Lead Opinion
Opinion
In People v. Shirley (1982)
I.
In count I of the information defendants Guerra and Murkidjanian were jointly charged with a single count of forcible rape; in counts II and III each
A.
As in Shirley, the record of the case at bar discloses sharply conflicting stories.
At this point the stories of the three main participants diverge. Judy testified that after Logue left, Murkidjanian grabbed her under the arms, lifted her to her feet, and started to carry her into her roommate’s bedroom. She protested vigorously and screamed for help; he put his hand over her mouth and she bit his thumb. When Murkidjanian began taking her sweater off, she asked if she could go to her bedroom and get a diaphragm so that she would not become pregnant. Holding her by the arm, Murkidjanian walked her back through the living room. Guerra, who had remained seated on the floor during these events, got to his feet and followed them into Judy’s bedroom. She testified that she “believed” Guerra closed and locked the door behind them, because Murkidjanian was occupied in holding onto her; she also testified that Guerra helped Murkidjanian take off her upper clothing. Thereafter, Guerra simply leaned against the dresser and watched. While Murkidjanian was undressing himself, Judy removed the rest of her clothes and inserted the diaphragm. Murkidjanian lifted her onto her bed, but she sat up against the headboard and kept her legs tightly closed. Murkidjanian straddled her on his hands and knees and sought to force her thighs apart with his elbows.
Judy testified, however, that Murkidjanian was unable to achieve an erection either then or at any time during the ensuing events. First he tried to reach an erection by masturbating, but was unsuccessful. Next he tried to have Judy orally copulate him for the same purpose: he “scooted up” on the bed and told her to “make him hard, and he wasn’t going to leave until [she] did.” She continued to resist vigorously, however, and he managed to get his penis only as far as her neck before giving up and resuming his attempt to masturbate.
On the question of penetration, Judy testified that Murkidjanian next inserted his finger into her vagina. The prosecutor then asked, “Did you feel his penis in your vagina?” and Judy answered, “Yes.” When told to describe how it felt, she replied, “round and soft.” And when asked specifically whether his penis was hard or flaccid inside her vagina, she answered, “Flaccid.” He never ejaculated.
According to Judy, during the encounter Guerra sat on a rocking chair and laughed at Murkidjanian’s discomfiture. At one point Judy saw Guerra
On cross-examination Judy reiterated that throughout the whole episode Murkidjanian never managed to achieve an erection, and that except when he attempted to make her orally copulate him “he spent the rest of the time trying to get an erection” by self-manipulation. She also admitted that while Guerra was comforting her after Murkidjanian left, he hugged her and she hugged him back.
Guerra’s testimony differed from Judy’s in several material respects. He was 21 years old, lived with his family and worked for his father. On the evening of February 24, 1979, he and his friend Murkidjanian met some young men at a drive-in, including Logue, and were invited to the party in Judy’s building. While there, they consumed two six-packs of beer between them. At one point in the evening Logue told them “there was some action going on upstairs. If we wanted any part of it.” They went up to Judy’s apartment, knocked, and entered when she said “Come in.” She offered them a seat, and Guerra “plopped” down on the floor and lay on his side. He testified that he left briefly to get a tape, but denied he turned up the volume on the stereo. He described Logue’s frequent visits to the apartment, and said that he learned from one of those visits that there was a bathroom in Judy’s room. He testified that he “wasn’t really paying any attention” when Murkidjanian lifted Judy up from the floor because he was listening to his tape, and he denied hearing her call for help. Shortly after Murkidjanian and Judy went into her bedroom, he entered in order to use the bathroom. He denied helping Murkidjanian take any clothes off Judy or deliberately closing the door; rather, he testified that the bathroom was located behind the bedroom door, and it was necessary to push the latter door partly closed in order to get to the bathroom. After spending a few minutes in the bathroom he came out and saw Murkidjanian and Judy lying
Guerra further testified that as he emerged from the bathroom he was in the process of tucking in his shirt and zipping up his pants. Judy asked him if he were next and he replied, “No, thanks. I’ll pass.” At her request he took her hand and held it; Murkidjanian, meanwhile “was still down there trying to get himself erected.” Guerra testified that when Murkidjanian asked her to orally copulate him, Judy became very upset, “like she had wakened up from a bad dream or something.” Finally, Guerra confirmed that he urged Murkidjanian to stop and to leave the apartment, that he subsequently comforted Judy and explained why he had not intervened forcibly, and that they hugged each other as he departed.
Murkidjanian’s defense was consent. He testified that he was 21 years old and owned his own business, a catering truck. He corroborated Guerra’s testimony as to how they were invited to the party, what Logue told them about Judy, and the initial events at her apartment. He stated, however, that he had consumed two six-packs of beer himself and was drunk, and that he, too, used a bathroom in Judy’s apartment shortly after they arrived. Believing Judy wanted to “have some fun,” Murkidjanian testified, “I just sort of playfully scooped her off the floor.” He denied that she resisted, and said his belief in her cooperation was confirmed when she volunteered to get her diaphragm. He testified that he “helped” her take off her clothes and got on the bed with her. Throughout the remainder of the episode, however, he was “Trying to get an erection to make love with her. I could never get hard. I was too drunk, too drunk.” After failing in his attempt to masturbate, he asked Judy if she would orally copulate him for the same reason. She refused, and he became frustrated and angry. He testified that she suddenly began to cry, and this scared him into giving up the effort. He also confirmed that during these events Guerra had entered to use the bathroom, and thereafter held Judy’s hand and urged him to leave her alone. Finally, he denied that he ever achieved penetration.
B.
We turn to the evidence of hypnosis in this case, particularly with respect to the crucial issue of penetration.
Fullerton Police Officer Granados testified that he interviewed Judy on the morning after the assault. He was a graduate of the police academy, had attended rape seminars, and had conducted 15 to 20 preliminary rape investigations; from this experience he had learned the elements of the crime of rape. He specifically asked Judy if there had been any penetration, and
A second investigating officer, Fullerton Detective Suffern, testified that he interviewed Judy two days later and again asked her if Murkidjanian had achieved penetration, and she again answered “No.” He nevertheless talked with Judy several more times in the ensuing two weeks, and finally asked her to come to the juvenile hall to be hypnotized on March 12, 1979. According to Judy, she knew before the hypnotic session that his purpose was to see if she could “remember” that she had been penetrated.
