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Rock v. Arkansas: A Critique Roy Udolf
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New College, Hofstra University , Published online: 31 Jan 2008.
To cite this article: Roy Udolf (1990) Rock v. Arkansas: A Critique, International Journal of Clinical and Experimental Hypnosis, 38:4, 239-249, DOI: 10.1080/00207149008414525 To link to this article: http://dx.doi.org/10.1080/00207149008414525
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T k International journal of Clinical and Exprrinuntal H q p w m 1990. Vol. LXSVIII. No. 4. 23-2.19
ROCK
V.
ARKANSAS: A CRITIQUE ROY UDOLF’
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New College, Hofstra Uniuersity
Abstract: Rock 0. Arkunsus is the first United States Supreme Court decision that addresses the conflict between a criminal defendant’s right to testify in his or her own behalf and a state’s right to impose a restrictive rule of evidence barring hypnotically refreshed testimony. The present critique describes the operative facts in Rock 0.Arkansas and the majority and minority decisions. It also highlights some of the psychological and legal issues involved and speculates on what Rock u. Arkansas may portend for the broader issue of the admissibility of hypnotically refreshed testimony in general.
The issue of the admissibility of hypnotically refreshed testimony has raged unabated since Harding u. State in 1968, with some prominent experts opposing it as unreliable (Diamond, 1980; M. T. Orne, Soskis, Dinges, & E. C. Orne, 1984);others advocating procedural safeguards in its employment (W. T. Orne’s former position: Orne, 1979); and still others advocating its uncritical acceptance and increased usage (Reiser, 1976, 1978, 1980). Different jurisdictions in which the issue has arisen have generally adopted one of three positions with respect to hypnotically influenced evidence (see Nardi, 1984; Udolf, 1983). 1. Jurisdictions have treated hypnosis like any other method of memory jogging and have admitted such evidence, leaving it to a properly instructed jury to determine its reliability and how much weight it should be accorded (e.g., Beck u. Norris, 1986; Chapman u. State, 1982; KZine u. Ford Motor Co., 1975; People u. Smrekar, 1979; State u. Brown, 1983; State u. Iorgenson, 1971; State u. Wren, 1983; United States u. Narciso, 1977; United States u. Awkard, 1979; Wyller et al. u. Fairchild Hiller, 1974). or 2. They have admitted hypnotically refreshed testimony only if certain specified preconditions designed to minimize the potential for error, such as those recommended by M. T. Orne (1979), or those advocated in State u. Hurd (1981) were complied with (e.g., State u. Armstrong, 1983; State u. Beachurn, 1981; State u. Hurd, 1981; State u. Weston, 1984; House u. State, 1984; United States u. Harrington, 1984). or 3. They regard all testimony of a previously hypnotized witness as Manuscript submitted September 2, 1987; final revision received August 12, 1988. ‘Reprint requests should be addressed to Roy Udolf, J.D.. Ph.D.. New College, Hofstra University. Hempstead, NY 11550.
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inadmissible, except for matters disclosed prior to the hypnosis (e.g., Bundy u. State, 1985; Collins u. State, 1982; Commonwealth z;. DiNicola, 1985; Commonwealth u. Kater, 1983; Commonwealth 1;. Smoyer. 198.1; Contrerus u. State, 1986;People u. Gonzales, 1982; People 1;. Shirley, 1982; State u. Flack. 1984; State u. Haislip, 1985; State c . Mack, 1980; State u. Martin, 1984; State u. Menu, 1981;State u. Moreno, 1985; State u. Peoples, 1984). The recent cases generally endorse the third viewpoint. Although no jurisdiction has gone so far as to hold that a previously hypnotized witness is totally incompetent to test& even about matters recalled prior to the hypnosis, at least one court has expressed concern about the effect of hypnosis on prehypnotic memory (State u. Haislip, 1985). Also, no jurisdiction, to the present author's knowledge, has objected to the use of hypnosis for purely investigative purposes to uncover leads to independent evidence and declared such otherwise acceptable derivative evidence inadmissible. Even in those jurisdictions holding that previous hypnosis of a witness goes to the weight rather than the admissibility of his testimony, the trial judge has discretion to bar hypnotically refreshed testimony if he or she believes that the hypnosis was performed in an incompetent or leading manner. The proponent of such testimony has a duty to advise the other side of the employment of hypnosis. To meet the burden of demonstrating that the hypnosis was competently conducted, he or she should supply a videotape of the entire procedure from inception to conclusion, to enable the adversary party to review the procedures performed and to detect sources of error. The case of Rock u. Arkansas (1987)was the first time that the United States Supreme Court has considered the issue of hypnosis as a memoryjogging device. Unfortunately, it did not deal with the broader issue of the admissibility of hypnotically refreshed testimony in general, but rather with the specific issue of whether a state rule excluding such testimony, when employed against a defendant in a criminal action, violated her right to defend herself. Thus, the case turned on the constitutional right of a defendant to testify on her own behalf (see Udolf, 1983, p. 11) and did not resolve the conflicting views of the various states concerning the admissibility of hypnotically refreshed testimony.
OPERATIVE FACTS The appellant was convicted of manslaughter in connection with the shooting death of her husband which occurred during a violent dispute, at which time she claimed he assaulted her to prevent her from leaving their apartment. Since she was unable to recall details of the shooting, her attomey had her hypnotized in an attempt to enhance her recollection. The hypnosis was performed by a qualified psychologist, trained in hypnosis, whom the trial court later found had conducted the examination
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competently and did not use leading questions. As a result of the hypnosis, the defendant was able to recall that at the time of the gun’s discharging her finger was not on the trigger and the weapon discharged accidentally when her husband grabbed her arm during the scufffe. Armed with this information, her lawyer had the weapon examined by a firearms’ expert who found that the gun was indeed defective and subject to such inadvertent discharge. The trial court applied a per se prohibition against the introduction of hypnotically refreshed testimony, which held that the mere use of hypnosis, without any further evidence that it produced erroneous recollections, was enough to render any memories recovered subsequent to the hypnosis inadmissibIe in evidence. Hence, it only permitted the defendant to testlfy to matters she had remembered prior to the hypnosis. This was established by the psychologist’s notes, since there was no videotape recording of the prehypnotic interview (as there should have been). She was thus prevented from telling the jury her account of the accidental nature of the gun’s discharge and was subsequently convicted. The Supreme Court of Arkansas, citing expert opinion to the effect that hypnosis may produce fantasies that neither the witness nor any expert can distinguish from fact (Diamond, 1980; M. T. Orne et al., 1984)and reviewing some of the cases cited supra, upheld the exclusionary rule and a r m e d her conviction.
