William H. Rehnquist: We'll hear argument now in Number 86-130, Vickie Lorene Rock v. Arkansas. Mr. Luffman, you may proceed whenever you're ready.
James M. 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--
Byron R. White: What was it she was proposed to testify about?
James M. Luffman: --She proposed to testify that her finger was not on the trigger. That--
Byron R. White: Was she going to testify about what she remembered under his hypnosis. What she said--
James M. Luffman: --She was going--
Byron R. White: --She was going to testify what her answers were while she was hypnotized?
James M. 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.
Byron R. White: Well didn't she make some responses during hypnosis?
James M. Luffman: Yes, she did. And did not--
Byron R. White: And she remembered making them afterwards or does she claim that those were her independent recollections afterwards?
James M. 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.
Byron R. White: So she says that something happened to me during hypnosis that made me later remember it.
James M. 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.
Byron R. White: But after hypnosis she remembered it, whereas she didn't before?
James M. 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. "
Sandra Day O'Connor: Mr. Luffman,-- --xxx. Go ahead.
James M. Luffman: Yes, ma'am.
Sandra Day O'Connor: 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?
James M. 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.
Sandra Day O'Connor: 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--
James M. Luffman: Yes, ma'am.
Sandra Day O'Connor: --And that doesn't violate a constitutional right because the court makes rulings like that does it?
James M. 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.
Sandra Day O'Connor: 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?
James M. 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--
Sandra Day O'Connor: 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?
James M. 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.
Antonin Scalia: 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?
James M. 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.
Antonin Scalia: 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.
James M. Luffman: I think a judge could leave it to a jury. I think he could leave it to a jury.
Antonin Scalia: 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?
James M. Luffman: I think that the medium's testimony would be held to be incompetent and I think would be properly excludable.
Antonin Scalia: 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.
James M. Luffman: I--
Antonin Scalia: What of it is suggestion and what isn't?
James M. 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.
Lewis F. Powell, Jr.: Mr. Luffman, was there any record of the hypnosis?
James M. 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.
Lewis F. Powell, Jr.: Were they played for the jury?
James M. Luffman: No, sir. They were not. They were played only for the trial judge prior to the hearing.
Lewis F. Powell, Jr.: With a video tape?
James M. Luffman: No, sir. It was an audio tape only.
Lewis F. Powell, Jr.: What's the custom with respect to how you record that sort of occasion? Do you regularly tape it now?
James M. 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.
Harry A. Blackmun: xxx. Have you ever been hypnotized?
James M. Luffman: No, Mr. Justice Blackmun, I haven't.
Harry A. Blackmun: Do you know of any instance where the prosecution in Arkansas has used witnesses that have been subjected to hypnotism.
James M. 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.
William H. Rehnquist: Are you arguing that what's sauce for the goose isn't sauce for the gander in Arkansas under this rule?
James M. Luffman: It's certainly wasn't in this case, Mr. Chief Justice.
William H. Rehnquist: Well but you haven't made that argument anywhere in your brief I don't think, have you?
James M. 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.
Antonin Scalia: Mr. Luffman,--
James M. 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.
Antonin Scalia: --Well we don't know the basis for the Arkansas Supreme Court's opinion. I mean,--
James M. Luffman: That's correct, Mr.--
Antonin Scalia: --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?
James M. Luffman: --That's correct, Mr. Justice Scalia, that's why I noted that it was dismissed without opinion.
Antonin Scalia: So it really isn't a sauce for the goose, sauce for the gander proposition we have in front of us.
James M. 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--
Antonin Scalia: Right.
James M. Luffman: --xxx.
Antonin Scalia: But you're not asking us to censor the prosecutor.
James M. Luffman: No, I'm not, Mr. Justice.
Antonin Scalia: You're asking us to strike down the Arkansas Law?
James M. Luffman: No, I'm not, Mr. Justice Scalia.
Byron R. White: xxx case that there's no, that the record doesn't indicate sufficiently that her testimony after hypnosis was caused by the hypnosis.
James M. Luffman: That's correct, Mr. Justice White. There is no, there is nothing--
Byron R. White: 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.
James M. 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--
Byron R. White: --Well, but the courts below thought it was, didn't they? Are we supposed to decide that factual issue?
James M. 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.
Byron R. White: Well he wouldn't let her testify.
James M. Luffman: That's correct.
Byron R. White: Which meant that he had to think that this was caused by hypnosis.
James M. 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.
William H. Rehnquist: 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.
James M. 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.
William H. Rehnquist: But we're basically reviewing the judgment of the Supreme Court of Arkansas. We don't ordinarily make independent factual findings here.
James M. 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.
William H. Rehnquist: Well, how does that advance your argument?
James M. 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.
William H. Rehnquist: And you're saying--
James M. Luffman: In so many--
William H. Rehnquist: --whether or not that testimony was caused by hypnotically induced recollection, it should have been allowed under the Constitution.
James M. Luffman: --That's correct, Mr. Chief Justice.
Thurgood Marshall: 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.
James M. Luffman: In this case--
Thurgood Marshall: Not in this case. In any case.
James M. 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.
Thurgood Marshall: 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?
James M. 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--
Thurgood Marshall: 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.
James M. Luffman: --My argument again is that it's just much too broad.
