues is different because it in “a mere for harm” and presents potential any given case may have had no effect at all on in Yet the testimony question. said, same can also be example, the standard proof required Burnick and the “dynamite instruction” in Gainer: in any condemned given case the result might well have been the under the old rule. all same three instances the of the purpose new rule is to avoid a risk of grave with tampering truth-finding innocent. process convicting It follows that whether or not it to the replaced contrary, rule prior Shirley decision to all applies yet cases final in our courts.24

C. We find further for our support in the fact that in holding virtually every sister state in which induced in- hypnotically testimony has been declared admissible, the rule has also been at the applied pending cases appeal time it was adopted.

Thus in 1274], State v. Mena 128 Ariz. 226 P.2d the Arizona Supreme Court held inadmissible for all the posthypnotic testimony reasons we (see thereafter invoked in 46-48). Shirley Cal.3d at The Mena court applied our Watson equivalent test to error admitting victim, posthypnotic and found because “had the prejudice disapprove 24We therefore People v. 132 Cal.App.3d Cal.Rptr. Williams 920 [183 498], (19 which held contrary. adopted As with the rule we in Gainer Cal.3d at 853), p. we do not reach question applies whether rule on collateral attack to cases now final. verdict would have been at trial” a different victim’s excluded 1280.) the same test (624 P.2d at We reasonably p. applied been probable. course, 70.) (31 Cal.3d at Shirley. p. prejudice, later the Arizona decided in 1981. Eleven months February Mena was v. Superior reaffirmed Mena rule in State ex rel. Collins Court Supreme Court, the Stovall (1982) Applying etc. Ariz. 180 P.2d 1266]. test, (Id. at only.” the court to hold Mena purported “prospective not be that Mena could But meant simply the quoted phrase apparently final; on direct to cases still on collateral attack to cases that were applied in effect from rule we the court declared a rule indistinguishable appeal, (or post-Mena hyp After holding any person hypnotized now adopt. to be a testified) but yet incompetent notized who had not pre-Mena witness, conviction the court went on to “We further hold explain: recalled in the in which there was hypnotically presently appeals process will place pre-Mena and where the took testimony testimony sufficient if there was be examined on a basis to determine case-by-case evidence, In other the conviction. testimony, uphold the tainted excluding words, posthyp is introduction of cases whether the these question ” added.) Thus the court {Ibid.; italics testimony notic was harmless error. trial, recalled that even on an from a pre-Mena hypnotically assumed appeal “error”; only was therefore is “tainted” and its introduction testimony This standard. under a Watson-type issue is whether the error is prejudicial is what we hold precisely today.25 Court subse- the Arizona analysis, Supreme

Confirming foregoing at on numerous cases pending appeal its Mena rule to quently applied evidence, in some the state of the time Mena was decided. on Depending testimony was in admitting cases the court held that the error posthypnotic 1380, P.2d 533 133 Ariz. harmless State v. Thomas (e.g., [652 and reversed the 1384-1385]), it held the error while in others prejudicial (1982) 133 Ariz. P.2d of conviction State v. judgment Stolp [650 (e.g., 1195, assault)). (aggravated 1196] adopted par in effect was opinion acknowledged 25The that the rule it impliedly Collins that its (ibid.) cognizant Court is tially closing retroactive when it observed in “This later in the same express made holding prospective implication not . . .” The was purely . in Collins guidelines declared

year by opined Appeals, the Arizona Court of of a limited retro “might contemplating application be properly more characterized as only Thus, sense prospective would be application active standard. of Collins final. On the which have become applied it as invalidate convictions would so hand, pending become final because apply it which have not other would to convictions with the in accordance given To it a limited retroactive effect appeals. that extent would be of trial the time change by judicial decision between general is a of law rule that when there prevailing at according to the law appeal, appellate appeal dispose court will 1982) P.2d (State Young 135 Ariz. (App. appellate disposition.” the time of the 1138, 1140-1141].) review the decision. Supreme declined to The Arizona Court 42-44) (31 Another relied Cal.3d at authority we (Minn. 1980) State v. Mack in which the Minnesota 292 N.W.2d a case Court held on the same inadmissible Supreme testimony posthypnotic grounds Shirley. In the court decided State following year, Minnesota (Minn. 1981) v. Koehler from a conviction N.W.2d appeal of a direct evidence bludgeon-murder only linking 12-year-old girl. the defendant to the crime was the of a witness who iden testimony scene tified the defendant’s officer. car after he had been hypnotized by police The court noted Mack was decided the trial of the case subsequently 2), and a “The p. fn. contended that trial dissenting justice {id. court did not have the benefit of our decision in State v. Mack when this case was tried and the standards set forth in that case should not be applied (Id. Nevertheless, retroactively.” the Minnesota majority Court held Supreme the admission of this to be error prejudicial under the Mack rule. It therefore reversed the conviction with directions that on retrial the witness should not be about mat testify permitted ters adduced for the first time after hypnosis.26

The same sequence rulings has also been followed in states in which the decision to exclude we recalled came after de hypnotically cided Shirley. Thus in Com. v. Kater 388 Mass. N.E.2d 1190], the held, Massachusetts Court for all the reasons Supreme stated Shirley and its it predecessors, that was error to admit testimony by pre viously hypnotized witness as to any matters remembered after the hypnotic session, and that error would be if reversible there was a substantial like lihood that a of justice had occurred. Less than four months miscarriage later the same court that rule ato case on at the time applied appeal pending (Com. Kater was decided. (1983) v. Brouillet 389 Mass. 605 N.Ed.2d [451 128].) The court stated that it did not need to of admissibility discuss posthypnotic testimony “because case is controlled Kater. entirely” by The victim had not identified the defendant her until assailant after hypnotic session. The court held that “Kater the exclusion” simply requires of such and the testimony, should judge have the defendant’s granted pre trial motion to it. it suppress The court was well aware that {Id. was applying not, course, Kater did of retroactively, noting “The judge Kater, have the benefit of Commonwealth v. at the time this case supra, Thus, was tried. Indeed, his action was not given wholly unjustified. 26Similarly, (1981) 170], in Com. v. Supreme 496 97 Pa. A.2d Court [436 Nazarovitch of Pennsylvania followed barring testimony, Mena and Mack in hypnotically induced (31 reasoning Shirley 50-51). (1982) we relied on its in Cal.3d at pp. In Com. v. McCabe Pa.Super. 670], 303 245 charged A.2d the defendant with double [449 was a murder and an deadly assault with a weapon, eyewitness having only identified him as the assailant Nazarovitch, being hypnotized. after Both the place prior crimes and the took but the court nevertheless applied affirming pretrial the rule of the in latter case order suppressing testimony. the tainted