THE DECISION The United States Supreme Court granted review and Mr. Justice Blackmun wrote the decision for a 5 to 4 majority of the court. The decision in this case turned less on the reliability of hypnotically refreshed testimony than on the issue of the constitutional right of defendants in criminal cases to defend themselves and in particular their right to testlfy in their own behalf. The Court cited a review of the history of the right of a defendant to testlfy, contained in Ferguson u. Georgia (1961).It noted the transition, from the common law prohibition against any testimony by a party to a lawsuit (including a criminal defendant) on the grounds that such testimony was unreliable, to the present position that parties may testify under the same conditions as any other witness. In addition to the rights conferred by the due process clause of the Fourteenth Amendment and the compulsory process clause of the Sixth Amendment, the Court further found that the decision to tes@ or not was a corollary to the Fifth Amendment’s guarantee against compelled testimony (Hartis 11. N e w Yo& 1971).Thus, the right to testify in one’s own behalf is a constitutional privilege. The Court held that the right of a defendant to testify may, in appropriate cases, be limited by other legitimate interests of the state in criminal matters. It then proceeded to consider whether the restrictions on
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this right imposed by a per se exclusionary rule barring hypnotically refreshed testimony was justified. In essence, it weighed the soundness of the reasons for the rule and its importance to the state, against the value to the defendant of the right infringed upon. Finally, it attempted to balance these equities and to determine the effect of upholding this rule on a jury’s ability to arrive at the truth in the case at hand. To accomplish this, the Court reviewed the arguments that hypnosis may produce unreliable testimony and render a witness unduly confident in the accuracy of pseudorecollections (AMA Council on Scientific Affairs, 1985; Diamond, 1980; M. T. Orne et al., 1985) and conceded that they were sound. It also considered reports that, at times, hypnotically refreshed testimony has been independently corroborated (Udolf, 1983). Finally, the Court concluded that while hypnotically refreshed testimony may be erroneous, it may also be true. It also found that such inaccuracies that may occur are not impervious to standard methods for assessing the truth of testimony such as cross-examination and the consideration of corrobrating evidence. It held that while the trial court would have been within its rights to exclude evidence which was shown in a particular case to be unreliable, it was not justified in finding that all hypnotically refreshed testimony per se is inadmissible, since it was not shown that such testimony could never be accurate. The Court pointed out that in the instant case, the hypnotic recollections were corroborated by the gunsmith’s testimony and that the trial court had found no fault with the techniques employed by the hypnotist. The Court concluded that the expert testimony concerning the defective gun would have been more helpful to the defense had the defendant been permitted to tell the jury of the circumstances of the weapon’s discharge. Finally, the Court specifically stated that it was not prepared at this time to render a decision with respect to the admissibility of hypnotically refreshed testimony in general, but only in cases where an exclusionary rule interferes with a criminal defendant’s right to testlfy in his or her own behalf. The Arkansas conviction was vacated and the case remanded. On a retrial, the trial court, in accordance with this decision, does not have to admit the hypnotically influenced testimony, but it is required to consider its value and probable reliability in these particular circumstances. It may not exclude this testimony on the basis of a per se rule. ?kE DISSENT
The opinion of the four dissenting justices was written by Mr. Chief Justice Rehnquist. As in the case of the majority decision, the issue of the reliability of hypnosis as a memory-enhancing device was peripheral to the major thrust of the argument. The dissenters agreed that the rule imposed by the majority for the admissibility of hypnotically refreshed testimony of a defendant was as reasonable as the one imposed by the
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Arkansas court. Their argument was that they could find nothing in the Constitution that justified the Court’s interference in the present case with the right of a state to determine its own procedures for the administration of its criminal law. Finally, the dissenters noted that to require trial courts to decide on the reliability of proffered hypnotically refreshed testimony on a case-bycase basis, as required by the majority decision, would impose practical difficulties on the court system.
DISCUSSION While the decision in this case was grounded in a consideration of a defendant’s right to testify in her own behalf and what limits on this right a state may reasonably impose, it may provide some hint as to how this United States Supreme Court might view the broader issue of the admissibility of hypnotically refreshed testimony in general because, for the first time, the ultimate court of last resort has expressed an opinion concerning some of the psychological arguments against the use of such testimony. It did not have to do so; it chose to. It could have simply found that a criminal defendant’s right to testify in her own behalf takes precedence over a particular rule of evidence, without discussing the reasons for the rule. On the other hand, it is difficult to predict with any degree of confidence how the Court will decide future cases concerning hypnotically refreshed testimony, since the operative facts of’ each case as well as the justices’ legal philosophies play such an important role. It is quite possible that had the Rock case involved the use of hypnosis by the prosecution, many of the justices in both the majority and minority positions might have voted differently. Finally, the decision was rendered by a bare majority of the Court, and one member who voted with the majority has retired and been replaced by a justice who did not take part in this decision. The most frequent objections made to the use of hypnotically refreshed memory are that it usually contains a mixture of fact and fantasy in indeterminate proportions and that no one, neither the witness nor any expert, can separate the two. Also, the circumstances of the hypnosis may make the witness unjustifiably confident of the accuracy of pseudomemories and confabulations and hence more resistant to cross-examination. These are conclusions with which the present author and the majority of the Court agree. It does not necessarily follow from this, however, that such testimony should be rendered inadmissible in court. In the Rock case, the majority of the Court believed that it should not be excluded, at least on a pet se basis, when the witness hypnotized is a defendant in a criminal case. The courts have routinely admitted evidence of questionable reliability and left it to juries to determine whether or not it should be believed.