The hypnotist was Fullerton Police Officer Davinroy. His training in hypnosis consisted of attending a four-day course given by the Law Enforcement Hypnosis Institute in January 1978, and a three-day course given by the same organization a year later.
Officer Davinroy testified that in his opinion Judy entered a hypnotic trance.
Officer Davinroy testified that during their unrecorded discussion after Judy had been dehypnotized, she indicated to him that she “now remem
Prior to trial both defendants moved to suppress Judy’s testimony on the ground that hypnotically induced evidence is so unreliable that it should be excluded from criminal trials in this state. The prosecutor responded that “concededly, the only element of this entire crime she did not recall to the police officers was the penetration. The penetration is something that she accidentally recalled after she was hypnotized.” The prosecutor then argued that counsel’s sole remedy was to attempt to impeach the witness by pointing out the inconsistency. The court denied the motion, apparently on the theory that the fact of hypnosis goes to credibility rather than admissibility. At the outset of trial defendants again objected to Judy’s proposed testimony and moved to exclude it, contending that it was the product of hypnosis rather than of Judy’s memory of the events. After a brief hearing the court again refused to suppress the testimony.
At trial Judy admitted that the first time she told the police there had been penetration was during hypnosis. When asked by the prosecutor whether she had also recalled it before hypnosis, she replied, “Oh, I just kind of blocked it out of my mind.” And when asked whether she could now recall it because she had been hypnotized or because she remembered it from the events of the night of February 25, she asserted, “I can remember it from that night.”
The defense called Dr. Cameron Donald Pennock to testify as an expert on hypnosis.
At the hearing on the motion for new trial the defense called Dr. Albert J. Rosenstein to testify as an expert witness.
II.
Both defendants contend that the case is controlled by the rule of People v. Shirley (1982) supra,
To determine whether a decision should be given retroactive effect, the California courts first undertake a threshold inquiry: does the decision establish a new rule of law? If it does, the new rule may or may not be retroactive, as we discuss below; but if it does not, “no question of retroactivity arises,” because there is no material change in the law. (Donaldson v. Superior Court (1983)
The most common examples of decisions that do not establish a new rule of law in this sense are those which explain or refine the holding of a prior case, those which apply an existing precedent to a different fact situation, even if the result may be said to “extend” the precedent, or those which draw a conclusion that was clearly implied in or anticipated by previous opinions (e.g., People v. Superior Court (Kiefer) (1970)
If the decision establishes a new rule of law, a second question arises: was there a prior rule to the contrary? If there was, the new rule— again—may or may not be retroactive, as we discuss below; if there was not, the new rule applies in all cases not yet final. This is so for the obvious reason that there cannot have been any justifiable reliance on an old rule when no old rule existed. And the emphasized word is crucial: “Unjustified ‘reliance’ is no bar to retroactivity.” (Solem v. Stumes (1984) supra,
The latter principle is well settled: “As a matter of normal judicial operation, even a non-retroactive decision [i.e., one that cannot serve as a basis for collateral attack on a final judgment] ordinarily governs all cases still pending on direct review when the decision is rendered.” (People v. Rollins (1967)
Examples of decisions that establish a new rule when there was no prior rule to the contrary are noted as follows in Donaldson (
It is only in this “narrow class of decisions” (Johnson, supra,
The traditional description of the Stovall test as “tripartite,” however, is misleading. To begin with, the second and third factors it identifies are really but two sides of the same coin: when the retroactive application of a new rule causes a substantial effect on the administration of justice, it is primarily because there was a substantial reliance on the old rule by law enforcement authorities; conversely, when that reliance was minimal, retroactive application will usually have a similarly minimal effect on the administration of justice. The second and third factors are thus largely duplicative; functionally, the test is bipartite.
Even that description is inadequate in the many cases in which the first factor—the purpose of the new rule—points plainly towards retroactivity or
B.
Perhaps the most consistent application of this principle has been in cases in which the primary purpose of the new rule is to promote reliable determinations of guilt or innocence. The United States Supreme Court has aptly characterized its operation in that event: “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. ” (Fn. omitted.) (Williams v. United States (1971)
Since Williams, the high court has held a new rule retroactive on this ground in three more instances. In Ivan V. v. City of New York (1972)
In Hankerson v. North Carolina (1977)
Finally, in Brown v. Louisiana (1980)
During the past two years the United States Supreme Court has twice more grappled with retroactivity questions, in United States v. Johnson (1982) supra,
C.
The decisions of this court are in full accord with the foregoing federal doctrine. Thus in In re Montgomery (1970)
In In re Johnson (1970) supra,
In People v. Burnick (1975)
In People v. Gainer (1977) supra,
Finally, in Pryor v. Municipal Court (1979)
III.
We apply the foregoing analysis to our holding in Shirley that testimony of a witness who has been hypnotized to restore or improve his memory is inadmissible as to all matters that were the subject of the hypnotic session.
A.
First, it is undisputed that Shirley established a new rule of law: it did more than merely explain a prior holding or apply an existing precedent to different facts, and it was not clearly foreshadowed by previous decisions of this court.
Second, upon careful review of the case law it appears there was no previous California rule to the contrary, within the meaning of the retroac
Over 60 years passed before hypnosis was again at issue in a decision of this court. In Cornell v. Superior Court (1959)
In People v. Busch (1961)
In People v. Modesto (1963)
Finally, in People v. Blair (1979)
It is obvious that in none of the foregoing decisions did this court hold, contrary to Shirley, that the testimony of a witness who has been hypnotized to restore his memory is admissible in the courts of California. Thus Shirley did not explicitly overrule a precedent of this court—the first category of decisions that can constitute a “clear break with the past” under Johnson and Donaldson.
Nor does it fall within the second category of such decisions, i.e., those which disapprove a practice impliedly sanctioned by prior decisions of this court. Respondent argues that none of the foregoing opinions “intimated” the Shirley rule; but that fact merely proves that the Shirley rule was new, not that our prior cases had impliedly approved a contrary rule. Rather, the repeated references in those opinions to the unreliability and inadmissibility of hypnotically induced testimony make it inconceivable that anyone could fairly have read them as encouraging the use of hypnosis to refresh a witness’s memory.
