ROCK v. ARKANSAS

Print this transcript Transcript: 

Argument of James M. Luffman

Chief Justice Rehnquist: We'll hear argument now in Number 86-130, Vickie Lorene Rock v. Arkansas.

Mr. Luffman, you may proceed whenever you're ready.

Mr. Luffman: Thank you Mr. Chief Justice, and may it please the Court: Frank Rock died on July 2nd, 1983.

Vickie Rock maintains that his death was caused by the accidental discharge of a Saturday night special pistol which fired when her husband grabbed her hand.

He was attempting to prevent her from leaving the house to get a hamburger.

The pistol was in her hand, she maintains, because her husband had become suddenly violent striking her and slamming her into a wall.

She thought it would keep him from hitting her again.

Vickie Rock went through the trauma of a fruitless wait for the ambulance she called and watching for the police while they began their investigation while her husband lay dying on the floor.

She was taken to jail before the ambulance arrived to pick up her unconscious husband and she learned of his death in a jail cell.

The evidence is that only Frank Rock and Vickie Rock were in the room when the gun discharged.

Frank Rock made no statement to the police before his death.

Almost a year later on June 25th, 1984, Vickie Rock was arraigned on a charge of manslaughter in the death of her husband.

Three months after her arraignment, Vickie Rock was still unable to recall some of the detail of the events that occurred between the time her husband slammed her against the wall and the time she went to the telephone to call for the ambulance, a matter of seconds.

Such amnesia is apparently not unusual for persons involved in violent confrontations but in her case it was not complete.

She remembered a great deal of detail from both before the gun discharged and after.

The record does not reflect what other methods were used by her lawyer to attempt to refresh her recollection of those violent moments.

But he finally employed a professional psychologist for the purpose of trying to refresh her memory with the use of hypnosis.

After two sessions with the psychologist she was able to recall much of what she knew but had forgotten.

The most important thing she was able to remember was that she never pulled the trigger.

That in fact, her finger was outside the trigger guard when the pistol discharged.

This revelation enabled her lawyer to employ an expert gunsmith, who after extensive testing of the weapon was able to testify that the pistol not only could but was quite likely to discharge in the manner related by petitioner, something that had previously been thought to be impossible.

As the case stood at this point a clear and probably close jury question was presented.

Did the gun discharge by accident in defect in design, or was it fired by petitioner in the course of a scuffle?

Believing Vickie Rock's testimony the jury could have acquitted her.

Disbelieving her they had almost no alternative but to convict.

The jury though never had the opportunity to make that choice.

Vickie Rock's testimony about what happened in those few seconds was suppressed by a pre-trial order which limited her testimony about those events to what she had told her psychologist prior to the first hypnotic session.

That order, more than any other ruling, took the decision away from the jury.

The jury was left with the mere sign--

Unknown Speaker: What was it she was proposed to testify about?

Mr. Luffman: --She proposed to testify that her finger was not on the trigger.

That--

Unknown Speaker: Was she going to testify about what she remembered under his hypnosis.

What she said--

Mr. Luffman: --She was going--

Unknown Speaker: --She was going to testify what her answers were while she was hypnotized?

Mr. Luffman: --No, sir.

She was going to testify about what she remembered in a waking, conscious condition after two sessions with a psychologist which included hypnosis.

Unknown Speaker: Well didn't she make some responses during hypnosis?

Mr. Luffman: Yes, she did.

And did not--

Unknown Speaker: And she remembered making them afterwards or does she claim that those were her independent recollections afterwards?

Mr. Luffman: --She remembers some of what occurred during the hypnosis, but most of it she did not.

The key point of her testimony she did not recall apparently during either of the two hypnotic sessions.

Apparently it was after she came out of hypnosis that she was able to recall that her finger was outside the trigger guard and that she didn't fire the gun.

Unknown Speaker: So she says that something happened to me during hypnosis that made me later remember it.

Mr. Luffman: No, sir.

She doesn't try to explain how it is that she remembers it, but she claims that she does now remember it.

Unknown Speaker: But after hypnosis she remembered it, whereas she didn't before?

Mr. Luffman: Yes, sir.

That's correct.

The jury then was left with the mere scientific probability that the gun could have discharged by accident but under the limiting ruling with no claim by the petitioner that in fact it did.

Clearly this ruling tipped the scale on the weight of the evidence in favor of the state.

What then was the basis for that ruling that insured petitioner's convictions?

A ruling in the face of the state constitutional right for a defendant to testify.

No record exists of the hearing on which the order was based.

An omission that seems to escape notice prior to these proceedings, leaving what is stated in the order itself as the only basis for the ruling.

That the testimonies of matters recalled by petitioner due to hypnosis would be excluded because of

"inherent unreliability and the effect of hypnosis in eliminating any meaningful cross examination. "

Unknown Speaker: Mr. Luffman,--

--xxx.

Go ahead.

Go ahead.

Mr. Luffman: Yes, ma'am.

Unknown Speaker: Do you acknowledge that Arkansas or any state does have a right at trial to exclude inherently unreliable testimony whether it comes from the defendant or a witness called by the defendant?

Mr. Luffman: Yes, ma'am, I do so long as that ruling is not extended to the point that it takes what should be properly a jury question away from a jury.

Unknown Speaker: Well, presumably most states take the position that the trial judge may exclude altogether from evidence certain types of evidence.

Application of the hearsay rule at times or other evidence which the court determines is inherently unreliable.

For example at times, polygraph evidence--

Mr. Luffman: Yes, ma'am.

Unknown Speaker: --And that doesn't violate a constitutional right because the court makes rulings like that does it?

Mr. Luffman: No, not because the court makes rulings by that.

I think it's only when those rulings interfere with what is a traditional function of the jury to determine the facts.

Unknown Speaker: Well but it's a traditional function of the court to keep out certain types of unreliable evidence.

Now what if instead of a per se rule against hypnotically induced testimony, what if the court examined in camera or outside the presence of the jury the background of particular hypnotic evidence and determined that it was just unreliable.

And so unreliable that it shouldn't come in.

Does that violate anybody's constitutional rights?

Mr. Luffman: I think it could.

I don't think necessarily on the facts stated that it does, but I think it could if those determinations were made in areas that when the case is looked at in its entirety prevented the criminal defendant in that case from presenting his defense.