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Examples of such evidence are the testimony of parties in an action or accomplice testimony where there is a strong motive on the part of a witness to lie, or the testimony of young children. Loftus (1975) and Loftus and Zanni, (1975) have shown that even eyewitness testimony, which is generally highly regarded by the courts, is also often unreliable. Junes have been instructed as to the possible sources of error in testimony and have been able to evaluate it as well as judges hearing compamble cases without a jury. It is a fundamental mistake to equate lack of expertise on the part of a jury with lack of intelligence. Indeed, in our system of jurisprudence this is the function of a jury, to weigh the evidence and determine its believability and its importance. If juries were to be shielded from all possibly inaccurate testimony, the principal reason for their existence would be eliminated. The question may be asked, if neither experts nor the witness can distinguish between fact and fantasy in hypnotically stimulated testimony, how can a jury be expected to? The answer is a pragmatic one. Someone has to, and under our legal system this burden traditionally falls on the jury. An exclusionary rule of evidence does not avoid this decision; it simply places it in the hands of the legislature or the courts, who must make it abstractly without the benefit of knowing how well or how poorly the hypnotic testimony fits in with the other evidence in the case. While an expert may be unable to assess the accuracy of posthypnotic testimony in a vacuum. the Court declined to find that it is not subject to effective evaluation. While citing no research on the subject (and the author is unaware of the existence of any such needed research), the Court did not believe that enhanced confidence in the truth of hidher testimony renders a witness immune to effective cross-examination. This is an interesting finding because it suggests that this Court would be unreceptive to the view expressed in Contreras t;. State (1986) that the employment of hypnotically refreshed testimony by the prosecution deprives a defendant of hidher constitutional right to confront witnesses against h i d h e r because of the difficulty hypnosis imposes on crossexamination. The law regards cross-examination as one of the most potent ways of testing the veracity of testimony. Hearsay evidence is inadmissible because it deprives the adverse party of the constitutional right to confront (i.e., cross-examine) a witness. Anytime there is no witness on the stand who can be cross-examined concerning the accuracy of the testimony proffered the evidence is hearsay. For example, if A takes the stand and testifres to what he heard B say, to establish the truth of what was said, it is hearsay because B who is not on the stand would have to be crossexamined to test the truth of the statement. There are numerous exceptions to the hearsay rule, and in each case there is some special reason for confidence in the veracity of the evidence
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in question to replace the assurance normally provided by cross-examination. In the case of a scientific test such as a polygraph or a blood test, the rule established in Frye 0 . United States (1923) applies. Under this rule, the results of a scientific test, which would otherwise be rejected as hearsay (a polygraph tracing cannot be cross-examined), will be admitted, provided that the majority of the appropriate scientific community agrees that the test is reliable for the purpose for which it was employed. Testimony given under hypnosis, to establish the facts stated, has universally been barred, and under the Frye rule it should be, for the majority of the appropriate scientific community does not agree that hypnosis is a reliable method of memory retrieval. Those jurisdictions which admit hypnotically refreshed testimony, however, distinguish between evidence given under hypnosis, where the Frye test applies, and testimony from a waking witness who testifies that he/she is now testifying from present memory previously refreshed by hypnosis. These jurisdictions treat hypnotic memory refreshment no differently than any other memory-jogging device, such as reading notes or newspaper articles. and leave it to the jury to determine how much weight the evidence deserves. Hypnotically refreshed testimony is not redly hearsay, unless it can be established that the hypnosis so interferes with subsequent cross-examination that it renders it ineffective. In the Rock case, the majority of the United States Supreme Court refused to reach this conclusion. Equally important, the majority opinion implied that the accuracy of hypnotically refreshed memory may be confirmed or repudiated by observing how well it fits in with the other evidence in the case. In the case at hand, the defendant’s memories were corroborated by the gunsmith’s testimony. The lower court contended that the defendant could not claim to be aggrieved by the exclusionary ruling, since she voluntarily decided to undergo hypnosis. Without the hypnotic investigation, however, her attorney would have had no reason to have had the gun examined by an expert and hence would have been deprived of an important piece of evidence for the defense. Should she have been required to search for the presence of exculpatory evidence at her peril and be forced to elect between preserving her right to tell her story to a jury or developing leads to independent evidence? Obviously, if the defendant had elected not to use hypnosis to refresh her recollection of the events in question, but to simply get on the witness stand and lie, there would be no issue in any jurisdiction concerning her right to test^. While the Rock case did not address the broader issue of the admission of hypnotically refreshed evidence in general, the fact is that in the vast majority of criminal cases involving the enhancement of memory by hypnosis this technique has been employed on witnesses for the prosecution. This is a matter of justifiable concern to those fearful of convictions
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being based on unreliable evidence. Perhaps a solution suggested by the Rock case to the conflict between the possible value of hypnotic lead generation and its potential for generating spurious evidence might be for courts, not to usurp the functions of a jury by rendering hypnotically refreshed memory inadmissible per se. but instead to require that. leads obtained through hypnosis be corroborated before a conviction could be based on them. This is commonly required by the criminal courts in dealing with other evidence which may often be unreliable but may on occasion be true, such as the unsworn testimony of a child too young to understand the nature of an oath, the testimony of victims of sex crimes, or accomplice testimony. The question of what constitutes adequate corroboration is a matter of logc rather than law or psychology. In general, corroboration is independent evidence of a fact in issue at a trial that supports, in whole or part, the evidence it is said to corroborate. One previously hypnotized witness ought not to be able to corroborate another any more than one accomplice can corroborate another. Nor should expert testimony which is limited to giving a professional opinion concerning the reliability of hypnotic memory enhancement, rather than the establishment of a fact in issue at the trial, be regarded as corroboration of hypnotically influenced testimony. In cases like Rock, however, where the expert testimony does tend to establish a fact in issue independently, then it may be truly corroborative. An alternative solution, suggested by the Rock case, to the conflict between the risk of hypnotically influenced testimony producing Ealse convictions and the desirability of permitting a defendant every possible tool in preparing hidher defense has been proposed by Kuplicki (1988). He suggests a bifurcated rule which would generally permit hypnotically influenced testimony to be admissible when offered by the defense (subject to certain safeguards) and would render it generally inadmissible when offered by the prosecution. While Kuplicki finds this approach consistent with the Rockdecision, it is not mandated by it, and the present author believes that the notion of radically different rules of evidence for the prosecution and the defense would prove less acceptable to most courts than a corroboration requirement would. The majority of the United States Supreme Court, by noting in its decision that it is possible for hypnotically refreshed testimony to be true, implied that testimony should not be rendered inadmissible per se unless it is of a type which could not be true except by chance (such as the pronouncements of a spiritualist). If a properly instructed jury cannot be trusted to evaluate hypnotically refreshed testimony because it is often unreliable, how can it be expected to deal with accomplice testimony which is usually given in exchange for a favorable plea bargain or a reduced sentence or with the conflicting medical testimony so common in personal injury actions? If a jury can render an intelligent decision in the latter Cases whv can it not do so in the former?
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Is it reasonable to have differing rules of evidence for different kinds of unreliable evidence? As Justice Kaus noted in his dissent in People u. Shirley (1982), if the same standards of reliability' that are imposed on hypnotically refreshed testimony were applied to ordinary witnesses, most of them would be unable to testify in a criminal case. The decision in Rock v . Arkansas may indicate some leaning towards this position by the Supreme Court of the United States because of the way the majority disposed of the psychological issues raised. Whether it does or not, however, the case holds that a state may not bar hypnotically refreshed testimony by a defendant in a criminal case, solely because of the fact that hypnosis was used to jog his or her memory. Hence, defense lawyers may now employ investigations involving the hypnotizing of the defendant without fear of losing hidher testimony in jurisdictions restricting the use of hypnosis on witnesses. Such procedures will still be subject to court scrutiny, however, for while the Rock decision prevents a state from excluding the hypnotically refreshed testimony of a defendant in a criminal case on a per se basis, it does not require the admission of such testimony if it can be shown to be unreliable in a particular case because of faulty technique. REFERENCES* AMERICANLiEDICAL ASSOCLATION Council o n Scientific M a i n . Council Report. Scientific status of refreshing recollections by the use of hypnosis. J . Amer. med. Ass.. 1985. 253. 19 1% 1923. Beck ti. Norris, 801 E2d 242, 1W. Bundy c. State, 471 So.2d 9, 198.5,.(FIa.) Chupmcrn c. Stute. 638 P.2d 12880. 1982. (Wyo.) Collins c. State. 4 4 i A.2d 1272, 1982. (Md. App.) Cummonzceulth c. DiNicola. 502 A.2d W, 1985. (Pa.) Commonwealth ti. Kater. 388 Mass. 519; 447 N.E.2d 1190. 1983. Commonwealth ti. Smoyer, 476 A 2 d 1304. 1W. (Pa.) Contreras ti. State, 718 P.2d 129. 1986. (Alaska) DIAMOND. B. L. Inherent problems in the use of pretrial hypnosis on a prospective witness. Calif. Law Reti., 1980, 68(2), 313-349. Ferguson c. Georgia, 365 U.S. 570, 1961. Frye v. United States. 203 F. 1013, 1923. Harding v. State. 5 Md. App. 230, 246 A.2d 302, 1968. Harris v . New York, 401 U.S. 222, 1971. House (i. State, 4E So.2d 815, 1984. (Miss.) Kline v. Ford Motor C o . 523 E2d 1067, 1975.