416 hearing” time, holding correct

law at that he followed the procedure (Ibid., held that the court 5.) Nevertheless on the motion. fn. suppression and prejudicial, was both error testimony the admission of the posthypnotic (Accord, Dodge Com. v. and reversed a conviction aggravated rape. 1363].) (1984) 636 N.E.2d 391 Mass. [462 1028], the highest A.2d (1983) State v. Collins 296 Md. 670 In [464 inadmis- first time held Maryland posthypnotic court for the Collins the same court Frye day, applied sible under the test.27 On the same (State v. Metscher in two four it reversed the conviction pending appeals; (forcible and assault A.2d oral (1983) copulation 297 Md. 368 [464 1052] A.2d Md. 1 maim); (1983) v. State 297 [464 1065] with intent to Grimes (1983) (Simkus in third v. State (assault murder)), with intent affirmed the inter- 1055]), fourth it remanded 296 Md. 718 A.2d [464 (State Collins v. light for reconsideration mediate court appellate 1067]). (1983) 5 McCoy 297 Md. A.2d [464 743], N.W.2d modified (1982) Mich 615 v. People [329 Gonzales like- Court of 751], Michigan at 417 Mich. 968 N.W.2d Supreme [336 on was inadmissible held induced testimony wise that hypnotically was at the time Gonzales Among cases grounds. pending appeal N.W.2d People Mich.App. decided was v. Nixon a conviction 657-658], had affirmed in which Court Appeals the Michigan testi- of posthypnotic the use despite of two counts of first murder degree the Nixon ordered Court Supreme of an mony eyewitness. Michigan People light reconsideration case remanded to the court of “for appeals remand, 855, 856.) ap- On the court (330 v. . . . .” N.W.2d Gonzales prejudicial of the posthypnotic ruled that admission peals Nixon Gonzales, (People error under and reversed judgment. 33].) N.W.2d Mich.App. 255, 453 523 N.Y.S.2d (1983) 59 N.Y.2d People Hughes In v. [466 held, reasons we for the 484], also N.E.2d the New York Court Appeals un- is inadmissible testimony induced Shirley, set forth in hypnotically 952 (1983) 96 App.Div.2d [466 v. Perrino Frye People der test. of two pros- 408], trial court admitted posthypnotic N.Y.S.2d credibility affects the fact hypnosis ecution witnesses on the theory While the case assault. of aggravated and the defendant was convicted only, decided; court applied intermediate appellate on was Hughes was appeal rule, conviction. and reversed the Hughes (1981) Md.App. 48-50), (31 in Polk v. State Shirley pp. 27Aswe observed in Cal.3d Frye held that 1041], court had appellate Maryland intermediate A.2d [427 open. was still on consensus controlling but of the scientific question question. answered that Collins Finally, 177], State v. Peoples N.C. S.E.2d North contrary Carolina Court to the in State Supreme overruled its decision McQueen (1978) 414], 295 N.C. 96 S.E.2d held re- hypnotically freshed Shirley, inadmissible for the reasons discussed declared (319 the new rule all on cases S.E.2d applicable pending appeal 188-189). no we

Respondent suggests reason should not follow this consistent why of our sister practice states.

IV. alternative, In the respondent Shirley attacks rule itself. He contends that in the subsequent developments scientific literature and the case law have undermined the foundations of that decision such extent “reconsidered,” that it should be i.e., however, will overruled. As appear, those foundations have been only recent scientific strengthened by studies and persuasive decisions from our sister Like Mark Twain’s com states. ment on his obituary, any report the death of is an exaggeration.

A. Respondent relies on two articles by professionals the behavioral sci- ences.28 The M.D., first is by David Spiegel, psychiatrist experienced the use of hypnosis however, for also, therapeutic purposes. He is a pro- of the ponent forensic use of and the content his hypnosis, article lives up polemical tone of its title—The Shirley Decision: The Cure is Worse than the not, Disease. The piece example, dispassionate, objective of a new clinical report or study reliability of the experimental posthypnotic testimony might show some in the consensus of change the scientific Rather, identified in community it is a Shirley. frontal assault on the Shirley it, decision Diamond, itself—and through Dr. Bernard one of the principal in that participants consensus. The major portion sets article forth a series between disagreements Drs. and Dia- Spiegel mond on such matters as how is the risk of significant intentional unin- tentional cueing by the how often the hypnotist, hypnotized subject produces confabulations or other pseudomemories, how difficult it is to distinguish true from memories, false how resistant the will be to cross-exam- subject 28Neither article apparently yet is print. Respondent in both states that are “soon to be published,” only but tells us where one is appear: Spiegel published article will be in 1984 in “Advances in Psychology Disciplines,” Forensic and Allied but no further citation given. Respondent is is silent as to when and Relinger appear. where the article will He appends copies of both to supplemental his brief. in trial, minimizing precautions

ination at and how effective are procedural memory. to restore a witness’s of dangers using hypnosis however, within function, disputes such any It our to resolve is not whether to determine than it is our task more community, any scientific we ex- scientific fact. As is as a matter of reliable posthypnotic (31 56), view the professional at the courts Shirley in Cal.3d p. plained ‘evidence,’ of the new reliability not of the actual literature on “as hypnosis scientific commu- non in the but of its vel acceptance scientific technique, in Shirley. we undertook Frye That all the and all nity.” is test requires, destroy facto ipso The Dr. does critique of appearance Spiegel’s demand im- does not Shirley. in test Frye consensus we identified commu- in the scientific of views unanimity of absolute possible-proof reliable; unanimity such will be deemed before a new nity technique Rath- unusual, behavioral sciences. in the field of highly would be especially er, a clear by majority met if use of the is technique supported the test is were the time of we Shirley Even at of the members of that community. risks of admitting posthypnotic well there was a view on the minority aware view; but of that restatement Dr. article is testimony.29 Spiegel’s vigorous a minority.30 as will it remains nevertheless appear, Hyp- relied on by respondent, less is the second article Still persuasive Review, Re- Ph.D. Dr. Helmut Relinger, notic A Critical Hypermnesia: to review and in simply is who undertakes this article linger a psychologist on the topic number of studies other experimenters summarize a earlier by means of i.e., recall of hypermnesia, hypnotically improved hypnotic suggest to Dr. these studies Relinger, direct suggestion.31 According 29See, 347 Annals Help Spiegel, Hypnosis Evidence: or Hindrance? e.g., H. Doucé, 65, Cal.3d); Hyp (cited 49, Kroger & Shirley p. fn. of 31 N.Y.Acad.Sci. 73 in at Experimental Hypnosis 358 Investigation (1979) & Clinical nosis in Criminal Internal.J. Rubio, (cited ibid.)-, Witnesses Hypnosis to Aid the Recall Shirley, in Schafer & of p. 55, (cited Shirley fn. of 31 in at Experimental Hypnosis & 26 Internal.!. Clinical 3d). Cal. Diamond, misleadingly im somewhat the article 30By frequent references to Bernard its testimony. posthypnotic of of the use principal opponent is plies that Dr. Diamond the sole clear, however, many Diamond’s con of Dr. T. Orne shares Shirley As made Dr. Martin (See cited fns. references experts do field. topic, on this numerous other cerns Indeed, Cal.3d.) carefully explained 46, 48, 49, we Shirley, 64-66 of and 52 Orne, (id. 45) “By on Drs. Diamond relying primarily fn. hypnosis experts course, many other denigrate we do not mean to the contributions Ph.D., (e.g., Hilgard, director writings we have Ernest R. whose also consulted research), hereinafter. laboratory whom we cite University some of Stanford findings essential issue, however, agreement with the present majority are in full On the and Orne.” and conclusions Drs. Diamond ability and their subjects exposed certain material study typical group 31In tested; group is in again while half of recall is tested it is thereafter their recall more than the subjects recall hypnotized If the hypnotic and the other half is not. trance hypermnesia. hypnotic evidence of subjects, the difference is deemed control is and meaningful does enhance recall the material hypnosis provided than by answering free narrative rather by are allowed to subjects respond however, irrelevant, to the issue whether The article is specific questions. that it all the studies today: consensus identified in is different decision, of their conclusions discusses and we were aware predate Moreover, while the article when we addressed the in our matter opinion.32 not focus on on instances of recall under it does reports increased hypnosis, accurate. crucial whether such increased recall is equally question That since has been addressed in a number of articles question published and therefore are uniform Shirley, They remarkably on our bearing inquiry. their conclusion that if there is increased recall hypnotic hyperm- nesia, it is at the of increased errors and also purchased price probably increase in those errors. Thus one subject’s confidence misplaced faces; tested the study effect of on the it found that hypnosis recognition identification, does not hypnosis to make a facial but improve ability increases the but mistaken identifica- significantly confident proportion tions or “false alarms.” a Face Recognition and (Wagstaff, Hypnosis (1982) 55 816.) & Motor Skills Another article on two Perceptual reported first, studies material to a In the the re- using typical police investigation. sults support memory hypothesis hypnosis improves “[did] treatment, items relevant to forensic if investigation; anything, hypnotic motivation, due to on possibly effects arousal and had a somewhat delete- al., rious effect.” et Two Ex- (Wagstaff Eyewitness Memory: Hypnosis perimental (1982) 10 & Analogues IRCS Med. Sci.: Psychology Psychiatry 894.) In the second no in mem- study again hypnosis produced improvement ory but did result in a iden- of false significantly greater proportion positive tifications. 895.)33 at p. {Id. 32See anything, Relinger Shirley. footnote If supports ante. article in fact much of popular The most memory by hypnotists method of law enforcement is enhancement used regression, procedure by Relinger suggestions described Dr. as “an elaborate series of hypnotized subjects attempting they actually reliving the event.” convince them that are Relinger rejects procedure Dr. this confabulation as unreliable because of “The inevitable sug in addition to the regression excessive demand characteristics the elaborate created (“Demand gestions characteristics,” context, . . . .” in this are the verbal and nonverbal session.) every hypnotic cues inherent in rejects technique” He further the “television often (see 36) Shirley,