Nor, finally, does Shirley fall within the third category of “clear break” decisions, i.e., those which disapprove a longstanding and widespread prac
More important, there was no express approval of any such practice by a near-unanimous body of lower-court precedents. Respondent relies on only two cases. In the first, People v. Colligan (1979)
In the second case, People v. Diggs (1980)
The most that respondent is able to say of Colligan and Diggs is that they gave “implied support” for the use of hypnosis to restore a witness’s memory. But the retroactivity precedents require that any such practice be expressly approved by the lower courts before a contrary ruling of this court can be said to constitute a “clear break with the past.” And even if Diggs could be broadly read as approving hypnotic memory-enhancement in all cases rather than merely on the record before it, its lone voice did not amount to the required “near-unanimous body” of lower-court authority on the issue.
Respondent also invokes a number of decisions of the lower federal courts and the courts of other states that had admitted hypnotically induced testimony prior to Shirley, either with or without certain “safeguards,” on the theory that the fact of hypnosis “goes to the weight, not the admissibility” of such evidence.
We could end our analysis at this point: because there was no “old rule” to the contrary in California, Shirley did not constitute a “clear break with the past” and hence must be given normal application to all cases not yet final.
B.
Out of an excess of caution, however, we shall go further and assume arguendo that Shirley did amount to a “clear break” which in appropriate circumstances could be limited to prospective operation under the Stovall test. We proceed to apply that test.
As explained above (Part II, ante), the first step is to determine the major purpose of the new rule. On this point the Shirley opinion speaks for itself. After establishing that the admissibility of hypnotically aided recall is to be determined by the Kelly-Frye test, we reviewed numerous articles on hypnosis in scientific treatises and journals. “From this review,” we concluded, “it clearly appears that major voices in the scientific community oppose the use of hypnosis to restore the memory of potential witnesses, with or without procedural safeguards, on the ground of its intrinsic unreliability.” (
First we noted studies of human memory showing that a witness often subconsciously alters his recollection of an event in response to later information or questioning, and does so in ways that are both irreversible and impossible to detect. (Id. at pp. 57-62.) Next we reviewed the scientific literature establishing that “each of the phenomena found by such research
We need not decide whether all decisions excluding evidence under the Kelly-Frye test promote the reliability of the factfinding process to such a degree that they should be given retroactive effect. The kind of evidence that the Shirley rule addresses is not simply a dry, technical explanation of an arcane method of scientific proof by a disinterested criminalist. (See, e.g., People v. Palmer (1978)
In a fruitless effort to distinguish the retroactivity precedents, respondent contends that hypnosis is different because its effects on the witness can assertedly be identified at trial and be counteracted by cross-examination. But both of these claims were expressly rejected by the consensus of the scientific community at the time of Shirley (31 Cal.3d at pp. 65-66, 68-69); and as will appear (Part IV, post), respondent fails to show that the consensus has significantly changed today. Respondent also argues that hypnosis is different because it presents “a mere potential for harm” and in any given case may have had no effect at all on the testimony in question. Yet the same can also be said, for example, of the standard of proof required in Burnick and the “dynamite instruction” condemned in Gainer: in any given case the result might well have been the same under the old rule. In all three instances the purpose of the new rule is to avoid a grave risk of tampering with the truth-finding process and convicting the innocent.
It follows that whether or not it replaced a prior rule to the contrary, the Shirley decision applies to all cases not yet final in our courts.
C.
We find further support for our holding in the fact that in virtually every sister state in which hypnotically induced testimony has been declared inadmissible, the rule has also been applied in cases pending on appeal at the time it was adopted.
Thus in State v. Mena (1981)
Mena was decided in February 1981. Eleven months later the Arizona Supreme Court reaffirmed the Mena rule in State ex rel. Collins v. Superior Court, etc. (1982)
Confirming the foregoing analysis, the Arizona Supreme Court subsequently applied its Mena rule to numerous cases pending on appeal at the time Mena was decided. Depending on the state of the evidence, in some cases the court held that the error in admitting posthypnotic testimony was harmless (e.g., State v. Thomas (1982)
The same sequence of rulings has also been followed in states in which the decision to exclude hypnotically recalled testimony came after we decided Shirley. Thus in Com. v. Kater (1983)
In State v. Collins (1983)
In People v. Gonzales (1982)
In People v. Hughes (1983)
Respondent suggests no reason why we should not follow this consistent practice of our sister states.
IV.
In the alternative, respondent attacks the Shirley rule itself. He contends that subsequent developments in the scientific literature and the case law have undermined the foundations of that decision to such an extent that it should be “reconsidered,” i.e., overruled. As will appear, however, those foundations have only been strengthened by recent scientific studies and persuasive decisions from our sister states. Like Mark Twain’s comment on his obituary, any report of the death of Shirley is an exaggeration.
A.
Respondent relies on two articles by professionals in the behavioral sciences.
It is not our function, however, to resolve any such disputes within the scientific community, any more than it is our task to determine whether posthypnotic testimony is reliable as a matter of scientific fact. As we explained in Shirley (
Still less persuasive is the second article relied on by respondent, Hypnotic Hypermnesia: A Critical Review, by Helmut Relinger, Ph.D. Dr. Re-linger is a psychologist who undertakes in this article simply to review and summarize a number of earlier studies by other experimenters on the topic of hypnotic hypermnesia, i.e., hypnotically improved recall by means of direct suggestion.
That question has been addressed in a number of articles published since Shirley, and therefore bearing on our inquiry. They are remarkably uniform in their conclusion that if there is any increased recall in hypnotic hypermnesia, it is purchased at the price of increased errors and probably also an increase in the subject’s misplaced confidence in those errors. Thus one study tested the effect of hypnosis on the recognition of faces; it found that hypnosis does not improve the ability to make a facial identification, but significantly increases the proportion of confident but mistaken identifications or “false alarms.” (Wagstaff, Hypnosis and Recognition of a Face (1982) 55 Perceptual & Motor Skills 816.) Another article reported on two studies using material typical to a police investigation. In the first, the results “[did] not support the hypothesis that hypnosis improves memory for items relevant to forensic investigation; if anything, the hypnotic treatment, possibly due to effects on arousal and motivation, had a somewhat deleterious effect.” (Wagstaff et al., Hypnosis and Eyewitness Memory: Two Experimental Analogues (1982) 10 IRCS Med. Sci.: Psychology & Psychiatry 894.) In the second study hypnosis again produced no improvement in memory but did result in a significantly greater proportion of false positive identifications. {Id. at p. 895.)