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'Note. Legal cases are cited by giving the volume number, case reporter title and initial page number of the case. Thus 128 Ark. 226 indicates a case that appears on page 226 of volume number 128 of the Arizona case reporter. Reporters that report cases from the highest court in a state are designated by state names. Citations to regional reporters that report cases from several states are generally followed by a designation of the state in question unless this is obvious from alternative source citations given.
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KUPLICKI. F. P. Fifth, Sixth. and Fourteenth Amendments - .\ constitutional paradigm for determining the admissibility of hypnotically reheshed testimony. 1. crirn. b w Criminal.. 1988, 78, 853-876. LOFTUS.E. F. Leading questions and the eyewitness report. Cog. Psychol. 1975.7. -572. Loms, E. F.. & ZA”1, G . Eyewitness testimony. The influence of the wording of a question. Bull. p s y c h - . Soc.. 1975.5.M. N m i , C. D. Hypnosis of the accused: Defendanti choice. J . crirn. Law Crirnind., 1984,
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75,995-1019.
OWE, M. T. Use and misuse of hypnosis in court. Int. 1. clin. exp. Hypnosis, 1979,27. 311-341. OWE, M. T.,SOSKIS, D. A.. DINGES.D. F., & OWE, E. C. Hypnotically induced testimony. In G. L. Wells dr E. F. Loftus (Eds.), Eyeu+tnes, testimony: Psycholopal perspccfiues. Boston: Cambridge Univer. Press, 1984. Pp. 171-213. People u. C o n z l e s , 329 N.W.2d 743.1982.(Mich.) People u. Shirley. 31 Cal.3d 18;641 P.2d 775;181 Cal. Rptr 243, 1982. People u. Smrekm. 68 Ill. App.3d 379;385 N.E.2d 848. 1979. REISER. M . Hypnosis as a tool in criminal investigation. Police Chief, 1976, 43(11),36. 39, 40. REISER, XI. Hypnosis and its uses in law enforcement. Police J.. 1978.5. 24-33, REIsER, M.Handbook of inoestigatice hypnosis. Los Angeies, CA: WEHI, 1980. Rock u. Arkansas. 288 Ark. 3%;708 S.W.2d78. 1986; 55 L.W. 492.5,198;. Rock u. Arkansas. 107 S.Ct. 2704. 1987. Stateti.Armstrong. l l O W i s . 2 d ~ ; 3 2 9 N . W . 2 d 3 8 6 ; ~ 6U1. S . N , 1983. State ti. Beachurn. 97 N . M . 682;643 P.2d 246, 1981. State ti. Brown, 337 N.W.2d 138, 1983.(N.D.) State u. Flock. 322 S . E.2d 7%. 1W. (N.C.) State u. Haislip. 701 P.2d 909. l%%. (Kan.) State u. Hurd. 86 N.J . 525;432 A.2d 86, 1981. State ti.jorgenson.8 Or. Appl; 492 P.2d 312, 1971. State u. Mack. 292 N.LV.2d 764;27 Cr.L. 1043. 1980.(hiinn.) State I). Martin. 6&L P.2d 651. 1W. (Wash.) State u. M e w . 128 Ariz. 226;624 P.2d 1274.1981. State L;, Moreno, 709 P.2d 103, 1%. (Hawaii) State u. Peoples. 311 N.C.515;319 S.E.2d177. 1984. State u. Weston. 16 Ohio App.3d ‘279:475 N.E.2d 805. 1934. State c. Wren. 425 So.2d 756,1983.(La.) UDOLF. €3. Forensic hypnosis: Psychologicd andkgdarpects. Lexington. MA: Heath, 1983. United States u. Awkard. 597 E2d 667;4.w U.S. 885, 1979. United States ti. Harrington, 18 51.J. 797. 1W. United States u. Narciso, 4-16 F. Supp. 2559. 1977. WyUer et al. c. Fairchild H&r Corporation. 503 F.2d 506. 1974.
Rock rcidcr A r k a m : Einc KritiL Roy Uddf Abstrakt: Rock wider A r h ist die erste Entscheidung der Obersten Cerichtshoh der Veninigten Stuten, die rich mit dem YoaaiLt &hen dem Recht des hgeldngten befdt, in seinem oder h r e m Intererse eidlich Zcugnir abzukgen, und dem Recht der Staater, ein restriktiver Cebot der Beweismaterials aufiuerlegen, das hypnotisch aufgefrischter Zeugnis verbannt. Die vorliegende Kritik beschreibt die operativen Tatsaches im FaUe Rock wider Arkansas und die Mehrheits- und Minderheitsentscheidungen. Sic
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wirft auch Licht auf einige der psychologischen und rechtlichen Probleme des Falls und spekuliert, welche Vorbedeutung Rock Coidcr Arkanrar fur die weitgehcnde Frage der Zulissigkeit von hypnotisch aufgefrixhtem Zeugnis im allgemeinen haben k h n t e .
Rock o I'Etat dArkasar: une critique
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Roy Udolf Resume: La cause de Rock v l'Etot d'Arkantos est la premihre dkision d e la Cour Suprkme des hats-Unis a mettre en lumihre le conflit entre le droit d u n accuse h temoigner en sa faveur et le droit d u n ttat h refuser un ttmoignage remis en mtmoire par hypnose. La presente critique rapporte les faib de Rock o l'Etut 8ArkanW ainsi que les decisions majoritaires et minoritaires. L'article souligne aussi les questions psychologiqws et legales impliquees et qkcule sur la port&-possible de la decision de Rock u l'Etut d'Arkanw sur I'admissibilitt en general des temoignages remis en memoire par hypnose.
Una critica de Rock contra Arkansm Roy Udolf Resumen: Rock contra Arkansas es la primera decision de la Corte Suprema de 10s Estados Unidos que se consacra a1 conflicto entre el derecho de un criminal de atestiguar en su defensa y el derecho del estado de imponer una regla restrictiva prohibiendo el testimonio obtenido hipnoticamente. Este trabajo describe lo ocurrido en el juicio de Rock contra Arkansas y las decisiones de la mayoria y la minoria. Tambien pone en evidencia algunos aspectos psicologicos y legales involucrados y especula que el caw Rock contra Arkansas puede servir para a v a m r en aspectos m L gencrdes sobre la admisibilidad de testimonios obtenidos hipnoticamente.
