Rock v. Arkansas: hypnosis, the defendant's privilege.

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.