Thurgood Marshall: I think you're real argument is that it applies to you.
James M. 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.
Antonin Scalia: 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.
James M. Luffman: I think--
Antonin Scalia: 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.
James M. 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.
John Paul Stevens: 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?
James M. Luffman: The prosecuting attorney was advised of such by the defense counsel when they were exchanging lists of witnesses.
John Paul Stevens: And one of your witnesses--
James M. Luffman: And the defense counsel listed as a witness, Dr. Betty Back, who was the hypnotist.
John Paul Stevens: --And she, of course, did not testify at the trial?
James M. Luffman: She testified at the pre-trial hearing--
John Paul Stevens: At the pre-trial.
James M. Luffman: --not at the trial.
John Paul Stevens: And the record is gone but I assume she testified that she did not suggest this particular recollection to the witness. Is that right?
James M. 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.
Antonin Scalia: 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?
James M. 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.
William H. Rehnquist: But you agree then that getting at it by demeanor testimony would be ruled out in this situation.
James M. Luffman: Not necessarily, I think it could be. But, I don't think that it's necessarily so that it could. Thank you.
Speaker: Thank you, Mr. Luffman. We'll hear now from you General Clark.
J. Steven 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,--
William H. Rehnquist: 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.
J. Steven 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.
Harry A. Blackmun: And yet prosecutors in Arkansas have used hypnotized witnesses, have they not.
J. Steven 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.
John Paul Stevens: But did they know about it at the time of trial?
J. Steven 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.
John Paul Stevens: 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.
J. Steven Clark: No, Your Honor, I'm not suggesting that. Although--
John Paul Stevens: 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?
J. Steven Clark: --Yes, Your Honor, that is correct.
John Paul Stevens: 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.
J. Steven 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.
Thurgood Marshall: But it was given before the judge?
J. Steven Clark: Yes, Your Honor. It was proffered.
Thurgood Marshall: It was given. The judge heard the testimony.
J. Steven Clark: Yes, that's correct, Your Honor. He heard the testimony.
Thurgood Marshall: What happened at the hearing?
J. Steven Clark: He heard the tapes. Yes, Your Honor, what happened is here.
Thurgood Marshall: Could that have influenced the judgment.
J. Steven 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--
Thurgood Marshall: Like what? What was misleading?
J. Steven Clark: --Well in the second instance, Your Honor--
Thurgood Marshall: It was in your opinion, it was misleading.
J. Steven Clark: --Your Honor, I would submit it was in the opinion of the trial judge and I certainly concur with that.
Thurgood Marshall: xxx.
J. Steven Clark: And the Arkansas Supreme Court--
Thurgood Marshall: I don't think you can speak for the trial judge. xxx.
J. Steven Clark: --Yes, Your Honor.
John Paul Stevens: 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--
J. Steven Clark: Yes, Your Honor. The Arkansas Supreme Court has ruled per se that this testimony is inadmissible because of its inherent--
John Paul Stevens: --Because it's frequently unreliable.
J. Steven 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--
John Paul Stevens: Well, why wouldn't this be a matter of expert testimony?
J. Steven Clark: --Well then--
Byron R. White: xxx on reliability and depending on what the jury, which expert the jury believed.
J. Steven 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.
Byron R. White: 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.
J. Steven 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.
Byron R. White: Well, I know. But that's the issue here. The court said we exclude this because it's inherently unreliable.
J. Steven 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.
William H. Rehnquist: How do we know this? How do you know it, what you've just been saying.
J. Steven 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.
William H. Rehnquist: 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?
J. Steven 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.
John Paul Stevens: 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?
J. Steven 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--
John Paul Stevens: 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.
J. Steven 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--
John Paul Stevens: What if you had a, say there are drugs as I understand that are called truth, and I can't remember the name.
J. Steven Clark: --Yes, Your Honor.
John Paul Stevens: 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?
J. Steven Clark: Those drugs are, I think, Sodium Ambithal and Sodium Pentothal and others.
John Paul Stevens: Right. That's right.
J. Steven 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.
John Paul Stevens: But your rule as I understand this case, doesn't even allow the trial judge discretion to admit this testimony.
J. Steven Clark: No.
John Paul Stevens: Even if he was persuaded by the pre-trial hearing he'd say I'm sorry, we have a flat rule against.
J. Steven 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--
John Paul Stevens: Right.
J. Steven Clark: --shown to have been known before the hypnotic trance.
John Paul Stevens: How will you enforce this rule against an unscrupulous defense lawyer who just doesn't tell you about hypnotic sessions.
J. Steven 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.
John Paul Stevens: 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.
J. Steven 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--
John Paul Stevens: Yeah.
J. Steven 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.
Antonin Scalia: How does that work when you don't know, when there is no record of what was recollected prior to the hypnotic suggestion?
J. Steven Clark: Well, Your Honor,--
Antonin Scalia: Would xxx the witness--
J. Steven 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.
Antonin Scalia: --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.
J. Steven Clark: Under the Arkansas rule, your Honor,--
Antonin Scalia: I wouldn't be able to testify at all.
J. Steven 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--
Antonin Scalia: No, not to anything that was a product of that hypnosis. I would not be able to testify to anything.
J. Steven Clark: --No, Your Honor, I submit--
Antonin Scalia: Isn't that right?