used law hypnotists enforcement 57 and fn. “in Cal.3d subjects memory everything they are told that their have videotape is like a on which recorded”; experienced techniques, according Relinger, unduly such to Dr. “seem suggestive place unnecessary hypnosis. In person demands” on the under the case Davinroy bar Officer Judy. used a technique” variation the “television 33From Wagstaff these and other studies article that “there is no Dr. concluded in another support scientific for the view that evidence obtained under is more truthful necessarily hyp more accurate by procedures employ than evidence obtained which do not (Wagstaff, Hypnosis notic induction.” and the Law: A Critical Review Some Recent Pro posals, 1983 Crim.L.Rev.

A based study similar results from an elaborate subsequent paper reported (Timm, Em- on a series of mock A Theoretical and assassination attempts. Re- Eyewitness Examination Forensic on pirical Hypnosis of Effects of call, at the 9th & presented Internat.Cong. Hypnosis Psychoso- paper Med., Scotland, 22-27, 1982.) matic It showed that Glasgow, hyp- Aug. to notized “I know” answers subjects tended to fewer don’t give in lieu of they gave that of the statements investigative questioning, many incorrect, that were and more confident after subjects were response 36-37.) (Id. The author even of their erroneous at hypnosis, answers. pp. of in- found it the demand characteristics likely these results reflected story their vestigative subjects repeated and that “each time hypnosis, their it for were they recalling became harder them to differentiate whether encoded or later.” they acquired memories bits of information originally or (Id. 37.) The “it forensic author concluded that appears hypnosis situations, other in but only related certain procedures might prove helpful ad- when acquiring sound are utilized and questioning procedures possible necessity than the solving ditional leads seems more to the case important ” (Italics that witness as accurate and untainted as being possible. added.) (Id. 40-41.) at pp. first,

Two In the a hypnotic recent studies confirm these conclusions. (see 31, ante) to test not only fn. was hypermnesia experiment designed memo- accuracy number of additional items recalled but also the those Bowers, ries. & The Use Enhance Recall (Dywan Hypnosis increase 184.) The modest produced Sci. outcome clear: hypnosis remembered, cost in the but a considerable number new items new many twice as although subjects reported accuracy: hypnotized three (both incorrect) they items correct control made as the subjects, 184-185.) (Id. at The authors times as new errors as the latter. many an may that the increase in under suggested hypnosis represent recall in critical actual but rather a decrease ability remember improvement i.e., are willing report “less caution in what judgment, by subjects they in the as It be due to an increase memories.” also (Id. may at p. recall during memories generated vividness mental images possible rec- false sense of and “the could lead to a attempts, enhanced vividness certainty hence inflated as well as the ognition output surprising all these (Ibid.) For subjects have about their enhanced recall.” hypnotically reasons, “should study give authors results of their conclude in which those the use of in situations advocating pause (Ibid.) [i.e., concern.” of information is veridicality prime truth] designed thereafter experiment a second article Shortly reported by hypnosis. test whether a could be pseudomemory successfully implanted (Laurence Among Highly Hypnotiz- & Created Perry, Hypnotically Memory of 27 Subjects 523.)34 subjects able 222 Sci. Each person group memory selected a he or she had no week which night during previous then were dreaming subjects hyp- awakening during night. notized, were in and were asked instructed to relive the night question, (i.e., whether them they suggested heard some loud noises that awakened noises, hallucination). and auditory they All but 10 said could hear the they were were encouraged describe them. After the subjects dehypnotized, half claimed on the fully night had heard the noises they actually question. Indeed, the noises had in they maintained that even when told that position fact been invented various to them and suggested they hypnotist, 524.) rationales to their confidence in the justify “memory.” p. {Id. {ibid.), the authors’ view that “the these results Dr. Orne’s position support memories of victims and witnesses of crime can be modified unsuspectingly further, the use of that an through initially unsure hypnosis. They suggest, witness or victim can become credible in court after a mem- highly hypnotic ory ‘refreshment’ that in a real-life The authors concluded procedure.”35 situation, where the subject is more involved and more moti- emotionally vated to identi- “Such ‘recall’ could lead to a false but cooperate, positive fication and to all of the and that this legal procedures penalties implies.” 584.) at p. {Id.