Two recent studies confirm these conclusions. In the first, a hypnotic hypermnesia experiment (see fn. 31, ante) was designed to test not only the number of additional items recalled but also the accuracy of those memories. (Dywan & Bowers, The Use of Hypnosis to Enhance Recall (1983) 222 Sci. 184.) The outcome was clear: hypnosis produced a modest increase in the number of new items remembered, but at a considerable cost in accuracy: although the hypnotized subjects reported twice as many new items (both correct and incorrect) as the control subjects, they made three times as many new errors as the latter. (Id. at pp. 184-185.) The authors suggested that the increase in recall under hypnosis may not represent an actual improvement in ability to remember but rather a decrease in critical judgment, i.e., “less caution by subjects in what they are willing to report as memories.” (Id. at p. 185.) It may also be due to an increase in the vividness of the mental images generated as possible memories during recall attempts, and “the enhanced vividness could lead to a false sense of recognition and hence the inflated output as well as the surprising certainty that subjects have about their hypnotically enhanced recall.” (Ibid.) For all these reasons, the authors conclude that the results of their study “should give pause to those advocating the use of hypnosis in situations in which the veridicality [i.e., truth] of information is of prime concern.” (Ibid.)
Shortly thereafter a second article reported on an experiment designed to test whether a pseudomemory could be successfully implanted by hypnosis. (Laurence & Perry, Hypnotically Created Memory Among Highly Hypnotiz
As if to remind us that such real-life situations do occur, another article reported two actual cases in which the victim of a violent assault in the nighttime was unable to identify her assailant until after her memory had been “refreshed” by hypnosis, but in retrospect each identification was evidently the product of cues and assurances from the hypnotist, posthypnotic suggestions, and confabulations by the witness. (Karlin, Forensic Hypnosis—Two Case Reports (1983) 31 Internal.!. Clinical & Experimental Hypnosis 227.) The author, who has served as an expert for both prosecution and defense in hypnosis cases, acknowledged there is no way of knowing the extent to which these examples are typical; but they illustrate all too well his conclusion that “the great care which one must take in the forensic use of hypnosis must be redoubled when hypnosis is used to obtain an eyewitness identification of a perpetrator. It also suggests, to the degree that
A review of these and similar studies identified four principal effects of using hypnosis to restore memory that render it inherently unreliable. (Perry & Laurence, The Enhancement of Memory by Hypnosis in the Legal Investigative Situation (1983) 24 Can. Psychology 155.) First, the authors observed that the demand characteristics of the process cannot be eliminated: for example, when as frequently occurs the police ask to hypnotize a witness whom they have already questioned in some detail, the witness naturally infers there must be additional useful information “stored” in his memory that can be “retrieved” by the hypnosis. Second, the subject (and often the police hypnotist as well) shares a widespread but erroneous belief that hypnotized persons always tell the truth. Third, “the videotape” technique commonly used by law enforcement hypnotists gives the subject an apparently “scientific” rationale for believing the reality of every “memory” that may occur to him during hypnosis. Fourth, even if the hypnotist does not know all the facts of the crime under investigation, he will normally have a hypothesis about what happened in the case that it may be difficult for him to avoid communicating to the subject. The authors conclude that “Given all of these ingredients, and remembering that the victim or witness of crime is a person with a fragmented memory of an event, the investigative situation may be especially vulnerable to inadvertent cueing of the subject. Cueing becomes a very likely and damaging possibility given that, in hypnosis, the person is being asked, implicitly, to set aside critical judgement. To the extent that the person is able to do this, fantasy may reign supreme, even in a relatively unhypnotizable individual.” (Id. at p. 163.)
Finally, and most important, Dr. Martin T. Orne and three of his colleagues recently published a comprehensive evaluation of the current scientific data on hypnosis and its reliability as a memory-enhancing device. (Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives (Wells & Loftus edits. 1984) p. 171 [hereafter Hypnotically Induced Testimony].) The study confirms in detail each of the conclusions summarized in Shirley (31 Cal.3d at pp. 63-66), i.e., that a person under hypnosis is hyperreceptive to intended and unintended cues and eager to please the hypnotist; that hypnosis impairs the subject’s capacity to judge the reality of his memories; that he will produce on demand a recollection of an event which may be a compound of actual facts, irrelevant
After discussing Shirley and the decisions that preceded and followed it, the authors agree that “The present state of scientific knowledge is consistent with the rulings of a number of state supreme courts that memories retrieved through hypnosis are sufficiently unreliable that their use is precluded as eyewitness testimony in criminal trials. The nature of hypnosis and of its effects on memory leads to the possibility that beliefs of the hypnotist or subject may be transformed into inaccurate memories that the subject reports, believes, and subsequently is willing to testify to under oath. There is currently no available method for eliminating this possibility or for accurately determining in real-life situations the balance of increased recall versus increased distortion that may occur following hypnosis, because ground truth cannot be known with certainty.” {Id. at p. 204.)
Of particular interest is Dr. Orne’s repudiation of the approach taken in his name in the well-known decision of State v. Hurd (1981)
Contrary to respondent’s claim, accordingly, it is evident in the light of the recent literature that the consensus of the scientific community on the reliability of hypnotically induced testimony remains unchanged since Shirley.
B.
We turn to respondent’s contention that the case law since Shirley has in effect repudiated our decision and now holds that hypnosis is a reliable technique for refreshing the recollection of witnesses. Again the claim seems to be composed of equal parts of exaggeration and wishful thinking.
The Harding approach, of course, was rejected not only by Shirley and its predecessors but by the entire Hurd line of cases as well (see Shirley, 31 Cal.3d at pp. 36-39), and indeed has been repudiated by the very jurisdiction that adopted it in the first place. (Polk v. State (Md.App. 1981) supra,
In contrast to this disarray of conflicting and discredited theories, the basic rule we adopted in Shirley—that hypnotically induced testimony is inadmissible per se—continues to draw new adherents.