J. Steven 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--
Antonin Scalia: Oh, sure, sure.
J. Steven Clark: --with your husband, those things you could.
Antonin Scalia: 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.
J. Steven Clark: Yes, Your Honor, that is correct. That is the Arkansas rule and I submit to this Court that that is not unconstitutional xxx.
Antonin Scalia: 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.
J. Steven Clark: Yes, Your Honor.
Thurgood Marshall: 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.
J. Steven Clark: No, Your Honor, I don't believe that witness would be thrown out for the fact that--
Thurgood Marshall: Why not?
J. Steven 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--
Thurgood Marshall: Well how many years does he have to go to qualify?
J. Steven Clark: --Your Honor, that's the problem with this hypnosis itself. I don't know.
Thurgood Marshall: Well if he goes--
J. Steven Clark: Comedians, dentists, lawyers, anyone can do hypnosis.
Thurgood Marshall: --as many years as this person did.
J. Steven Clark: Your Honor?
Thurgood Marshall: This hypnotist.
J. Steven 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.
Thurgood Marshall: Uh-huh.
J. Steven 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--
Thurgood Marshall: Well then why, well why did they have a hearing?
J. Steven Clark: --Had a hearing, Your Honor, I think in the instance--
Thurgood Marshall: Had a hearing to find out of it was reliable.
J. Steven Clark: --Yes, Your Honor.
Thurgood Marshall: Well how is it so inherently unreliable that you have to have a hearing to find out if it is?
J. Steven Clark: Well in this instance I--
Thurgood Marshall: It's either one or the other.
J. Steven 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--
Thurgood Marshall: I know that.
J. Steven Clark: --the prosecution had notice they asked for a hearing to have that testimony excluded.
Thurgood Marshall: And if he had found that it was reliable, he would of let it in.
J. Steven Clark: I submit, Your Honor, yes he would have, but he did not.
Thurgood Marshall: Well, of course he would of. He would have been reversed by the--
J. Steven Clark: He would have been reversed by the Arkansas court, yes, Your Honor.
Thurgood Marshall: --That's not certain to me. I'm not certain.
J. Steven 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--
Harry A. Blackmun: There's no pretention here that this was a lie, is there?
J. Steven 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.
Harry A. Blackmun: Well it seems to me that a lot of what you're arguing here is great grist for a jury argument.
J. Steven 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.
John Paul Stevens: 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.
J. Steven Clark: Yes, Your Honor, I think the answer to that is yes. xxx.
John Paul Stevens: And this very case could of been of the expert who subsequently examined the gun and come up with the opposite conclusion.
J. Steven 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.
John Paul Stevens: I presume she was prepared to acknowledge that. That's what she said, she didn't pull the trigger.
J. Steven 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.
John Paul Stevens: He's not terribly generous to let her testify to that. That's certainly clearly admissible.
J. Steven Clark: But she was not in the instance--
John Paul Stevens: You may not believe it, but--
J. Steven 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.
John Paul Stevens: --The important part of her, what she wanted to testify to was excluded and was consistent with other physical evidence.
J. Steven Clark: Well arguably consistent, Your Honor, with other physical evidence.
John Paul Stevens: xxx.
J. Steven Clark: The experts say it's possible that, under your hypothetical it would be a different situation, of course.
Byron R. White: 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.
J. Steven Clark: Now, Your Honor--
Byron R. White: But I remember it now and I will tell you the whole story, Mr. Prosecutor.
J. Steven Clark: --I would submit that your hypothetical is inconsistent with this case but in response to your hypothetical, Your Honor--
Byron R. White: Why is it inconsistent?
J. Steven Clark: --I don't think she independently could remember that her finger was extended along the side of the weapon.
Byron R. White: I asked the counsel as to what she purported to testify to and he says it's her independent recollection, post hypnotic recollection.
J. Steven Clark: But, her post hypnotic recollection, I submit to the Court was enhanced and may be the direct result of fabrication.
Byron R. White: That may be. That may be, but she claims that she now recollects it.
J. Steven 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.
Byron R. White: 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.
J. Steven Clark: Yes, Your Honor, that's correct. The point I make to this Court is that--
Byron R. White: She didn't even remember what she said during hypnosis, did she?
J. Steven 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.
Byron R. White: Well how do you know that?
J. Steven 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.
Harry A. Blackmun: Counsel, I'll ask you the question I asked of your opponent? Have you ever been hypnotized?
J. Steven Clark: No, Your Honor, I have not.
Harry A. Blackmun: You constantly refer to Ms. Back. She was a doctor, was she not?
J. Steven Clark: Yes, Your Honor, she was. A Ph.D.--
Harry A. Blackmun: A Ph. D?
J. Steven Clark: --Yes, Your Honor.
Harry A. Blackmun: So that your reference to her is not an attempt to down grade her testimony.
J. Steven Clark: No, Your Honor, I would apologize to the Court. That was not the intent at all. She was a Ph. D, Psycho Psychologist.
Antonin Scalia: What is a psycho psychologist? What she xxx. [Laughter] A psychologist with a stutter or is it...-- Was she board certified?
J. Steven Clark: I would have to plead ignorant to what is a psycho psychologist, Your Honor, and could not find a clear definition xxx.
Antonin Scalia: Is there a physio psychologist?
