Dissent in Rock v. Arkansas
483 U.S. 44 (1987) (1987) · Supreme Court of the United States
Rock v. Arkansas held that a per se rule excluding all hypnotically refreshed testimony of a criminal defendant violates the defendant's constitutional right to testify on her own behalf. The decision established that the right to testify is a fundamental right under the Due Process Clause, the Compulsory Process Clause, and the Fifth Amendment, and that restrictions on this right must be evaluated individually rather than through blanket prohibitions.
What was the dissent in Rock v. Arkansas?
Chief Justice Rehnquist, joined by Justices White, O'Connor, and Scalia, dissented. He argued that the per se rule was a reasonable exercise of state authority to exclude unreliable evidence and that the majority had improperly elevated the right to testify above other evidentiary interests.
Case Overview
Facts
Vickie Lorene Rock was charged with manslaughter for shooting her husband. She could not recall the precise details of the shooting due to memory gaps. Under hypnosis, she recalled that the gun had misfired and that she had not purposely pulled the trigger. An expert subsequently examined the gun and confirmed a defective firing mechanism. Arkansas had a per se rule excluding all hypnotically refreshed testimony.
Majority Holding
The Court held that Arkansas's per se exclusion of all hypnotically refreshed testimony of the defendant violated her constitutional rights. While states may impose procedural safeguards and use case-by-case evaluation of hypnotically refreshed testimony, a blanket exclusion is an arbitrary restriction on the right to testify that is not justified by the state's interests in excluding unreliable evidence.
Majority Reasoning
Justice Blackmun, writing for the majority, traced the evolution of the right to testify from the common law prohibition on defendant testimony to its modern recognition as a fundamental constitutional right grounded in the Due Process Clause, the Compulsory Process Clause, and the Fifth Amendment's right against self-incrimination (which implicitly includes a right to testify). While acknowledging the legitimate concerns about the reliability of hypnotically refreshed testimony -- including confabulation, suggestibility, and undue confidence -- the Court held that these concerns do not justify a per se exclusion. The appropriate approach is case-by-case evaluation, considering the procedural safeguards employed and the reliability of the particular testimony.
The Dissenting Opinion
Chief Justice Rehnquist, joined by Justices White, O'Connor, and Scalia, dissented. He argued that the per se rule was a reasonable exercise of state authority to exclude unreliable evidence and that the majority had improperly elevated the right to testify above other evidentiary interests.
Key Quotes
“The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution.”
“A State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.”
“Restrictions on a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.”
Impact and Legacy
Rock established the right to testify as a fundamental right that cannot be abridged by blanket exclusionary rules. While the decision was specifically about hypnotically refreshed testimony, its broader principle -- that arbitrary restrictions on the right to testify violate due process -- has been applied in other contexts. The case complements Chambers v. Mississippi's recognition of a constitutional right to present a defense, together forming a framework for challenging overly restrictive evidentiary rules.
Exam Relevance
Rock appears on exams in questions about the constitutional right to testify and the limits of state evidentiary rules. Professors may present a rule that restricts a defendant's testimony and ask whether it violates the Constitution. Students should analyze whether the restriction is a per se rule or a case-by-case evaluation and whether it is proportionate to the state's interest in reliable evidence.
Study Tips
- Know the three constitutional sources of the right to testify: Due Process, Compulsory Process, and the Fifth Amendment.
- Understand that Rock prohibits per se exclusions but permits procedural safeguards and case-by-case evaluation.
- Study Rock alongside Chambers v. Mississippi -- both involve constitutional overrides of evidence rules, but Rock focuses on the defendant's own testimony while Chambers involves third-party evidence.
- Be prepared to discuss the reliability concerns with hypnosis: confabulation, suggestibility, memory hardening, and undue confidence.
Read the Full Case Analysis
View the complete brief for Rock v. Arkansas including full reasoning, doctrine, and study resources.
More Evidence Dissents
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (1993) (1993)
Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Crawford v. Washington
541 U.S. 36 (2004) (2004)
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Davis v. Washington
547 U.S. 813 (2006) (2006)
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Ohio v. Roberts
448 U.S. 56 (1980) (1980)
Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
Bruton v. United States
391 U.S. 123 (1968) (1968)
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Tome v. United States
513 U.S. 150 (1995) (1995)
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.