author: Justice Marshall Justice & alia, Justice Stevens,

text:
    CITICORP INDUSTRIAL CREDIT, INC. v. BROCK, SECRETARY OF LABOR
    No. 86-88.
    Argued April 20, 1987
    Decided June 22, 1987

      Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Blackmun, Powell, O’Connor, and Scalia, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 40. Stevens, J., filed a dissenting opinion, in which White, J., joined, post, p. 40.

      Rex E. Lee argued the cause for petitioner. With him on the briefs were George W. Jones, Jr., and A. Bruce Schimberg.

      Charles A. Rothfeld argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy Solicitor General Cohen, George R. Salem, Allen H. Feldman, and Steven J. Mandel.

        Mark I. Wallach, Thomas A. Cicarella, and Mitchell G. Blair filed a brief for the National Commercial Finance Association as amicus curiae urging reversal.

        George Kaufmann and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

   Justice Marshall

delivered the opinion of the Court.

Section 15(a)(1) of the Fair Labor Standards Act of 1938, 52 Stat. 1068, prohibits “any person” from introducing into interstate commerce goods produced in violation of the minimum wage or overtime provisions of the Act. The question in this case is whether § 15(a)(1) applies to holders of collateral obtained pursuant to a security agreement.

I

In 1983, petitioner entered into a financing agreement with Qualitex Corporation, a clothing manufacturer and the corporate predecessor to Ely Group, Inc., and its subsidiaries Rockford Textile Mills, Inc., and Ely & Walker, Inc. (collectively Ely). Under the terms of the financing arrangement, petitioner agreed to loan up to $11 million to provide working capital for Ely. In return, Ely granted petitioner a security interest in inventory, accounts receivable, and other assets. Petitioner perfected its security interest under applicable state law.

The financing agreement imposed various reporting requirements on Ely, including the submission to petitioner of a weekly schedule of inventory, a monthly balance sheet and income statement, and reports of accounts receivable. Petitioner also monitored the collateral upon which it made cash advances through a system of audits and on-site inspections. In the fall of 1984, Ely’s sales began to fall below projections, and the balance on the loan began to increase, reaching over $9.5 million by February 1985. Ely stopped reporting to petitioner in January 1985. On February 8, petitioner stopped advancing funds and demanded payment in full. At the request of Ely’s management, however, petitioner did not immediately foreclose. It gave Ely an opportunity to devise a plan for continuing its operations, but Ely was unable to do so. Petitioner waited until February 19, at which time it took possession of the collateral, including Ely’s inventory of finished goods.

Ely’s employees continued to work until February 19, when Ely ceased all operations and closed its manufacturing facilities. Because Ely defaulted on its payroll, the employees did not receive any wages for pay periods between January 27 and February 19. The Department of Labor concluded that the items manufactured during these times were produced in violation of §§6 and 7 of the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §§ 206 and 207, and that under § 15(a)(1), they were “hot goods” that could not be introduced into interstate commerce. Acting on information that petitioner intended to transport these goods in interstate commerce, the Secretary of Labor sought to enjoin shipment.

In an action filed in the United States District Court for the Eastern District of Tennessee, the Secretary moved for a preliminary injunction and sought a temporary restraining order to prohibit Ely and petitioner from placing the goods in interstate commerce. The District Court denied the application for a temporary restraining order but, after a hearing, granted the Secretary’s motion for a preliminary injunction. Donovan v. Rockford Textile Mills, Inc., 608 F. Supp. 215 (1985). The Under Secretary of Labor then filed another complaint against Ely and petitioner, this time in the United States District Court for the Western District of Tennessee. This complaint was also accompanied by a motion for a preliminary injunction and application for a temporary restraining order. The District Court granted the temporary restraining order and later granted the Under Secretary’s motion for a preliminary injunction. Ford v. Ely Group, Inc., 621 F. Supp. 22 (1985).

Both District Courts held that § 15(a)(1), which makes it unlawful for any person to ship “hot goods” in interstate commerce, prohibited not only Ely but also petitioner from transporting or selling items produced by employees who had not been paid in conformity with §§ 6 and 7 of the FLSA. They found this reading of § 15(a)(1) consistent with congressional intent to exclude from interstate commerce goods produced under substandard labor conditions. 608 F. Supp., at 217; 621 F. Supp., at 25-26. The courts concluded that

“ ‘in light of the purposes of the Act, it would be an unjust and harsh result for the creditor to get the benefit of the labor of the employees during the period of time they produced goods and were not paid as provided by the Act; a benefit which the creditor would not have without the employees!’] labor.’” Id., at 26 (quoting 608 F. Supp., at 217).

The two cases were consolidated on appeal. The United States Court of Appeals for the Sixth Circuit affirmed, one judge dissenting. Brock v. Ely Group, Inc., 788 F. 2d 1200 (1986). Following the plain language of § 15(a)(1), the majority concluded that “any person” as used in that section applies to secured creditors. Id., at 1202-1203. Like the District Courts, it found this result consistent with the purpose of the FLSA: to exclude tainted goods from interstate commerce. Id., at 1203. The Court of Appeals rejected the reasoning of the Second Circuit in Wirtz v. Powell Knitting Mills Co., 360 F. 2d 730 (1966), which had held § 15(a)(1) inapplicable to secured creditors who take possession of goods produced in violation of the FLSA. 788 F. 2d, at 1204-1205. The Sixth Circuit noted that Congress created only two exceptions to the broad scope of § 15(a)(1), one for common carriers and one for good faith purchasers, id., at 1205, and concluded that “Powell Knitting Mills created an exception for secured creditors that Congress did not and has not deemed appropriate.” Id., at 1206. The dissenting judge would have followed Powell Knitting Mills. He maintained that in enacting the “hot goods” provision, Congress was concerned with violations of the Act occurring in the course of the ongoing production of goods by a solvent manufacturer, not, as here, by an insolvent corporation that has ceased operations. Id., at 1207.