J. Steven Clark: I do not know, Your Honor, xxx.
Thurgood Marshall: From what college that gives a Ph.D. in hypnosis?
J. Steven Clark: I'm not aware of any, Your Honor.
Thurgood Marshall: Well you said she had a Ph.D.--
J. Steven Clark: Her Ph.D. is in psychology not in hypnosis, Your Honor.
Harry A. Blackmun: --Well many psychologists certainly are capable of administering hypnosis.
J. Steven Clark: Oh yes, Your Honor, that's correct. There are lots of individuals--
Harry A. Blackmun: xxx.
J. Steven Clark: --including many psychologists who can do that.
Harry A. Blackmun: Some lawyers can.
J. Steven 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.
William H. Rehnquist: Thank you, General Clark. Mr. Luffman, you have four minutes remaining.
James M. 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.
Antonin Scalia: 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?
James M. 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.
Antonin Scalia: It's assumed to be.
James M. 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.
William H. Rehnquist: Thank you, Mr. Luffman. The case is submitted.


William H. Rehnquist: We'll hear argument first this morning in Number oh oh one five one nine, United States against Ralph Arvizu. Mr. Schlick.
Austin C. Schlick: Mr. Chief Justice, and may it please the Court. Since Terry, this Court has held repeatedly that reasonable suspicion analysis requires a common sense evaluation of the totality of the circumstances. The decision below is fundamentally inconsistent with that rule because it requires law enforcement officers to disregard potentially relevant facts when determining whether investigative stop is warranted. This Court's decisions in Cortez and Sokolow are especially clear in rejecting attempts to put categories of facts off limits. In Cortez, the Court held that a vehicle's route, the timing of its trip, and its capacity for carrying carrying illegal aliens together established reasonable suspicion, notwithstanding that each of those facts independently might be consistent with innocent travel. In Sokolow, the Court rejected a rule that would have limited officers' ability to consider the personal characteristics of suspected drug smugglers. The Court held that that sort of rule adds to the difficulty of applying the reasonable suspicion standard. It does not ease it. And the Court further confirmed that innocent facts, facts consistent with innocent travel, in themselves may together establish reasonable suspicion. In this case, the Ninth Circuit attempted to establish a rule that would bar categorically consideration of certain facts that the court deemed innocent. That that rule presents two fundamental problems. The first is that it doesn't accommodate the subtleties of real world encounters. For every categorical rule, there would have to be exceptions and subrules, and even if law enforcement officers could be asked to master those, they would still then have to anticipate new situations, and those rules could not provide guidance when...
Ruth Bader Ginsburg: Mr. Schlick, you said we'd- this is an area in which one can use one's common sense, and I thought that what the Ninth Circuit was telling us was that some items in that list under all circumstances wouldn't cast suspicion. And one was cert- had a certain familiar ring with me that when you see a police car, you slow down. This wasn't a car that came to a screeching halt or was trying to dodge it, and then it just slowed down. And isn't that a most natural reaction?
Austin C. Schlick: The problem, Justice Ginsburg, was that the Ninth Circuit didn't admit of situations in which deceleration might be relevant. For example, in the Fifth Circuit's Villalobos case, which we cited in our brief, the law enforcement officer pulled in front of the vehicle that was suspected. The vehicle then slowed to drop back away from the law enforcement vehicle, and the Border Patrol officer in that case deemed that suspicious, that it appeared the vehicle had changed its speed in order to increase its distance from the law...
Ruth Bader Ginsburg: But they weren- weren't talking about that case. They were talking about this case. And I thought what they were saying was that there was nothing suspicious about the slowdown here, and if that's all that you have, s- it it won't do.
Austin C. Schlick: Justice Ginsburg, we read the court of appeals opinion as attempting to establish categorical rules. On page twelve A of the petition appendix, the court says, we attempt here to describe and clearly delimit the extent to which certain factors may be considered by law enforcement officers in making su- in stops such as the stop here. On the same page, slowing down after spotting a law enforcement vehicle is an entirely normal response that is in no way indicative of criminal activity. That that appears not to have made a possibil- of the possibility that deceleration may in some context be suspicious. And indeed, in the Ninth Circuit's Sigmond-Ballesteros case, decided after this case, the Ninth Circuit interpreted its decision in this case as holding that only certain factors may be considered by law enforcement officers when making stops. And it's it's that categorical rule that is inconsistent with the totality of the circumstances test. [Inaudible]
Antonin Scalia: I suppose it would be suspicious if i- if you're on a highway that has not only a maximum speed but a minimum speed, and and the car slows down twenty miles below the minimum when it when it sees a police officer. That that wouldn't be a normal reaction, would it?
Austin C. Schlick: No, it d- it ordinarily would not.
Antonin Scalia: And d- and do you think it's a normal reaction always to slow down when one sees a police a police car even if you happen to be going ten miles below the speed limit already?
Austin C. Schlick: It It may depend on the particular area, and that's that may be a question on which you would look to the law enforcement officer's experience and expertise.
Antonin Scalia: I don't do it. Maybe you do it. But if I'm ten miles under the speed limit already, I I don't immediately slow down when I see a police car. I I don't know why you are willing to accept that as a as an image of reality that everybody slows down when you see a police car. If you're if you're going over the speed limit, I assume you do. [Inaudible]
Austin C. Schlick: I I think your intuition accords wi- with common experience and the holdings of most courts.
