Rock v. Arkansas

Decision Date22 June 1987
Docket NumberNo. 86-130,86-130
PartiesVickie Lorene ROCK, Petitioner v. ARKANSAS
CourtU.S. Supreme Court

Petitioner was charged with manslaughter for shooting her husband. In order to refresh her memory as to the precise details of the shooting, she twice underwent hypnosis by a trained neuropsychologist. These sessions were tape-recorded. After the hypnosis, she remembered details indicating that her gun was defective and had misfired, which was corroborated by an expert witness' testimony. However, the trial court ruled that no hypnotically refreshed testimony would be admitted, and limited petitioner's testimony to a reiteration of her statements to the doctor prior to hypnosis, as reported in the doctor's notes. The Arkansas Supreme Court affirmed her conviction, ruling that the limitations on her testimony did not violate her constitutional right to testify, and that criminal defendants' hypnotically refreshed testimony is inadmissible per se because it is unreliable.


1. Criminal defendants have a right to testify in their own behalf under the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment's privilege against self-incrimination. Pp. 49-53.

2. Although the right to present relevant testimony is not without limitation, restrictions placed on a defendant's constitutional right to testify by a State's evidentiary rules may not be arbitrary or disproportionate to the purposes they are designed to serve. Pp. 53-56.

3. Arkansas' per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his or her own behalf. Despite any unreliability that hypnosis may introduce into testimony, the procedure has been credited as instrumental in obtaining particular types of information. Moreover, hypnotically refreshed testimony is subject to verification by corroborating evidence and other traditional means of assessing accuracy, and inaccuracies can be reduced by procedural safeguards such as the use of tape or video recording. The State's legitimate interest in barring unreliable evidence does not justify a per se exclusion because the evidence may be reliable in an individual case. Here, the expert's corroboration of petitioner's hypnotically enhanced memories and the trial judge's conclusion that the tape recordings indicated that the doctor did not suggest responses with leading questions are circumstances that the trial court should have considered in determining admissibility. Pp. 56-62.

288 Ark. 566, 708 S.W.2d 78 (1986) [Fastcase Editorial Note: The Court's reference to 288 Ark. 566, 708 S.W.2d 78 is short for Rock v. State, 288 Ark. 566, 708 S.W.2d 78.], vacated and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE, O'CONNOR, and SCALIA, JJ., joined, post, p. 62.

James M. Luffman, Rogers, Ark., for petitioner.

J. Steven Clark, Little Rock, Ark., for respondent.

Justice BLACKMUN delivered the opinion of the Court.

The issue presented in this case is whether Arkansas' evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner's constitutional right to testify on her own behalf as a defendant in a criminal case.


Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. A dispute had been simmering about Frank's wish to move from the couple's small apartment adjacent to Vickie's beauty parlor to a trailer she owned outside town. That night a fight erupted when Frank refused to let petitioner eat some pizza and prevented her from leaving the apartment to get something else to eat. App. 98, 103-104. When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. Petitioner urged the officers to help her husband, Tr. 230, and cried to a sergeant who took her in charge, "please save him" and "don't let him die." Id., at 268. The police removed her from the building because she was upset and because she interfered with their investigation by her repeated attempts to use the telephone to call her husband's parents. Id., at 263-264, 267-268. According to the testimony of one of the investigating officers, petitioner told him that "she stood up to leave the room and [her husband] grabbed her by the throat and choked her and threw her against the wall and . . . at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him." Id., at 281.1

Because petitioner could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis in order to refresh her memory. Petitioner was hypnotized twice by Doctor Bettye Back, a licensed neuropsychologist with training in the field of hypnosis. Id., at 901-903. Doctor Back interviewed petitioner for an hour prior to the first hypnosis session, taking notes on petitioner's general history and her recollections of the shooting. App. 46-47.2 Both hypnosis sessions were recorded on tape. Id., at 53. Petitioner did not relate any new information during either of the sessions, id., at 78, 83, but, after the hypnosis, she was able to remember that at the time of the incident she had her thumb on the hammer of the gun, but had not held her finger on the trigger. She also recalled that the gun had discharged when her husband grabbed her arm during the scuffle. Id., at 29, 38. As a result of the details that petitioner was able to remember about the shooting, her counsel arranged for a gun expert to examine the handgun, a single-action Hawes .22 Deputy Marshal. That inspection revealed that the gun was defective and prone to fire, when hit or dropped, without the trigger's being pulled. Tr. 662-663, 711.

When the prosecutor learned of the hypnosis sessions, he filed a motion to exclude petitioner's testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted. The court issued an order limiting petitioner's testimony to "matters remembered and stated to the examiner prior to being placed under hypnosis." App. to Pet. for Cert. xvii.3 At trial, petitioner introduced testimony by the gun expert, Tr. 647-712, but the court limited petitioner's own description of the events on the day of the shooting to a reiteration of the sketchy information in Doctor Back's notes. See App. 96-104.4 The jury convicted petitioner on the manslaughter charge and she was sentenced to 10 years' imprisonment and a $10,000 fine.

On appeal, the Supreme Court of Arkansas rejected petitioner's claim that the limitations on her testimony violated her right to present her defense. The court concluded that "the dangers of admitting this kind of testimony outweigh whatever probative value it may have," and decided to follow the approach of States that have held hypnotically refreshed testimony of witnesses inadmissible per se. 288 Ark. 566, 573, 708 S.W.2d 78, 81 (1986). Although the court acknowledged that "a defendant's right to testify is fundamental," id., at 578, 708 S.W.2d, at 84, it ruled that the exclusion of petitioner's testimony did not violate her constitutional rights. Any "prejudice or deprivation" she suffered "was minimal and resulted from her own actions and not by any erroneous ruling of the court." Id., at 580, 708 S.W.2d, at 86. We granted certiorari, 479 U.S. 947, 107 S.Ct. 430, 93 L.Ed.2d 381 (1986), to consider the constitutionality of Arkansas' per se rule excluding a criminal defendant's hypnotically refreshed testimony.


Petitioner's claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense. This, of course, is a change from the historic common-law view, which was that all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial. See generally 2 J. Wigmore, Evidence §§ 576, 579 (J. Chadbourn rev. 1979). The principal rationale for this rule was the possible untrustworthiness of a party's testimony. Under the common law, the practice did develop of permitting criminal defendants to tell their side of the story, but they were limited to making an unsworn statement that could not be elicited through direct examination by counsel and was not subject to cross-examination. Id., at § 579, p. 827.

This Court in Ferguson v. Georgia, 365 U.S. 570, 573-582, 81 S.Ct. 756, 758-763, 5 L.Ed.2d 783 (1961), detailed the history of the transition from a rule of a defendant's incompetency to a rule of competency. As the Court there recounted, it came to be recognized that permitting a defendant to testify advances both the " 'detection of guilt' " and " 'the protection of innocence,' " id., at 581, 81 S.Ct., at 762, quoting 1 Am.L.Rev. 396 (1867), and by the end of the second half of the 19th century,5 all States except Georgia had enacted statutes that declared criminal defendants competent to testify. See 365 U.S., at 577 and n. 6, 596-598, 81 S.Ct., at 760 and n. 6, 770-771.6 Congress enacted a general competency statute in the Act of Mar. 16, 1878, 20 Stat. 30, as amended, 18 U.S.C. § 3481, and similar developments followed in other common-law countries. Thus, more than 25 years ago this Court was able to state:

"In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position...

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