As if to occur, remind us that such real-life situations do another article two actual cases in reported which the victim of a violent assault nighttime unable to her her had identify memory assailant until after been “refreshed” by but in each identification was hypnosis, retrospect evidently of cues product and assurances from the hypnotist, posthyp- notic and suggestions, (Karlin, confabulations the witness. Forensic Hyp- nosis—Two Case Reports Clinical & Internal.!. Experimental 227.) author, Hypnosis who has served as an for both expert prosecu- tion and cases, defense in there is no of know- hypnosis way acknowledged the extent to ing which these all too are but illustrate examples typical; they well his conclusion that “the care which one must take in the forensic great use of must be hypnosis redoubled when is used to obtain an hypnosis eyewitness identification of a It also perpetrator. suggests, degree 34The study goes beyond although they reach of the its title: the authors note that used highly hypnotizable subjects, hyp investigative “Given the demand characteristics of the context, however, notic responsive even especially witnesses and victims who are not hypnosis may be memory Many vulnerable also to such with low contaminants. individuals susceptibility hypnosis responsive imagery highly have that is as vivid as that of individ (Fns. omitted, ibid.) uals.” concluded, study 35The latter conclusion supported by is further a more recent inter alia, hypnosis strongly accuracy subject’s increases the in the of his recall confidence (Sheehan Tilden, Suggestibility Hypnosis of both true and & memories. false Effects of Memory Experimental Psychology: Accurate Distorted Retrieval 9 J. from Learning, Memory, Cognition & can, testimony may anecdotes that excluding such refreshed’ ‘hypnotically (Id. the least of the evils available to our courts this regard.” 233.)36 A review of effects of these and similar studies identified four principal (Perry unreliable. using memory to restore that render it inherently Laurence, & Inves- Legal The Enhancement in the Memory by Hypnosis 155.) First, ob- (1983) 24 Can. the authors tigative Situation Psychology eliminated: served that the cannot be demand characteristics process witness when ask example, occurs the frequently police hypnotize detail, naturally whom the witness they already have some questioned in his memory infers there be additional useful information “stored” must Second, (and be often the that can the the hypnosis. subject “retrieved” well) a but erroneous belief that hyp- shares police hypnotist widespread Third, notized the “the technique tell truth. persons always videotape” an used law commonly gives subject appar- enforcement hypnotists “memory” ently reality every “scientific” rationale for believing Fourth, does that occur him even if the may hypnotist to during hypnosis. normally not know all the of the under he will investigation, facts crime be difficult have a about what in the case that it hypothesis may happened that conclude for him to avoid authors communicating subject. to witness “Given all of that the victim or these and ingredients, remembering event, investiga- crime is a of an with a person fragmented memory sub- of the cueing tive situation be vulnerable to inadvertent may especially that, in ject. Cueing likely given becomes a and very damaging possibility asked, set judge- is to aside critical hypnosis, being person implicitly, this, fantasy may reign ment. To the to do extent that is able person (Id. at even in relatively p. individual.” supreme, unhypnotizable col- three of his and Martin T. Orne and Finally, most Dr. important, sci- evaluation of the current leagues recently comprehensive published device. entific on and its as a memory-enhancing data hypnosis reliability al., (Orne Testimony: et Testimony, Eyewitness Induced Hypnotically (Wells 1984) & Loftus edits. Psychological Perspectives [hereafter each of the confirms in detail Hypnotically Testimony].) Induced The study i.e., 63-66), that (31 conclusions Cal.3d at Shirley pp. summarized cues under intended unintended is and person hypnosis hyperreceptive subject’s capac- and eager please impairs that hypnotist; hypnosis demand a memories; he will of his that ity judge reality produce facts, irrelevant recollection of event which of actual may be a compound jury 36Fortunately, miscarriage justice reported in one of the cases no occurred: departed agree, the victim charges was unable to and in the other were dismissed when from the state. matter, “confabulations”; and veri- that without highly plausible objective fication no one can true and recollections from distinguish pseudomemories; increases the confidence in both his true hypnosis artificially subject’s al., Testimony, Induced (Orne his false Hypnotically memories. et 173-178.) The authors also a number of additional effects report Shirley, not noted in hypnosis, unreliability that contribute to the of post- Some hypnotic testimony. of these effects increase the on the pressure hyp- notized individual Other effects of produce pseudomemories.37 hypnosis artificially enhance the as a witness.38 subject’s credibility

After discussing it, the decisions that and followed preceded the authors agree that “The state of scientific is consis- present knowledge tent with the of a rulings number of state courts memories supreme retrieved through are unreliable that their is hypnosis sufficiently use pre- cluded as eyewitness in criminal The nature of trials.

and of its effects on memory leads to the beliefs possibility hypnotist subject may transformed into inaccurate memories subject believes, and reports, to under subsequently willing testify oath. There is no available currently method for this eliminating possibility or for accurately in real-life determining situations the balance of increased recall versus increased distortion that occur be- may following hypnosis, cause ground truth cannot be known with 204.) at certainty.” p. {Id.

Of particular interest is Dr. Orne’s of the taken in repudiation approach his name in the well-known decision of State v. Hurd N.J. In Hurd 86], A.2d the New Court held that the Jersey Supreme example, subject’s 37For the preconceptions hypnosis may play major own about a role:

if, occurs, as often he hypnosis believes will allow him to retrieve memories he could not recall, otherwise this belief suggestion; itself becomes an effective prehypnotic he will strive (Id. comply trance, to with it while in the even at the altering cost of his true recall. at 175-176.) addition, pp. even hypnotic technique subject’s standard can contaminate the memory. hypnotist commonly encourages subject by the proceed to with his narration making seemingly “Good,” “Fine,” such doing innocuous remarks as or “You’re well.” however, subject, To the may these greater significance, suggesting remarks take on much to him hypnotist accepts truths, objective his tentative memories as and this mis perception may Moreover, in persuade subject they (Id. 176.) turn the p. are the true. at subject may misinterpret even slight a frequency unintended decrease in the of such meaning more,” remarks as that hypnotist “something something wants else or and in an effort please may (Ibid.) to he produce Lastly, unreliable or false information. the “tele vision” or “videotape” technique police hypnotists inevitably pressures subject to produce true, they additional details and yet subsequent testimony to believe are his to that effect “will be based on during hypnosis, may gross memories created which be at variance with both prehypnosis (Id. 200.) recollection and the actual p. facts.” at example, hypnosis 38For may produce a dramatic in the amount of detail the increase reports, witness or in accompanies they may the emotion which report. though Even be facts, of the hypnotic process wholly artifacts unrelated to the additional these details (Id. emotion tend to make lay jury. more credible witness observers such as a at 193-194.) pp. in would be admissible criminal testimony eyewitness of an

posthypnotic with in a set trials session was conducted provided hypnotic compliance (Id. Dr. Orne himself. recommended by procedural guidelines previously however, article, “Al- 96-97.) at In the Dr. Orne present explains for session though guidelines conducting hypnosis recommended (nor session, do not they prevent determine what done help during confounding is there reliable from distorted way prevent) subjects recall or from memories with hypnotic subsequent nonhypnotic prior added; (Italics undue in these recollections.” placing confidence distorted al., 210.) He et there- Testimony, p. Orne Induced Hypnotically supra, fore be for limited only believes should allowed pretrial hypnosis “If the in a criminal investigation: verifiable “leads” purpose seeking lead sole session clues that hypnotic ultimately is purpose provide evidence, its becomes means collection of application independent end sources to an that is no different from the use of other unreliable added; (Italics “the 196.)39 In all other police.” cases—including id. in ostensibly only investigative situation which witness is hypnotized of the event concerning but later testifies in court recollections purposes its (ibid.)—the grave hypnosis outweigh risks inherent question” pretrial therefore con- (Ibid.) colleagues modest Orne and his potential benefits. Dr. however, way, clude once that “There is no by warning again can for with anyone (including hypnosis) extensive expert experience whether determine information obtained in any particular piece reasons, hypnotically it is an actual For these memory or confabulation. induced form not reliable and ought permitted (Id. basis of court.” at p. claim, in the of it is evident

Contrary accordingly, light to respondent’s community on the the recent literature that the consensus of scientific since Shir- unchanged of induced remains reliability testimony hypnotically ley.