And it--

Unknown Speaker: Well it might very well if the court concluded that the background was such that it was in fact totally unreliable.

Supposing in this case you'd had three witnesses for the defense, all of whom were going to offer to testify that she had her hand outside the trigger guard and on voir dire it turned out that none of them were in the room at the time.

And the trial court says, well these people had no opportunity to observe.

Their testimony is utterly unreliable and I'm going to exclude it.

Does that violate the defendant's constitutional rights?

Mr. Luffman: --I don't think so, Mr. Chief Justice, because I think those areas fall within the traditional area of competency of a witness.

In other words that the witness must be characterized as having been able to observe the events that he relates or the hearsay rule which again, with certain exceptions, is a traditional evidentiary rule in our system to keep supposedly unreliable evidence out.

Unknown Speaker: Well what about somebody who claims to have observed it?

Let's assume that the defense hires a medium who hurls herself back to the time and sees the murder and she wants to testify that in her trance she saw your client with her finger on the trigger guard and not on the trigger.

Could that be excluded?

The witness claims to have seen it.

Yes, I was in a trance and I saw it.

Now, does the court have to leave that to the jury to decide whether in fact the medium saw that or not?

Mr. Luffman: I believe that's in a different category, Justice Scalia.

Because the witness is not physically present, or physically there, nor there in any means of, by any scientific observation that we recognize in human life as being there.

Unknown Speaker: Well, that's what you say.

I mean some people believe in those things.

Why can't we leave that to the jury?

If you get a jury that believes that this person really has those powers.

Mr. Luffman: I think a judge could leave it to a jury.

I think he could leave it to a jury.

Unknown Speaker: That's not the question.

Suppose the judge took it away?

Would you just say that that's a matter that the state can do even though in that case you have a much more explicit constitutional right that is set forth in so many words to call witnesses in your defense.

Whereas you're relying on a constitutional right that doesn't really appear in the Constitution, does it?

I... To testify in your own behalf?

Mr. Luffman: I think that the medium's testimony would be held to be incompetent and I think would be properly excludable.

Unknown Speaker: Well I don't see much difference between that and your case except you know, it's a matter of argument what's reliable and what's not reliable.

You're acknowledging that the state has the power to make a reasonable judgment about what is reliable and not reliable and here they've said there's no way we can be sure what she testifies to after hypnosis is, there's no way she herself can be sure.

Mr. Luffman: I--

Unknown Speaker: What of it is suggestion and what isn't?

Mr. Luffman: --I do agree that the state has the right to make that decision of what is reliable and what is not so long as it does not interfere with the person's constitutional right to fairly present his defense.

And I think there would be a great argument of difference between the hypothetical that you posed just basically on the fact that in our case, Vickie Rock, was there.

She was physically present.

She was in the room.

She undoubtedly saw and felt what happened and I think it's certainly arguable that the medium was not there in any realistic sense.

Unknown Speaker: Mr. Luffman, was there any record of the hypnosis?

Mr. Luffman: Yes, Your Honor, there was.

Specifically the psychologist made a tape recording of both sessions with Vickie Rock and those tape recordings were played at the pre-trial hearing for the trial judge.

The record does not reflect that again because that is the portion of the record that's missing.

Unknown Speaker: Were they played for the jury?

Mr. Luffman: No, sir.

They were not.

They were played only for the trial judge prior to the hearing.

Unknown Speaker: With a video tape?

Mr. Luffman: No, sir.

It was an audio tape only.

Unknown Speaker: What's the custom with respect to how you record that sort of occasion?

Do you regularly tape it now?

Mr. Luffman: Dr. Back's testimony was that she customarily made an audio recording of such sessions.

There are a number of cases involving hypnosis and a number of articles involving hypnosis where the strong suggestion is made for the use of video tape.

But it was not used in this case.

Unknown Speaker: xxx.

Have you ever been hypnotized?

Mr. Luffman: No, Mr. Justice Blackmun, I haven't.

Unknown Speaker: Do you know of any instance where the prosecution in Arkansas has used witnesses that have been subjected to hypnotism.

Mr. Luffman: Yes, Mr. Justice Blackmun, we do.

We've cited one such case in our brief.

Clines v State.

The same prosecuting attorney that was involved in this case took two eye witnesses to a murder in a capital murder case and had those two eyewitnesses hypnotized.

That hypnosis was not disclosed during the course of the trial.

It was only after conviction and the men were awarded the death penalty that a disclosure was made that two of the eyewitnesses had been hypnotized.

Counsel for those gentlemen filed a motion with the Arkansas Supreme Court asking for a remand of that case.

That the case be remanded to the circuit court for an evidentiary hearing on that matter.

That motion was dismissed by the Arkansas Supreme Court without opinion.

The case when it was decided, and that was Clines v. State, made no mention of the issue.

Unknown Speaker: Are you arguing that what's sauce for the goose isn't sauce for the gander in Arkansas under this rule?

Mr. Luffman: It's certainly wasn't in this case, Mr. Chief Justice.

Chief Justice Rehnquist: Well but you haven't made that argument anywhere in your brief I don't think, have you?

Mr. Luffman: Well, I attempted to, Mr. Chief Justice.

The case, what we were trying to argue that in the context of was the fact that the proceeding as a whole lacked fairness.

And we've listed that, or were attempting to list that as one element in the number of things that argued that it lacked fairness.

Unknown Speaker: Mr. Luffman,--

Mr. Luffman: I don't dispute that the Arkansas Supreme Court has a right to change its mind, or to reach any decision it wants to when the case is properly presented to them.

Unknown Speaker: --Well we don't know the basis for the Arkansas Supreme Court's opinion.

I mean,--

Mr. Luffman: That's correct, Mr.--

Unknown Speaker: --We don't know that it's lawful in Arkansas to allow hypnotized witnesses except for the defendant himself.

We don't know that.

It may have been dismissed because there was plenty of opportunity to raise the issue earlier and it had not been presented properly.

Or we don't know what the reason is do we?

Mr. Luffman: --That's correct, Mr. Justice Scalia, that's why I noted that it was dismissed without opinion.

Unknown Speaker: So it really isn't a sauce for the goose, sauce for the gander proposition we have in front of us.