International Journal of Clinical and Experimental Hypnosis Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/nhyp20
Rock v. Arkansas: A Critique Roy Udolf
a
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New College, Hofstra University , Published online: 31 Jan 2008.
To cite this article: Roy Udolf (1990) Rock v. Arkansas: A Critique, International Journal of Clinical and Experimental Hypnosis, 38:4, 239-249, DOI: 10.1080/00207149008414525 To link to this article: http://dx.doi.org/10.1080/00207149008414525
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T k International journal of Clinical and Exprrinuntal H q p w m 1990. Vol. LXSVIII. No. 4. 23-2.19
ROCK
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Abstract: Rock 0. Arkunsus is the first United States Supreme Court decision that addresses the conflict between a criminal defendant’s right to testify in his or her own behalf and a state’s right to impose a restrictive rule of evidence barring hypnotically refreshed testimony. The present critique describes the operative facts in Rock 0.Arkansas and the majority and minority decisions. It also highlights some of the psychological and legal issues involved and speculates on what Rock u. Arkansas may portend for the broader issue of the admissibility of hypnotically refreshed testimony in general.
The issue of the admissibility of hypnotically refreshed testimony has raged unabated since Harding u. State in 1968, with some prominent experts opposing it as unreliable (Diamond, 1980; M. T. Orne, Soskis, Dinges, & E. C. Orne, 1984);others advocating procedural safeguards in its employment (W. T. Orne’s former position: Orne, 1979); and still others advocating its uncritical acceptance and increased usage (Reiser, 1976, 1978, 1980). Different jurisdictions in which the issue has arisen have generally adopted one of three positions with respect to hypnotically influenced evidence (see Nardi, 1984; Udolf, 1983). 1. Jurisdictions have treated hypnosis like any other method of memory jogging and have admitted such evidence, leaving it to a properly instructed jury to determine its reliability and how much weight it should be accorded (e.g., Beck u. Norris, 1986; Chapman u. State, 1982; KZine u. Ford Motor Co., 1975; People u. Smrekar, 1979; State u. Brown, 1983; State u. Iorgenson, 1971; State u. Wren, 1983; United States u. Narciso, 1977; United States u. Awkard, 1979; Wyller et al. u. Fairchild Hiller, 1974). or 2. They have admitted hypnotically refreshed testimony only if certain specified preconditions designed to minimize the potential for error, such as those recommended by M. T. Orne (1979), or those advocated in State u. Hurd (1981) were complied with (e.g., State u. Armstrong, 1983; State u. Beachurn, 1981; State u. Hurd, 1981; State u. Weston, 1984; House u. State, 1984; United States u. Harrington, 1984). or 3. They regard all testimony of a previously hypnotized witness as Manuscript submitted September 2, 1987; final revision received August 12, 1988. ‘Reprint requests should be addressed to Roy Udolf, J.D.. Ph.D.. New College, Hofstra University. Hempstead, NY 11550.
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inadmissible, except for matters disclosed prior to the hypnosis (e.g., Bundy u. State, 1985; Collins u. State, 1982; Commonwealth z;. DiNicola, 1985; Commonwealth u. Kater, 1983; Commonwealth 1;. Smoyer. 198.1; Contrerus u. State, 1986;People u. Gonzales, 1982; People 1;. Shirley, 1982; State u. Flack. 1984; State u. Haislip, 1985; State c . Mack, 1980; State u. Martin, 1984; State u. Menu, 1981;State u. Moreno, 1985; State u. Peoples, 1984). The recent cases generally endorse the third viewpoint. Although no jurisdiction has gone so far as to hold that a previously hypnotized witness is totally incompetent to test& even about matters recalled prior to the hypnosis, at least one court has expressed concern about the effect of hypnosis on prehypnotic memory (State u. Haislip, 1985). Also, no jurisdiction, to the present author's knowledge, has objected to the use of hypnosis for purely investigative purposes to uncover leads to independent evidence and declared such otherwise acceptable derivative evidence inadmissible. Even in those jurisdictions holding that previous hypnosis of a witness goes to the weight rather than the admissibility of his testimony, the trial judge has discretion to bar hypnotically refreshed testimony if he or she believes that the hypnosis was performed in an incompetent or leading manner. The proponent of such testimony has a duty to advise the other side of the employment of hypnosis. To meet the burden of demonstrating that the hypnosis was competently conducted, he or she should supply a videotape of the entire procedure from inception to conclusion, to enable the adversary party to review the procedures performed and to detect sources of error. The case of Rock u. Arkansas (1987)was the first time that the United States Supreme Court has considered the issue of hypnosis as a memoryjogging device. Unfortunately, it did not deal with the broader issue of the admissibility of hypnotically refreshed testimony in general, but rather with the specific issue of whether a state rule excluding such testimony, when employed against a defendant in a criminal action, violated her right to defend herself. Thus, the case turned on the constitutional right of a defendant to testify on her own behalf (see Udolf, 1983, p. 11) and did not resolve the conflicting views of the various states concerning the admissibility of hypnotically refreshed testimony.
OPERATIVE FACTS The appellant was convicted of manslaughter in connection with the shooting death of her husband which occurred during a violent dispute, at which time she claimed he assaulted her to prevent her from leaving their apartment. Since she was unable to recall details of the shooting, her attomey had her hypnotized in an attempt to enhance her recollection. The hypnosis was performed by a qualified psychologist, trained in hypnosis, whom the trial court later found had conducted the examination
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competently and did not use leading questions. As a result of the hypnosis, the defendant was able to recall that at the time of the gun’s discharging her finger was not on the trigger and the weapon discharged accidentally when her husband grabbed her arm during the scufffe. Armed with this information, her lawyer had the weapon examined by a firearms’ expert who found that the gun was indeed defective and subject to such inadvertent discharge. The trial court applied a per se prohibition against the introduction of hypnotically refreshed testimony, which held that the mere use of hypnosis, without any further evidence that it produced erroneous recollections, was enough to render any memories recovered subsequent to the hypnosis inadmissibIe in evidence. Hence, it only permitted the defendant to testlfy to matters she had remembered prior to the hypnosis. This was established by the psychologist’s notes, since there was no videotape recording of the prehypnotic interview (as there should have been). She was thus prevented from telling the jury her account of the accidental nature of the gun’s discharge and was subsequently convicted. The Supreme Court of Arkansas, citing expert opinion to the effect that hypnosis may produce fantasies that neither the witness nor any expert can distinguish from fact (Diamond, 1980; M. T. Orne et al., 1984)and reviewing some of the cases cited supra, upheld the exclusionary rule and a r m e d her conviction.