B. Shirley has We turn that the case law since contention respondent’s ais reliable effect our and now holds that repudiated hypnosis decision the claim of witnesses. Again the recollection technique refreshing thinking. to be and wishful seems of of composed equal parts exaggeration “use opinion is of the its hypnosis purpose, 39Even when is Dr. Orne restricted this however, identified to justified, has not been only can be in cases where a defendant involving about the subject, speculations where widespread publicity there has not been details compelling beliefs about perpetrator, and where law enforcement officials do not have cases, Orne (Id. 205.) Dr. actually transpired.” what And even in these limited that takes newly guidelines set require compliance expanded would still strict with a 205-210.) (Id. explain. pp. his pages almost five full article

425 Shirley follow declined to states have It is true that the courts of several testimony admissibility of the on the question and its predecessors general decisions it appears But on close examination recalled after hypnosis. they sharply at all: no “new trend” relied on in fact by represent respondent no rationale offer they and holdings, themselves as to their disagree among cases hyp- other by not considered and rejected that has been already (N.J. Hurd State v. the rule of nosis. Thus the court Washington adopted must testimony 1981) 86, i.e., it 432 A.2d supra, agreed posthypnotic admissible test, testimony provided but held such Frye with comply (State Long v. Orne “safeguards.” there was strict with the compliance tack, Wis- 845],)40 a different (1982) Taking 32 732 P.2d Wn.App. [649 are Hurd procedures declared that the rejected Frye consin test and followed Hurd requiring “merely guidelines, yet imperatives,” in each session on the pretrial hearing hypnotic “suggestiveness” 386, 391- (State 555 N.W.2d (1983) case. v. 110 Wis.2d Armstrong [329 (1968) 5 395].) Md.App. Florida old rule of v. State Harding adhered to the 302, i.e., 306], credibility A.2d that the fact of affects [246 never- but the court of the rather than its weight admissibility, testimony State courts. v. (Key theless “commended” the Hurd to its trial procedures Harding 1983) North Dakota followed So.2d (Fla.App. (N.D. 1983) Brown (State rule but the Hurd v. flatly rejected procedures. 146-152.)41 tests foregoing N.W.2d Idaho all rejected rule,” in each case its “own the trial court to determine adopted directing to merit admission whether reliable sufficiently posthypnotic nevertheless, includes, consid- “totality circumstances”—which (State v. Iwakiri eration of a “modified version of the Orne safeguards.” 571, 578].) two states have simply Idaho 618 P.2d Finally, held “substantially it the same” posthypnotic admissible when is 1983) 341 (State (Iowa as the Seager witness’s statements. prehypnotic 756, 759; 431; see also (La. 1983) N.W.2d State 425 So.2d v. Wren 1315, 1319-1320].) State v. Hutchison 99 N.M. P.2d course, not only by Harding approach, rejected (see Shirley, as well its but the entire Hurd line of cases predecessors 36-39), very juris- 31 Cal.3d at and indeed has been repudiated 1981) (Polk State (Md.App. diction that it in the first v. adopted place. 1028.) 1041; (Md. 1983) 427 464 A.2d supra, supra, A.2d State v. Collins reasons, turn, we rejected after careful consideration and for multiple deci- Cal.3d), and numerous (at Hurd 39-40 of 31 Shirley approach pp. 1981) (State Shirley, (App. Beachum 97 40Shortlybefore Mexico so held as well. v. New 246, 249-255].) N.M. 682 P.2d 1982) Shirley, (Wyo. 41Shortly Wyoming (Chapman before likewise so v. State held. 1280, 1282-1285.) P.2d so.42 We also doing both before and after have us Shirley joined sions claim that on several rejected Shirley, grounds, posthypnotic again state- is harmless if it is the same” testimony “substantially prehypnotic (Id. ments. at theories,

In contrast to this and discredited disarray conflicting testimony basic rule we induced Shirley—that adopted hypnotically We have previ- inadmissible to draw new adherents.43 se—continues per C, so (Part ante) the recent decisions cited in another context III ously v. (People Hughes of New York holding by courts distinguished high 484, (Com. Kater (1983) 494-495), Massachusetts v. N.E.2d supra, 1190, 1195-1199), v. (1983) (People 447 N.E.2d supra, Michigan Gonzales (State Collins (1982) 743, 745-748), v. Maryland 329 N.W.2d supra, 1028, (State Carolina v. 1032-1045), and North A.2d supra, now 177, 186-189). To those must (N.C. 1984) People supra, 319 S.E.2d Quintanar be added of Colorado v. (People similar decisions the courts 710, (Peterson v. 1982) 711-713), Indiana 659 P.2d (Colo.App. supra, - — (Robi- 673, 675-678]), and Oklahoma State Ind. N.E.2d 1080, 1084-1085), and the 1984) son v. State 677 P.2d (Okla.Crim.App. testimony first decision holding a federal court appellate posthypnotic to san- were used to attempt “inadmissible whatever safeguards procedural 1984) (United (5th supra, Cir. itize the session” States v. hypnotic Valdez 1196, 1203).44 722 F.2d Shirley, from Collins) extensively

Certain of these decisions (e.g., quote on the principal and all follow the if not the letter of our decision spirit community issue at hand: that the consensus the scientific they agree memory to restore the potential continues to the use of oppose the de- unreliable and impairs witnesses on the that it is inherently ground 1202; 1196, (5th 1984) State ex rel. Collins v. 42E.g., U.S. 722 F.2d v. Cir. Valdez 1288-1295; Court, 1272-1273, People (Ariz. 1982) v. Superior supra, etc. 644 P.2d 710, 712-713; (Md. 1983) 1982) supra, (Colo.App. Collins 659 P.2d State v. Quintanar 743, 747; 1028, 1043-1044; (Mich. 1982) supra, N.W.2d People 464 A.2d v. Gonzales 494-495; (N.C. Peoples (N.Y. 1983) v. People Hughes supra, State 453 N.E.2d 1981) 185-186, 188; (Pa. supra, 436 1984) supra, Com. v. 319 S.E.2d Nazarovitch A.2d 170. (Part C, ante), the courts also remain steadfast: 43As discussed above III its old adherents appeal at the pending on applied it to cases adopted the rule before have since time of adoption. its type posthypnotic holding particular 44The federal court limited its it, i.e., person first time a identifies for the hypnotized before in which a witness Rules holding on the Federal already suspicion. he knew was The court also based its under (Id. 1200-1201.) a cautious was thus Frye of Evidence rather than the test. Valdez nonetheless; topic decisions on the step, prior appellate but it federal step was a first all (See Shirley, “safeguards.” subject posthypnotic testimony allowed into evidence to certain 19.) 31 Cal.3d at 36-37 & fn.