Certain of these decisions (e.g., Collins) quote extensively from Shirley, and all follow the spirit if not the letter of our decision on the principal issue at hand: they agree that the consensus of the scientific community continues to oppose the use of hypnosis to restore the memory of potential witnesses on the ground that it is inherently unreliable and impairs the de
C.
Finally, respondent emphasizes that many of the foregoing courts have nevertheless declared a willingness to allow, under a variety of restrictions, the introduction of “prehypnotic evidence”; i.e., in certain circumstances the witness may be permitted to testify to facts that he remembered before he was hypnotized. (E.g., State ex rel. Collins v. Superior Court, etc. (Ariz. 1982) supra,
To begin with, we point out that the Shirley decision itself held admissible one type of prehypnotic evidence. The victim in that case testified in detail at the preliminary hearing before she was hypnotized. For the guidance of the court on remand we explained that although the victim would not be allowed to testify at retrial as to the events that were the subject of the hypnotic session, her prehypnotic testimony at the preliminary hearing would be admissible in lieu thereof, provided only that her disqualification had not been procured by the prosecution for the purpose of preventing her from testifying. (31 Cal.3d at pp. 71-72 & fn. 60.) We adhere to that rule. Preliminary hearing testimony is presented in open court, in the presence of the defendant, at a time when the defendant is represented by counsel, in a proceeding in which the defendant has both the motive and the opportunity to cross-examine the witness, and the testimony is reported and preserved in a formal court transcript. In these circumstances the introduction of preliminary hearing testimony at trial, when the witness is legally unavailable, does not violate either the hearsay rule (Evid. Code, § 240) or the defendant’s constitutional right of confrontation (see Ohio v. Roberts (1980)
The soundness of an exception for prehypnotic evidence has already been questioned in the scientific community.
We decline to render an advisory opinion answering those difficult questions in the case at bar. Respondent simply recites the holdings of the out-of-state cases without further analysis, and defendants have not briefed the matter at all. It will be time enough to grapple with such questions in a case in which they are presented as dispositive issues on a satisfactory record and after full briefing. We agree with the Michigan Supreme Court that the admissibility of prehypnotic evidence is a question that should be “reserved until raised on an adequate record in an appropriate case.” (People v. Gonzales (Mich. 1983) supra,
V.
We therefore apply the Shirley rule to the facts of this case. Under that rule we hold that the trial court erred in denying defendants’ two successive motions to exclude Judy’s testimony. (31 Cal.3d at pp. 66-67.) And because that testimony was virtually the sole incriminating evidence against each defendant, we find the error to be prejudicial under the Watson test. (Id. at p. 70.) In these circumstances we need not reach any other issues raised on appeal.
The judgments are reversed.
Bird, C. J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
Notes
In the factual narrative that follows we have drawn from the transcripts of both trials. The testimony that each of the three principal witnesses gave in the Guerra trial was essentially the same as he or she gave in the Murkidjanian trial. In the few instances in which there was any significant difference, it will be noted.
She so testified at Guerra’s trial; at Murkidjanian’s trial she changed her story and denied that she returned the hug.
In his formal report of the interview, introduced as an exhibit to Guerra’s motion for new trial, Officer Granados reiterated Judy’s description of the events of the previous night; with regard to Murkidjanian’s actions her statement was similar to her trial testimony, with one significant omission—she made no mention whatever of penetration. On the form the officer identified the crime he was reporting as “Rape (Attempt).”
According to the police report, Judy told Officer Granados that Guerra “did not participate in the incident and said nothing during the event”; and that after Murkidjanian left, Guerra stayed with her and “asked her if she was okay and said he was sorry for what [Murkidjanian] had attempted to do.” At trial, Judy testified that at the time she was interviewed by Officer Granados her memory was fresh and she was trying to be truthful.
The following colloquy took place during cross-examination of Judy at the Murkidjanian trial:
“Q. [By defense counsel.] Did he tell you the reason to go to the hypnotist? A. Well, yes.
“Q. What did he tell you was the reason you should go? A. So that I could remember exactly what had happened.
“Q. In regards to whether or not there was penetration? A. I believe so.”
As noted in Shirley (
I.e., Murkidjanian, Guerra, and Logue.
Officer Davinroy testified as follows:
“Q. [By defense counsel.] Now, during the hypnotic session was there a time when the tape was not on? A. The tape recorder was always on, but it wasn’t always running.
“Q. Can you explain what you mean by that? A. Yes. As I seem to recall, Detective O’Brien kept going into hypnosis and I think there were periods of time when he didn’t realize that the tape had run out.
“Q. I see. As to the length of time the machine might have been off, we would need Detective O’Brien to give us the actual amount of time? A. I don’t think he would be able to do that.
“Q. Is that because he was hypnotized? A. Yes, sir, and people have a different perception of time when they are in hypnosis.”
In his report on the hypnotic session, introduced as an exhibit to Guerra’s motion for new trial, the officer estimated the level of the trance as “medium.” At trial the tape recording of the session was played in open court, and the transcript of the recording was furnished to the jury. Both the tape and the transcript were admitted into evidence and are part of the record on appeal.
Dr. Pennock testified only at the Murkidjanian trial.
Among the prehypnotic expectations that Officer Davinroy expressed were such statements as “We’ll get more information [by hypnosis] than we will if I was just talking to you normally”; “my only objective in being here conducting this session is to gain information that’s going to be used in a case”; “the information we gain is private; however, there is a possibility that the tapes would be reviewed in a court of law”; “from a prosecution standpoint we would love to get it so the jury could hear this”; and “In this particular case we’re interested in retrieving information regarding the type of assault.”
Dr. Rosenstein testified only on Guerra’s motion for new trial.
Other examples have included a decision in which we gave effect to a statutory rule that the courts had theretofore misconstrued (People v. Mutch (1971)
A recent example of a decision resolving a conflict in lower-court authority is People v. Beeman (1984)
Even that exception is a limited one, in the sense that the normal rule of retroactivity always applies to “the individual defendant whose appeal is being adjudicated by the court” (People v. Bustamante (1981) supra,
See, e.g., Berger v. California (1969)
For example, it pointed out that retroactive application of Winship affected only juvenile eourts, while the same applieation at Mullaney would invalidate the eonvictions of murderers.
