Wilson v. Phillips

¶1I concur in the lead opinion, but add this to emphasize that today’s decision is not inconsistent with our decision in Trear v. Sills (1999) 69 Cal.App.4th 1341 [82 Cal.Rptr.2d 281]. In Trear we expressed skepticism of the induced recall of old memories (in language that should have been more precise, perhaps) and suggested the method used might be subject to evaluation per People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]. (Trear, supra,at pp. 1345 and 1345-1346, fn. 14.) That is not this case.

¶2Here we recognize that spontaneously regained and “jogged memory” recollections are commonplace1 and merely an evidentiary issue for the judge and jury to deal with under existing rules. (See, e.g., Evid. Code, § 771.) Indeed, under some circumstances such evidence may be received even if the witness now lacks present memory. (Evid. Code, §§ 1237-1238.)

¶3A petition for a rehearing was denied July 30, 1999, and appellant’s petition for review by the Supreme Court was denied October 6, 1999. Kennard, J., was of the opinion that the petition should be granted.