Orne, M.T., Dinges, D.F., & Orne, E.C. Rock v. Arkansas: Hypnosis, the defendant’s privilege. International Journal of Clinical and Experimental Hypnosis, 1990, 38, 250-265.

The International Journal of Clinical and Experimental Hypnosis 1990, Vol. XXXVIII, No. 4, 250-265



The Institute of Pennsylvania Hospital and University of Pennsylvania, Philadelphia

Abstract: In Rock v. Arkansas (1987) the United States Supreme Court ruled in a 5 to 4 decision that the constitutional rights of defendants to testify on their own behalf take precedence over whatever state rules exist regarding exclusion of hypnotically refreshed testimony. The problem of denying defendants their constitutional rights was the reason we have argued that defendants' hypnotically refreshed testimony should generally be permitted, whereas the unreliability of hypnotically elicited memories and the manner in which hypnosis diminishes the effectiveness of cross-examination make the general exclusion of testimony from hypnotized witnesses essential (M. T. Orne, 1982). We discuss the Rock case, as well as the majority and minority opinions expressed by the United States Supreme Court, and offer reasons why a bifurcated standard--one that admits hypnotically refreshed testimony from defendants and excludes it from witnesses--is consistent both with the Court's ruling and with the scientific evidence regarding the use of hypnosis, as well as being an appropriately fair way in which to protect the constitutional rights of the defendant and the state.

Although the admissibility of hypnotically refreshed testimony has been a matter of legal controversy in the United States for the past 20 years, with many lower courts and state supreme courts adjudicating the issue, Rock v. Arkansas (1987) was the first occasion on which the Supreme Court of the United States expressed an opinion specifically on this matter. The decision reached by the high court concerning the case has engendered its own controversy, however, stemming in large part, the authors believe, from an unwillingness or inability to appreciate the crucial distinction made by the Court in its ruling. The present paper seeks to examine the case, and the Court's decision as well as that of the dissenting Justices, in the context of the position we have maintained


Manuscript submitted January 17, 1990; final revision received June 4, 1990.

1 The substantive evaluation upon which this paper was based was supported in part by grant 87-IJ-CX-0052 from the National Institute of Justice, U.S. Department of Justice, in part by grant MH44193 from the National Institute of Mental Health, U.S. Public Health Service, and in part by a grant from the Institute for Experimental Psychiatry Research Foundation.

2 The authors wish to thank the following colleagues for their comments on an earlier version of this manuscript: Wayne G. Whitehouse, Seymour Halleck, Daniel Kristol, Ephraim Margolin, Jonas Rappeport, Thomas Worthington, and the anonymous reviewers.

3 Reprint requests should be addressed to Martin T. Orne, M.D., Ph.D., Institute of Pennsylvania Hospital, 111 North 49th Street, Philadelphia, PA 19139-2798.




regarding scientific evidence for hypnotically refreshed memory and the problems that result from it (M. T. Orne, 1979; M. T. Orne, Soskis, Dinges, & E. C. Orne, 1984; M. T. Orne, Soskis, Dinges, E. C. Orne, & Tonry, 1985; M. T. Orne, Whitehouse, Dinges, & E. C. Orne, 1988).


Case Facts

The question raised in Rock v. Arkansas was fundamental. Can a court bar a defendant from testifying on her own behalf because she had been previously hypnotized? The trial court ruled that no hypnotically refreshed testimony would be admitted, and it limited the defendant's testimony to a reiteration of her statements taken prior to hypnosis and as reported in the doctor’s notes. The defendant was convicted. The Arkansas Supreme Court (Rock v. State, 1986) affirmed the conviction, ruling that the limitations on her testimony did not violate her constitutional right to testify on her own behalf, and that her hypnotically refreshed testimony was inadmissible per se because hypnotically refreshed testimony is unreliable.

Thus, the decision faced by the United States Supreme Court specifically dealt with the conflict created between the right of the defendant to speak on his or her own behalf and the unreliability of testimony based upon "hypnotically aided" recollections. The facts of the case are summarized 4 in the United States Supreme Court's decision:

Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. ...That night a fight erupted when Frank refused to let petitioner eat some pizza and prevented her from leaving the apartment to get something else to eat. ...When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. ...According to the testimony of one of the investigating officers, petitioner told him that "she stood up to leave the room and [her husband] grabbed her by the throat and choked her and threw her against the wall and…at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him".…

Because petitioner could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis in order to refresh her memory. Petitioner was hypnotized twice…after the hypnosis, she was able to remember that at the time of the incident she had her thumb on the hammer of the gun, but had not held her finger on the trigger. She also recalled that the gun had discharged when her husband grabbed her arm during the scuffle. ...As a result of the details that petitioner was able to remember about the shooting, her counsel arranged for a gun expert to examine the handgun. …That inspection revealed that the gun was defective and prone to fire, when hit or dropped, without the triggers being pulled. ...[Rock v. Arkansas, 1987, pp. 1-3].