In Johnson a five-member majority held that Fourth Amendment decisions in general, and Payton v. New York (1980)
We expressed our preliminary view of Johnson in the second paragraph of footnote 10 of Donaldson, at page 38 of 35 Cal.3d.
The Courts of Appeal have also so held in a number of contexts. (See, e.g., People v. Hickman (1981)
We expressly disapproved the latter holding of Diggs in Shirley, pointing out that “the Kelly-Frye requirement is not fulfilled merely by evidence that one expert personally believes the challenged procedure is reliable; the court must be able to find that the procedure is generally accepted as reliable by the larger scientific community in which it originated. (Kelly, at pp. 30-32, 37 [of 17 Cal.3d].) It is obvious that no such finding could be made on the record in Diggs.” (
Indeed, a casenote in an official publication of the California Department of Justice, the Peace Officer Law Report (Feb. 1981, p. 31), described Diggs as “the first published opinion in California on this controversial issue,” and pointed out that the California Supreme Court had several hypnosis cases pending before it but had not yet addressed the issue. The Peace Officer Law Report is distributed to criminal justice agencies throughout the state.
Obviously the police did not rely on Diggs or Colligan in the case at bar, as Judy was hypnotized before either was decided.
The cases are cited in Shirley. (31 Cal.3d at pp. 35-39.)
The cases rejecting hypnotically induced testimony are also cited in Shirley. (Id. at pp. 40-51.)
We therefore disapprove People v. Williams (1982)
The Collins opinion impliedly acknowledged that the rule it adopted was in effect partially retroactive when it observed in closing (ibid.) that “This Court is cognizant that its holding is not purely prospective . . . .” The implication was made express later in the same year by the Arizona Court of Appeals, which opined that the guidelines declared in Collins “might more properly be characterized as contemplating the application of a limited retroactive standard. Thus, the application of Collins would be prospective only in the sense that it would not be applied so as to invalidate convictions which have become final. On the other hand, it would apply to convictions which have not become final because of pending appeals. To that extent it would be given a limited retroactive effect in accordance with the general rule that when there is a change of law by judicial decision between the time of trial and appeal, the appellate court will dispose of the appeal according to the law prevailing at the time of the appellate disposition.” (State v. Young (App. 1982)
Similarly, in Com. v. Nazarovitch (1981)
As we observed in Shirley (31 Cal.3d at pp. 48-50), in Polk v. State (1981)
Neither article is apparently yet in print. Respondent states that both are “soon to be published,” but tells us where only one is to appear: the Spiegel article will be published in 1984 in “Advances in Forensic Psychology and Allied Disciplines,” but no further citation is given. Respondent is silent as to when and where the Relinger article will appear. He appends copies of both to his supplemental brief.
See, e.g., H. Spiegel, Hypnosis and Evidence: Help or Hindrance? (1980) 347 Annals N.Y.Acad.Sci. 73 (cited in Shirley at p. 65, fn. 49, of 31 Cal.3d); Kroger & Doucé, Hypnosis in Criminal Investigation (1979) 27 Internal.J. Clinical & Experimental Hypnosis 358 (cited in Shirley, ibid.)-, Schafer & Rubio, Hypnosis to Aid the Recall of Witnesses (1978) 26 Internal.!. Clinical & Experimental Hypnosis 81 (cited in Shirley at p. 68, fn. 55, of 31 Cal. 3d).
By its frequent references to Bernard Diamond, the article somewhat misleadingly implies that Dr. Diamond is the sole or principal opponent of the use of posthypnotic testimony. As Shirley made clear, however, Dr. Martin T. Orne shares many of Dr. Diamond’s concerns on this topic, as do numerous other experts in the field. (See references cited in fns. 46, 48, 49, 51, and 52 of Shirley, at pp. 64-66 of 31 Cal.3d.) Indeed, we carefully explained in Shirley (id. at p. 63, fn. 45) that “By relying primarily on Drs. Diamond and Orne, of course, we do not mean to denigrate the contributions of many other experts in hypnosis whose writings we have also consulted (e.g., Ernest R. Hilgard, Ph.D., director of the Stanford University laboratory of hypnosis research), some of whom we cite hereinafter. On the present issue, however, the majority are in full agreement with the essential findings and conclusions of Drs. Diamond and Orne.”
In the typical study a group of subjects is exposed to certain material and their ability to recall it is tested; thereafter their recall is tested again while half of the group is in a hypnotic trance and the other half is not. If the hypnotized subjects recall more than the control subjects, the difference is deemed evidence of hypnotic hypermnesia.
See footnote 29, ante. If anything, the Relinger article in fact supports much of Shirley. The most popular method of memory enhancement used by law enforcement hypnotists is regression, a procedure described by Dr. Relinger as “an elaborate series of suggestions to hypnotized subjects attempting to convince them that they are actually reliving the event.” Dr. Relinger rejects this procedure as unreliable because of “The inevitable confabulation in addition to the excessive demand characteristics created by the elaborate regression suggestions . . . .” (“Demand characteristics,” in this context, are the verbal and nonverbal cues inherent in every hypnotic session.) He further rejects the “television technique” often used by law enforcement hypnotists (see Shirley, 31 Cal.3d at pp. 57 and 59, fn. 36) “in which subjects are told that their memory is like a videotape on which everything they have experienced is recorded”; such techniques, according to Dr. Relinger, “seem unduly suggestive and place unnecessary demands” on the person under hypnosis. In the case at bar Officer Davinroy used a variation of the “television technique” on Judy.
From these and other studies Dr. Wagstaff concluded in another article that “there is no scientific support for the view that evidence obtained under hypnosis is more truthful or necessarily more accurate than evidence obtained by procedures which do not employ hypnotic induction.” (Wagstaff, Hypnosis and the Law: A Critical Review of Some Recent Proposals, 1983 Crim.L.Rev. 152, 157.)