Ruth Bader Ginsburg: The There was a concrete record here of what this driver was doing, and he wasn't going ten miles an hour. He was going a a normal speed.
Austin C. Schlick: Justice Ginsburg, on page fifty seven of the joint appendix, Agent Stoddard testified that the extreme deceleration in this case, from about fifty to fifty five miles per hour down to about twenty five or thirty miles per hour, was not normal and did set respondent's vehicle apart from ordinary traffic on those roads.
Antonin Scalia: What was the speed limit on the roads?
Austin C. Schlick: uh Between twenty five miles per hour and thirty five miles per hour, Your Honor.
Ruth Bader Ginsburg: And that's what he slowed down...
Ruth Bader Ginsburg: to... That was...
William H. Rehnquist: an established speed limit?
Austin C. Schlick: Yes, Your Honor.
Antonin Scalia: What what was the portion where where he slowed down? I mean, it was twenty five to thirty five? No.
Austin C. Schlick: I I I don't know for sure.
Ruth Bader Ginsburg: But that's what he slowed down to.
Austin C. Schlick: That...
Antonin Scalia: Well, That sounds a lot more reasonable then.
Austin C. Schlick: Again, Agent Stoddard testified that that sort of deceleration, that speed, was not common in the area, and it...
Speaker: I mean, that might be an error...
Antonin Scalia: zipping along at fifty despite seeing a police car.
William H. Rehnquist: It's Arizona.
Austin C. Schlick: No, Mr. Chief Justice.
Anthony M. Kennedy: Is this the one on exhibit five of the joint appendix, or have I got the wrong road there? This Exhibit five is Kuykendall Cutoff Road and Rucker Canyon Road.
Austin C. Schlick: Yes, Justice Kennedy.
William H. Rehnquist: Well, he turned left rather than right, didn't he?
Austin C. Schlick: I'm sorry.
William H. Rehnquist: The idea that he would eventually go north on Kuykendall and then take go west to rejoin one ninety one north of the checkpoint.
Austin C. Schlick: That that's right, and then head up to I ten, which would allow him to go to Tucson Tucson or Phoenix, for example.
Sandra Day O'Connor: Although it is a route that could have been used by people going up to the Chiricahuas.
Speaker: It's it's possible, Your Honor, but...
Austin C. Schlick: the district court addressed that possibility on page twenty two A of the petition appendix and said that that would require a forty or fifty mile trip over unimproved dirt roads.
Antonin Scalia: Mr. Schlick, could I come back to the to the slowing slowing up? u- a- I'm I'm not quite sure what the what the Government's objection to the court's opinion is.
Austin C. Schlick: In this case, Justice Scalia, the deceleration is is not a factor on which the case would turn.
Speaker: discuss in a moment.
Antonin Scalia: that factor, y- your your really your only objection is you can't be as categorical as the court of appeals put the point.
Austin C. Schlick: That's that's exactly right.
John Paul Stevens: May may I ask this question? At the very page of the opinion that you call our attention to, the court of appeals said, in reaching our conclusion, we find that some of the factors on which the district court relied are neither relevant nor appropriate to a reasonable suspicious suspicion analysis in this case.
Austin C. Schlick: Justice Stevens, we would say that it had some relevance.
John Paul Stevens: Do you think the court of appeals erred in saying that in this case it had no relevance?
Austin C. Schlick: er Yes, Justice Stevens.
John Paul Stevens: I see.
Antonin Scalia: And what about what about, you know, not not waving to the police car as you go by? I don't know when I if I were ever exceeding the speed limit and saw and saw a police car, it seems to me I would slow down and and try to give the impression that I wasn't slowing down because I saw the police car.
Austin C. Schlick: Agent Stoddard's testimony was that both respondent and his front-seat adult passenger stared straight ahead.
Antonin Scalia: Or maybe somebody who had been going fifty miles an hour in a twenty five mile-an-hour zone.
Austin C. Schlick: Again, Agent Stoddard's testimony was was that respondent's behavior wa- it was very unusual.
William H. Rehnquist: What's the testimony as to the amount of use this particular route got? How how many cars a da- a day, anything about how many cars a day or an hour came over it?
Austin C. Schlick: The testimony, Mr. Chief Jus- Mr. Chief Justice, was that this road the sensor hits on the Border Patrol maintains sensors along Leslie Canyon Road and Rucker Canyon Road, and that the first sensor on Leslie Canyon Road, which responded to northbound traffic, was triggered about once every two hours.
Speaker: . So,
William H. Rehnquist: car every two hours?
Austin C. Schlick: Correct.
Speaker: and that's going to...
Ruth Bader Ginsburg: things the Ninth Circuit said is just looking at this laundry list and just to throw everything in and mix it all up and say it's suspicious that the driver didn't look at the police officer or didn't wave, but it's equally suspicious that the children did wave.
Austin C. Schlick: Twelve, ten and seven.
Ruth Bader Ginsburg: And the children were waving in the back, and something was to be inferred from that?
Austin C. Schlick: er They weren't simply waving, Your Honor.
Antonin Scalia: They were waving forward.
Austin C. Schlick: Correct.
