## Facts

- Donald Lee Shirley was prosecuted for sexual offenses arising from an encounter with the complaining witness, “Catherine C.”
- The case turned largely on whose account the jury believed: Catherine’s account of nonconsensual sexual acts versus Shirley’s account that intercourse was consensual and that no oral copulation occurred.
- Before trial, Catherine had gaps in her memory about the events and had difficulty giving a consistent account.
- On the night before trial, a prosecutor hypnotized Catherine to try to fill in the missing portions of her recollection.
- After the hypnotic session, Catherine was able to testify at trial about details she previously said she could not remember.
- Shirley moved to exclude testimony that resulted from, or was affected by, the hypnosis; the trial court denied the motion and allowed Catherine to testify.
- The jury convicted Shirley of rape and acquitted him of oral copulation.
- Shirley appealed, arguing the admission of post-hypnosis testimony was improper and prejudicial.

## Issues

1. May a witness who has been hypnotized to restore memory of events in dispute testify in a California criminal trial about those events, including details recalled only after hypnosis?
2. Is hypnosis used to obtain trial testimony a sufficiently reliable scientific procedure to satisfy California’s general-acceptance test for new scientific methods (Kelly/Frye)?
3. If admitting such testimony was error, was it harmless on this record?

## Decision

- The California Supreme Court reversed the judgment of conviction.
- The court held that a witness who has undergone hypnosis for the purpose of restoring memory of the events in issue is not competent to testify about those events in California courts.
- The court reasoned that hypnosis, when used to produce trial recollection, does not satisfy the required showing of reliability and acceptance in the relevant scientific community.
- The court rejected limiting admissibility through procedural safeguards, concluding they do not adequately prevent distortion of memory or allow dependable separation of true memory from suggestion.
- Given the importance of Catherine’s testimony and the credibility contest at trial, the error in admitting her post-hypnosis testimony was not harmless.

## Legal Principles

- A witness hypnotized for the purpose of restoring memory of events at issue is incompetent to testify about those events in a California criminal trial.
- Hypnosis employed to generate courtroom recollection is treated as a scientific technique and is inadmissible unless it satisfies California’s general-acceptance reliability standard (Kelly/Frye).
- Hypnosis can increase suggestibility and can lead to confabulation (filling memory gaps with invented or suggested details), making post-hypnosis recollection unreliable.
- Hypnosis can also produce unwarranted certainty in the witness, which can blunt the effectiveness of cross-examination and mislead the factfinder.
- Proposed safeguards (such as independent hypnotists, recording sessions, and preserving pre-hypnosis statements) do not remove the main risks that hypnosis may alter memory and confidence in ways that cannot later be reliably detected in court.
- Hypnosis may be used in investigation to generate leads, but testimony derived from hypnotic memory restoration may not be used as substantive proof at trial.

## Conclusion

In *People v. Shirley*, the California Supreme Court ruled that testimony from a witness hypnotized to restore memory of disputed events is inadmissible because hypnosis is not a reliably accepted method for producing accurate courtroom recollection and can distort memory and confidence in ways that frustrate cross-examination; the court therefore reversed Shirley’s rape conviction where the prosecution hypnotized the complaining witness on the eve of trial and her post-hypnosis testimony was admitted.


People v. Shirley, 723 P.2d 1354 (1982)