People V. Guerra

In People v. Shirley (1982) 31 Cal. 3d 18, 66-67 [181 Cal. Rptr. 243, 641 P.2d 775], we held that the use of hypnosis to restore or improve the memory of a potential witness is not accepted as a reliable procedure by a consensus of the relevant scientific community, and hence the testimony of such a witness is inadmissible as to all matters that were the subject of the hypnotic session. In the present case we address the question, left open in Shirley (id. at p. 67, fn. 53), whether the rule of that decision applies to witnesses who were hypnotized before its date (Mar. 11, 1982). As will appear, we conclude that the question must be answered in the affirmative -- i.e., that Shirley applies  to all cases not yet final as of the date it was decided. This conclusion is dictated by settled retroactivity precedents of this court and the United States Supreme Court, and is supported by the consistent practice of our sister states on the point. Applying the Shirley rule to the case at bar, we further conclude that the introduction of such hypnotically induced testimony was prejudicial error on the record before us, and hence compels reversal of the judgments of conviction.