We granted certiorari to resolve this conflict among the Circuits. 479 U. S. 929 (1986). We now affirm.

II

A

The FLSA mandates the payment of minimum wage and overtime compensation to covered employees. Section 6(a) provides that every employer, as defined in the Act, “shall pay to each of his employees” wages not less than the specified minimum rate; § 7(a)(1) prohibits employment of any employee in excess of 40 hours per week “unless such employee receives compensation” at a rate of not less than one and one-half times the employee’s regular rate. Petitioner does not contest the lower courts’ findings that Ely failed to pay its employees at all for several weeks immediately preceding the plant closings. Consequently, we conclude, as did the Court of Appeals, that the goods produced during this period were manufactured in violation of § 6 and/or § 7 of the FLSA and are “hot goods” for the purposes of § 15(a)(1). See 788 F. 2d, at 1201.

Section 15(a)(1) prohibits “any person” from introducing goods produced in violation of § 6 or § 7 of the FLSA into interstate commerce. Section 3(a) defines “person” as “an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.” 29 U. S. C. § 203(a). As a corporate entity, petitioner clearly falls within the plain language of the statute. Section 15(a)(1) contains two exemptions to the general prohibition on interstate shipment of “hot goods.” The first, enacted as part of the original FLSA, exempts common carriers from the prohibition on transportation of such goods. The second, added in 1949, exempts a purchaser who acquired the goods for value, without notice of any violation, and “in good faith in reliance on written assurance from the producer that the goods were produced in compliance with the requirements” of the Act.

Petitioner does not claim to come within either statutory exemption. Rather, it argues that the exemptions reflect congressional intent to limit application of the “hot goods” provision to culpable parties, and therefore, “innocent” secured creditors should not be subject to the Act. We disagree. Although §§ 6 and 7 only require “employers” to pay minimum wage and overtime, § 15(a)(1) refers to “any person,” not “any employer.” Congress limited other provisions of the FLSA as petitioner suggests, which indicates that its failure to do so in § 15(a)(1) was not inadvertent. That Congress identified only two narrow categories of “innocent” persons who were not subject to the “hot goods” provision suggests that all other persons, innocent or not, are subject to § 15(a)(1). We find no indication that Congress actually considered application of the “hot goods” provision to secured creditors when it enacted the FLSA. By claiming a general exemption for creditors, without any duty to ascertain compliance with the FLSA, petitioner is asking us to put creditors in a better position than good-faith purchasers, for whom Congress specifically added an exemption.

In the past, the Court has refused “[t]o extend an exemption to other than those plainly and unmistakably within [the FLSA’s] terms and spirit.” A. H. Phillips, Inc. v. Walling, 324 U. S. 490, 493 (1945). Similarly, where the FLSA provides exemptions “in detail and with particularity,” we have found this to preclude “enlargement by implication.” Addison v. Holly Hill Fruit Products, Inc., 322 U. S. 607, 617 (1944). See also Powell v. United States Cartridge Co., 339 U. S. 497, 512 (1950); Mabee v. White Plains Publishing Co., 327 U. S. 178, 183-184 (1946). We see no reason to deviate from our traditional approach in this case.

B

Petitioner urges us to look beyond the plain language of the statute, citing the often-quoted passage from Holy Trinity Church v. United States, 143 U. S. 457, 459 (1892): “[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” According to petitioner, the sole aim of the FLSA was to establish decent wages and hours for American workers. This goal, petitioner claims, is not furthered by application of § 15(a)(1) to creditors who acquire “hot goods” by foreclosure and are not themselves responsible for the minimum wage and overtime violations. However, we conclude that the legislative intent fully supports the result achieved by application of the plain language.

While improving working conditions was undoubtedly one of Congress’ concerns, it was certainly not the only aim of the FLSA. In addition to the goal identified by petitioner, the Act’s declaration of policy, contained in §2(a), reflects Congress’ desire to eliminate the competitive advantage enjoyed by goods produced under substandard conditions. 29 U. S. C. § 202(a). This Court has consistently recognized this broad regulatory purpose. “The motive and purpose of the present regulation are plainly . . . that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce.” United States v. Darby, 312 U. S. 100, 115 (1941). See also Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 296 (1985); Maryland v. Wirtz, 392 U. S. 183, 189 (1968); Rutherford Food Corp v. McComb, 331 U. S. 722, 727 (1947).

Application of § 15(a)(1) to secured creditors furthers this goal by excluding tainted goods from interstate commerce. Had the Department of Labor not obtained an injunction in this case, petitioner, as a secured creditor, would have converted several weeks of labor by the debtor’s employees into goods covered by its security interest; the “hot goods” produced by these uncompensated employees would have competed with goods produced in conformity with the FLSA’s minimum wage and overtime requirements. Moreover, prohibiting foreclosing creditors from selling “hot goods” also advances the goal identified by petitioner. Secured creditors often monitor closely the operations of employer-borrowers, as petitioner did in this case. They may be in a position to insist on compliance with the FLSA’s minimum wage and overtime requirements. As the District Court for the Western District observed:

“[I]f foreclosing creditors are free to ship and sell tainted goods across state lines, the temptation to overextend credit to marginal producers is strong, as is the likelihood that such producers will become unable to meet their payrolls. The reason for this is that finance companies and institutions stand to reap financial gain by keeping such producers in business. A holding by this Court that creditors may not ship and sell in interstate commerce goods produced in violation of the Act will not only protect complying manufacturers from the unfair competition of such tainted goods, but, we submit, it will also discourage the type of commercial financing which leads to minimum wage and overtime violations.” 621 F. Supp., at 26 (emphasis added).