Antonin Scalia: And and the car the police c- the Border Patrol car was behind them.
Austin C. Schlick: Correct.
William H. Rehnquist: To to what extent, Mr. Schlick, do three judges, say, sitting in San Francisco or Los Angeles or nine Justices sitting here do we defer to the judgment in these matters of a Border Patrol agent on the scene?
Austin C. Schlick: Ornelas, among other cases, addressed that, Your Honor, and and held that it's appropriate to give due weight to the expertise and experience of law enforcement officers and local judges.
John Paul Stevens: May I ask this question? I get the impression, in reading the officer's testimony, what he really did is once he checked and found where the car came from, where it was registered in a high drug area, that's what triggered his decision to stop the vehicle.
Austin C. Schlick: If you...
Speaker: As I understand...
John Paul Stevens: things like waving and slowing down and so forth.
Austin C. Schlick: As as I understand your question, no, I don't think they would be.
Speaker: concealed cargo...
John Paul Stevens: is part of the location, as I say.
Austin C. Schlick: Is in your hypothetical, Justice Stevens, is the fact that it was a minivan?
Speaker: [Inaudible]
Austin C. Schlick: Yes, yes.
John Paul Stevens: In other words, you're saying what you're saying I think is that even if the Ninth Circuit were correct in disregarding the waving and the slowing down and the failure to wave once, you'd still have probabl- a s- a reasonable suspicion.
Austin C. Schlick: Yes, Justice Stevens.
John Paul Stevens: I have a que- another question, if you if you if you have the time.
Speaker: I'm just a little puzzled...
John Paul Stevens: at what the at the setup here, why there's the checkpoint thirty miles from the border, and whether or not there was one closer to the border.
Austin C. Schlick: There is a border inspection station in in Douglas, but the Court explained in Martinez-Fuerte the th- the the criteria the Border Patrol uses to establish its fixed checkpoints, and I think those criteria continue to hold true today.
John Paul Stevens: And then the other question I had is about the sensors.
Austin C. Schlick: The sensors are magnetic sensors which are directional.
Speaker: local traffic...
John Paul Stevens: not only the northbound, but also the fact that he turned right the first time er le- with fa- on the left the first time.
Austin C. Schlick: Yes.
Speaker: the national forest.
Austin C. Schlick: That's right.
John Paul Stevens: Yeah.
William H. Rehnquist: Very well, Mr. Schlick.
Victoria A. Brambl: Mr. Chief Justice, and may it please the Court I wanted to respond to the question that you asked, Mr. Chief Justice, about who should we give due weight to and who is going to know better, the officer in the field, the district court, or the court of appeals.
William H. Rehnquist: All those that type of opinion seems to me contrary to our opinion in Sokolow where we said you just can't categorize these kind of factors and say that v- this kind of thing is never useful and something else is always useful.
Victoria A. Brambl: I think that all the parties agree that the totality cannot have categorical rules because...
William H. Rehnquist: Well, then then certainly you you must you're not defending then some parts of the Ninth Circuit opinion.
Victoria A. Brambl: I think that some of the language that the Ninth Circuit used was inartful in that it made it sound if you take one sentence out of the whole opinion, it would make it sound like they were creating categorical rules.
Speaker: instruction and guidance.
Stephen G. Breyer: I was quite disturbed actually by the opinion because I thought there were five or six Supreme Court cases that say this is just the kind of opinion you should not write.
Victoria A. Brambl: Well, I certainly agree that that there may be circumstances in which where you live or slowing down could be.
Antonin Scalia: Maybe maybe we really don't know enough to say that.
Victoria A. Brambl: Well, the agent like so many of the factors in this case, the agent didn't really tie down or tie into his experience why slowing down would be predictive or indicative of not just speeding but of criminal activity such as alien or drug smuggling, which was the reason that he was out there.
Antonin Scalia: Well, he said, people, when they see my Border Patrol car, normally don't slow down.
Victoria A. Brambl: Well...
Antonin Scalia: Do you know, as a matter of fact, whether Border Patrol agents give speeding tickets?
Victoria A. Brambl: I think that that's an open question.
Antonin Scalia: It's an open question whether they give speeding tickets?
Victoria A. Brambl: But I believe that they generally...
Antonin Scalia: Don't they have other things to do?
Victoria A. Brambl: They do have other things to do.
Ruth Bader Ginsburg: Ms. Brambl, the the district court ruled for the Government in this case, and the Ninth Circuit reversed.
Victoria A. Brambl: Well, the district court judge did refer to that, but what's what the the court of appeals picked up on, which the district court didn't, was all of the inferences that and subjective beliefs that this waving entailed because it wasn't just the the children were facing forward and waving forward.
Stephen G. Breyer: How do we know from the record what kind of wave it was? What what he says in his testimony is they kind of stuck their hands up and began waving to me like this.
Victoria A. Brambl: Well, I think that that goes to the heart of the issue presented by this case, which is what can the court of appeals exclude as factors, even if they do it on a case-by-case basis.
Sandra Day O'Connor: But it does seem as though the Ninth Circuit was trying to suggest that no other court could consider it in the calculus either in the future and and was making some kind of effort to develop some more rigid guidelines than we've seen in the past.
Victoria A. Brambl: Well, I certainly agree that totality a- and reasonableness has to remain flexible, and that given the times that we live in, that perhaps adjustments are going to be made.