427 confrontation, induced fendant’s and all therefore hold right hypnotically testimony inadmissible in their respective jurisdictions.

C. have Finally, of the courts respondent emphasizes many foregoing restrictions, allow, nevertheless declared a under a willingness variety evidence”; i.e., the introduction of in certain circumstances “prehypnotic the witness he may testify to facts that remembered permitted before Court, he was hypnotized. State ex rel. Collins v. etc. (E.g., Superior (Ariz. 1982) 1266, 1295-1296; (Mass. supra, 644 P.2d Com. v. Kater 1983) supra, 1190, 1197-1199; (1983) N.E.2d State Patterson v. Neb. 686 500, 501-504]; 1983) (N.Y. N.W.2d People Hughes [331 su pra, N.E.2d 495-497.) There ais superficially appealing simplic ity this view: because the evidence in is recalled question before hypnotic experience, it facto be untainted argument goes, must ipso rub, that experience. however, is that the which that testimony by evidence is before the put is jury given witness has been hypno after tized. create, Unconcerned with any this problems sequence might respon dent us to urges carve out an rule such exception Shirley allowing evidence to be introduced in California. with,

To begin we out held point decision itself admissible one type The victim in that case testi prehypnotic evidence. fied in detail at the before she was For the preliminary hearing hypnotized. guidance the court on remand we the victim explained although would not be allowed to at that were the testify retrial as to the events subject session, of the her at the hypnotic testimony prehypnotic preliminary thereof, would be hearing admissible in lieu her dis provided only had not been qualification for the by the procured prosecution purpose her from preventing (31 Cal.3d 71-72 & fn. We ad testifying. at pp. here to that rule. is Preliminary hearing testimony presented open court, in defendant, time when the defendant is presence counsel, in represented by the defendant both the proceeding which has motive witness, and the and the opportunity cross-examine the reported in a formal court circumstan preserved these transcript. trial, ces the introduction of when the preliminary hearing unavailable, witness (Evid. is legally does not either the rule hearsay violate Code, 240) (see or the defendant’s constitutional of confrontation right § 2531]; Ohio v. Roberts 100 S.Ct. U.S. L.Ed.2d 1930]). v. Green 399 U.S. 149 L.Ed.2d 90 S.Ct. California But the same cannot be said of of necessarily prehypnotic other types In evidence.45 noted that a admit what is the perhaps we to proposal witness most common form of evidence—trial the as to testimony by such he to before been judicially facts claims have remembered hypnosis—has that we “for a criticized number of scientific and reasons practical find ” State 48, 29, ex persuasive. (Italics added.) (31 Cal.3d at rel. citing fn. p. Court, Collins etc. 1982) Superior supra, (Ariz. 644 P.2d 1297- (dis. Gordon, the J.).) of Vice C. We reviewed opn. opinions have to recant relied on but therein us by convinces respondent, nothing Indeed, one itself the finding. proposed excep of those criticizes opinions rule for with the bar tion evidence as “difficult to reconcile” prehypnotic the of been to hypnosis. a witness who has ring subjected pretrial (State v. Brown (N.D. 138, 149.) 1983) 337 N.W.2d supra, has been already

The soundness of an for evidence exception prehypnotic has the The also community.46 exception scientific questioned proposed been (E.g., Mickenberg, attacked in the literature. vigorously scholarly in Crim- Testimony Justice: Mesmerizing Hypnotically-Induced The Use of inal Trials In addition to 969-974.) L.Rev. the Syracuse obvious most of evidence hearsay problems by prehypnotic presented types ante), the (see of fn. raises constitutional issues impairment proposal may fair trial be right the confrontation and denial of a potential the by different in but different in kind from those degree presented are not (See, Scientific e.g, Interroga- use pretrial hypnosis general. Taylor, report might variety e.g., police of a presented 45Suchevidence in a wide of forms: crime; interrogation field of the immediately subsequent interview of the after the witness by investigation purpose advancing witness a detective at police station for crime; deposition by prosecutor a formal latter’s office of the witness at the witness purpose preserving hypnosis; testimony by as to prior his trial witnesses, testimony by he other hypnosis; facts claims have remembered before trial including authorities, assertedly by percipient law enforcement made as to statements hypnosis. witness before can 46ThusDr. Orne and it “whether a witness distin colleagues his warn that is unclear during guish and after prior hypnosis reported between and those recollections made 203.) (Orne al., Testimony, supra, p. The dif hypnosis Hypnotically . . . .” et Induced at confounded, sugges or ficulty is that “the sources no instructions of memories become 200.) p. reliably prevent occurring in tions can this from real-life situations.” {Id. moreover, deny tendency persons to compounded, hypnotized confusion is that “wit hypnotic report phenomenon effects of their researchers experience: the same preceded hypnotized who have been later new recollections nesses often assert that their session,” absolutely “had no subjects rather than followed the and that even who hypnotic they the event detail prior hypnosis” may actually recollection remembered “insist {Ibid.) Finally, the being hypnotized” talk authors simply before but “did not about it.” confidence in his observe that the artificial in the witness’s increase caused recall, false, testimony. no less prehypnotic posthypnotic whether true or than {Id. affects short, colleagues and his are appears it entire article that Dr. Orne from their of events is opinion prehypnotic as to his recollection testimony of a witness substantially impairs ability to cross-examine that not reliable and that its admission witness. 147-164; L.Rev. Syracuse tion cit. pp. Mickenberg, op. supra, 956-957; Beaver, by Hypnosis— Restored or pp. Memory Confabulated 155, 195-202.) It Is 6 U. Sound L.Rev. Competent? Puget difficult We decline to render an those advisory answering ques- opinion tions in the of the case at bar. recites the out- Respondent holdings simply of-state cases without further defendants have not briefed the analysis, matter at It will all. be time with such in a case enough questions grapple in which are they issues on a record presented dispositive satisfactory and after full We briefing. with the Court that the agree Michigan Supreme admissibility evidence is a be prehypnotic should “reserved question until raised on an record in an case.” v. Gon- adequate (People appropriate (Mich. 1983) (mod. 743).) 336 N.W.2d 751 of 329 N.W.2d supra, zales

V. We therefore rule to the of this Shirley facts case. Under apply that rule we hold that the trial court erred defendants’ two suc denying 66-67.) cessive (31 motions exclude Cal.3d at And Judy’s testimony. because that was the sole evidence testimony virtually incriminating against defendant, each we find the error to be under the Watson test. prejudicial (Id. In these circumstances we need not reach other issues raised on appeal.

The judgments are reversed.

Bird, J., Broussard, C. J., J., Grodin, J., Reynoso, concurred.