C

A literal application of § 15(a)(1) does not grant employees a priority in “hot goods” superior to that which a secured creditor has under state law. Petitioner’s rights in the collateral as against Ely are unchanged by our holding. Petitioner still owns the goods, subject only to the “hot goods” provision, which prevents it from placing them in interstate commerce. The employees have not acquired a possessory interest in the goods. Indeed, as the District Court for the Western District of Tennessee recognized, the Secretary brought this action “not to compel the foreclosing creditor to pay the statutory wages or to put pressure on the defaulting producer to pay such wages, but to keep tainted goods from entering the channels of interstate commerce.” Id., at 25-26. That petitioner can cure the employer’s violation of the FLSA by paying the employees the statutorily required wages does not give the employees a “lien” on the assets superior to that of a secured creditor.

In numerous other statutes, Congress has exercised its authority under the Commerce Clause to exclude from interstate commerce goods which, for a variety of reasons, it considers harmful. Like the FLSA, these regulatory measures bar goods not produced in conformity with specified standards from the channels of commerce. As the District Courts in this case recognized, secured creditors take their security interests subject to the laws of the land. See 621 F. Supp., at 26; 608 F. Supp., at 217. If, for example, the goods at issue in this case were fabrics that failed to meet federal flammability standards and were therefore banned from interstate commerce under the Flammable Fabrics Act, 67 Stat. 111, as amended, 15 U. S. C. § 1191 et seq., surely petitioner could not argue that it had a right to sell the inventory merely by virtue of its status as a secured creditor. “Hot goods” are not inherently hazardous, but Congress has determined that they are contraband nonetheless. We see no reason for a different result merely because a different form of contraband is involved.

Ill

We hold that § 15(a)(l)’s broad prohibition on interstate shipment of “hot goods” applies to secured creditors who acquire the goods pursuant to a security agreement. This result is mandated by the plain language of the statute, and it furthers the goal of eliminating the competitive advantage enjoyed by goods produced under substandard labor conditions. Accordingly, the judgment of the Court of Appeals is

Affirmed.

Justice & alia,

concurring.

While I would affirm the Court of Appeals even if I agreed with petitioner that “the sole aim of the FLSA was to establish decent wages and hours for American workers,” ante, at 86, and that this goal “is not furthered by application of § 15(a)(1)” to secured creditors, ibid., I do not disagree with the Court’s conclusions in Part II-B, and therefore join its opinion in full.

Justice Stevens,

with whom

Justice White joins, dissenting.

The statute that the Court construes today was enacted during the Great Depression. Although business failures were an everyday occurrence in 1938, nothing in the language or history of the Fair Labor Standards Act (FLSA or Act) suggests that Congress intended that Act to address the unfortunate situation that arises when an employer is unable to pay his employees for the final days of work that produced the inventory at hand when the plant was forced to close.

Indeed, if there is one conclusion that both parties before us, and every court that has ever considered this matter, agree upon, it is that Congress did not “actually conside[r] application of the ‘hot goods’ provision to secured creditors when it enacted the FLSA.” Ante, at 34-35. This historical fact carries much weight in this case. The subjects of bankruptcy and secured transactions constitute discrete bodies of law, which are generally governed by the Federal Bankruptcy Code and by state law, respectively. Instead of interpreting Congress’ silence as evincing intent to invade these areas with an Act whose purposes do not fit nicely into these contexts,1 would interpret Congress’ utter silence as showing that Congress never intended to apply the FLSA to these unique areas of the law. See Kelly v. Robinson, 479 U. S. 36, 47 (1986).

Even were I not confident in that conclusion, however, I certainly believe that the arguments in favor of petitioner’s construction are substantial enough to warrant our adherence to settled precedent. During the 28 years from the enactment of the FLSA through 1966 it appears that no Secretary of Labor ever sought an injunction against the sale of “hot goods” in circumstances such as these. See Wirtz v. Powell Knitting Mills Co., 360 F. 2d 730, 733 (CA2 1966). When a Secretary did attempt to use the statute in this novel way, the Court of Appeals for the Second Circuit summarily rejected his interpretation, explaining:

“We believe that there was no Congressional intent that concerns in [the creditor’s] position be within § 15. The purpose of forcing payment of wages should not apply to the creditor who advanced funds long before the default in wages, and who merely forecloses his lien, at least where the value of the goods acquired does not exceed the debt left unpaid. Since [the creditor] is not giving present consideration, it can neither force [the employer] to make payment nor withhold wages from its payment and pay the wage earners itself. It already provided [the employer] with cash, part of which no doubt went for wages that were paid. Since the only reason to give effect to § 15 would be to force [the creditor] to pay the wages, § 15 ought not apply to it, in a backhanded way of attacking its secured position.
“The Secretary stresses the point that when the Congress desired to protect bona fide purchasers from the strict wording of the Act it found it easy to do so by amending the Act with appropriate safeguards. This would indeed be persuasive if there were indications that the present problem of the foreclosing secured creditor had been brought to the attention of the Congress. The argument loses force because this was apparently never done, and the Secretary’s present contention is much weakened by the fact that since thé enactment of the Act in 1938 neither he nor his predecessors appear to have so read the Act, in spite of the myriad of instances in which similar security titles must have been enforced.” Id., at 733.