4 Many quotations are cited in this paper. However, footnotes to the quotes are included in entirety here only if they bear directly on the points of the present paper.


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Opinion of the Court

The majority opinion, written by Justice Blackmun, with Justices Brennan, Marshall, Powell, and Stevens concurring, pointed out that the

petitioner's claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense [Rock v. Arkansas, 1987, p.5].

The majority opinion of the Court focused on the fact that the Arkansas rule did not allow a trial court to consider whether posthypnotic testimony may be admissible in a particular case; it is a per se rule on the grounds that such testimony is always unreliable. The opinion makes a point in a footnote that a trial judge has no discretion to admit such testimony even if he/she is persuaded of its reliability by testimony of experts at a pretrial hearing. It noted also that Arkansas took the position that the petitioner is fully responsible for any prejudice that resulted from restricting her testimony because it was she who chose to use the technique of hypnosis. However, the opinion noted "that Arkansas had given no previous indication that it looked with disfavor on the use of hypnosis to assist in the preparation for trial and there were no previous state-court rulings on the issue [Rock v. Arkansas, 1987, Note 13, p. 12]."

The majority opinion indicated also that the Arkansas Supreme Court followed the opinions of a number of states which maintain that hypnotically enhanced testimony should be excluded at trial on the grounds that it tends to be unreliable. The United States Supreme Court's majority observed, however, that other states had adopted the exclusionary rule for the testimony of witnesses but not for the testimony of defendants. The Court's decision also recognized that although the Arkansas court concluded that any testimony that cannot be proved to be the product of prehypnosis memory is unreliable, other courts have eschewed a per se rule and permit the admission of hypnotically refreshed testimony under certain circumstances.

The Court's ruling was critical also of the fact that the Arkansas court relied on a California State Supreme Court ruling (People v. Shirley, 1982a) for much of its reasoning as to the unreliability of hypnosis, rather than performing "the constitutional analysis necessary when a defendant's right to testify is at stake--Rock v. Arkansas, 1987, p. 13]." Moreover, the Court noted that although the Arkansas court relied on People v. Shirley for its per se exclusion rule, it failed to recognize that the final revised ruling (People v. Shirley, 1982b) by the California State Supreme Court explicitly excepted testimony by an accused to avoid impairing the right of the defendant to testify in his/her own behalf. (Interestingly, as will be seen later in the present paper, the testimonial affidavit of the first author [M. T. Orne, 1982] in the case of People v. Shirley (1982a) urged the California State Supreme Court to confine its per se exclusion



of hypnotically refreshed testimony to nondefendants in order to avoid the very problem that arose in the case of Rock v. State, 1986!)

The latter part of the majority United States Supreme Court opinion entails a brief discussion of the effect of hypnosis on memory. The Court observed that" despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence [Rock v. Arkansas, 1987, p. 16]." It was stated that "the inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards [p. 16]," such as those of M. T. Orne (1979). The Justices acknowledged that "such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject's own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions [p. 16]."

The Court asserted that more traditional means of assessing accuracy of testimony also remain applicable in the case of previously hypnotized defendants. Information may be verified as highly accurate by corroborating evidence, and "cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies [Rock v. Arkansas, 1987, p. 16]." The Court noted that a jury can be educated by expert testimony and cautionary instructions, and added that it is probably to the defendant's advantage to establish carefully the extent of his or her memory prior to hypnosis in order to minimize the decreased credibility that the procedure might introduce.

With regard to the use of hypnosis in general and the Arkansas case in particular, the Court concluded that,

We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant's testimony that the defendant is unable to prove to be the product of prehypnosis memory [Rock v. Arkansas, 1987, p. 17, emphasis in original].

This conclusion, however, applies expressly to defendants. Earlier in the opinion the United States Court acknowledged that "this case does not involve the admissibility of testimony of previously hypnotized witnesses other than criminal defendants and we express no opinion on that issue [Note 15, p. 14]."