KAUS, J. I concur. of the light facts related in the there is a substantial majority opinion, possibility victim’s on testimony was “confabulated” penetration in the session, and, police-conducted of that hypnosis given unreliability evidence, I do not think that the can convictions stand. To extent rape that the Shirley decision embodies the testimony “created” principle this admitted session is not type hypnosis reliable to sufficiently trial, criminal I agree that it establishes a rule the heart goes of the accuracy and should be factfinding process retroactively. applied But while I agree that the victim’s created hypnotically testimony on pen- etration retrial, admitted and be excluded on I impermissibly should would make it clearer than the does that should not be majority to bar the applied retroactively victim from on retrial about facts testifying or memories that the trial court can determine were not created reasonably that, from aside suggests record before us session. The

during at trial on the victim’s posthypnosis the testimony penetration, of the attack account she was, gave with the at least in consistent large part, is disre- penetration Even if the undergoing hypnosis. before the jury appar- events night’s under her version garded, prehypnosis oral copulation guilty attempted could still have found defendants ently immuniz- effectively for There is no justification as well as attempted rape. the re- those crimes—which would be defendants from ing prosecution in touched on any subject from about testifying sult if the victim is barred created testimony the because hypnotically the hypnosis session—simply is too unreliable to be admitted. penetration in holding that the basic clear that I am not suggesting

I should make it sweeping believe that that decision’s Shirley be I still Although overruled. any subject all concerning a witness testimony by rule—barring prophylactic 73-78 (see 31 Cal.3d at pp. too broad touched on a session—is during hypnosis Shir [ been on notice since and have the opn.]), police prosecution conc. if a flow under that decision ley was potential filed the of consequences Shirley’s result, of the prospective application a witness is As hypnotized. the substantial, effects on adverse rule not exclusionary may impose strict of in this state.1 administration justice unreliable or gone tive medical doctor or undergone Code at which the admission not in the witness’ construed to limit the expert witness.” prehypnotic hypnosis, Evidence Code section videotape cedures: the description of which the in a criminal if all of the hypnosis hypnosis, nosis. [f] 1This is hypnosis did subject January hypnosis, prehypnosis recollection. At the for the [Ü] recorded for particularly of the [t] so (C) witness recalled and related presence hypnosis to matter of the following memory 1, 1985, (A) to long proceeding by The the or to limit other substantially impair testimony, purpose not so A written The and to cross-examine psychologist experienced in the use event, as a proponent hypnosis of law was ability hypnosis true inasmuch as which modifies conditions are met: [t] subsequent testify affect the witness as to number of hypnosis, and preserved the court holds a recalling enforcement, reads in full: record session, of a reason of the evidence information to matters was conducted party to attack legal review. [H] was made specified [t] of the fact that the events which are including Shirley by authorizing a witness prior grounds to admit the (B) written, witnesses. ability to cross-examine which the witness recalled “(a) hearing, each side shall which was Legislature The hearing pursuant to Section safeguards are followed. to the (D) proves prosecution, The (1) prior render the witness’ subject gave informed consent audiotape, or accordance The testimony [H] pre- hypnosis. credibility to by clear and provided to the hypnosis the testimony (b) has hypnosis and witness has subject or exclude the Nothing or the defense. recently enacted a post-hypnosis with all of [H] videotape form of a a witness is not inadmissible the witness documenting the of the witness’ convincing evidence that have the prehypnosis recollection limited to those matters performed witness who and related previously The substance hypnotist this section The new 402 of the who has independent of the interviews, was ^[1] right concerning the following pro statute, effec by a licensed prior to the (4) Prior to prior concerning testimony, has under previously undergone provision, to Evidence subject’s shall present of the to hyp the

But same cannot be retroactive of the deci- application said We one prophylactic only sion’s must remember that this is sanction. will cases that be affected our determination of the many appropriate to before remedy Shirley. those witnesses who were apply hypnotized cases, With need ensure that our zeal respect such there is a special we not from hazards of do create protect citizenry hypnosis, greater injustice by an after-the-fact of crucial witnesses disqualification who have vital—information that is not tainted relevant—frequently hypnosis. it

Although not be may immediately from schol- apparent reading arly majority the recent out-of-state which are most in opinion, decisions tune with do not that a witness who Shirley's conclusion has support been hypnotized may testify with in the subject discussed respect Indeed, hypnosis session. all virtually other states that have adopted se" rule “per induced have at the same excluding hypnotically testimony, time expressly declared that a not necessarily witness is barred testi- from to fying events which the witness recalled and related to others before Court, (See undergoing hypnosis. ex State rel. Collins v. etc. Superior (1982) 132 1266, Ariz. 180 1295-1296]; (1983) P.2d Com. v. Kater [644 388 1190, Mass. 1197-1200]; 519 (1983) N.E.2d State v. Patterson [447 500, 213 Neb. 686 503-504]; (1983) N.W.2d v. Hughes 59 People [331 255, 523 484, N.Y.2d 495-496]; N.Y.S.2d 453 N.E.2d State v. Col- [466 (1983) lins 1028, 1044]; 296 Md. 670 A.2d (Minn. v. Blanchard State [464 - - 1982) 315 427, 430-431; N.W.2d (1982) Strong v. State Ind. [435 969, 970-971]; N.E.2d 1984) Robison v. State 677 P.2d (Okla.Crim.App. 1080, 1085; 177, State v. (1984) 188]; Peoples 311 N.C. 515 S.E.2d [319 Com. v. Taylor (1982) 805, 808]; 294 v. People 171 A.2d Pa.Super. [439 Quintanar 710, 1982) 713-714.)2 659 P.2d (Colo.App.

These decisions recognize while there are theoretical to objections even such testimony, probable reliability potential importance the evidence justifies its admission. the New As York Court Appeals “A criminal explained; trial for or assault an odd rape would present spec- tacle if the victim was barred from the fact that saying including anything, occurred, the crime because he or she submitted to some- simply hypnosis time to prior trial aid the needed investigation obtain medical treat- say “virtually state, 2I high Michigan, simply all” because the court of one reserved judgment question 751], on People this v. 417 Mich. 968 N.W.2d [336 Gonzales modifying 329 appellate Michigan N.W.2d 743. The intermediate which courts have passed on the may issue—both before after concluded that a witness Gonzales—have testify (See People Perry (1983) to facts prior recalled and to hypnosis. related v. 126 324, 325]; Mich.App. 86 People Mich.App. N.W.2d v. Wallach 387, 404-405].) N.W.2d

ment. identification eyewitness Even cases with the frailties of dealing Denno (see, be Stovall v. e.g., some allowance must made for practicalities [(1967)] .) confronted with sugges- 388 U.S. 301-302 . . . When [f] identification, necessary tive not been pretrial preclude it has found witness basis recollections from an in-court identification on the making he can do so if it is as a fact that prior found suggestive procedure, without A pro- on the made .... similar relying identification improperly use cedure would seem to be involving pretrial cases appropriate 495-496.) . . .” 453 N.E.2d (People supra, . v. Hughes, Thus, decisions is properly when of the recent out-of-state scope understood, authorities relied it becomes clear that the numerous do not majority Shirley prop to accord retroactive support application be barred totally osition should that a witness before hypnotized Rather, such a witness should from at trial. cases testifying suggest so long trial as memories generally permitted testify prehypnosis court determine as there from the trial can satisfactory evidence before undergoing witness did in fact and relate the statements recall 1044-1045; Collins, (See, 464 A.2d hypnosis. e.g., supra, State v. Patterson, 484, 496; People v. State v. Hughes, supra, supra, 453 N.E.2d 713; 500, 504; Quintanar, N.W.2d P.2d supra, People Kater, 1190, 1197-1200.) Com. v. supra, 447 N.E.2d decisions, we I believe of the out-of-state Accordingly, following the lead has that, retrial, should fact that the victim advise the trial court on the to events does her from undergone necessarily testifying not bar ses- which the finds that and before the hypnosis court she recalled related on testimony sion. defendants to her impeach should Although permitted effect those the fact and by matters attention bringing jury’s possible her immunity of should effective from they prosecution not hypnosis, gain rule that would bar from witness stand. the victim