I would have subscribed to this reasoning in 1966, and certainly do now. In the more than 20 years since the Second Circuit’s decision, its construction of the statute has not been called into question by the courts that have addressed the issue, except in the decisions now on review. See Shultz v. Factors, Inc., 65 CCH LC ¶ 32,487 (CA4 1971); Dunlop v. Sportsmasters, Inc., 77 CCH LC ¶ 33,293 (ED Tenn. 1975). Given the Secretary’s practice prior to the Powell Knitting decision, the judicial acceptance of that decision, and the fact that Congress has not seen fit to amend the statute in light of these decisions,1 believe that the Powell Knitting construction should be retained until Congress rejects it. See Commissioner v. Fink, post, at 102-103 (Stevens, J., dissenting); Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 268 (1987) (Stevens, J., dissenting).

I respectfully dissent.

       Section 15(a)(1) of the FLSA, codified at 29 U. S. C. § 215(a), provides in relevant part:
      “(a) [I]t shall be unlawful for any person—
      “(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 206 or section 207 of this title, or in violation of any regulation or order of the Secretary issued under section 214 of this title; except that no provision of this chapter shall impose any liability upon any common carrier for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier, and no provision of this chapter shall excuse any common carrier from its obligation to accept any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a purchaser who acquired them in good faith in reliance on written assurance from the producer that the goods were produced in compliance with the requirements of this chapter, and who acquired such goods for value without notice of any such violation, shall not be deemed unlawful.”

       The District Court for the Eastern District of Tennessee granted petitioner’s motion for a stay of the preliminary injunction pending appeal. The stay permitted the delivery and sale of Ely’s inventory, on the condition that petitioner place the proceeds in a separate interest-bearing account to be used to pay the wages of Ely’s former employees in the event that, on appeal, § 15(a)(1) was held to apply to petitioner. The District Court in the Western District denied a similar motion for a stay, but the Court of Appeals granted a stay on the same conditions. The Court of Appeals subsequently modified its order to permit petitioner to withdraw all but $1.5 million from the account.

       In Shultz v. Factors, Inc., 65 CCH LC ¶ 32,487 (1971), the Fourth Circuit adopted the reasoning of the Second Circuit in Wirtz v. Powell Knitting Mills Co., 360 F. 2d 730 (1966), but added the requirement “that there be no collusion between the manufacturer and his financier permitting the introduction into the market of goods produced in violation of the Act.” See also Dunlop v. Sportsmaster, Inc., 77 CCH LC ¶ 33,293 (ED Tenn. 1975) (following Powell Knitting Mills).

       Petitioner appears to suggest that Ely’s failure to pay its employees did not violate the minimum wage and overtime provisions of the FLSA because §§ 6 and 7 “address wage rates, rather than the problem of nonpayment due to insolvency.” Brief for Petitioner 16. This ignores the plain language of-the Act, which is not limited to ongoing concerns and makes no exception for employers who are financially or otherwise unable to comply with §§ 6 and 7. The proposition that an employer complies with the FLSA so long as its promised wage rates equal or exceed the statutory minimum, regardless of whether employees actually receive any compensation, would render illusory the Act’s protections. As this case demonstrates, such a rule would also encourage financially unstable employers to obtain labor when their financial condition indicates that they are unlikely to be able to pay for it.

       Although it found no evidence of collusion between petitioner and Ely, the United States District Court for the Western District of Tennessee found that petitioner knew that it was funding Ely’s payroll and that when its funding ceased, Ely would be unable to meet its payroll obligations. Ford v. Ely Group, Inc., 621 F. Supp. 22, 23 (1985).

       For example, § 12(a)’s prohibitions against child labor are enforceable only against “a producer, manufacturer or dealer,” 29 U. S. C. § 212(a). See § 15(a)(4), 29 U. S. C. § 215(a)(4). Under § 16(b), backpay may be sought only from an “employer.” 29 U. S. C. § 216(b). And § 16(a) imposes criminal liability only for willful violations of the Act. 29 U. S. C. § 216(a).

       Congress’ motive for exempting common carriers does not appear to have been concern for nonculpable parties, as petitioner suggests, but a desire
      “to prevent a case involving the constitutionality of the act from arising in a suit between a shipper and a common carrier, to which the Government was not a party, inasmuch as the common carrier has no interest in the issue of constitutionality, but only in its obligation to accept goods for transportation.” H. R. Rep. No. 2182, 75th Cong., 3d Sess., 14 (1938).

        Nor does the 1949 amendment to the Act provide support for petitioner’s claim that the “hot goods” provision was never intended to apply to “innocent” secured creditors. To the contrary, the House Report reflects Congress’ understanding that the 1938 law did not exempt innocent purchasers from the “hot goods” provision. “[A] purchaser who ships in commerce goods produced by another person who violated the wage-and-hour provisions of the act in the production of such goods, commits an unlawful act.” H. R. Rep. No. 267, 81st Cong., 1st Sess., 39 (1949). Had Congress intended the 1938 Act to exempt innocent parties generally, amendment would have been unnecessary.
      The amendment changed existing law only to the extent it made it “lawful for a purchaser in good faith of goods produced in violation of the act to sell such goods in commerce,” H. R. Conf. Rep. No. 1453, 81st Cong., 1st Sess., 31 (1949), provided he or she obtained assurances “that the goods in question were produced in compliance with the act.” Ibid. Thus, for the first time, Congress gave purchasers a mechanism for protecting themselves from unwitting violations of the Act, for which they would otherwise have been liable. See H. R. Rep. No. 267, supra, at 39.

