present recollection

On July 2, 1983, Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock. A dispute had been simmering about Frank’s wish to move from the couple’s small apartment adjacent to Vickie’s beauty parlor to a trailer she owned outside town. 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 by Doctor Bettye Back, a licensed neuro-psychologist with training in the field of hypnosis. Doctor Back interviewed petitioner for an hour prior to the first hypnosis session, taking notes on petitioner’s general history and her recollections of the shooting. Both hypnosis sessions were recorded on tape. 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, a single-action Hawes .22 Deputy Marshal. That inspection revealed that the gun was defective and prone to fire, when hit or dropped, without the trigger’s being pulled. When the prosecutor learned of the hypnosis sessions, he filed a motion to exclude petitioner’s testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted. The court issued an order limiting petitioner’s testimony to “matters remembered and stated to the examiner prior to being placed under hypnosis.” At trial, petitioner introduced testimony by the gun expert, but the court limited petitioner’s own description of the events on the day of the shooting to a reiteration of the sketchy information in Doctor Back’s notes. The jury convicted petitioner on the manslaughter charge and she was sentenced to 10 years’ imprisonment and a $10,000 fine. On appeal, the Supreme Court of Arkansas rejected petitioner’s claim that the limitations on her testimony violated her right to present her defense. The court concluded that “the dangers of admitting this kind of testimony outweigh whatever probative value it may have,” and decided to follow the approach of States that have held hypnotically refreshed testimony of witnesses inadmissible per se. Although the court acknowledged that “a defendant’s right to testify is fundamental,” it ruled that the exclusion of petitioner’s testimony did not violate her constitutional rights. The Supreme Court granted certiorari, 479 U. S. 947 (1986), to consider the constitutionality of Arkansas’ per se rule excluding a criminal defendant’s hypnotically refreshed testimony.