THE DECISION The United States Supreme Court granted review and Mr. Justice Blackmun wrote the decision for a 5 to 4 majority of the court. The decision in this case turned less on the reliability of hypnotically refreshed testimony than on the issue of the constitutional right of defendants in criminal cases to defend themselves and in particular their right to testlfy in their own behalf. The Court cited a review of the history of the right of a defendant to testlfy, contained in Ferguson u. Georgia (1961).It noted the transition, from the common law prohibition against any testimony by a party to a lawsuit (including a criminal defendant) on the grounds that such testimony was unreliable, to the present position that parties may testify under the same conditions as any other witness. In addition to the rights conferred by the due process clause of the Fourteenth Amendment and the compulsory process clause of the Sixth Amendment, the Court further found that the decision to tes@ or not was a corollary to the Fifth Amendment’s guarantee against compelled testimony (Hartis 11. N e w Yo& 1971).Thus, the right to testify in one’s own behalf is a constitutional privilege. The Court held that the right of a defendant to testify may, in appropriate cases, be limited by other legitimate interests of the state in criminal matters. It then proceeded to consider whether the restrictions on
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this right imposed by a per se exclusionary rule barring hypnotically refreshed testimony was justified. In essence, it weighed the soundness of the reasons for the rule and its importance to the state, against the value to the defendant of the right infringed upon. Finally, it attempted to balance these equities and to determine the effect of upholding this rule on a jury’s ability to arrive at the truth in the case at hand. To accomplish this, the Court reviewed the arguments that hypnosis may produce unreliable testimony and render a witness unduly confident in the accuracy of pseudorecollections (AMA Council on Scientific Affairs, 1985; Diamond, 1980; M. T. Orne et al., 1985) and conceded that they were sound. It also considered reports that, at times, hypnotically refreshed testimony has been independently corroborated (Udolf, 1983). Finally, the Court concluded that while hypnotically refreshed testimony may be erroneous, it may also be true. It also found that such inaccuracies that may occur are not impervious to standard methods for assessing the truth of testimony such as cross-examination and the consideration of corrobrating evidence. It held that while the trial court would have been within its rights to exclude evidence which was shown in a particular case to be unreliable, it was not justified in finding that all hypnotically refreshed testimony per se is inadmissible, since it was not shown that such testimony could never be accurate. The Court pointed out that in the instant case, the hypnotic recollections were corroborated by the gunsmith’s testimony and that the trial court had found no fault with the techniques employed by the hypnotist. The Court concluded that the expert testimony concerning the defective gun would have been more helpful to the defense had the defendant been permitted to tell the jury of the circumstances of the weapon’s discharge. Finally, the Court specifically stated that it was not prepared at this time to render a decision with respect to the admissibility of hypnotically refreshed testimony in general, but only in cases where an exclusionary rule interferes with a criminal defendant’s right to testlfy in his or her own behalf. The Arkansas conviction was vacated and the case remanded. On a retrial, the trial court, in accordance with this decision, does not have to admit the hypnotically influenced testimony, but it is required to consider its value and probable reliability in these particular circumstances. It may not exclude this testimony on the basis of a per se rule. ?kE DISSENT
The opinion of the four dissenting justices was written by Mr. Chief Justice Rehnquist. As in the case of the majority decision, the issue of the reliability of hypnosis as a memory-enhancing device was peripheral to the major thrust of the argument. The dissenters agreed that the rule imposed by the majority for the admissibility of hypnotically refreshed testimony of a defendant was as reasonable as the one imposed by the
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Arkansas court. Their argument was that they could find nothing in the Constitution that justified the Court’s interference in the present case with the right of a state to determine its own procedures for the administration of its criminal law. Finally, the dissenters noted that to require trial courts to decide on the reliability of proffered hypnotically refreshed testimony on a case-bycase basis, as required by the majority decision, would impose practical difficulties on the court system.
DISCUSSION While the decision in this case was grounded in a consideration of a defendant’s right to testify in her own behalf and what limits on this right a state may reasonably impose, it may provide some hint as to how this United States Supreme Court might view the broader issue of the admissibility of hypnotically refreshed testimony in general because, for the first time, the ultimate court of last resort has expressed an opinion concerning some of the psychological arguments against the use of such testimony. It did not have to do so; it chose to. It could have simply found that a criminal defendant’s right to testify in her own behalf takes precedence over a particular rule of evidence, without discussing the reasons for the rule. On the other hand, it is difficult to predict with any degree of confidence how the Court will decide future cases concerning hypnotically refreshed testimony, since the operative facts of’ each case as well as the justices’ legal philosophies play such an important role. It is quite possible that had the Rock case involved the use of hypnosis by the prosecution, many of the justices in both the majority and minority positions might have voted differently. Finally, the decision was rendered by a bare majority of the Court, and one member who voted with the majority has retired and been replaced by a justice who did not take part in this decision. The most frequent objections made to the use of hypnotically refreshed memory are that it usually contains a mixture of fact and fantasy in indeterminate proportions and that no one, neither the witness nor any expert, can separate the two. Also, the circumstances of the hypnosis may make the witness unjustifiably confident of the accuracy of pseudomemories and confabulations and hence more resistant to cross-examination. These are conclusions with which the present author and the majority of the Court agree. It does not necessarily follow from this, however, that such testimony should be rendered inadmissible in court. In the Rock case, the majority of the Court believed that it should not be excluded, at least on a pet se basis, when the witness hypnotized is a defendant in a criminal case. The courts have routinely admitted evidence of questionable reliability and left it to juries to determine whether or not it should be believed.