Mr. Luffman: Well except in reading of the record, to read the indignation of the prosecuting attorney when the prosecuting attorney objected to not having been informed until the last minute before trial of the--

Unknown Speaker: Right.

Mr. Luffman: --xxx.

Unknown Speaker: But you're not asking us to censor the prosecutor.

Mr. Luffman: No, I'm not, Mr. Justice.

Unknown Speaker: You're asking us to strike down the Arkansas Law?

Mr. Luffman: No, I'm not, Mr. Justice Scalia.

Unknown Speaker: xxx case that there's no, that the record doesn't indicate sufficiently that her testimony after hypnosis was caused by the hypnosis.

Mr. Luffman: That's correct, Mr. Justice White.

There is no, there is nothing--

Unknown Speaker: So as the case comes to us from reading the opinions and what not, that it seems assumed that what she was testifying to was caused by the hypnosis.

Mr. Luffman: --That was the assumption.

But, we maintained that it was just that.

It was just an assumption.

I would submit to the Court that there's nothing in the record at all either in the--

Unknown Speaker: --Well, but the courts below thought it was, didn't they?

Are we supposed to decide that factual issue?

Mr. Luffman: --The trial court didn't go that far.

The trial court simply made his order saying that testimony which was the result of hypnosis would not be admissible.

Unknown Speaker: Well he wouldn't let her testify.

Mr. Luffman: That's correct.

Unknown Speaker: Which meant that he had to think that this was caused by hypnosis.

Mr. Luffman: But, his step by step ruling are the only indicators of what apparently the trial judge thought might have been the product of hypnosis and what was not.

But there were three qualifications that the trial judge put on her testimony.

Number one, that she could not testify to matters which were the product of hypnosis; or secondly, matters which had not been stated to the psychologist, or the hypnotist prior to the hypnosis; and thirdly, matters which were the product of post-hypnotic suggestion.

In the rulings of the trial court when he disallowed various pieces of testimony there was no attempt made by the trial court to justify under which provision of that order he was excluding the evidence.

Unknown Speaker: Well the Supreme Court of Arkansas on the first page of its opinion, Appendix A in your petition for certiorari, says that the trial court ruled testimony of matters recalled by appellant due to hypnosis inadmissible because of its unreliability and because of the effect of hypnosis on cross, appellant was allowed to testify about things she remembered prior to being subjected to hypnosis though testimony resulting from post hypnotic suggestion was excluded.

We believe the trial court's ruling was correct.

Certainly the Supreme Court of Arkansas thought that the trial court had ruled that testimony not affected by the hypnotic suggestion could come in.

Testimony that was induced by the hypnotic suggestion would be kept out.

Mr. Luffman: That's a deficiency in the record, Mr. Chief Justice, because the state of Arkansas, the Supreme Court of Arkansas also did not have available to it when it made its decision the record of that pre-trial hearing on which the order was based.

Unknown Speaker: But we're basically reviewing the judgment of the Supreme Court of Arkansas.

We don't ordinarily make independent factual findings here.

Mr. Luffman: I agree, Mr. Chief Justice, and I was submitting that there is no indication in the record of the case of any testimony of Vickie Rock that was inherently unreliable, or that can be seen from the record to be unreliable.

Unknown Speaker: Well, how does that advance your argument?

Mr. Luffman: Because we maintain she was not permitted to testify to that one important factor that was virtually her only claim to a defense.

That not only was she not trying to fire the gun, that she was making deliberate effort to see that the gun didn't fire.

Chief Justice Rehnquist: And you're saying--

Mr. Luffman: In so many--

Chief Justice Rehnquist: --whether or not that testimony was caused by hypnotically induced recollection, it should have been allowed under the Constitution.

Mr. Luffman: --That's correct, Mr. Chief Justice.

Unknown Speaker: xxx let's get back to the beginning.

What's wrong with the trial court saying at the beginning of a trial that no evidence as a result of any intervention by a hypnotic source will be admissible period.

Mr. Luffman: In this case--

Unknown Speaker: Not in this case.

In any case.

Mr. Luffman: --If any of the parties to the trial had previously undergone hypnosis and that was the basis, and what was learned from that was the basis of their defense, or the basis of their complaint, and was the only basis, we're submitting that that is a better question for a jury than for a judge.

Unknown Speaker: Well, will you go back to my question?

The judge says apropos of nothing, good morning ladies and gentlemen of the jury, I will not listen to any hypnotic testimony, or testimony the result of hypnosis from any witness in this trial, period.

What is wrong with that?

Mr. Luffman: I think it's much too broad, Mr. Justice Marshall.

I believe that it's so broad that it eliminates cases like this where the defendant depends on that particular piece of evidence virtually for her entire defense and--

Unknown Speaker: Why, well supposed you hook it up with the exclusion when you say all witnesses shall be excluded.

And in addition to that I rule this, that any hypnosis shall not be testified to.

Mr. Luffman: --My argument again is that it's just much too broad.

Unknown Speaker: I think you're real argument is that it applies to you.

Mr. Luffman: If it applies to a defendant whose only means of saying her defense is from that testimony which was the product of that, then I think it can be applied in an unconstitutional way.

Unknown Speaker: What--

--So you're saying that you can only exclude unreliable evidence except where the unreliable evidence is crucial.

Where the unreliable evidence will determine the outcome of the trial, then you have to let it in.

That's a very strange rule.

Mr. Luffman: I think--

Unknown Speaker: It seems to me the more unreliable it is.

The more important it is, the more important it would be to exclude the unreliable evidence.

Mr. Luffman: --There are degrees, of course, of unreliability.

But I think if once it's classified as unreliable, I think that was true in the Chambers case, hearsay evidence was kept out because it was thought to be, because hearsay is generally thought to be unreliable.

Yet, the categorization of all of the combination of rulings by the trial court were held to have been applied in such a way that even though the individual evidentiary rules themselves may have been constitutional that the cumulative effect of them when they prevented the defendant from presenting his defense was to deny him due process of law and that's what we're arguing for Mrs. Rock.

Unknown Speaker: May I ask, Mr. Luffman, I just don't remember in this case.

How did the fact that your client had been hypnotized come to the attention of the court?

Mr. Luffman: The prosecuting attorney was advised of such by the defense counsel when they were exchanging lists of witnesses.

