Hypnotized Witness, Kristin Dempewolf

Pre-Trial Evidentiary Hearings

February 17, 2004

JUDGE: The next thing I'd like to discuss is what are we going to do next? We have all kinds of motions pending, and so what would you like to pursue next? We have , I will take the recess for the afternoon. Maybe, I have a whole stack of motions in there, if we can attack those. I'll take a recess, maybe you guys can discuss among yourselves the next stem you'd like to,

GERAGOS: I could say the one thing we could do after the recess, we both agreed that the Court could rule on the hypnosis issue.

JUDGE: I think. Okay. I might ask you this. Hypnosis issue, there is a witness for the defense, witnesses for the prosecution and a witness for the defense. I have got your brief attacking the foundation for the admissibility of the testimony of the hypnotized witness for the prosecution. I have got nothing attacking or disputing admissibility of the defense witness being,

GERAGOS: That's correct.

JUDGE: Being able to testify, even though Mr. Distaso said the foundation basically is the same.

GERAGOS: Except Mr. Distaso is wrong. And I don't think such time as I reasonably anticipate I'm going to call that witness, that that's even a ripe issue. I think the only reason that Dempewolf was raised at the prelim was when I put on the, they were just calling her as a witness. They never did provide the analysis and the motion respect to response to that. As far as whether the defense intends to call, we haven't made that decision. Probably won't for a little while. If we do, I will present to the Court under the same analysis, that we did with Miss Dempewolf one other area. We were not the ones who did the hypnosis. There is a due process consideration in that thing that inures to the defense that's separate and apart from what the prosecution has done here, because as to both of these witnesses, they hypnotized both of these witnesses prior to my client even being arrested. So there is a situation I think that's appreciably different. I'm willing at this point, however, to let the Court rule as Miss Dempewolf, because I think it's a case-by-case basis. I don't think the Court has to make a ruling and say, okay, what's good information. It is good for the gander. I don't think we're at that point.

JUDGE: That's what I was asking you, was the foundation basically the same for your witness as it was presented for Dempewolf.

GERAGOS: I do not believe it's the same qualitative difference. We'll let the Court rule on Miss Dempewolf, I'll suffer whatever consequence,

JUDGE: Yes.

DISTASO: Just so I can be clear, your Honor, actually his argument is relating to the people or the police department in this case, hypnotizing those two individual witnesses. He's, I don't think he's making this statement that they were hypnotized or any, I think it was actually done the same day. So the procedures were done exactly the same for each person.   I think he was saying, because the police did it, that he believes there is a difference between the two witnesses. Is that correct?

GERAGOS: In one sense, yes. There is a difference, because the police did it as an agent for the prosecution. They then have to suffer the consequence, obviously, if they didn't comply with the statute.

JUDGE: Sanction if they did it, shouldn't be entitled to testify.

GERAGOS: Exactly. If the police did it, it's contrary to the Evidence Code. That's correct.

JUDGE: The hypnotist is a police agent. That's contrary to what's prescribed in the Evidence Code.

GERAGOS: That's absolutely correct. That's why we were bringing it up, and specifically in terms of their witness. I haven't proffered this witness as our witness. I reasonably do not anticipate calling her as of yet. I will let them know if and when I change my mind. But at this point, I think the only issue that's ripe is whether Dempewolf, who they have indicated they wanted to call, whether or not the Court feels this has become relevant. And obviously I think it's not even a close question. There is no compliance.

JUDGE: All right. This is the case of People vs. Peterson. I'm ready to make a ruling now on the admissibility of the testimony of the witness Kristin Dempewolf, and I've read the moving papers for both sides. Since you're the proponent, Mr. Distaso, you want to make any final comments?

DISTASO: Your Honor, actually, I'm inclined to submit it. I do want the court to be aware of one thing that I, that I learned in the last day or two when I was doing some research to prepare for this argument. The, the code requires that the psychologist be, be a qualified psychologist. I think, and that the hypnotist,

JUDGE: Be an experienced hypnotist.

DISTASO: That's correct. And I believe, based on the doctor's CV, he's got a Ph.D in psychology and he is qualified in hypnosis. However, the issue I want to bring before the court is looking at the Business & Professions Code, what the statute says is it says I think a licensed medical doctor, a psychologist, like licensed family therapist or something. And so I went back and I looked at the Business & Professions Code, and it actually says in order to call yourself a psychologist in the State of California you have to be licensed. I then called the doctor, and I looked, and I asked him about that issue, because I didn't see that on his CV, and he's actually not a licensed psychologist here in California. So I wanted to bring that to the court's attention. And I'm really just prepared to submit it at this point.

GERAGOS: I thought, I appreciate that, but I thought we brought that up in the moving papers. We had gone online, we produced his CV. At best it's almost comical. With all due respect to this gentleman, he's, he does not comply with the code in any way, shape or form. None of the statutory requirements were met in this case. And, to some degree, if you wanted a primer on how not to handle a witness, this was it. And all things considered, I don't believe that they, that they complied with the code, that the witness complies with the requirements that are necessary as a predicate for admission of this evidence, and I'd ask that the court sustain our objection to the calling of the witness.

JUDGE: Yeah. I'm inclined to agree with the defense. In reviewing the moving papers here, I don't believe that the proper record was made prior to the hypnosis documenting the subject's description. I don't think that was fairly done, at least as Evidence Code number 795 requires. Secondly, I don't think that the, the hypnotist here, Mr., Dr. Cunningham?

DISTASO: Dr. Pennington, your Honor.

JUDGE: Dr. Pennington. I beg your pardon. Dr. Pennington. I don't think there's been a sufficient showing that he's experienced any use of hypnosis as required under 795, and there is a real issue as to whether or not he's really independent of law enforcement. So this is all very troubling and I think weighs against the admissibility, so I'm going to sustain Mr. Geragos's objection to the testimony on the ground that the court feels that 795 of the Evidence Code had not been rigidly complied with.

GERAGOS: Thank you.

DISTASO: And, your Honor, I would ask the court to, oh, I lost my train of thought. Put off, put off a ruling, or at least allow the People, reserve that issue regarding Diane Jackson, that the People,

JUDGE: Yeah, of course; we'll hear that later. I'm not making a ruling on Diane Jackson. I'm not going to rule on something until I have to.

DISTASO: Thank you, your Honor.

JUDGE: I don't want to just rule in a vacuum. Maybe Mr. Geragos will not want to, you know, present Miss Jackson as a witness.

DISTASO: Thank you.

GERAGOS: And I'm not asking the court for an advisory opinion, so I appreciate it.

JUDGE: You don't want an advisory opinion.

GERAGOS: No, I don't want advisory opinions.