       Section 2(a), codified at 29 U. S. C. § 202(a), provides:
      “The Congress finds that the existence, in industries engaged in commerce ... , of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; and (5) interferes with the orderly and fair marketing of goods in commerce” (emphasis added).
      President Roosevelt’s message to Congress, which served as the inspiration for passage of the Act, makes a similar point: “Goods produced under conditions which do not meet rudimentary standards of decency should be regarded as contraband and ought not to be allowed to pollute the channels of interstate trade.” H. R. Doc. No. 255, 75th Cong., 1st Sess., 3 (1937). See Powell v. United States Cartridge Co., 339 U. S. 497, 516 (1950). The President’s message was cited approvingly throughout the legislative history of the 1938 Act. See, e. g., S. Rep. No. 884, 75th Cong., 1st Sess., 1-3 (1937); H. R. Rep. No. 1452, 75th Cong., 1st Sess., 5-7 (1937); H. R. Rep. No. 2182, supra, at 5.

        Despite these expansive indications of legislative purpose, petitioner insists that Congress was concerned about competition only to the extent that competition from “ ‘chiselers’ ” had the effect of driving down wages and working conditions. Brief for Petitioner 24-25. However, based on the statute, its legislative history, and our prior decisions, we conclude that exclusion from interstate commerce of goods produced under substandard conditions is not simply a means to enforce other statutory goals; it is itself a central purpose of the FLSA.

       Of course, under state law, the employees may have a lien on the employer’s property superior to petitioner’s lien. See Tenn. Code Ann. §66-13-101 (1982) (creating statutory wage lien on “corporate or firm property of every character and description”). However, any such lien would exist independent of the application of the FLSA to petitioner.

       Petitioner also argues that application of the “hot goods” prohibition to secured creditors will interfere with the operation of the Bankruptcy Code. Because Ely has not filed for bankruptcy, however, this issue is not before us.

       See, e. g., 15 U. S. C. § 1192 (fabrics failing to conform to flammability standards); 15 U. S. C. § 1211 (household refrigerators without prescribed safety devices); 15 U. S. C. §§ 1263(a)-(c), (f) (misbranded or banned hazardous substances); 21 U. S. C. §§ 331(a)-(d) (adulterated or misbranded food, drugs, and cosmetics); 21 U. S. C. §§ 458(a)(2)-(4) (adulterated, misbranded, or uninspected poultry products).

       The FLSA was enacted to prevent employers from paying substandard wages. Section 15 (a)(1) is designed to prevent employers from producing goods at such low cost that they could undersell competitors who paid what Congress deemed to be a decent wage. The concern of the statute was the ongoing business with its continuing impact on both the labor market and the commercial market. It was not remotely concerned with the perennial problem of distress sales that follow in the wake of a business failure. Under the Court’s novel reading of the Act, any such sale — whether by a secured creditor, a trustee in bankruptcy, or even by a creditor’s committee trying to raise funds to meet a shortage in the final payroll — would be a sale of “hot goods” and therefore illegal.

       As Judge Engel explained in dissent from the Court of Appeals’ decision:
      “The practical effect of the majority’s decision is not to remove any tainted goods from competition for, as happened here, almost always the result will be that the goods are sold, if not in foreclosure, then in bankruptcy, or by other attaching creditors. As here, the goods will go out in the market, but whether they are sold for competitively destructive prices will not depend on the cost of their production but upon the manner of their sale in any event. The real effect of the majority’s interpretation is simply to create a judicial lien superior to the otherwise lawful lien which Citicorp possessed in the goods. In my view, this kind of pressure is the only motivation in the government in its present construction of the Act. Had it intended to create a federal lien law, Congress no doubt could, have done so, but it did not. State laws governing creditors’ rights, state laws protecting employees from non-payment of wages and bankruptcy laws generally, provide a great deal of relief for the protection of employees of defunct and insolvent corporations. It seems to me that in this special area of concern, the operation of these more traditional sources of law was intended by Congress to be sufficient. It is my opinion, therefore, that under a common sense application of section 15(a)(1), Congress was looking instead at application of the Act in the course of the ongoing production of goods and not at the situation obtaining here and in the like cases in the Second and Fourth Circuits.” Brock v. Ely Group, Inc., 788 P. 2d 1200, 1207 (1986).

       Aside from my conclusion that secured creditors such as Citicorp are not barred from selling “hot goods,” I also have doubts about whether the employees who participated in the production of the goods at issue in this case were “employed in violation of [the FLSA]” within the meaning of § 15(a)(1) of the Act at the time the goods were produced. See ante, at 30, n. 1. The terms of their employment complied with the statute and when they performed their services everyone expected and intended that they would be paid in full. It may well be true that the employer committed a violation of the Act when it was subsequently unable to meet its payroll, but I am not sure the inventory can be branded “hot goods” because of that subsequent event.

         The FLSA has been amended on at least four occasions since the Powell Knitting decision. See, e. g., Pub. L. 99-150, 99 Stat. 787 (1985); Pub. L. 95-151, 91 Stat. 1245 (1977); Pub. L. 93-259, 88 Stat. 55 (1974); Pub. L. 89-601, 80 Stat. 830 (1966).


source: Caselaw Access Project

author: Justice Blackmun Chief Justice Rehnquist,

license: Public Domain

text:
    ROCK v. ARKANSAS
    No. 86-130.
    Argued March 23, 1987
    Decided June 22, 1987

      Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, O’Connor, and Scalia, JJ., joined, post, p. 62.

      James M. Luffman argued the cause and filed briefs for petitioner.

      J. Steven Clark, Attorney General of Arkansas, argued the cause for respondent. With him on the brief was Clint Miller, Assistant Attorney General.

        John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Shirley A. Nelson and Garrett Beaumont, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.

