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F 2.017a
Hypnosis Testimony
Before considering the testimony of witness __________ you must determine the existence of the following preliminary facts:
1. The witness has testified only to matters which [he] [she] recalled and related prior to the hypnosis.
2. The substance of the pre-hypnotic testimony was preserved in written, and in tape, or video tape form prior to the hypnosis.
3. The hypnosis was conducted in accordance with all of the following procedures:
A. [From EC 795]
B. [From EC 795]
C. [From EC 795]
D. [From EC 795]
4. The hypnosis did not so affect the witness as to render [his] [her] pre-hypnosis statements unreliable.
Unless the prosecution has proven the existence of all these preliminary facts by clear and convincing evidence, you must disregard the testimony of witness __________.
Points and Authorities
EC 403 requires instruction upon preliminary facts. (See FORECITE F 2.001a.) EC 502 requires instruction on burden of proof. (See People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden].) EC 795 requires proof by clear and convincing evidence for admissibility of the testimony of a previously hypnotized witness.
BAJI 2.62 contains the following definition of clear and convincing:
“Clear and convincing evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof. Such evidence requires a higher standard of proof than by a preponderance of the evidence.
You should consider all of the evidence bearing upon every issue regardless of who produced it.”
However, in Stone vs. New England Ins. Co (95) 33 CA4th 1175, 1211, fn 29 [39 CR2d 714], it was held that this instruction, although correct, does not go far enough. Upon request, the following instruction should be given:
The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. To be clear and convincing, the evidence must be so clear as to leave no substantial doubt and be sufficiently strong to command the unhesitating assent of every reasonable mind. Again, the proof beyond a reasonable doubt standard requires a greater degree of certainty than that required to meet the clear and convincing evidence standard.
RESEARCH NOTES
See Annotation, Admissability of hypnotically refreshed or enhanced testimony, 77 ALR4th 927 and Later Case Service; and Adequacy of defense counsel’s representation of criminal client regarding hypnosis and truth tests, 9 ALR4th 354 and Later Case Service.
