# Rock v. Arkansas/Dissent Rehnquist

Cite as: Rock v. Arkansas, 483 U.S. 44, 62 (1987) (Rehnquist, C.J., dissenting).
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CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting.
In deciding that petitioner Rock's testimony was properly limited at her trial, the Arkansas Supreme Court cited several factors that undermine the reliability of hypnotically induced testimony. Like the Court today, the Arkansas Supreme Court observed that a hypnotized individual becomes subject to suggestion, is likely to confabulate, and experiences artificially increased confidence in both true and false memories following hypnosis. No known set of procedures, both courts agree, can insure against the inherently unreliable nature of such testimony. Having acceded to the [p63] factual premises of the Arkansas Supreme Court, the Court nevertheless concludes that a state trial court must attempt to make its own scientific assessment of reliability in each case it is confronted with a request for the admission of hypnotically induced testimony. I find no justification in the Constitution for such a ruling.
In the Court's words, the decision today is "bottomed" on recognition of Rock's "constitutional right to testify in her own defense." Ante, at 49. While it is true that this Court, in dictum, has recognized the existence of such a right, see, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975), the principles identified by the Court as underlying this right provide little support for invalidating the evidentiary rule applied by the Arkansas Supreme Court.
As a general matter, the Court first recites, a defendant's right to testify facilitates the truth-seeking function of a criminal trial by advancing both the "'detection of guilt'" and "'the protection of innocence.'" Ante, at 50, quoting Ferguson v. Georgia, 365 U.S. 570, 581 (1961). Such reasoning is hardly controlling here, where advancement of the truth-seeking function of Rock's trial was the sole motivation behind limiting her testimony. The Court also posits, however, that "a rule that denies an accused the opportunity to offer his own testimony" cannot be upheld because, "[l]ike the truthfulness of other witnesses, the defendant's veracity . . . can be tested adequately by cross-examination." Ante, at 52. But the Court candidly admits that the increased confidence inspired by hypnotism makes "cross-examination more difficult," ante, at 60, thereby diminishing an adverse party's ability to test the truthfulness of defendants such as Rock. Nevertheless, we are told, the exclusion of a defendant's testimony cannot be sanctioned because the defendant "'above all others may be in a position to meet the prosecution's case.'" Ante, at 50, quoting Ferguson v. Georgia, supra, at 582. In relying on such reasoning, the Court apparently forgets that the issue before us arises only by virtue [p64] of Rock's memory loss, which rendered her less able "to meet the prosecution's case." 365 U.S., at 582.
In conjunction with its reliance on broad principles that have little relevance here, the Court barely concerns itself with the recognition, present throughout our decisions, that an individual's right to present evidence is subject always to reasonable restrictions. Indeed, the due process decisions relied on by the Court all envision that an individual's right to present evidence on his behalf is not absolute and must often-times give way to countervailing considerations. See, e.g., In re Oliver, 333 U.S. 257, 273, 275 (1948); Morrissey v. Brewer, 408 U.S. 471, 481–482 (1972); Goldberg v. Kelly, 397 U.S. 254, 263 (1970). Similarly, our Compulsory Process Clause decisions make clear that the right to present relevant testimony "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); see Washington v. Texas, 388 U.S. 14, 22 (1967). The Constitution does not in any way relieve a defendant from compliance with "rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers v. Mississippi, supra, at 302. Surely a rule designed to exclude testimony whose trustworthiness is inherently suspect cannot be said to fall outside this description.
This Court has traditionally accorded the States "respect . . . in the establishment and implementation of their own criminal trial rules and procedures." 410 U.S., at 302–303; see, e.g., Marshall v. Lonberger, 459 U.S. 422, 438, n.6 (1983) ("[T]he Due Process Clause does not permit the federal [p65] courts to engage in a finely tuned review of the wisdom of state evidentiary rules"); Patterson v. New York, 432 U.S. 197, 201 (1977) ("[W]e should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States"). One would think that this deference would be at its highest in an area such as this, where, as the Court concedes, "scientific understanding . . . is still in its infancy." Ante, at 61. Turning a blind eye to this concession, the Court chooses instead to restrict the ability of both state and federal courts to respond to changes in the understanding of hypnosis.
The Supreme Court of Arkansas' decision was an entirely permissible response to a novel and difficult question. See National Institute of Justice, Issues and Practices, M. Orne et al., Hypnotically Refreshed Testimony: Enhanced Memory or Tampering with Evidence? 51 (1985). As an original proposition, the solution this Court imposes upon Arkansas may be equally sensible, though requiring the matter to be considered res nova by every single trial judge in every single case might seem to some to pose serious administrative difficulties. But until there is much more of a consensus on the use of hypnosis than there is now, the Constitution does not warrant this Court's mandating its own view of how to deal with the issue.

## Notes

* ↑ The Court recognizes, as it must, that rules governing "testimonial privileges [and] nonarbitrary rules that disqualify those incapable of observing events due to mental infirmity or infancy from being witnesses" do not "offend the defendant's right to testify." Ante, at 55–56, n.11. I fail to discern any meaningful constitutional difference between such rules and the one at issue here.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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