People v. Phillips (1981)

In People v. Phillips (1981) 122 Cal.App.3d 69, the prosecutor posed hypothetical questions which named the defendant and the victims. He stated: '"I'll ask . . . that you assume the following facts: Number one, that the defendant, Priscilla E. Phillips, did repeatedly and surreptitiously administer doses of a cathartic sodium-type compound over a period of approximately 12 months to first one adopted Korean orphan, Tia Phillips, . . . and then engaged in similar conduct with a second adopted Korean orphan, Mindy Phillips, over a period of approximately one month until this poisoning was discovered by hospital officials.'" (Id. at p. 82.) The defendant's objections that the hypothetical assumed the defendant was guilty, was argumentative, and assumed facts not in evidence, were overruled. But, on a subsequent objection to the use of the defendant's name, the trial court admonished the jury to disregard the prosecutor's use of the defendant's name and instructed the prosecutor to substitute the word "defendant" for the defendant's name. (Id. at pp. 82-83.) The Court of Appeal rejected the defendant's argument that the hypothetical may have led the jury to believe that the expert was expressing an opinion about the defendant's mental condition. (Id. at p. 83.) It concluded that any impropriety in the form of the question could not have misled the jurors because the expert doctor explained he had never examined the defendant and the trial court read CALJIC No. 2.82 which instructs the jury to determine from all the evidence whether or not the facts assumed in a hypothetical question have been proved.