        David M. Heilbron and Christopher Berka filed a brief for the Product Liability Advisory Council et al. as amici curiae.

   Justice Blackmun

delivered the opinion of the Court.

The issue presented in this case is whether Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner’s constitutional right to testify on her own behalf as a defendant in a criminal case.

I

Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. 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. App. 98, 103-104. When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. Petitioner urged the officers to help her husband, Tr. 230, and cried to a sergeant who took her in charge, “please save him” and “don’t let him die.” Id., at 268. The police removed her from the building because she was upset and because she interfered with their investigation by her repeated attempts to use the telephone to call her husband’s parents. Id., at 263-264, 267-268. 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.” Id., at 281.

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 neuropsychologist with training in the field of hypnosis. Id., at 901-903. 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. App. 46-47. Both hypnosis sessions were recorded on tape. Id., at 53. Petitioner did not relate any new information during either of the sessions, id., at 78, 83, but, 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. Id., at 29, 38. 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. Tr. 662-663, 711.

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.” App. to Pet. for Cert, xvii. At trial, petitioner introduced testimony by the gun expert, Tr. 647-712, 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. See App. 96-104. 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. 288 Ark. 566, 573, 708 S. W. 2d 78, 81 (1986). Although the court acknowledged that “a defendant’s right to testify is fundamental,” id., at 578, 708 S. W. 2d, at 84, it ruled that the exclusion of petitioner’s testimony did not violate her constitutional rights. Any “prejudice or deprivation” she suffered “was minimal and resulted from her own actions and not by any erroneous ruling of the court.” Id., at 580, 708 S. W. 2d, at 86. We granted certiorari, 479 U. S. 947 (1986), to consider the constitutionality of Arkansas’ per se rule excluding a criminal defendant’s hypnotically refreshed testimony.

II

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. This, of course, is a change from the historic common-law view, which was that all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial. See generally 2 J. Wigmore, Evidence §§576, 579 (J. Chadbourn rev. 1979). The principal rationale for this rule was the possible untrustworthiness of a party’s testimony. Under the common law, the practice did develop of permitting criminal defendants to tell their side of the story, but they were limited to making an unsworn statement that could not be elicited through direct examination by counsel and was not subject to cross-examination. Id., at §579, p. 827.

This Court in Ferguson v. Georgia, 365 U. S. 570, 573-582 (1961), detailed the history of the transition from a rule of a defendant’s incompetency to a rule of competency. As the Court there recounted, it came to be recognized that permitting a defendant to testify advances both the “ ‘detection of guilt’” and “‘the protection of innocence,’” id., at 581, quoting 1 Am. L. Rev. 396 (1867), and by the end of the second half of the 19th century, all States except Georgia had enacted statutes that declared criminal defendants competent to testify. See 365 U. S., at 577 and n. 6, 596-598. Congress enacted a general competency statute in the Act of Mar. 16, 1878, 20 Stat. 30, as amended, 18 U. S. C. § 3481, and similar developments followed in other common-law countries. Thus, more than 25 years ago this Court was able to state:

“In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case.” Ferguson v. Georgia, 365 U. S., at 582.

The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony:

“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” (Emphasis added.) In re Oliver, 333 U. S. 257, 273 (1948).

See also Ferguson v. Georgia, 365 U. S., at 602 (Clark, J., concurring) (Fourteenth Amendment secures “right of a criminal defendant to choose between silence and testifying in his own behalf”).

The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,” a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment. Washington v. Texas, 388 U. S. 14, 17-19 (1967). Logically included in the accused’s right to call witnesses whose testimony is “material and favorable to his defense,” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Like the truthfulness of other witnesses, the defendant’s veracity, which was the concern behind the original common-law rule, can be tested adequately by cross-examination. See generally Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 119-120 (1974).

Moreover, in Faretta v. California, 422 U. S., at 819, the Court recognized that the Sixth Amendment

“grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’” (Emphasis added.)

Even more fundamental to a personal defense than the right of self-representation, which was found to be “necessarily implied by the structure of the Amendment,” ibid., is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.

The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. In Harris v. New York, 401 U. S. 222, 230 (1971), the Court stated: “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Id., at 225. Three of the dissenting Justices in that case agreed that the Fifth Amendment encompasses this right: “[The Fifth-Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ . . . The choice of whether to testify in one’s own defense ... is an exercise of the constitutional privilege.” Id., at 230, quoting Malloy v. Hogan, 378 U. S. 1, 8 (1964). (Emphasis removed.)

Ill

The question now before the Court is whether a criminal defendant’s right to testify may be restricted by a state rule that excludes her posthypnosis testimony. This is not the first time this Court has faced a constitutional challenge to a state rule, designed to ensure trustworthy evidence, that interfered with the ability of a defendant to offer testimony. In Washington v. Texas, 388 U. S. 14 (1967), the Court was confronted with a state statute that prevented persons charged as principals, accomplices, or accessories in the same crime from being introduced as witnesses for one another. The statute, like the original common-law prohibition on testimony by the accused, was grounded in a concern for the reliability of evidence presented by an interested party:

“It was thought that if two'persons charged with the same crime were allowed to testify on behalf of each other, ‘each would try to swear the other out of the charge.’ This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court’s interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue.” (Footnote omitted.) Id., at 21, quoting Benson v. United States, 146 U. S. 325, 335 (1892).

As the Court recognized, the incompetency of a codefendant to testify had been rejected on nonconstitutional grounds in 1918, when the Court, refusing to be bound by “the dead hand of the common-law rule of 1789,” stated:

“ ‘[T]he conviction of our time [is] that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court. . . .’” 388 U. S., at 22, quoting Rosen v. United States, 245 U. S. 467, 471 (1918).