William H. Rehnquist: When When When we have said that the test is totality of the circumstances, the amount of guidance that can be provided by by a court is is somewhat limited.
Victoria A. Brambl: It is but there's a surprising repetition of factors.
William H. Rehnquist: A surprising repetition of factors by the Ninth Circuit.
Victoria A. Brambl: Well well, even this Court in Ornelas recognized that certain fact patterns were similar, such as Sokolow and Royer and a few others, that really given how fact-specific they are, there really is, especially when you start looking in border areas where for instance, there are a number of stops where there are checkpoints and and people claiming that perhaps these people are on the road for checkpoint evasion...
Speaker: purposes.
William H. Rehnquist: you know, checkpoints vary too.
Victoria A. Brambl: Well, sure.
Anthony M. Kennedy: Well, that's that that's true.
Victoria A. Brambl: Well , the Ninth Circuit, even since this opinion, still examines all of the factors.
Stephen G. Breyer: You have a a point that's a serious point I think.
Speaker: Okay.  Now, what do we...
Stephen G. Breyer: do about that? I had thought that the way to deal with it is totality of the circumstances is the way to deal with it, not having rigid rules that say you can never consider whether his he was sweating or wasn't sweating.
Victoria A. Brambl: Well, I think that the solution is to allow courts like the Ninth Circuit and other circuits to say, look, we see the same thing time and time again, and it really has very little or no meaning.
David H. Souter: But but that e- an- and I I I think your your point is is well taken as far as you go, but it seems to me that that's not going to help the Ninth Circuit opinion here because what you're saying is don't rely on highly general factors which are so general that we really, in the abstract, don't know where they point.
Victoria A. Brambl: Well, as as I said, the the language the Ninth Circuit used could have been a lot more clear and a lot more artful.
David H. Souter: Well, it might have said what you said, but it didn't say what you said.
Victoria A. Brambl: Well, they did say frequently, and in effect, when there was a rehearing in this case, they amended the opinion to add under the circumstances of this case and in this case on many, many times.
Speaker: think that...
Ruth Bader Ginsburg: not often enough.
Victoria A. Brambl: It would have helped.
Speaker: [Inaudible]
Ruth Bader Ginsburg: because initially the opinion did read categorically we don't consider slowing down, we don't consider kids waving, and then they threw in a lot of under the circumstances in this case, not in in every instance, but in a number of cases to.
Victoria A. Brambl: And I think you're right.
Ruth Bader Ginsburg: Well, one thing that the circuit didn't do and it it did puzzle me was when I read the district court's opinion, I thought the district court was saying, yeah, I could go along with they're in a recreation area.
Victoria A. Brambl: That's true, but the Ninth Circuit did point out and if you look at the map that's on page one fifty seven of the joint appendix that's the map that we submitted in connection with this case and that the District Court and the the Ninth Circuit considered it shows that it's got a lot more detail, as far as a lot of the destinations.
Speaker: stop occurred.
Victoria A. Brambl: Yes.
William H. Rehnquist: Yeah.
Victoria A. Brambl: Once you turn onto that road and you keep going, you can see on to the east there's a number of campgrounds, a number of areas, including...
William H. Rehnquist: The Chiricahua?
Victoria A. Brambl: Yes.
William H. Rehnquist: Yeah, but f- to go from Douglas to Chiricahua National Monument would be er would be extremely odd to go the route this minivan took.
Victoria A. Brambl: Well, the van was appropriate for that road and the conditions, and I would point out that when the agent had...
Speaker: But,
William H. Rehnquist: if it's appropriate, if it's i- it's also appropriate to go on a paved highway, I take it.
Victoria A. Brambl: Well, sure, but...
William H. Rehnquist: I mean, why why would you go up this very winding road to a place that you can get to much more quickly by going up a paved highway?
Victoria A. Brambl: It might be a a matter of preference and and and taste.
Speaker: and...
William H. Rehnquist: Yeah ye- bu- s- you know, all of these factors as as Justice Breyer sugge- we're not saying that they would prove guilt beyond a reasonable doubt or that they would amount to probable cause.
Victoria A. Brambl: But it isn't suspicious for a family from Douglas to use a road that leads right from Douglas, that start out that starts out ten miles paved, to go through a beautiful area up to perhaps Chiricahua Monument or some of the areas along there on the...
Speaker: It it sort of is...
William H. Rehnquist: Yeah you you you can't s- i- it's obviously nothing crimin- But wh- wh- what do what did the respondent say, that he was going to meet somebody there?
Victoria A. Brambl: That's correct.
William H. Rehnquist: Wh- wh- What's how does that tie in with going to a re- recreational area?
Victoria A. Brambl: Well well, it really doesn't because we know that he was involved in illegal activity, but that's the hindsight of what the officer found after the stop.
John Paul Stevens: Would you comment on on a phase of the case that keeps com- puzzling me? The the sensors on the road.
Victoria A. Brambl: Well well, I think what's important to recognize is when you look at the maps, there aren't too many roads that lead anywhere from Douglas because it's right on the border.
Speaker: happened to be...
John Paul Stevens: suspicious if there is a much more of a rapid route available, rapid and comfortable.