Unknown Speaker: And one of your witnesses--

Mr. Luffman: And the defense counsel listed as a witness, Dr. Betty Back, who was the hypnotist.

Unknown Speaker: --And she, of course, did not testify at the trial?

Mr. Luffman: She testified at the pre-trial hearing--

Unknown Speaker: At the pre-trial.

Mr. Luffman: --not at the trial.

Unknown Speaker: And the record is gone but I assume she testified that she did not suggest this particular recollection to the witness.

Is that right?

Mr. Luffman: That's correct, sir.

We would submit that it is very difficult to distinguish this problem from the problem of a witness who refreshes his recollection by referring to notes or a written document and then adopts the version of those facts for his testimony.

He may become difficult to cross examine, but it has never been suggested that a witness who so refreshes his recollection not be allowed to testify.

Unknown Speaker: Well the difference there is when somebody refreshes his recollection that way, in such a manner that he's lying, I mean he knows that he didn't remember it before, the jury can observe his demeanor.

I gather that the really nefarious thing about hypnotically induced recollection is that the witness himself doesn't know that the recollection is inaccurate.

He doesn't know he's lying because the hypnosis could of had that effect.

So the jury cannot say, you know, I can tell by his demeanor that this fellow is lying.

Because he isn't lying, he really believes he's telling the truth.

Isn't that different from the other kinds of refreshment of recollection that we allow?

Mr. Luffman: I don't think so, Mr. Justice Scalia, because the cross examination and demeanor of the witness is not the only way to impeach his testimony.

There are many other ways to do it and any skilled trial attorney, I would submit, could cross examine such a witness by establishing a great amount of detail, some of which is undoubtedly going to be provably false.

There are just any number of ways for a competent trial attorney to discredit witnesses.

And the argument that this leaves defendant not subject to cross examination suggests, in effect, that there is no other way to get at the truthfulness of the witness's testimony and we submit that there are.

Unknown Speaker: But you agree then that getting at it by demeanor testimony would be ruled out in this situation.

Mr. Luffman: Not necessarily, I think it could be.

But, I don't think that it's necessarily so that it could.

Thank you.

Unknown Speaker: Thank you, Mr. Luffman.

We'll hear now from you General Clark.

Argument of J. Steven Clark

Mr. Clark: Mr. Chief Justice, and may it please the Court: I submit to this court that the issue clearly here presented to you today is whether this hypnotically refreshed testimony is so inherently unreliable that the state of Arkansas may, consistent with the United States Constitution, exclude that testimony when it's offered by the defendant in a criminal case.

The answer to that question, I submit to this Court is yes, and further that the state of Arkansas can properly fashion its own rules of evidence if they do not violate fundamental constitutional safeguards.

And the Arkansas rule does not.

Although hypnosis has been accepted clearly as an aid in therapy, it's validity as a means of enhancing or refreshing memory has been challenged repeatedly.

Hypnosis creates within the subject a hyper state of suggestibility, lowered critical reasoning, the potential for altered memory,--

Unknown Speaker: Well now, why should we take your word for all of this, General Clark?

I mean, you don't have any degrees on the subject, I take it, and we don't either.

Mr. Clark: --No, Your Honor, I do not.

The Arkansas Supreme Court in reviewing this testimony had it applied the Frye test for instance, in terms of generally accepted by the scientific community as a procedure that is advanced as being legitimate.

Said if you'd applied the Frye test under the testimony submitted with the experts of Orrin and Diamond and others would not have admitted this testimony because it was not generally accepted by a scientific community as being reliable and credible.

And so I submit to you in this instance that the court, though not applying that rule is my contention to this court, said it could have or even a lesser standard and still would have excluded this testimony because of its inherent unreliability.

Unknown Speaker: And yet prosecutors in Arkansas have used hypnotized witnesses, have they not.

Mr. Clark: Your Honor, the prosecutor, in fact in the Cline case did attempt to hypnotize two witnesses.

One which was unable to be hypnotized.

The other which was hypnotized did not recall anything under hypnosis other than what they had recalled prior to that.

The Arkansas Supreme Court however, has never ruled on this issue until this case.

As a matter of footnote since this was raised by petitioner I went back to check.

In that Cline case, counsel, an associate of Mr. Putman, defense counsel in this instance until he died, participated in that case and if the petitioner had thought that that was an improper application could have raised that issue at trial and did not or with the Arkansas Supreme Court.

And I would submit to this Court that that's procedurally barred in the sense that they bring it to this Court now.

Unknown Speaker: But did they know about it at the time of trial?

Mr. Clark: Mr. Putman's associate, a young woman by the name of Priscilla Kay Pope participated in the trial of Cline and Orendorf and I assume as an associate in a small law firm in Arkansas, who participated in this, had knowledge of it, in fact filed the petition with the court prior to this decision, transferred that information and could have well raised it in this case, Your Honor.

Unknown Speaker: Well in this case, but you're not suggesting that the defendant's knew about the hypnotism in the Cline case at the time of the trial xxx.

Mr. Clark: No, Your Honor, I'm not suggesting that.

Although--

Unknown Speaker: In this case, the reason that you learned about the hypnotism of the defendant was the defense counsel listed the psychiatrist, or whatever his profession is, as a witness.

Is that right?

Mr. Clark: --Yes, Your Honor, that is correct.

Unknown Speaker: Is it correct that at the hearing, the record of which is lost, that that expert whoever it was testified that she had not induced this particular scenario of what happened about the pulling the trigger.

Mr. Clark: Your Honor, there were two hypnotic trances in this.

In the first trance, the Psycho Psychologist, Ms. Back, Dr. Back, never mentioned the question of whether the gun had been cocked.

In our Joint Appendix on page 95 in a second hypnotic trance she indicated that she asked these series of questions.

Five, I believe, to be specific about the gun itself and did Ms. Rock recall any of these instances.

One of the answers is that Ms. Rock recalled putting her thumb on the hammer to cock the weapon.

This was a double action weapon.

You had to cock it and then pull the trigger to make it fire.

There was a great deal of, on cross examination the prosecutor tried to make a big issue of the fact that were these leading questions getting Ms. Rock to remember a combination of fact and fiction.