The reach of the study goes beyond its title: the authors note that although they used highly hypnotizable subjects, “Given the demand characteristics of the investigative hypnotic context, however, even witnesses and victims who are not especially responsive to hypnosis may be vulnerable also to such memory contaminants. Many individuals with low susceptibility to hypnosis have imagery that is as vivid as that of highly responsive individuals.” (Fns. omitted, ibid.)
The latter conclusion is further supported by a more recent study which concluded, inter alia, that hypnosis strongly increases the subject’s confidence in the accuracy of his recall of both true and false memories. (Sheehan & Tilden, Effects of Suggestibility and Hypnosis on Accurate and Distorted Retrieval from Memory (1983) 9 J. Experimental Psychology: Learning, Memory, & Cognition 283.)
Fortunately, no miscarriage of justice occurred: in one of the cases reported the jury was unable to agree, and in the other the charges were dismissed when the victim departed from the state.
For example, the subject’s own preconceptions about hypnosis may play a major role: if, as often occurs, he believes hypnosis will allow him to retrieve memories he could not otherwise recall, this belief itself becomes an effective prehypnotic suggestion; he will strive to comply with it while in the trance, even at the cost of altering his true recall. (Id. at pp. 175-176.) In addition, even standard hypnotic technique can contaminate the subject’s memory. The hypnotist commonly encourages the subject to proceed with his narration by making such seemingly innocuous remarks as “Good,” “Fine,” or “You’re doing well.” To the subject, however, these remarks may take on much greater significance, suggesting to him that the hypnotist accepts his tentative memories as objective truths, and this misperception may in turn persuade the subject they are true. (Id. at p. 176.) Moreover, the subject may misinterpret even a slight and unintended decrease in the frequency of such remarks as meaning that the hypnotist wants “something else or something more,” and in an effort to please he may produce unreliable or false information. (Ibid.) Lastly, the “television” or “videotape” technique of police hypnotists inevitably pressures the subject to produce additional details and to believe they are true, yet his subsequent testimony to that effect “will be based on memories created during hypnosis, which may be at gross variance with both prehypnosis recollection and the actual facts.” (Id. at p. 200.)
For example, hypnosis may produce a dramatic increase in the amount of detail the witness reports, or in the emotion which accompanies that report. Even though they may be artifacts of the hypnotic process wholly unrelated to the facts, these additional details or emotion tend to make the witness more credible to lay observers such as a jury. (Id. at pp. 193-194.)
Even when hypnosis is restricted to this purpose, Dr. Orne is of the opinion that its “use can be justified, however, only in cases where a defendant has not been identified to the subject, where there has not been widespread publicity involving speculations about the perpetrator, and where law enforcement officials do not have compelling beliefs about details of what actually transpired.” (Id. at p. 205.) And even in these limited cases, Dr. Orne would still require strict compliance with a newly expanded set of guidelines that takes almost five full pages of his article to explain. (Id. at pp. 205-210.)
Shortly before Shirley, New Mexico so held as well. (State v. Beachum (App. 1981)
Shortly before Shirley, Wyoming likewise so held. (Chapman v. State (Wyo. 1982)
E.g., U.S. v. Valdez (5th Cir. 1984)
As discussed above (Part III C, ante), its old adherents also remain steadfast: the courts that adopted the rule before Shirley have since applied it to cases pending on appeal at the time of its adoption.
The federal court limited its holding to the particular type of posthypnotic testimony before it, i.e., testimony in which a hypnotized witness identifies for the first time a person he knew was already under suspicion. The court also based its holding on the Federal Rules of Evidence rather than the Frye test. (Id. at pp. 1200-1201.) Valdez was thus a cautious step, but it was a first step nonetheless; all prior federal appellate decisions on the topic allowed posthypnotic testimony into evidence subject to certain “safeguards.” (See Shirley, 31 Cal.3d at pp. 36-37 & fn. 19.)
Such evidence might be presented in a wide variety of forms: e.g., a police report of a field interview of the witness immediately after the crime; a subsequent interrogation of the witness by a detective at the police station for the purpose of advancing the investigation of the crime; a formal deposition of the witness by a prosecutor at the latter’s office for the purpose of preserving his testimony prior to hypnosis; trial testimony by the witness as to facts he claims to have remembered before hypnosis; and trial testimony by other witnesses, including law enforcement authorities, as to statements assertedly made by the percipient witness before hypnosis.
Thus Dr. Orne and his colleagues warn that it is unclear “whether a witness can distinguish between recollections made prior to hypnosis and those reported during and after hypnosis . . . .” (Orne et al., Hypnotically Induced Testimony, supra, at p. 203.) The difficulty is that “the sources of memories become confounded, and no instructions or suggestions can reliably prevent this from occurring in real-life situations.” {Id. at p. 200.) The confusion is compounded, moreover, by the tendency of hypnotized persons to deny the effects of their hypnotic experience: the same researchers report the phenomenon that “witnesses who have been hypnotized often assert later that their new recollections preceded rather than followed the hypnotic session,” and that even subjects who “had absolutely no recollection prior to hypnosis” may “insist that they actually remembered the event or detail before being hypnotized” but simply “did not talk about it.” {Ibid.) Finally, the authors observe that the artificial increase caused by hypnosis in the witness’s confidence in his recall, whether true or false, affects prehypnotic no less than posthypnotic testimony. {Id. at p. 203.) In short, it appears from their entire article that Dr. Orne and his colleagues are of the opinion that the testimony of a witness as to his prehypnotic recollection of events is not reliable and that its admission substantially impairs the ability to cross-examine that witness.
Concurrence Opinion
I concur.
In light of the facts related in the majority opinion, there is a substantial possibility that the victim’s testimony on penetration was “confabulated” in the police-conducted hypnosis session, and, given the unreliability of that evidence, I do not think that the rape convictions can stand. To the extent that the Shirley decision embodies the principle that testimony “created” in this type of hypnosis session is not sufficiently reliable to be admitted in a criminal trial, I agree that it establishes a rule that goes to the heart of the accuracy of the factfinding process and should be applied retroactively.