Dissenting Opinion

The minority opinion in this 5 to 4 decision was written by Chief Justice Rehnquist, with Justices White, O'Connor, and Scalia concurring. It contains some important points that are succinctly stated:

In deciding that petitioner Rock's testimony was properly limited at her trial, the Arkansas Supreme Court cited several factors that under-


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mine 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 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." ...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.' " ... 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.". .. But the Court candidly admits that the increased confidence inspired by hypnotism makes "cross-examination more difficult," ...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.' " ...In relying on such reasoning, the Court apparently forgets that the issue before us arises only by virtue of Rock's memory loss, which rendered her less able "to meet the prosecution's case." 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. ...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." ...Surely a rule designed to exclude testimony whose truthworthiness is inherently suspect cannot be said to fall outside this description [p.3].

The dissenting opinion emphasized in a footnote that:

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." ...I fail to discern any meaningful constitutional difference between such rules and the one at issue here [p.3].

The opinion concludes by stating:

This Court has traditionally accorded the States "respect...in the establishment and implementation of their own criminal trial rules and



procedures." ...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." ...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 trial judge in every single case might seem to some to pose serious administrative difficulties. But until there is a much more general 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 [Rock v. Arkansas, 1987, pp.3-4].


The Problem of Excluding a Defendant's Hypnotically Refreshed Testimony

In 1982, when the Supreme Court of California was promulgating the decision that was among the most restrictive ever taken toward hypnotically refreshed testimony (People v. Shirley, 1982a), an affidavit challenging the decision was filed and the court invited comments about the decision. In response to a Justice's question, one of the points made in oral argument by the attorney for the defense was that if the state were to be prevented from using hypnotically created testimony with witnesses, it would be quite appropriate to give up the possibility of hypnotizing defendants. In short, he was suggesting that neither side be permitted to use hypnotically tainted testimony, or to put it pithily as he did, "what is good for the goose is good for the gander."

This comment found its way into the first version of the Shirley decision (1982a). There were some other major issues relating to the use of hypnosis with victims but they are not relevant here. At that time, we were concerned that per se exclusions that included the defendant, were likely to provoke constitutional questions- -a concern that clearly came to pass in Rock v. Arkansas. In anticipating the problem of per se exclusions that included defendants as well as nondefendants, the first author presented an affidavit to the California State Supreme Court in 1982 in the case of People v. Shirley wherein he argued the following:

The use of hypnosis with defendants at their own request raises a difficult and complex issue. The defendant is, of course, highly motivated to exonerate himself, and this motivation must be taken into account in assessing his response. The situation of the patient seeking help for personal discomfort is quite different from someone who is facing a charge of murder and asks to be hypnotized. It would be naive to assume that these differences in motivation do not tend to reflect themselves in what is produced during hypnosis.

It is relevant that the individual can purposively lie even when deeply hypnotized (see Orne, 1961), and despite occasional assertions to the


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contrary, most notably by lay hypnotists, there is no reliable way of preventing the hypnotized subject from lying. Perhaps most relevant is that hypnosis can readily be simulated by untutored individuals. ...

In view of these observations, judicial skepticism of hypnotic testimony by defendants becomes comprehensible and perhaps even reasonable. While from a psychiatric point of view there is a profound difference between the reliability of testimony elicited during hypnosis from a defendant as opposed to someone who lacks the intense motivation to document his innocence, there may also be legal issues which balance the scales differently concerning the defendant's right to testify in his own behalf [emphasis added].

The only serious problem would arise if hypnosis were used to elicit a confession because, given a highly responsive subject, the possibility of a false confession under these circumstances is increased considerably. On the other hand, the risk to the legal system that a defendant's memory be distorted by hypnosis in his favor is probably disproportionately small. Thus, judges and juries expect defendants' statements to be self-serving and designed to present him in the best possible light. [pp. 30-31].