While to resolve the issue I that has chosen not recognize majority related of the to events recalled and admissibility testimony witness’ before it does not I in on join understanding hypnosis, judgment testimony. foreclose the trial court such admitting from Grodin, J., concurred. I case

LUCAS, J. makes a agree majority dissent. I respectfully (1982) 31 Cal.3d Shirley the rule in announced reaffirming People 18, 243, 775], made inadmissible 66-67 641 P.2d Cal.Rptr. those matters testimony of a witness previously regarding hypnotized it, a witness such were the of the session. As I understand subject hypnotic could freely testify explored during hypnosis. matters regarding any ante, Nevertheless, (1) (See 390; I 68.) at am troubled p. Shirley, p. ad- formulation of the test for whether the erroneous Shirley’s determining and testimony mission aby prejudicial, witness was hypnotized insistence on its decision retroactive. present majority’s Shirley making Prejudicial 1. error test. In we stated: Shirley proper application “[T]he 243)] [(1956) (299 of the P.2d [People Watson 46 Cal.2d v.] in to error test context court prejudicial present requires appellate to determine whether it is result favorable reasonably that a more probable the defendant would have if of the occurred the testimony previously hyp- notized witness as all matters the crime had not the events relating been (31 added.) admitted.” at Cal.3d italics herein p. majority standard, indicates an {Ante, adherence to this formulation. This p. value, taken at face would in all cases in which reversal appear require (1) a witness has been previously concerning any aspect hypnotized crime on which trial, he or she later gives testimony resulting error, and it is that a more favorable to the reasonably probable result defendant would have had all ensued witness’ relating the events of the crime been excluded. view,

In strict, my test of is far too error and foregoing prejudicial will result an unwarranted number of Most cases involving reversals. will hypnotized witnesses stand or fall that witness’ testimony. Shirley’s strict error prejudicial test indications upon based apparently scientific literature that the “will tend to clothe the hypnotic experience entire witness’ but certainty, an artificial aura impenetrable distort the may witness’ recall of related both before occurring events omitted.) after (31 session.” hypnotic Cal.3d fns. light concerns, the rather nature of I there exists speculative these suggest some room for Shirley’s reasonable acknowledging exceptions sweeping For exclusionary rule. if the session were example, hypnotic prematurely terminated before any critical areas had or if the session had been explored, event, concerned an entirely severable and incident or we surely discrete need exclude not the entire in the witness’ trial like- testimony appraising Or, lihood of if prejudicial testimony entirely error. the is witness’ in-court with consistent why his version to given police prior hypnosis, shouldn’t we deem of admission that harmless error? If, 2. Retroactivity I Shirley. suspect, Shirley’s as strict application cases,

prejudicial error test would the reversal of most compel pr&-Shirley then we effect. The perhaps should hesitate to that case retroactive give retroactive, herein majority would make to all cases not final Shirley at least (I when that case majority’s sug- was decided. note with the apprehension (ante, 24) even on collateral fn. that gestión Shirley may apply view, failed to consider attack to the has already final.) my majority cases the ramifications of its decision. practical v. Wil to retroactivity ruling directly contrary People is majority’s 498],

liams a case in (1982) 132 Cal.Rptr. 924-925 Cal.App.3d There, which the var we had denied Justice Gardner discussed a hearing. ious a rule be retroactive given standards for whether new should deciding that the effect effect. He observed that “There can be no but question [of such as this. retroactivity Shirley] would be in cases devastating pending the of fact of two If to this case a found trier guilty by defendant applied “Shirley (Ibid.) Gardner believed serious crimes free.” Justice goes in order avoid a decision which to future cases policy specifically applies the prac condemned. Nevertheless Court has practice Supreme to the trial court’s subject tice of induced testimony, admitting hypnotically and still exists years Shirley discretion existed for many prior in a we are hardly po Therefore majority jurisdictions. [Citations.] [1] head, its say ugly sition to case in which rears every (P. 925.) seriously damaged.” has been integrity fact-finding process above, that the effect of making As indicated Justice Gardner predicted The Attorney Shirley “devastating.” retroactive cases would pending assessment, (in rehearing General with his agrees having this submitted used in which petition Shirley) hypnotism list of cases lengthy California District tool. Amicus Committee of the investigative Appellate reliance Attorneys upon hyp- Association likewise observes that pre-Shirley substantial, that re- notism was suggests both reasonable and and amicus cases, many will have a troactivity permitting deleterious effect on pending defendants of their actions. escape consequences assertion, it rather seems Although majority strenuously disputes se inadmissible declaring clear me ground per broke new Cali- Although prior witness. previously hypnotized decisions from have cloudy point, fornia cases been somewhat may Williams, (as generally sup- other noted in supra) states Justice Gardner law enforce- testimony, induced hypnotically ported admissibility of hypnotism ment legitimacy in this relied agencies heavily upon state be made Thus, retroactivity as an decision should investigative tool. our effect on the assessed, “the things, until we have other carefully among new of the standards.” administration of of a retroactive justice application 1203, 1199, 87 293, (Stovall v. Denno L.Ed.2d U.S. 1967]; Cal.3d Court Superior S.Ct. accord Donaldson v. 110].) 672 P.2d Cal.Rptr. If, Gardner, as Justice General and amicus district Attorney attorneys association will each retroactive to cases suggest, making Shirley pending have a then we should effect on the administration of “devastating” justice, withhold such unless rule is essential retroactivity application {Donaldson, preserve reliability supra, factfinding process. I remain Although Shirley may judgment, sound represent policy unconvinced that a se rule is essential to the Ac- per factfinding process. as the cordingly, has failed to rebut the assertion that majority widespread retroactivity will I join affect the administration of cannot adversely justice, its opinion.

I would affirm the judgments. Lucas,

Respondent’s petition for a was denied 1985. rehearing January J., was of the opinion should be petition granted.

Case Details

Case Name: People v. Guerra

Court Name: California Supreme Court

Date Published: Nov 21, 1984

Citation: 690 P.2d 635

Docket Number: Crim. 22327

Court Abbreviation: Cal.