But while I agree that the victim’s hypnotically created testimony on penetration was impermissibly admitted and should be excluded on retrial, I would make it clearer than the majority does that Shirley should not be applied retroactively to bar the victim from testifying on retrial about facts or memories that the trial court can reasonably determine were not created
I should make it clear that I am not suggesting that the basic holding in Shirley be overruled. Although I still believe that that decision’s sweeping prophylactic rule—barring all testimony by a witness concerning any subject touched on during a hypnosis session—is too broad (see 31 Cal.3d at pp. 73-78 [conc. opn.]), the police and prosecution have been on notice since Shirley was filed of the consequences that flow under that decision if a potential witness is hypnotized. As a result, the prospective application of Shirley’s strict exclusionary rule may not impose substantial, adverse effects on the administration of justice in this state.
Although it may not be immediately apparent from a reading of the scholarly majority opinion, the recent out-of-state decisions which are most in tune with Shirley do not support Shirley's conclusion that a witness who has been hypnotized may not testify with respect to any subject discussed in the hypnosis session. Indeed, virtually all of the other states that have adopted a “per se" rule excluding hypnotically induced testimony, have at the same time expressly declared that a witness is not necessarily barred from testifying to events which the witness recalled and related to others before undergoing hypnosis. (See State ex rel. Collins v. Superior Court, etc. (1982)
These decisions recognize that while there are theoretical objections to even such testimony, the probable reliability and potential importance of the evidence justifies its admission. As the New York Court of Appeals explained; “A criminal trial for rape or assault would present an odd spectacle if the victim was barred from saying anything, including the fact that the crime occurred, simply because he or she submitted to hypnosis sometime prior to trial to aid the investigation or obtain needed medical treat
Thus, when the scope of the recent out-of-state decisions is properly understood, it becomes clear that the numerous authorities relied on by the majority to accord retroactive application to Shirley do not support the proposition that a witness hypnotized before Shirley should be totally barred from testifying at trial. Rather, the cases suggest that such a witness should generally be permitted to testify at trial as to prehypnosis memories so long as there is satisfactory evidence from which the trial court can determine that the witness did in fact recall and relate the statements before undergoing hypnosis. (See, e.g., State v. Collins, supra,
Accordingly, following the lead of the out-of-state decisions, I believe we should advise the trial court that, on retrial, the fact that the victim has undergone hypnosis does not necessarily bar her from testifying to events which the court finds that she recalled and related before the hypnosis session. Although defendants should be permitted to impeach her testimony on those matters by bringing to the jury’s attention the fact and possible effect of her hypnosis, they should not gain effective immunity from prosecution by a rule that would bar the victim from the witness stand.
While I recognize that the majority has chosen not to resolve the issue of the admissibility of the witness’ testimony as to events recalled and related before hypnosis, I join in the judgment on the understanding that it does not foreclose the trial court from admitting such testimony.
Grodin, J., concurred.
This is particularly true inasmuch as the Legislature has recently enacted a statute, effective January 1, 1985, which modifies Shirley by authorizing a witness who has previously undergone hypnosis to testify to matters which the witness recalled and related prior to the hypnosis, so long as a number of specified safeguards are followed. The new provision, Evidence Code section 795, reads in full: “(a) The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness’ testimony, if all of the following conditions are met: [t] (1) The testimony is limited to those matters which the witness recalled and related prior to the hypnosis. [H] (2) The substance of the prehypnotic memory was preserved in written, audiotape, or videotape form prior to the hypnosis, [t] (3) The hypnosis was conducted in accordance with all of the following procedures: [Ü] (A) A written record was made prior to hypnosis documenting the subject’s description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis, [t] (B) The subject gave informed consent to the hypnosis. [f] (C) The hypnosis session, including the pre- and post-hypnosis interviews, was videotape recorded for subsequent review. [H] (D) The hypnosis was performed by a licensed medical doctor or psychologist experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense. [1] (4) Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 of the Evidence Code at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness’ prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness’ prehypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses. [H] (b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness.”
I say “virtually all” because the high court of one state, Michigan, simply reserved judgment on this question in People v. Gonzales (1983)
Dissenting Opinion
I respectfully dissent. I agree that the majority makes a case for reaffirming the rule announced in People v. Shirley (1982)
1. Prejudicial error test. In Shirley we stated: “[T]he proper application of the [People v.] Watson [(1956)
In my view, the foregoing test of prejudicial error is far too strict, and will result in an unwarranted number of reversals. Most cases involving hypnotized witnesses will stand or fall on that witness’ testimony. Shirley’s strict prejudicial error test apparently was based upon indications in the scientific literature that the hypnotic experience “will tend to clothe the witness’ entire testimony in an artificial but impenetrable aura of certainty, and may distort the witness’ recall of related events occurring both before and after the hypnotic session.” (
2. Retroactivity of Shirley. If, as I suspect, application of Shirley’s strict prejudicial error test would compel the reversal of most pr&-Shirley cases, then perhaps we should hesitate to give that case any retroactive effect. The majority herein would make Shirley retroactive, at least to all cases not final when that case was decided. (I note with apprehension the majority’s sug
The majority’s retroactivity ruling is directly contrary to People v. Williams (1982)
As indicated above, Justice Gardner predicted that the effect of making Shirley retroactive to pending cases would be “devastating.” The Attorney General agrees with this assessment, having submitted (in his rehearing petition in Shirley) a lengthy list of cases in which hypnotism was used as an investigative tool. Amicus Appellate Committee of the California District Attorneys Association likewise observes that pre-Shirley reliance upon hypnotism was both reasonable and substantial, and amicus suggests that retroactivity will have a deleterious effect on pending cases, permitting many defendants to escape the consequences of their actions.
Although the majority strenuously disputes the assertion, it seems rather clear to me that Shirley broke new ground in declaring per se inadmissible the testimony of a previously hypnotized witness. Although the prior California cases may have been somewhat cloudy on the point, decisions from other states (as Justice Gardner noted in Williams, supra) generally supported the admissibility of hypnotically induced testimony, and law enforcement agencies in this state relied heavily upon the legitimacy of hypnotism as an investigative tool. Thus, our retroactivity decision should not be made until we have carefully assessed, among other things, “the effect on the administration of justice of a retroactive application of the new standards.” (Stovall v. Denno (1967)
I would affirm the judgments.
Respondent’s petition for a rehearing was denied January 3, 1985. Lucas, J., was of the opinion that the petition should be granted.