For these and other reasons, the People v. Shirley decision (1982b) was amended to permit testimony by previously hypnotized defendants. It is noteworthy, however, that the courts have been far more concerned about the use of hypnosis with witnesses or victims than with defendants, and it cannot be emphasized enough that the United States Supreme Court's ruling in Rock v. Arkansas concerns only defendants. Clearly, the affidavit given to the California State Supreme Court urged it not to prevent hypnotized defendants from testifying. This should not necessarily be taken to mean that a per se exclusionary rule is unjustifiable however. Certainly in a case such as Rock v. Arkansas, the minority opinion written by Chief Justice Rehnquist stresses that a per se exclusionary rule affecting defendants can be within constitutional and evidentiary guidelines. In any case, the most serious problem that can arise when hypnosis is used by the prosecution with defendants concerns elicitation of false confessions. Fortunately, the Supreme Court of the United States has been very explicit about the unacceptability of this procedure in Leyra v. Denno (1954).

Is Cross-Examination the Answer to the Use of Hypnosis?

Although the United States Supreme Court's decision in Rock v. Arkansas clearly pertained to defendants only, some have used it as impetus to advance the view that whenever hypnosis is used with either witnesses or defendants, they should be permitted to testify because cross-examination will effectively uncover the truth. Indeed, the United States Supreme Court decision states, when discussing the problems of hypnotically refreshed testimony by defendants, that "cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies [Rock v. Arkansas, 1987, p. 16]." As Chief Justice Rehnquist pointed



out, however, the Court's ruling is not consistent on the matter with regard to hypnosis, since the majority decision also stated that when hypnosis is used "the subject experiences 'memory hardening,' which gives him great confidence in both true and false memories, making effective cross-examination more difficult [p. 15]."

There is ample evidence from many experiments (see M. T. Orne et al., 1988) to document the following four points: (a) the fundamental unreliability of recollections elicited in hypnosis; (b) the persistence of these recollections in the waking condition; (c) the difficulty the person has in retrospectively distinguishing memories that existed prior to hypnosis from those elicited in hypnosis (Whitehouse, E. C. Orne, M. T. Orne, & Dinges, in press); and (d) the unwarranted increase or maintenance of confidence in the accuracy of hypnotically elicited recall, which thereby reinforces its credibility. These considerations compel the conclusion that hypnotically induced memories should never be permitted to form the basis for testimony by witnesses or victims in a court of law. They are discussed below in light of their relevance to the Rock v. Arkansas decision.

Effect of hypnosis on memory. As it stands, Rock v. Arkansas states clearly that the defendant's right to be heard takes precedence over any unreliability that is introduced into a defendant's testimony by the use of hypnosis. It is somewhat troubling, however, that the majority opinion says,

Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence [Rock v. Arkansas, 1987, p. 16].

The claim, however, that a technique resulted in leads in some case or cases does not logically or factually dictate that the technique qualifies as a provider of truth in all cases. For example, psychics have been credited with occasionally giving investigative leads; however, we have not as yet heard of a court that accepts the testimony of psychics as reliable.

In considering Rock v. Arkansas, it should be recognized that hypnosis has not been shown to increase accurate memory (for a recent review see M. T. Orne et al., 1988), and the Court did not conclude such. In hypnosis the tendency to confabulate is greatly enhanced. Moreover, this tendency to fill in for memories that are not available makes the recall of the hypnotized person more compelling. In filling in the gaps, hypnotized individuals will often use things they believe, or have heard about and consider reasonable, or cues from the hypnotist in creating coherent recollections. Consequently, what were beliefs prior to hypnosis may, during or after hypnosis, come to be experienced as actual memories.


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While the scientific data fail to provide meaningful support of the view that hypnosis can increase memory, there is a strong temptation to assume that this technique must nonetheless be effective. For example, in Rock v. Arkansas, the majority opinion speaks of corroboration of what happened during the shooting because the gun apparently could be made to fire by a sudden impact, without the trigger being pulled directly. But such isolated consistency cannot be taken as solid evidence--legal or scientific--that hypnosis enhanced the defendant's memory, because ground truth is not known to confirm or dispute it. Nor should it form the basis for assuming that hypnotically elicited memories are therefore accurate--it does not follow logically that because recollection A was corroborated as possible, that recollection B will also be accurate (cf. Diamond, 1980). Finally, it does not mitigate the potential harm done by introducing hypnotically refreshed testimony of a witness (see AMA Council on Scientific Affairs, 1985).

The inability to recapture prehypnotic memory. Hypnosis not only results in new memories being confabulated, it also contaminates a subject's prehypnotic recall, making it impossible to recapture the actual memories that were present prior to hypnosis. As in Rock v. Arkansas, hypnosis is most frequently used forensically with persons who either cannot recall the details of what happened, who have a gap in their memory, or who are uncertain of their recollections. Indeed, it is the fact that hypnosis can fill in and create memories as well as instill confidence in them that makes it appear so effective.