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Examples of such evidence are the testimony of parties in an action or accomplice testimony where there is a strong motive on the part of a witness to lie, or the testimony of young children. Loftus (1975) and Loftus and Zanni, (1975) have shown that even eyewitness testimony, which is generally highly regarded by the courts, is also often unreliable. Junes have been instructed as to the possible sources of error in testimony and have been able to evaluate it as well as judges hearing compamble cases without a jury. It is a fundamental mistake to equate lack of expertise on the part of a jury with lack of intelligence. Indeed, in our system of jurisprudence this is the function of a jury, to weigh the evidence and determine its believability and its importance. If juries were to be shielded from all possibly inaccurate testimony, the principal reason for their existence would be eliminated. The question may be asked, if neither experts nor the witness can distinguish between fact and fantasy in hypnotically stimulated testimony, how can a jury be expected to? The answer is a pragmatic one. Someone has to, and under our legal system this burden traditionally falls on the jury. An exclusionary rule of evidence does not avoid this decision; it simply places it in the hands of the legislature or the courts, who must make it abstractly without the benefit of knowing how well or how poorly the hypnotic testimony fits in with the other evidence in the case. While an expert may be unable to assess the accuracy of posthypnotic testimony in a vacuum. the Court declined to find that it is not subject to effective evaluation. While citing no research on the subject (and the author is unaware of the existence of any such needed research), the Court did not believe that enhanced confidence in the truth of hidher testimony renders a witness immune to effective cross-examination. This is an interesting finding because it suggests that this Court would be unreceptive to the view expressed in Contreras t;. State (1986) that the employment of hypnotically refreshed testimony by the prosecution deprives a defendant of hidher constitutional right to confront witnesses against h i d h e r because of the difficulty hypnosis imposes on crossexamination. The law regards cross-examination as one of the most potent ways of testing the veracity of testimony. Hearsay evidence is inadmissible because it deprives the adverse party of the constitutional right to confront (i.e., cross-examine) a witness. Anytime there is no witness on the stand who can be cross-examined concerning the accuracy of the testimony proffered the evidence is hearsay. For example, if A takes the stand and testifres to what he heard B say, to establish the truth of what was said, it is hearsay because B who is not on the stand would have to be crossexamined to test the truth of the statement. There are numerous exceptions to the hearsay rule, and in each case there is some special reason for confidence in the veracity of the evidence
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in question to replace the assurance normally provided by cross-examination. In the case of a scientific test such as a polygraph or a blood test, the rule established in Frye 0 . United States (1923) applies. Under this rule, the results of a scientific test, which would otherwise be rejected as hearsay (a polygraph tracing cannot be cross-examined), will be admitted, provided that the majority of the appropriate scientific community agrees that the test is reliable for the purpose for which it was employed. Testimony given under hypnosis, to establish the facts stated, has universally been barred, and under the Frye rule it should be, for the majority of the appropriate scientific community does not agree that hypnosis is a reliable method of memory retrieval. Those jurisdictions which admit hypnotically refreshed testimony, however, distinguish between evidence given under hypnosis, where the Frye test applies, and testimony from a waking witness who testifies that he/she is now testifying from present memory previously refreshed by hypnosis. These jurisdictions treat hypnotic memory refreshment no differently than any other memory-jogging device, such as reading notes or newspaper articles. and leave it to the jury to determine how much weight the evidence deserves. Hypnotically refreshed testimony is not redly hearsay, unless it can be established that the hypnosis so interferes with subsequent cross-examination that it renders it ineffective. In the Rock case, the majority of the United States Supreme Court refused to reach this conclusion. Equally important, the majority opinion implied that the accuracy of hypnotically refreshed memory may be confirmed or repudiated by observing how well it fits in with the other evidence in the case. In the case at hand, the defendant’s memories were corroborated by the gunsmith’s testimony. The lower court contended that the defendant could not claim to be aggrieved by the exclusionary ruling, since she voluntarily decided to undergo hypnosis. Without the hypnotic investigation, however, her attorney would have had no reason to have had the gun examined by an expert and hence would have been deprived of an important piece of evidence for the defense. Should she have been required to search for the presence of exculpatory evidence at her peril and be forced to elect between preserving her right to tell her story to a jury or developing leads to independent evidence? Obviously, if the defendant had elected not to use hypnosis to refresh her recollection of the events in question, but to simply get on the witness stand and lie, there would be no issue in any jurisdiction concerning her right to test^. While the Rock case did not address the broader issue of the admission of hypnotically refreshed evidence in general, the fact is that in the vast majority of criminal cases involving the enhancement of memory by hypnosis this technique has been employed on witnesses for the prosecution. This is a matter of justifiable concern to those fearful of convictions
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being based on unreliable evidence. Perhaps a solution suggested by the Rock case to the conflict between the possible value of hypnotic lead generation and its potential for generating spurious evidence might be for courts, not to usurp the functions of a jury by rendering hypnotically refreshed memory inadmissible per se. but instead to require that. leads obtained through hypnosis be corroborated before a conviction could be based on them. This is commonly required by the criminal courts in dealing with other evidence which may often be unreliable but may on occasion be true, such as the unsworn testimony of a child too young to understand the nature of an oath, the testimony of victims of sex crimes, or accomplice testimony. The question of what constitutes adequate corroboration is a matter of logc rather than law or psychology. In general, corroboration is independent evidence of a fact in issue at a trial that supports, in whole or part, the evidence it is said to corroborate. One previously hypnotized witness ought not to be able to corroborate another any more than one accomplice can corroborate another. Nor should expert testimony which is limited to giving a professional opinion concerning the reliability of hypnotic memory enhancement, rather than the establishment of a fact in issue at the trial, be regarded as corroboration of hypnotically influenced testimony. In cases like Rock, however, where the expert testimony does tend to establish a fact in issue independently, then it may be truly corroborative. An alternative solution, suggested by the Rock case, to the conflict between the risk of hypnotically influenced testimony producing Ealse convictions and the desirability of permitting a defendant every possible tool in preparing hidher defense has been proposed by Kuplicki (1988). He suggests a bifurcated rule which would generally permit hypnotically influenced testimony to be admissible when offered by the defense (subject to certain safeguards) and would render it generally inadmissible when offered by the prosecution. While Kuplicki finds this approach consistent with the Rockdecision, it is not mandated by it, and the present author believes that the notion of radically different rules of evidence for the prosecution and the defense would prove less acceptable to most courts than a corroboration requirement would. The majority of the United States Supreme Court, by noting in its decision that it is possible for hypnotically refreshed testimony to be true, implied that testimony should not be rendered inadmissible per se unless it is of a type which could not be true except by chance (such as the pronouncements of a spiritualist). If a properly instructed jury cannot be trusted to evaluate hypnotically refreshed testimony because it is often unreliable, how can it be expected to deal with accomplice testimony which is usually given in exchange for a favorable plea bargain or a reduced sentence or with the conflicting medical testimony so common in personal injury actions? If a jury can render an intelligent decision in the latter Cases whv can it not do so in the former?
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Is it reasonable to have differing rules of evidence for different kinds of unreliable evidence? As Justice Kaus noted in his dissent in People u. Shirley (1982), if the same standards of reliability' that are imposed on hypnotically refreshed testimony were applied to ordinary witnesses, most of them would be unable to testify in a criminal case. The decision in Rock v . Arkansas may indicate some leaning towards this position by the Supreme Court of the United States because of the way the majority disposed of the psychological issues raised. Whether it does or not, however, the case holds that a state may not bar hypnotically refreshed testimony by a defendant in a criminal case, solely because of the fact that hypnosis was used to jog his or her memory. Hence, defense lawyers may now employ investigations involving the hypnotizing of the defendant without fear of losing hidher testimony in jurisdictions restricting the use of hypnosis on witnesses. Such procedures will still be subject to court scrutiny, however, for while the Rock decision prevents a state from excluding the hypnotically refreshed testimony of a defendant in a criminal case on a per se basis, it does not require the admission of such testimony if it can be shown to be unreliable in a particular case because of faulty technique. REFERENCES* AMERICANLiEDICAL ASSOCLATION Council o n Scientific M a i n . Council Report. Scientific status of refreshing recollections by the use of hypnosis. J . Amer. med. Ass.. 1985. 253. 19 1% 1923. Beck ti. Norris, 801 E2d 242, 1W. Bundy c. State, 471 So.2d 9, 198.5,.(FIa.) Chupmcrn c. Stute. 638 P.2d 12880. 1982. (Wyo.) Collins c. State. 4 4 i A.2d 1272, 1982. (Md. App.) Cummonzceulth c. DiNicola. 502 A.2d W, 1985. (Pa.) Commonwealth ti. Kater. 388 Mass. 519; 447 N.E.2d 1190. 1983. Commonwealth ti. Smoyer, 476 A 2 d 1304. 1W. (Pa.) Contreras ti. State, 718 P.2d 129. 1986. (Alaska) DIAMOND. B. L. Inherent problems in the use of pretrial hypnosis on a prospective witness. Calif. Law Reti., 1980, 68(2), 313-349. Ferguson c. Georgia, 365 U.S. 570, 1961. Frye v. United States. 203 F. 1013, 1923. Harding v. State. 5 Md. App. 230, 246 A.2d 302, 1968. Harris v . New York, 401 U.S. 222, 1971. House (i. State, 4E So.2d 815, 1984. (Miss.) Kline v. Ford Motor C o . 523 E2d 1067, 1975.