The phenomenon called confabulation to resolve herself from responsibility in this instance.

Now we submit to the Court that that in fact occurred.

Although that testimony was never given at the trial, it was proffered, but she never was allowed to testify.

Unknown Speaker: But it was given before the judge?

Mr. Clark: Yes, Your Honor.

It was proffered.

Unknown Speaker: It was given.

The judge heard the testimony.

Mr. Clark: Yes, that's correct, Your Honor.

He heard the testimony.

Unknown Speaker: What happened at the hearing?

Mr. Clark: He heard the tapes.

Yes, Your Honor, what happened is here.

Unknown Speaker: Could that have influenced the judgment.

Mr. Clark: Your Honor, I think it influenced the judge's decision in the sense that he felt this testimony was so inherently unreliable that its probative value was outweighed by its ability to mislead or confuse--

Unknown Speaker: Like what?

Like what?

What was misleading?

Mr. Clark: --Well in the second instance, Your Honor--

Unknown Speaker: It was in your opinion, it was misleading.

Mr. Clark: --Your Honor, I would submit it was in the opinion of the trial judge and I certainly concur with that.

Unknown Speaker: xxx.

Mr. Clark: And the Arkansas Supreme Court--

Unknown Speaker: I don't think you can speak for the trial judge.

xxx.

Mr. Clark: --Yes, Your Honor.

Unknown Speaker: May I ask, in your view of interpreting the Arkansas Supreme Court's decision.

Supposing the trial judge had heard all this testimony and was persuaded, and apparently not in this case, was persuaded that the hypnotism did nothing but make her refresh her recollection and she may well have been telling the truth.

Would the testimony have still have been inadmissible under your understanding of the Arkansas Supreme Court's--

Mr. Clark: Yes, Your Honor.

The Arkansas Supreme Court has ruled per se that this testimony is inadmissible because of its inherent--

Unknown Speaker: --Because it's frequently unreliable.

Mr. Clark: --unreliable.

Basically I think, Your Honor, because the Arkansas Supreme Court has found that when you rely upon hypnosis that a judicial proceeding ceases to be a judicial proceeding because you're calling on the trier of fact, in this instance, the jury to reach its judgment not based on logical inference from the facts and the evidence deduced, but to reach its judgment simply on guess work.

As Justice Scalia questioned a moment ago, we cannot have a, by constitutional bar, the judge comment on the weight of the evidence.

But if they could the instruction it seems to me would be something like this: this witness has been hypnotized, the more convincing they sound it may be in fact that they're not convincing, that they really don't know what they're saying is being the separate--

Unknown Speaker: Well, why wouldn't this be a matter of expert testimony?

Mr. Clark: --Well then--

Unknown Speaker: xxx on reliability and depending on what the jury, which expert the jury believed.

Mr. Clark: --Your Honor, the problem with that simply is, is that in terms of the rules of evidence that Arkansas, I submit this Court can fashion you want to have a judicial proceeding that is fundamentally sound in the sense that you allow that trier of fact to judge the witness on their manifestations and indicia of outward concern, their testimony and you don't resolve that issue to a battle of experts.

You simply see who has the most and add them up.

Unknown Speaker: In criminal trials and a lot of other trials people, the courts permit the calling of psychologists to talk about eyewitness testimony, its reliability or its unreliability.

Mr. Clark: Certainly, Your Honor, you permit expert testimony to talk about reliability, but not to comment on the ultimate and the final outcome of the issue at hand.

Unknown Speaker: Well, I know.

But that's the issue here.

The court said we exclude this because it's inherently unreliable.

Mr. Clark: Yes, Your Honor, in the instance that the phenomenon called confabulation, mixing fact and fiction.

I submit to this Court that what Mrs. Rock did in terms of confabulation through the two hypnotic trances was to find a way to escape two types of prison.

The actual prison which she now is facing and secondly that prison in terms of her own moral guilt with having been involved in the shooting of her husband.

She was trying because of hyper suggestibility to find acceptance to relieve herself of that moral doubt and guilt and to say, and respond in a positive manner to the questions imposed by the hypnotist.

Unknown Speaker: How do we know this?

How do you know it, what you've just been saying.

Mr. Clark: Your Honor, I only know this in the instance that, of course I've read the proffered testimony, but in the instance of the scientific comments on expert, or hypnosis and its effect on an individual is that the weight of scientific authority and the reason that the scientific community has rejected this as a generally accepted standard is that it is unreliable because you lower critical judgment.

People then accept; they don't question.

You put them in a state of hyper acceptance so that they want to find an answer with a combination of fact and fiction to fantasize even as much to get to the desired answer and that in terms of a judicial proceeding that we have no way, we, being any attorney, whether it's a criminal action or a civil action, of going to the core of the credibility of that witness because the witness coming out of the hypnosis and the post hypnotic state believes absolutely to a moral certainty it's right.

Unknown Speaker: Well, do these experts say that every single witness coming out of a hypnotic state is this way?

Or do they just say there is this possibility, or this potential some of them will?

Mr. Clark: Your Honor, I think the experts tend to believe that what is remembered post hypnotic, that person believes to a moral certainty that that is accuracy.

That is, whether it is a combination of fact or fiction is not the issue and that it could not be rebutted by traditional means.

If you said to a witness, did you have a meeting on Friday the 18th and the witness said: no.

You say, well I show you your diary.

It says Friday the 18th, scheduled meeting with.

You say well at the result of hypnosis and the confabulation, you say, I'm sorry it was the 19th.

Well, I show you a letter saying the meeting was scheduled for the 18th?

Was in fact the meeting on the 18th?

No it was on the 19th.

The letter may have said it was on the 18th, the diary may say it was supposed to be on the 18th, but it wasn't, it was on the 19th.

Completely unshakable testimony and that is inherently unreliable.

Unknown Speaker: Well isn't it also true, General Clark, that there are instance in which hypnotism has enabled people to recollect things they have not previously remembered?

Mr. Clark: Yes, Your Honor, and I think in this very case it assisted Mrs. Rock in her defense.

She could not, in the second hypnotic trance she remembered that her finger was extended along the gun.

She also remembered that she put her thumb on the hammer to cock it.