Following hypnosis, the altered "memories" are typically accepted by the individual like any other past memories and continue into waking recall (testimony). This is not a matter of intentional lying and cannot be rectified by trying harder, but rather hypnosis creates what Spiegel (1980) has referred to as the "honest liar." If asked to identify whether the memory occurred prior to hypnosis or during hypnosis, subjects simply cannot do so reliably and, in fact, typically erroneously attribute virtually all memories to prehypnotic recollections (Whitehouse et al., in press).5 Since the memory has been altered by hypnosis, and the subject can no longer identify the source of the memory (whether from seeing the event prior to hypnosis or from "seeing" the event in hypnosis), in effect the prehypnotic memory no longer exists- -despite witnesses' claims to the contrary.

It is this inability of hypnotized individuals to identify the source of their memories that breaks the back of the argument that witnesses

5 Research has actually carried this one step further and used subjects who are certain from the beginning about their prehypnotic memories and hypnotized them to implant a pseudomemory. When these subjects were confronted with the fact that their posthypnotic recollection was actually based in a pseudomemory injected during hypnosis, many remained unshakable in their conviction that the "memory" (implanted pseudomemory) was accurate and derived from their prehypnotic recollection (Laurence & Perry, 1983).



who have been hypnotized should be permitted to testify as to their prehypnotic memories, whether or not hypnotic memories are admissible. The justification for this derives from the argument that the trier of fact can resolve such matters, especially if educated by experts in the field about the problems associated with hypnosis. On first glance this position might have appeal--although it does create a potential growth industry for experts to educate triers of fact--but it assumes that jury education about hypnosis compensates for the loss of effectiveness from cross-examination of a confident witness whose prehypnotic memories are tainted by hypnosis. Mickenberg (1983) addresses this point thusly:

It is incredible that a court would adopt this rationale to justify the admission of pre-hypnotic memories. One of the main reasons for prohibiting the use of post-hypnotic facts is that educating juries as to the effects of hypnosis has proven insufficient to compensate for the defendant's loss of cross-examination. ...Such attempts to educate jurors frequently degenerate into swearing contests between rival experts and are ineffective in dispelling popular misconceptions of hypnotic recall. ...Moreover, no amount of jury education can protect a defendant when the prosecutor uses hypnosis to "create" a confident and seemingly reliable witness out of a previously unbelievable character.

An excellent example of this danger is provided in United States v. Narciso, ...in which a mentally disturbed alcoholic, by any standard an unreliable and easily impeachable witness, was made confident and credible by hypnosis. Under the standard adopted in Patterson, ...the hypnotically-bolstered alcoholic in Narciso would be permitted to testify as long as the defendant could call experts to inform the jury of the possible effects of hypnosis. ...This is exactly the sort of unjust result that courts sought to avoid by rejecting the per se admissibility rule. There is simply no reason to believe that jury education, a remedy that is inadequate to dispel the dangers of post-hypnotic evidence, will be any more effective in solving the identical problems of pre-hypnotic recall [p. 972].

Once hypnosis is used, the witness' prehypnotic memory is tampered with irreparably. Not only are new "memories" brought forth in hypnosis unreliable, but the process confounds the manner in which the witness perceives and recounts prehypnotic memories. It is, therefore, naive to suggest that previously hypnotized subjects can give testimony as to their prehypnotic memories--the ability to testify regarding the original event is inevitably altered in a manner that neither the subject him/herself, an expert, the adversary, nor the trier of fact can undo.

Because there can be no assurance that the witness is testifying in his own words and demeanor, or even from personal recollection, the witness fails to meet the traditional standards for competency regarding the subject matter of the hypnosis session…[Mickenberg, 1983, p. 973].

This issue, namely that hypnosis does not merely taint the testimony of the subject, but taints the subject him/herself, was recognized by the California State Supreme Court in People v. Shirley. Thus, the inability to recapture prehypnotic memory prevents effective cross-examination.