Victoria A. Brambl: Well, they were going fifty to fifty-five...
Speaker: miles per hour.
Victoria A. Brambl: And there was no testimony that the car was flying the van was flying all over the place, whi- which tells me and the pictures bear it out is that this wasn't it was a dirt road and it was in a a fairly isolated area, not full of houses and and whatnot.
John Paul Stevens: It's not only an isolated area, but the testimony was that the people who normally used the road were locals, ranchers or others, that it was not a road frequently traveled by families.
Victoria A. Brambl: However, the testim- that was the testimony by the Border Patrol...
Speaker: agent.
Victoria A. Brambl: The investigator from our office testified that this road was used and enjoyed by all kinds of families.
Speaker: visiting the area...
John Paul Stevens: that suggests that every time somebody trips the sensor, they go out and take a look at them.
Victoria A. Brambl: That's true.
Speaker: Yeah.
Victoria A. Brambl: and it would be a shame if if every family on a road like that or on that road in a minivan on a holiday would be subject to heightened scrutiny just because this happens to be a road where smugglers sometimes use it.
Speaker: A- are is...
Stephen G. Breyer: there any indication there ever has been such a family?
Victoria A. Brambl: [Inaudible]
Stephen G. Breyer: I mean, I imagine if there were an innocent family happened to accidentally come from an area where there is a lot of smuggling, and that doesn't you know, not everybody is a smuggler in such an area.
Victoria A. Brambl: W- Well, one of the problems with with Fourth Amendment issues is that the vast majority of innocent people that are protected by the Fourth Amendment often remain silent when they are subjected to arbitrary or or random stops.
Antonin Scalia: Well I I'd feel much more sympathetic to to that person th- th- than tha- than I would to your client who who whose whose argument essentially is, yes, I was indeed a smuggler, but an- and he suspected me to be a smuggler and he turned out to be right.
Victoria A. Brambl: It doesn't.
Speaker: court.
Antonin Scalia: not saying it's conclusive.
Victoria A. Brambl: Well, the problem is there weren't really any factors or...
Speaker: infere-
Ruth Bader Ginsburg: know one know about the stops of of someone who is a perfectly law-abiding citizen? Nobody is pressing charges against them.
Victoria A. Brambl: That's exactly right.
Speaker: short.
William H. Rehnquist: ju- just before the shift change is an individualized factor.
Speaker: Well...
William H. Rehnquist: it i- we're not saying that i- a- anytime someone comes along this road it's suspicious.
Victoria A. Brambl: Well, it's certainly forty five minutes before a sh- shift change when perhaps, depending on where the agents are out in the field, some of them may be returning back.
Speaker: Would you explain to me...
John Paul Stevens: the significance of the shift change? I frankly didn't quite understand.
Victoria A. Brambl: Well, the Border Patrol claims that smugglers, in general, are aware of when they change...
Speaker: shifts and...
John Paul Stevens: difference would it make? does that make?
Victoria A. Brambl: Well, the thought is that smugglers would then think they're getting by because all of the agents are at the s- at the station.
Speaker: But the idea...
Sandra Day O'Connor: would be that the Border Patrol agents were all at the checkpoint and wouldn't be out in the field to to be able to follow up on any information from the sensor.
Victoria A. Brambl: Th- That's exactly right.
Speaker: And...
John Paul Stevens: I still don't understand because that would be at the moment of the change.
Victoria A. Brambl: Well,
Speaker: sure. It...
John Paul Stevens: really puzzled...
Victoria A. Brambl: A- And that's the point we were able to make in the the record that the the court of appeals reviewed, which is that when exactly when shift change would occur and when the...
Speaker: agent...
William H. Rehnquist: you, Ms. Brambl.
Victoria A. Brambl: Thank you.
William H. Rehnquist: Mr. Schlick, you have five minutes left.
Austin C. Schlick: Mr. Chief Justice, unless the Court has further questions, we submit that the judgment of the court of appeals should be reversed.
John Paul Stevens: Tell me.
Austin C. Schlick: Certainly, Justice Stevens.
Speaker: to the checkpoint...
Austin C. Schlick: on I one ninety one.
John Paul Stevens: He'd be be driving back, but at the same time the sensors are working.
Speaker: I just...
John Paul Stevens: don't understand it.
Austin C. Schlick: That's true.
Speaker: that...
John Paul Stevens: record tell us whether it was generally known that there were sensors on this road?
Austin C. Schlick: The record does not.
John Paul Stevens: I just had the feeling it might be a different case if they just put a sign up saying, strangers in this area are subject to stop if they're not you know, if they're not local people.
Austin C. Schlick: Certainly, Justice Stevens, the smugglers are well aware of the location of the checkpoint and the route to to evade it.
John Paul Stevens: But not of the sensors you think.
Austin C. Schlick: I I I I can't answer that question.
Stephen G. Breyer: A- are there any is there anything in the record that suggests at all, or i- anywhere, that there are other fam- there are families, that sometimes people do use this for picnics? They like sightseeing.
Austin C. Schlick: The record does include evidence that the recreation areas off of Rucker Canyon Road if...
Speaker: respondent...
Stephen G. Breyer: one of them, but there's one further to the north.
Austin C. Schlick: No, Justice Breyer.
William H. Rehnquist: Thank you, Mr. Schlick.