The Court concluded that this reasoning was compelled by the Sixth Amendment’s protections for the accused. In particular, the Court reasoned that the Sixth Amendment was designed in part “to make the testimony of a defendant’s witnesses admissible on his behalf in court.” 388 U. S., at 22.

With the rationale for the common-law incompetency rule thus rejected on constitutional grounds, the Court found that the mere presence of the witness in the courtroom was not enough to satisfy the Constitution’s Compulsory Process Clause. By preventing the defendant from having the benefit of his accomplice’s testimony, “the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” (Emphasis added.) Id., at 23.

Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony. In Chambers v. Mississippi, 410 U. S. 284 (1973), the Court invalidated a State’s hearsay rule on the ground that it abridged the defendant’s right to “present witnesses in his own defense.” Id., at 302. Chambers was tried for a murder to which another person repeatedly had confessed in the presence of acquaintances. The State’s hearsay rule, coupled with a “voucher” rule that did not allow the defendant to cross-examine the confessed murderer directly, prevented Chambers from introducing testimony concerning these confessions, which were critical to his defense. This Court reversed the judgment of conviction, holding that when a state rule of evidence conflicts with the right to present witnesses, the rule may “not be applied mechanistically to defeat the ends of justice,” but must meet the fundamental standards of due process. Ibid. In the Court’s view, the State in Chambers did not demonstrate that the hearsay testimony in that case, which bore “assurances of trustworthiness” including corroboration by other evidence, would be unreliable, and thus the defendant should have been able to introduce the exculpatory testimony. Ibid.

Of course, the right to present relevant testimony is not without limitation. The right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id., at 295. But restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.

IV

The Arkansas rule enunciated by the state courts does not allow a trial court to consider whether posthypnosis testimony may be admissible in a particular case; it is a per se rule prohibiting the admission at trial of any defendant’s hypnotically refreshed testimony on the ground that such testimony is always unreliable. Thus, in Arkansas, an accused’s testimony is limited to matters that he or she can prove were remembered before hypnosis. This rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced.

In this case, the application of that rule had a significant adverse effect on petitioner’s ability to testify. It virtually prevented her from describing any of the events that occurred on the day of the shooting, despite corroboration of many of those events by other witnesses. Even more importantly, under the court’s rule petitioner was not permitted to describe the actual shooting except in the words contained in Doctor Back’s notes. The expert’s description of the gun’s tendency to misfire would have taken on greater significance if the jury had heard petitioner testify that she did not have her finger on the trigger and that the gun went off when her husband hit her arm.

In establishing its per se rule, the Arkansas Supreme Court simply followed the approach taken by a number of States that have decided that hypnotically enhanced testimony should be excluded at trial on the ground that it tends to be unreliable. Other States that have adopted an exclusionary rule, however, have done so for the testimony of witnesses, not for the testimony of a defendant. The Arkansas Supreme Court failed to perform the constitutional analysis that is necessary when a defendant’s right to testify is at stake.

Although the Arkansas court concluded that any testimony that cannot be proved to be the product of prehypnosis memory is unreliable, many courts have eschewed a per se rule and permit the admission of hypnotically refreshed testimony. Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J. A. M. A. 1918, 1918-1919 (1985) (Council Report). The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled.

Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. See generally M. Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells & E. Loftus, eds., 1984); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 333-342 (1980). 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. See, e. g., People v. Hughes, 59 N. Y. 2d 523, 533, 453 N. E. 2d 484, 488 (1983); see generally R. Udolf, Forensic Hypnosis 11-16 (1983).

The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. See Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical and Experimental Hypnosis 311, 335-336 (1979). These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked. Id., at 336. 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.

The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions. Indeed, it is probably to a defendant’s advantage to establish carefully the extent of his memory prior to hypnosis, in order to minimize the decrease in credibility the procedure might introduce.

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. A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections. The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified. But it has not shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her version of the events for which she is on trial.

In this case, the defective condition of the gun corroborated the details petitioner remembered about the shooting. The tape recordings provided some means to evaluate the hypnosis and the trial judge concluded that Doctor Back did not suggest responses with leading questions. See n. 3, supra. Those circumstances present an argument for admissibility of petitioner’s testimony in this particular case, an argument that must be considered by the trial court. Arkansas’ per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his own behalf.

The judgment of the Supreme Court of Arkansas is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom

Justice White, Justice O’Connor, and Justice Scalia join, dissenting.

In deciding that petitioner Rock’s testimony was properly limited at her trial, the Arkansas Supreme Court cited several factors that undermine 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.” Ante, at 49. While it is true that this Court, in dictum, has recognized the existence of such a right, see, e. g., Faretta v. California, 422 U. S. 806, 819, n. 15 (1975), 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.’” Ante, at 50, quoting Ferguson v. Georgia, 365 U. S. 570, 581 (1961). 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.” Ante, at 52. But the Court candidly admits that the increased confidence inspired by hypnotism makes “cross-examination more difficult,” ante, at 60, 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.’” Ante, at 50, quoting Ferguson v. Georgia, supra, at 582. 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.” 365 U. S., at 582.

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. Indeed, the due process decisions relied on by the Court all envision that an individual’s right to present evidence on his behalf is not absolute and must oftentimes give way to countervailing considerations. See, e. g., In re Oliver, 333 U. S. 257, 273, 275 (1948); Morrissey v. Brewer, 408 U. S. 471, 481-482 (1972); Goldberg v. Kelly, 397 U. S. 254, 263 (1970). Similarly, our Compulsory Process Clause decisions make clear that the right to present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U. S. 284, 295 (1973); see Washington v. Texas, 388 U. S. 14, 22 (1967). 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.” Chambers v. Mississippi, supra, at 302. Surely a rule designed to exclude testimony whose trustworthiness is inherently suspect cannot be said to fall outside this description.