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Effect of hypnosis on confidence and credibility. There is extensive scientific evidence that hypnosis will tend to increase the hypnotized person’s confidence in his or her recollections even as it facilitates less accurate recall (Dinges, M. T. Orne, Whitehouse, E. C. Orne, Powell, & Erdelyi, 1987; M. T. Orne et al., 1984, 1988; Sanders & Simmons, 1983; Whitehouse, Dinges, E. C. Orne, & M. T. Orne, 1988). This increased confidence also derives from the fact that the hypnotized subject is likely to believe that he or she is providing more accurate memories. Thus, the hypnotized witness is often more credible because of the conviction with which he/she asserts his/her recollection, since the demeanor of a witness, and particularly the level of confidence the witness conveys regarding his or her testimony, are major determinants of perceived credibility (Lindsay, Wells, & Rumpel, 1981; Wells, Lindsay, & Ferguson, 1979).

In a recent major review of the data on the effects of hypnosis on memory and perceived credibility (M. T. Orne et al., 1988), we observed the following:

Another factor known to influence the credibility of a witness's testimony is the amount of peripheral detail he or she provides in recounting the events in question (see the analysis of John Dean's Watergate testimony in Neisser, 1982; see also Wells & Leippe, 1981). A shift in report criterion caused by hypnosis is one mechanism through which hypnotically accessed memories can differ from normal recollections in terms of a greater quantity of detail. Similarly, the inclination to confabulate and to draw inferences to fill in missing information is apparently greater in hypnosis, and, as a consequence, can render the memory reports of hypnotized individuals deceptively more believable than normal recall (e.g., Stalnaker & Riddle, 1932) [p. 47].

...Thus, there is evidence that either hypnotic responsiveness or the effect of a hypnotic induction procedure, or both, serve to encourage the reporting of inferential and peripheral information. A consequence of this additional detail in the memory report is to endow such testimony with greater credibility [p. 48].

In light of Rock v. Arkansas, the controversy over whether or not hypnosis severely compromises the effectiveness of cross-examination forms the crux of the debate over whether hypnotically refreshed testimony should be admissible in court (e.g., Udolf, 1990). It is difficult to see how one can adopt the position that cross-examination can resolve the problems created by hypnosis if one accepts the scientific data showing that hypnotic recollections are unreliable but likely to be accompanied by increased confidence, which persists into the posthypnotic waking condition (e.g., during testimony) and which increases their credibility. Their introduction into court is further complicated by the fact that the previously hypnotized person cannot reliably identify whether the "memory" occurred prior to or during hypnosis (Whitehouse et al., in press). As Chief Justice Rehnquist points out in the dissenting opinion in the Rock case,



the Court candidly admits that the increased confidence inspired by hypnotism makes "cross-examination more difficult,"…thereby diminishing an adverse party's ability to test the truthfulness of defendants such as Rock [p. 2].

Hence the task of cross-examination of a previously hypnotized individual is as much one of attempting to undo a major psychological shift in the subject's memory and belief in that memory, as it is of discerning the truthfulness of the memory.

With regard to how some courts have tended to view this issue, Mickenberg (1983) has commented:

Significantly, most jurisdictions that bar hypnotically-induced testimony do so on grounds even broader than the unreliability of hypnosis as a memory restorative. Recognizing the tendency of hypnotized subjects to confuse pre-hypnotic and post-hypnotic memories (Orne, 1979) and to emerge from hypnosis with an artificially strong confidence in the enhanced recall (Diamond, 1980), the courts have finally realized that conventional means of cross-examination and impeachment are ineffective against the hypnotized witness. ...Accordingly, courts have held the use of hypnotically-induced testimony to also be a violation of a defendant's sixth amendment right to confront and cross-examine witnesses…[pp. 968-969].


The ruling in Rock v. Arkansas allows for the testimony of hypnotized defendants but it states that it does not address the issue of admissibility of testimony from hypnotized witnesses. Because of this, it has been argued that the latter should be permitted out of fairness to both sides, since the right of the hypnotized defendant to testify is mandated by the Court (see Udolf, 1990). In short, proponents of the position urge that there be no double standard when it comes to the admissibility of hypnotically refreshed testimony of defendants and witnesses.

What the "fairness" argument fails to acknowledge is that it is far more likely that a miscarriage of justice will be done by admitting the hypnotically altered testimony of witnesses and victims than of defendants. In fact, it is patently less "fair" to admit hypnotically refreshed testimony from witnesses than from defendants because the hypnotized witness's testimony often becomes part of the accusatory "evidence," yet before hypnosis such witnesses could not provide credible testimony (or there would be no need to hypnotize them). In a recent law review of Rock v. Arkansas, Kuplicki (1988) articulated this issue and the inequity it imposes, proposing instead a bifurcated rule similar to the final ruling in People v. Shirley.

