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Yefim Alekseev
Yefim Alekseev

Girls Gone Hypnotized Full 34 [REPACK]



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 Hypnotizable [37 Cal. 3d 421] Subjects (1983) 222 Sci. 523.) fn. 34 Each person in a group of 27 subjects selected a night during the previous week in which he or she had no memory of dreaming or awakening during the night. The subjects were then hypnotized, were instructed to relive the night in question, and were asked whether they heard some loud noises that awakened them (i.e., a suggested auditory hallucination). All but 10 said they could hear the noises, and they were encouraged to describe them. After the subjects were dehypnotized, fully half claimed they had actually heard the noises on the night in question. Indeed, they maintained that position even when told that the noises had in fact been suggested to them by the hypnotist, and they invented various rationales to justify their confidence in the "memory." (Id. at p. 524.) In the authors' view (ibid.), these results support Dr. Orne's position that "the memories of victims and witnesses of crime can be modified unsuspectingly through the use of hypnosis. They suggest, further, that an initially unsure witness or victim can become highly credible in court after a hypnotic memory 'refreshment' procedure." fn. 35 The authors concluded that in a real-life situation, where the subject is more emotionally involved and more motivated to cooperate, "Such 'recall' could lead to a false but positive identification and to all of the legal procedures and penalties that this implies." (Id. at p. 584.)




Girls gone hypnotized full 34



I respectfully dissent. I agree that the majority makes a case for reaffirming the rule announced in People v. Shirley (1982) 31 Cal. 3d 18, 66-67 [181 Cal. Rptr. 243, 641 P.2d 775], which made inadmissible any testimony of a previously hypnotized witness regarding those matters that were the subject of the hypnotic session. As I understand it, such a witness [37 Cal. 3d 433] could freely testify regarding any matters not explored during hypnosis. (See ante, p. 390; Shirley, at p. 68.) Nevertheless, I am troubled by (1) Shirley's formulation of the test for determining whether the erroneous admission of testimony by a hypnotized witness was prejudicial, and (2) the present majority's insistence on making its Shirley decision retroactive.


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) 388 U.S. 293, 297 [18 L. Ed. 2d 1199, 1203, 87 S. Ct. 1967]; accord Donaldson v. Superior Court (1983) 35 Cal. 3d 24, 38 [196 Cal. Rptr. 704, 672 P.2d 110].) [37 Cal. 3d 435]


FN 1. 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: [] (1) The testimony is limited to those matters which the witness recalled and related prior to the hypnosis. [] (2) The substance of the prehypnotic memory was preserved in written, audiotape, or videotape form prior to the hypnosis. [] (3) The hypnosis was conducted in accordance with all of the following procedures: [] (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. [] (B) The subject gave informed consent to the hypnosis. [] (C) The hypnosis session, including the pre- and post-hypnosis interviews, was videotape recorded for subsequent review. [] (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. [] (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. [] (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."


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