Because of that, counsel for the defense went out and found a gun expert who testified that in fact this gun could have discharged because of a--

Unknown Speaker: So that what you're saying is that although it perhaps it's highly unlikely, it is at least possible that the testimony she wanted to give was the truth.

Mr. Clark: --Yes, Your Honor it is possible.

The problem for us is that the fact finder doesn't know what is faction in truth and you're making them guess.

And that should not be the basis of judicial proceeding where you simply have to try to guess when the witness himself is convinced to an absolute certainty that what they've testified to is--

Unknown Speaker: What if you had a, say there are drugs as I understand that are called truth, and I can't remember the name.

Mr. Clark: --Yes, Your Honor.

Unknown Speaker: That presumably, or at least some people think they cause a person to tell the truth.

Other people might think otherwise.

Could a court totally exclude the testimony of a witness who had taken such a drug?

Mr. Clark: Those drugs are, I think, Sodium Ambithal and Sodium Pentothal and others.

Unknown Speaker: Right.

That's right.

Mr. Clark: I think the court could exclude that.

In Arkansas, a court using our Uniform Rules of Evidence, Section 403 which is very similar to the, identical, excuse, to the federal rule to determine that that information, even though with proper value and even though relevant, was confusing, misleading or unduly prejudicial and could exclude it.

I think that's within the discretion of our rules of evidence that this state can apply.

Unknown Speaker: But your rule as I understand this case, doesn't even allow the trial judge discretion to admit this testimony.

Mr. Clark: No.

Unknown Speaker: Even if he was persuaded by the pre-trial hearing he'd say I'm sorry, we have a flat rule against.

Mr. Clark: We have a flat rule of inadmissible per se.

Yes, Your Honor, for that part of the memory that was not proven before or--

Unknown Speaker: Right.

Mr. Clark: --shown to have been known before the hypnotic trance.

Unknown Speaker: How will you enforce this rule against an unscrupulous defense lawyer who just doesn't tell you about hypnotic sessions.

Mr. Clark: Well, Your Honor, we are going to be of course, in a situation of jeopardy if defense counsel just is unscrupulous and does not disclose.

Unknown Speaker: Or maybe the lawyer doesn't even find out about it.

Maybe the defendant on his own, or her own, goes to the hypnotist, just says I can't remember everything, please help me.

Mr. Clark: Simply all we could do in this instance, Your Honor, if it was hidden from the state, or hidden from a party in this proceeding, that if some point, If discovered--

Unknown Speaker: Yeah.

Mr. Clark: --raise that issue in terms of appellate relief.

In the instance of the Arkansas rule it is clear that the Arkansas court did not say that hypnotically refreshed witness could not testify.

That's not what the court held.

It held that the witness could testify but was, and did not prohibit that, only could not testify to that portion of the testimony hypnotically refreshed.

Unknown Speaker: How does that work when you don't know, when there is no record of what was recollected prior to the hypnotic suggestion?

Mr. Clark: Well, Your Honor,--

Unknown Speaker: Would xxx the witness--

Mr. Clark: --In this specific case and in the instance of what Mrs. Rock told the hypnotist in terms of the pre-hypnosis notes and there were some handwritten notes in complete sentences.

Unknown Speaker: --Right.

Never mind this case.

Let's assume there are no pre-hypnotic notes.

I just walk into a hypnotist before I made any record of what I recollected beforehand.

Mr. Clark: Under the Arkansas rule, your Honor,--

Unknown Speaker: I wouldn't be able to testify at all.

Mr. Clark: --xxx would not be able to testify to anything that was a product of that hypnosis.

Yes, that's correct.

I don't think that's an unfair or violent--

Unknown Speaker: No, not to anything that was a product of that hypnosis.

I would not be able to testify to anything.

Mr. Clark: --No, Your Honor, I submit--

Unknown Speaker: Isn't that right?

Mr. Clark: --that if you could indicate to evidence or this that were outside the subject of the hypnosis you certainly are permissible and permitted and can testify to that, Your Honor.

So if it was the events of how the gun was discharged, but what else happened in your marriage, what was the your relationship--

Unknown Speaker: Oh, sure, sure.

Mr. Clark: --with your husband, those things you could.

Unknown Speaker: But once, unless I have, the burden is on me to make a pre-hypnosis record of whatever the hypnosis is going to cover and if I don't do that whatever the subject matter of the hypnosis happens to be is excluded from my testimony.

Mr. Clark: Yes, Your Honor, that is correct.

That is the Arkansas rule and I submit to this Court that that is not unconstitutional xxx.

Unknown Speaker: Even though, in fact, I remembered a lot of that stuff before the hypnosis.

Since I can't prove that I did, I can't testify about it.

Mr. Clark: Yes, Your Honor.

Unknown Speaker: What would you do if an unscrupulous law firm assigned one of its unscrupulous juniors to study hypnosis over the summer and he graduated from the hypnosis school and didn't tell anybody and came back and he questioned the witness?

Would that witness be thrown out under your xxx.

Mr. Clark: No, Your Honor, I don't believe that witness would be thrown out for the fact that--

Unknown Speaker: Why not?

Mr. Clark: --simply the fact that one has studied hypnosis, has graduated from hypnosis school as your hypothetical suggests, Your Honor, does not move to the decision of the Arkansas rule of evidence and that is that when one--

Unknown Speaker: Well how many years does he have to go to qualify?

Mr. Clark: --Your Honor, that's the problem with this hypnosis itself.

I don't know.

Unknown Speaker: Well if he goes--

Mr. Clark: Comedians, dentists, lawyers, anyone can do hypnosis.

Unknown Speaker: --as many years as this person did.

Mr. Clark: Your Honor?

Unknown Speaker: This hypnotist.

Mr. Clark: In the instance that this person, this was a trained Psycho Psychologist who had advanced degrees, so had a baccalaureate degree and an advanced degree.

Unknown Speaker: Uh-huh.

Mr. Clark: But hypnosis is not a method that you have to have formal training to be able to apply.

And that's what the Arkansas court found so inherently unreliable about this, Your Honor, is that if it could be applied by anyone--

Unknown Speaker: Well then why, well why did they have a hearing?

Mr. Clark: --Had a hearing, Your Honor, I think in the instance--

Unknown Speaker: Had a hearing to find out of it was reliable.

Mr. Clark: --Yes, Your Honor.