By transcending concerns for the potential unreliability of hypnosis and refining the judicial role in making evidentiary decisions regarding testimony derived therefrom, the rule in Rock places questions of the admissibility of hypnotically refreshed testimony within a preliminary constitutional framework. ...The fifth, sixth, and fourteenth amend-


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ments ...appropriately afford criminal defendants liberal opportunity to present a defense. Consequently, when offering hypnotically refreshed testimony, the defense is subject to a low standard of admissibility. However, whether this translates into a lower standard than that which the prosecution must meet when offering similar testimony is not addressed in Rock. …. As a viable rule for determining the admissibility of hypnotically refreshed testimony, the rule to be derived from Rock should provide such a lower standard of admissibility only for the defense.

In the typical situation in which hypnotically refreshed testimony is offered at trial, an alleged victim or eyewitness with memory failure identifies a defendant as a perpetrator of a crime subsequent to hypnosis and then is called to testify for the state. ...All of the concerns associated with hypnotically refreshed testimony remain. ...In this situation, however, the possibility of a suggested identification, of a confabulated accusation, or of a damning association that is the result of pseudomemory may lead to a wrongful conviction. Although, theoretically, the likelihood of inaccuracy of hypnotically refreshed testimony admitted against a criminal defendant is as great as it would be if admitted against the state, the presumption of innocence in our criminal justice system magnifies the injustice imposed upon a defendant when possibly unreliable evidence is admitted to obtain a conviction. ...

Moreover, under the sixth amendment, ...the right to confront one's accusers is a guaranteed part of any criminal defense. Because hypnosis may impinge upon the ability of cross-examination to reveal inconsistencies, ...a rule admitting state-sponsored hypnotically refreshed testimony would seem to constrain a defendant's constitutional rights as recognized in Rock. ...Thus, Rock provides a context within which a standard for the admissibility of hypnotically refreshed testimony may be discussed. ...

An appropriate state standard enlisting the constitutional analysis in Rock should be generally to admit hypnotically refreshed testimony on behalf of the defense and generally exclude hypnotically refreshed testimony on behalf of the prosecution. ...The party offering the evidence should have the burden of coming forward with a video recording of the hypnosis session(s) prior to trial, ...a copy of which should be supplied to opposing counsel. ...Challenges to or support for the testimony of the formerly hypnotized witness would then have to be resolved at a pretrial hearing. ...If, however, the defense offers the videotape without objection by the prosecution, the witness' testimony should be freely admitted. Only if the state makes a showing overcoming the constitutional concerns for the defendant should its hypnotically refreshed testimony be admitted [pp. 872-875, emphasis added].

Thus, Kuplicki (1988) argued that the lesson of Rock v. Arkansas is to adopt a bifurcated standard that generally admits hypnotically refreshed testimony offered by defendants and generally excludes hypnotically refreshed testimony offered by the prosecution. This view is entirely consistent with the position we have held regarding the advisability of admitting hypnotically refreshed testimony. We concur with Kuplicki's recommen-



dation, and agree that such a bifurcated standard allows that "state courts can lend efficient and appropriate coherence to this complex evidentiary matter [Kuplicki, 1988, p, 876]."

In conclusion, both before and after Rock v. Arkansas, and in accordance with the ruling, it is our view that previously hypnotized defendants should not be prevented from testifying on their own behalf. However, it is critical that one does not assume that the material obtained in hypnosis is likely to be accurate. As pointed out above, there are cogent reasons for questioning the likelihood of the events having been the way the defendant described them in hypnosis. Whether the likelihood that the defendant's version is accurate is sufficiently great to raise reasonable doubts about what had happened is a matter to be resolved by the trier of fact. One would hope, however, that the state is in a position to obtain experts who are able to clarify not only the general issue of hypnosis leading to unreliable memories but also the data that should be taken into account in an attempt to assess the accuracy of testimony obtained after hypnosis has been used.