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'Note. Legal cases are cited by giving the volume number, case reporter title and initial page number of the case. Thus 128 Ark. 226 indicates a case that appears on page 226 of volume number 128 of the Arizona case reporter. Reporters that report cases from the highest court in a state are designated by state names. Citations to regional reporters that report cases from several states are generally followed by a designation of the state in question unless this is obvious from alternative source citations given.
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KUPLICKI. F. P. Fifth, Sixth. and Fourteenth Amendments - .\ constitutional paradigm for determining the admissibility of hypnotically reheshed testimony. 1. crirn. b w Criminal.. 1988, 78, 853-876. LOFTUS.E. F. Leading questions and the eyewitness report. Cog. Psychol. 1975.7. -572. Loms, E. F.. & ZA”1, G . Eyewitness testimony. The influence of the wording of a question. Bull. p s y c h - . Soc.. 1975.5.M. N m i , C. D. Hypnosis of the accused: Defendanti choice. J . crirn. Law Crirnind., 1984,
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75,995-1019.
OWE, M. T. Use and misuse of hypnosis in court. Int. 1. clin. exp. Hypnosis, 1979,27. 311-341. OWE, M. T.,SOSKIS, D. A.. DINGES.D. F., & OWE, E. C. Hypnotically induced testimony. In G. L. Wells dr E. F. Loftus (Eds.), Eyeu+tnes, testimony: Psycholopal perspccfiues. Boston: Cambridge Univer. Press, 1984. Pp. 171-213. People u. C o n z l e s , 329 N.W.2d 743.1982.(Mich.) People u. Shirley. 31 Cal.3d 18;641 P.2d 775;181 Cal. Rptr 243, 1982. People u. Smrekm. 68 Ill. App.3d 379;385 N.E.2d 848. 1979. REISER. M . Hypnosis as a tool in criminal investigation. Police Chief, 1976, 43(11),36. 39, 40. REISER, XI. Hypnosis and its uses in law enforcement. Police J.. 1978.5. 24-33, REIsER, M.Handbook of inoestigatice hypnosis. Los Angeies, CA: WEHI, 1980. Rock u. Arkansas. 288 Ark. 3%;708 S.W.2d78. 1986; 55 L.W. 492.5,198;. Rock u. Arkansas. 107 S.Ct. 2704. 1987. Stateti.Armstrong. l l O W i s . 2 d ~ ; 3 2 9 N . W . 2 d 3 8 6 ; ~ 6U1. S . N , 1983. State ti. Beachurn. 97 N . M . 682;643 P.2d 246, 1981. State ti. Brown, 337 N.W.2d 138, 1983.(N.D.) State u. Flock. 322 S . E.2d 7%. 1W. (N.C.) State u. Haislip. 701 P.2d 909. l%%. (Kan.) State u. Hurd. 86 N.J . 525;432 A.2d 86, 1981. State ti.jorgenson.8 Or. Appl; 492 P.2d 312, 1971. State u. Mack. 292 N.LV.2d 764;27 Cr.L. 1043. 1980.(hiinn.) State I). Martin. 6&L P.2d 651. 1W. (Wash.) State u. M e w . 128 Ariz. 226;624 P.2d 1274.1981. State L;, Moreno, 709 P.2d 103, 1%. (Hawaii) State u. Peoples. 311 N.C.515;319 S.E.2d177. 1984. State u. Weston. 16 Ohio App.3d ‘279:475 N.E.2d 805. 1934. State c. Wren. 425 So.2d 756,1983.(La.) UDOLF. €3. Forensic hypnosis: Psychologicd andkgdarpects. Lexington. MA: Heath, 1983. United States u. Awkard. 597 E2d 667;4.w U.S. 885, 1979. United States ti. Harrington, 18 51.J. 797. 1W. United States u. Narciso, 4-16 F. Supp. 2559. 1977. WyUer et al. c. Fairchild H&r Corporation. 503 F.2d 506. 1974.
Rock rcidcr A r k a m : Einc KritiL Roy Uddf Abstrakt: Rock wider A r h ist die erste Entscheidung der Obersten Cerichtshoh der Veninigten Stuten, die rich mit dem YoaaiLt &hen dem Recht des hgeldngten befdt, in seinem oder h r e m Intererse eidlich Zcugnir abzukgen, und dem Recht der Staater, ein restriktiver Cebot der Beweismaterials aufiuerlegen, das hypnotisch aufgefrischter Zeugnis verbannt. Die vorliegende Kritik beschreibt die operativen Tatsaches im FaUe Rock wider Arkansas und die Mehrheits- und Minderheitsentscheidungen. Sic
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wirft auch Licht auf einige der psychologischen und rechtlichen Probleme des Falls und spekuliert, welche Vorbedeutung Rock Coidcr Arkanrar fur die weitgehcnde Frage der Zulissigkeit von hypnotisch aufgefrixhtem Zeugnis im allgemeinen haben k h n t e .
Rock o I'Etat dArkasar: une critique
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Roy Udolf Resume: La cause de Rock v l'Etot d'Arkantos est la premihre dkision d e la Cour Suprkme des hats-Unis a mettre en lumihre le conflit entre le droit d u n accuse h temoigner en sa faveur et le droit d u n ttat h refuser un ttmoignage remis en mtmoire par hypnose. La presente critique rapporte les faib de Rock o l'Etut 8ArkanW ainsi que les decisions majoritaires et minoritaires. L'article souligne aussi les questions psychologiqws et legales impliquees et qkcule sur la port&-possible de la decision de Rock u l'Etut d'Arkanw sur I'admissibilitt en general des temoignages remis en memoire par hypnose.
Una critica de Rock contra Arkansm Roy Udolf Resumen: Rock contra Arkansas es la primera decision de la Corte Suprema de 10s Estados Unidos que se consacra a1 conflicto entre el derecho de un criminal de atestiguar en su defensa y el derecho del estado de imponer una regla restrictiva prohibiendo el testimonio obtenido hipnoticamente. Este trabajo describe lo ocurrido en el juicio de Rock contra Arkansas y las decisiones de la mayoria y la minoria. Tambien pone en evidencia algunos aspectos psicologicos y legales involucrados y especula que el caw Rock contra Arkansas puede servir para a v a m r en aspectos m L gencrdes sobre la admisibilidad de testimonios obtenidos hipnoticamente.