Unknown Speaker: Well how is it so inherently unreliable that you have to have a hearing to find out if it is?

Mr. Clark: Well in this instance I--

Unknown Speaker: It's either one or the other.

Mr. Clark: --In this instance, in this Rock case, Your Honor, I submit that what happened was that when Mr. Putman, Defense Counsel, gave the list of his witnesses which included Dr. Back, the first time--

Unknown Speaker: I know that.

Mr. Clark: --the prosecution had notice they asked for a hearing to have that testimony excluded.

Unknown Speaker: And if he had found that it was reliable, he would of let it in.

Mr. Clark: I submit, Your Honor, yes he would have, but he did not.

Unknown Speaker: Well, of course he would of.

He would have been reversed by the--

Mr. Clark: He would have been reversed by the Arkansas court, yes, Your Honor.

Unknown Speaker: --That's not certain to me.

I'm not certain.

Mr. Clark: I think the rule has been applied by the Arkansas court is one that is applied so that juries can reach verdicts on the basis of logical inference and not guess work.

Hypnotically refreshed testimony is not akin to those other methods of refreshing memory.

For such hypnotically enhanced or refreshed recollection does blight cross examination I say to this court.

It does so by producing in that witness that absolute, firm belief to a moral certainty that everything they have recollected is absolutely fact.

Whether it is fact or fiction, or some fact, some fiction, or a fantasized result of a combination of all that.

And that literally what that produces is a situation where the trier of fact in any proceeding cannot use the objective indicia or manifestation of the credibility of a witness; that they would really have to try to guess what's in that witness's mind and whether that witness in fact knows what's in that witness's mind.

And that is not the underpinnings of what I submit to this Court is the truth finding function in a jury system or in any judicial process.

Due process of the law does not give any witness a license to lie or to throw any and everything into a judicial proceeding.

And unlike the--

Unknown Speaker: There's no pretention here that this was a lie, is there?

Mr. Clark: --No, Your Honor, there is no contention that this was a lie, but I simply say that the due process of the law does not require that you put any witness on and let them deliberately lie or let them throw anything that they just happen to feel might have some bearing on the case in the case.

And that the Arkansas rule that excludes that, 403, on the probative value versus the potential for confusion, misleading, is one that's a weighing test that can be fairly applied and it's a rule that Arkansas can articulate and one that is within the residual power of the state to set in terms of its rules of evidence is applied.

Unknown Speaker: Well it seems to me that a lot of what you're arguing here is great grist for a jury argument.

Mr. Clark: Yes, Your Honor, it could be grist for a jury argument and I submit that in fact that's what Petitioner would like for us to say, except that, constitutionally in Arkansas we're barred from giving instruction on the weight of the evidence, the credibility of the witness, and secondly, in any judicial proceeding where you put counsel, a civil or criminal matter where they cannot effectively cross examine a witness and put them in the trier of fact that guess work, I submit that you don't have a judicial proceeding at that point any longer.

Unknown Speaker: But, let me just ask you about that.

You say, here the story was that she didn't pull the trigger, it was capable of just discharging from the scuffle.

What if you had an expert witness who looked at the gun and said that's just physically impossible.

The gun is manufactured in way it cannot go off unless you pull the trigger.

You could cross examine her pretty effectively, couldn't you?

Even though she appeared to be absolutely positive that this happened this way.

It's possible that there are times you can evidence that just snows it's a lie.

Mr. Clark: Yes, Your Honor, I think the answer to that is yes.

xxx.

Unknown Speaker: And this very case could of been of the expert who subsequently examined the gun and come up with the opposite conclusion.

Mr. Clark: But in this very case, the testimony that was excluded I think was equally as beneficial to the state as it was the defendant.

There never was any testimony entered into the record that her thumb was on the hammer to cock it.

That is, at least the state could have used as some evidence of intent.

Unknown Speaker: I presume she was prepared to acknowledge that.

That's what she said, she didn't pull the trigger.

Mr. Clark: The problem is, Your Honor, she doesn't really know.

And in the instance of what actually happened here, if the court made error and I submit they did not, but if they did I believe it was harmless error in the instance that Mrs. Rock, if you look at the Joint Appendix at pages 105 and 107, the trial judge who's a veteran trial judge for some twenty years faced with a complicated issue, did everything possible to give her latitude to give live testimony her own.

He didn't rely on other witnesses.

He allowed Mrs. Rock to testify.

She said in response to questions from her counsel which were these:

"Did you intend to kill your husband? "

"No, I loved him, I would not shoot him. "

"Did you ever point the gun at him? "

"No".

There was ample evidence in the record that it was an accident.

Unknown Speaker: He's not terribly generous to let her testify to that.

That's certainly clearly admissible.

Mr. Clark: But she was not in the instance--

Unknown Speaker: You may not believe it, but--

Mr. Clark: --Your Honor, disqualified as a witness to participate in her own defense.

And that's what I'm simply saying to you is that the xxx.

Unknown Speaker: --The important part of her, what she wanted to testify to was excluded and was consistent with other physical evidence.

Mr. Clark: Well arguably consistent, Your Honor, with other physical evidence.

Unknown Speaker: xxx.

Mr. Clark: The experts say it's possible that, under your hypothetical it would be a different situation, of course.

Unknown Speaker: Mr. Attorney General, I thought that this lady purported to testify, wanted to testify to what she now said she independently recollects.

That it's just as though there had never been any hypnosis.

I remember this now.

This is, my finger was here.

And if that's the case, I don't see what interference there is with cross examination anymore than there would be in the usual case.

She says, I do remember it now.

I didn't use to remember it, but my memory's been refreshed somehow.

Mr. Clark: Now, Your Honor--

Unknown Speaker: But I remember it now and I will tell you the whole story, Mr. Prosecutor.

Mr. Clark: --I would submit that your hypothetical is inconsistent with this case but in response to your hypothetical, Your Honor--

Unknown Speaker: Why is it inconsistent?

Mr. Clark: --I don't think she independently could remember that her finger was extended along the side of the weapon.

Unknown Speaker: I asked the counsel as to what she purported to testify to and he says it's her independent recollection, post hypnotic recollection.

Mr. Clark: But, her post hypnotic recollection, I submit to the Court was enhanced and may be the direct result of fabrication.