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Rock wider Arkansas: Hypnose, des Angeklagten Privileg

Martin T. Orne, David F. Dinges und Emily Carota Orne

Abstrakt: In Rock wider Arkansas (1987) verfugte der Oberste Gerichtshof der Vereinigten Staaten in einer Entscheidung von 5 zu 4, daB die konstitutionenen Rechte der Angeklagten, ihrethalben Zeugnis abzulegen, den Vorrang von welch auch immer existierenden Staatsgeboten in bezug auf AusschluB von hypnotisch aufgefrischtem Zeugnis haben. Auf Grund des Problems, Angeklgten ihre konstitutionenen Rechte zu verweigern, argumentierten wir, daB ein hypnotisch aufgefrischtes Zeugnis generell erlaubt sein sollte, wahrend die UnverlaBlichkeit eines hypnotisch entlockten Erinnerns und die Art, in der Hypnose die Wirksamkeit eines Kreuzverhors beeintrachtigt, den generellen AusschluB des Zeugnisses von hypnotisierten Zeugen unentbehrlich machen (M. T. Orne, 1982). Wir behandeln den Rock Fall sowie die Majoritat und Minoritat der von dem Obersten Gerichtshof ausgedriukten Meinungen und bieten Grunde, warum ein gegabelter Standard--einer, der hypnotisch aufgefrischtes Zeugnis von Angeklagten zulaBt und es bei Zeugen ausschlieBt--mit dem Gerichtsentscheid sowie mit wissenschaftlichem



Beweismaterial hinsichtlich Hypnosegebrauch ubereinstimmt, sowohl als auch einen angemessenen, gerechten Weg darstellt, in dem die konstitutionellen Rechte des Angeklagten und des Staates geschutzt werden.

Rock v. Arkansas: l'hypnose, un privilege de l'accuse

Martin T. Orne, David F. Dinges, et Emily Carota Orne

Resume: Dans la cause Rock v. Arkansas (1987), la Cour Supreme des Etats-Unis etablissait, a 5 contre 4, la decision que le droit constitutionnel d'un accuse de temoigner dans son propre interet, avait preseance sur n'importe quelle regle d'etat existante visant a exclure le temoignage renforce par l'hypnose. Le probleme de nier aux accuses ce droit constitutionnel a ete la raison invoquee pour alleguer que les temoignages sous hypnose, d'accuses, devraient generalement etre permis. D'autre part, le manque de validite des souvenirs suscites sous hypnose et, le fait que l'hypnose diminue l'efficacite de la contre-evaluation, rend essentielle l'exclusion du temoignage sous hypnose de la part des temoins (M. T. Orne, 1982). Le cas Rock est discute, ainsi que les opinions majoritaires et minoritaires exprimees par la Cour Supreme des Etats-Unis. Des raisons sont presentees pour expliquer pourquoi une double regle qui admet le temoignage renforce sous hypnose pour les accuses l'exclut, en meme temps pour les temoins, est coherente avec d'une part, les regles de la cour et les bases scientifiques de l'hypnose concernant son usage, et d'autre part, avec le fait qu'elle represente un moyen adequat et juste pour proteger les droits de l'accuse et de l'etat.

Rock contra Arkansas: Hipnosis el privilegio del ecusado

Martin T. Orne, David F. Dinges y Emily Carota Orne

Resumen: En el caso Rock contra Arkansas (1987), la Corte Suprema de los Estados Unidos dictamino, en una decision de 5 sobre 4, que los derechos constitucionales de los acusados de testimoniar en su favor preceden a cualquier regla estatal existente con respecto a la exclusion del testimonio bajo hipnosis. El hecho de negar a los acusados sus derechos constitucionales fue el argumento utilizado para pedir que se le permita testimoniar bajo hipnosis, mientras que la no confiabilidad de los recuerdos obtenidos hipnoticamente y la manera que la hipnosis disminuye la efectividad del examen cruzado hace esencial la exclusion general del testimonio del testigo hipnotizado (M. T. Orne, 1982). Se discute el caso Rock, asi como las opiniones expresadas por la mayorIa y la minoria de la Corte Suprema y se dan las razones de porque un estandart bifurcado, es decir que admite solo el testimonio hipnotico del acusado y no el del testigo, es consistente con el dictamen de la Corte y con la evidencia cientifica con respecto al uso de la hipnosis, y una manera apropiada y justa de proteger los derechos constitucionales del acusado y del estado.

The preceding paper is a reproduction of the following article (Orne, M.T., Dinges, D.F., & Orne, E.C. Rock v. Arkansas: Hypnosis, the defendant’s privilege. International Journal of Clinical and Experimental Hypnosis, 1990, 38, 250-265.). It is reproduced here with the kind permission of the Editor-in-Chief of The International Journal of Clinical and Experimental Hypnosis.