9-14-09 - Handout-Rock-and-McGrady

9-14-09 - Handout-Rock-and-McGrady - Tilllers: notes on...

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Tilllers: notes on Rock and McGrady for student use only p. 1 of 11 Notes on Rock and McGrady Rock v. Arkansas, CB 38, which we briefly considered in the last class, is the inverse of Michaels . In Michaels testimony created or influenced by suggestion was used against a criminal defendant. In Rock testimony created or influenced by suggestion was offered for a criminal defendant. Like Michaels , Rock involves constitutional mandates. These mandates, if applicable, override anything nonconstitutional evidence law (e.g., Arkansas law or the FRE) may say to the contrary. In Rock the Supreme Court held that Arkansas had abridged a criminal defendant's constitutional rights. The defendant was charged with shooting and killing her husband. Her original recollection was sketchy. She was then hypnotized. She then professed to remember details that were helpful to her defense. But the Arkansas trial court refused to allow her to testify. In the last class we briefly considered Question 2 at CB 41: 2. Does Rock mean that an accused has a constitutional right to present the hypnotically refreshed testimony of a witness other than the defendant when that testimony is crucial? Instead of addressing this question again, I want to pose a related question. I want you to consider a problem I posted on the web. The problem is based on People v. McGrady , 45 A.D.3d 1395, 844 N.Y.S.2d 796 (A.D. 4 Dept.,2007).
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Rock and McGrady for student use only p. 2 of 11 My question is, given Rock v. Arkansas , whether the New York trial court in McGrady violated the defendant's constitutional rights by refusing to permit him to call a child, his five-year-old sister, to testify in his defense. BACKGROUND: ROCK V. ARKANSAS [CB p. 38] Defendant was accused of shooting her husband. She gave a sketchy account of the incident. Her attorney then arranged to have her hypnotized. She recalled while under hypnosis facts suggesting she did not have her finger on the trigger and the gun discharged when her husband struck her arm. An expert then tested the gun and verified it could go off without the trigger being pulled. Arkansas had a modified incompetence rule for witnesses whose testimony was refreshed by hypnosis, permitting the witness to testify only to matters recalled prior to hypnosis. (This rule was similar to California Evidence Code 795.) Defendant, thus, was precluded from giving testimony about her recollections under hypnosis. Defendant was convicted. The Supreme Court reversed on the ground the state law violated defendant’s constitutional right to testify in her own defense. Tillers' notes:
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This note was uploaded on 01/31/2010 for the course LAW 7330 taught by Professor Lushing during the Fall '05 term at Yeshiva.

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9-14-09 - Handout-Rock-and-McGrady - Tilllers: notes on...

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