Unknown Speaker: That may be.

That may be, but she claims that she now recollects it.

Mr. Clark: But she doesn't know the difference I submit to this Court, Your Honor, in terms of what she did know pre-hypnosis and post hypnosis.

In the first hypnotic trance, Your Honor, she was asked what she saw.

She never remembered a specific at all about the gun or her position of her hand on the gun.

In the second trance, Your Honor, after five questions from the hypnotist.

Five questions about the gun, the location of her hand on the gun, was her thumb on the trigger?

Where was her finger?

You have a situation where the hypnotist is inducing a response.

Unknown Speaker: Well, that may be, but there was no testimony, she wasn't purporting to testify to what she said during hypnosis.

She was purporting to testify to what she now remembered.

Mr. Clark: Yes, Your Honor, that's correct.

The point I make to this Court is that--

Unknown Speaker: She didn't even remember what she said during hypnosis, did she?

Mr. Clark: --Your Honor, I don't think she remembered all of what she said during hypnosis.

I think that's correct.

The point I try to make to this Court is that what she remembered post hypnosis she cannot separate fact from fiction.

That which was suggested and she accepted the suggestion as a result of the hypnosis.

Unknown Speaker: Well how do you know that?

Mr. Clark: I only know that, Your Honor, in the sense that the process called hypnosis leads an individual and it's in varying degrees, Your Honor, to suggestibility, to lowered critical reasoning and judgment, to a willingness to try to find acceptance to respond in the affirmative acceptance answer to the questions that are asked and that because of that what we simply know is we don't know what Mrs. Rock really knew or what she responded in trying, as I said earlier, to escape from two kinds of prisons.

xxx.

Unknown Speaker: Counsel, I'll ask you the question I asked of your opponent?

Have you ever been hypnotized?

Mr. Clark: No, Your Honor, I have not.

Unknown Speaker: You constantly refer to Ms. Back.

She was a doctor, was she not?

Mr. Clark: Yes, Your Honor, she was.

A Ph.D.--

Unknown Speaker: A Ph.

D?

Mr. Clark: --Yes, Your Honor.

Unknown Speaker: So that your reference to her is not an attempt to down grade her testimony.

Mr. Clark: No, Your Honor, I would apologize to the Court.

That was not the intent at all.

She was a Ph.

D, Psycho Psychologist.

Unknown Speaker: What is a psycho psychologist?

What she xxx.

[Laughter]

A psychologist with a stutter or is it...--

[Laughter]

Was she board certified?

Mr. Clark: I would have to plead ignorant to what is a psycho psychologist, Your Honor, and could not find a clear definition xxx.

Unknown Speaker: Is there a physio psychologist?

Mr. Clark: I do not know, Your Honor, xxx.

Unknown Speaker: From what college that gives a Ph.D. in hypnosis?

Mr. Clark: I'm not aware of any, Your Honor.

Unknown Speaker: Well you said she had a Ph.D.--

Mr. Clark: Her Ph.D. is in psychology not in hypnosis, Your Honor.

Unknown Speaker: --Well many psychologists certainly are capable of administering hypnosis.

Mr. Clark: Oh yes, Your Honor, that's correct.

There are lots of individuals--

Unknown Speaker: xxx.

Mr. Clark: --including many psychologists who can do that.

Unknown Speaker: Some lawyers can.

Mr. Clark: Yes, Your Honor, that's correct, too.

In the instant case, I submit to this Court, the petitioner was not denied any due process by the exclusion of this hypnotically enhanced testimony.

Since this veteran trial judge, as I stated, did show great deference and latitude to Mrs. Rock, in allowing her to participate in her own defense through her live testimony, this case is simply one where the Arkansas court has properly applied a rule to fundamentally insure in Arkansas and protect that truth finding function of the jury and thereby enable the jury to make decisions rationally and not based on guess work and that rule, I submit does not offend any section or provision of the Constitution, or any of those protected safeguards afforded a criminal defendant.

And for that reason, the Arkansas rule and the Arkansas decision should be affirmed.

Rebuttal of James M. Luffman

Chief Justice Rehnquist: Thank you, General Clark.

Mr. Luffman, you have four minutes remaining.

Mr. Luffman: Thank you, Mr. Chief Justice.

I'm not at all enough familiar with the process to say unequivocally what hypnosis is in the sense that I can testify to it from personal experience, but I know that from the point of view of looking at it from the legal process that I see little difference in that process and the process of a lawyer going over and over and over a story with the witness, which any good lawyer does, in preparation for trial so he'll be able to withstand cross examination.

I'm not even sure that I can see the difference if the witness listened to his own story on tape at night while he's asleep.

The ultimate issue, I think, here is that jury question issue and that is whether this case is going to stand as the first case in recent legal history where a defendant in a criminal case who was an eyewitness to the alleged crime was not allowed to tell the jury what happened according to her own present waking memory.

Unknown Speaker: Mr. Luffman, that's not unthinkable.

Let me quote you from Nix v. Whiteside where we said that until the latter part of the preceding century criminal defendants in this country as at common law, were considered to be disqualified from giving sworn testimony at their own trial, by reason of their interest as a party to the case.

So until the 1900s your client wouldn't have been able to testify at all in many states.

And that was not considered to violate the Constitution.

Now, this is a close question here.

Even if we hold that you now have to let defendants as a matter of constitutional law, although you didn't in the 1800s, even though you have to let them testify, how can we go so far as to say that this close call must go in one way rather than another given the history of testimony by defendants?

Mr. Luffman: I think the answer is a combination of two cases, first Nix v. Whiteside as I understand it says that certainly the right to testify is now a Fourteenth Amendment right.

Unknown Speaker: It's assumed to be.

Mr. Luffman: It's assumed to be.

And I would apply to that, you know, to that question the Chambers reasoning that where the state evidentiary rules or, even though there may be good reason for them, when they are applied in such a way so that a criminal defendant does not have that fundamental right of fairness to tell his story to the jury then due process is violated.

Because two things, number one, the inherent value on allowing an individual accused of a crime to tell his story and number two, the traditional function as between the judge and the jury.

And that determination of reliability and inherent worth of the testimony is historically and traditionally the function of the jury and I think properly so.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Luffman.

The case is submitted.