This Court has traditionally accorded the States “respect . . . in the establishment and implementation of their own criminal trial rules and procedures.” 410 U. S., at 302-303; see, e. g., Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983) (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules”); Patterson v. New York, 432 U. S. 197, 201 (1977) (“[W]e should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States”). 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.” Ante, at 61. 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 ah, 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 single trial judge in every single case might seem to some to pose serious administrative difficulties. But until there is much more of a 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.

       Another officer reported a slightly different version of the events:
      “She stated that she had told her husband that she was going to go outside. He refused to let her leave and grabbed her by the throat and began choking her. They struggled for a moment and she grabbed a gun. She told him to leave her alone and he hit her at which time the gun went off. She stated that it was an accident and she didn’t mean to shoot him. She said she had to get to the hospital and talk to him.” Tr. 388.
      See also id., at 301-304, 337-338; App. 3-10.

       Doctor Back’s handwritten notes regarding petitioner’s memory of the day of the shooting read as follows:
      “Pt states she & husb. were discussing moving out to a trailer she had prev. owned. He was ‘set on’ moving out to the trailer — she felt they should discuss. She becfame] upset & went to another room to lay down. Bro. came & left. She came out to eat some of the pizza, he wouldn’t allow her to have any. She said she would go out and get [something] to eat he wouldn’t allow her — He pushed her against a wall an end table in the corner [with] a gun on it. They were the night watchmen for business that sets behind them. She picked gun up stated she didn’t want him hitting her anymore. He wouldn’t let her out door, slammed door & ‘gun went off & he fell & he died’ [pt looked misty eyed here — near tears]” (additions by Doctor Back). App. 40.

       The full pretrial order reads as follows:
      “NOW on this 26th day of November, 1984, comes on the captioned matter for pre-trial hearing, and the Court finds:
      “1. On September 27 and 28,1984, Defendant was placed under hypnotic trance by Dr. Bettye Back, PhD, Fayetteville, Arkansas, for the express purpose of enhancing her memory of the events of July 2, 1983, involving the death of Frank Rock.
      “2. Dr. Back was professionally qualified to administer hypnosis. She was objective in the application of the technique and did not suggest by leading questions the responses expected to be made by Defendant. She was employed on an independent, professional basis. She made written notes of facts related to her by Defendant during the pre-hypnotic interview. She did employ post-hypnotic suggestion with Defendant. No one else was present during any phase of the hypnosis sessions except Dr. Back and Defendant.
      “3. Defendant cannot be prevented by the Court from testifying at her trial on criminal charges under the Arkansas Constitution, but testimony of matters recalled by Defendant due to hypnosis will be excluded because of inherent unreliability and the effect of hypnosis in eliminating any meaningful cross-examination on those matters. Defendant may testify to matters remembered and stated to the examiner prior to being placed under hypnosis. Testimony resulting from post-hypnotic suggestion will be excluded.” App. to Pet. for Cert. xvii.

       When petitioner began to testify, she was repeatedly interrupted by the prosecutor, who objected that her statements fell outside the scope of the pretrial order. Each time she attempted to describe an event on the day of the shooting, she was unable to proceed for more than a few words before her testimony was ruled inadmissible. For example, she was unable to testify without objection about her husband’s activities on the morning of the shooting, App. 11, about their discussion and disagreement concerning the move to her trailer, id., at 12, 14, about her husband’s and his brother’s replacing the shock absorbers on a van, id., at 16, and about her brother-in-law’s return to eat pizza, id., at 19-20. She then made a proffer, outside the hearing of the jury, of testimony about the fight in an attempt to show that she could adhere to the court’s order. The prosecution objected to every detail not expressly described in Doctor Back’s notes or in the testimony the doctor gave at the pretrial hearing. Id., at 32-35. The court agreed with the prosecutor’s statement that “ninety-nine percent of everything [petitioner] testified to in the proffer” was inadmissible. Id., at 35.

       The removal of the disqualifications for accused persons occurred later than the establishment of the competence to testify of civil parties. 2 J. Wigmore, Evidence § 579, p. 826 (J. Chadbourn rev. 1979). This was not due to concern that criminal defendants were more likely to be unreliable than other witnesses, but to a concern for the accused:
      “If, being competent, he failed to testify, that (it was believed) would damage his cause more seriously than if he were able to claim that his silence were enforced by law. Moreover, if he did testify, that (it was believed) would injure more than assist his cause, since by undergoing the ordeal of cross-examination, he would appear at a disadvantage dangerous even to an innocent man.” Id., at 828.

       The Arkansas Constitution guarantees an accused the right “to be heard by himself and his counsel.” Art. 2, § 10. Rule 601 of the Arkansas Rules of Evidence provides a general rule of competency: “Every person is competent to be a witness except as otherwise provided in these rules.”

         Ferguson v. Georgia struck down as unconstitutional under the Fourteenth Amendment a Georgia statute that limited a defendant’s presentation at trial to an unsworn statement, insofar as it denied the accused “the right to have his counsel question him to elicit his statement.” 365 U. S., at 596. The Court declined to reach the question of a defendant’s constitutional right to testify, because the case did not involve a challenge to the particular Georgia statute that rendered a defendant incompetent to testify. Id., at 572, n. 1. Two Justices, however, urged that such a right be recognized explicitly. Id., at 600-601, 602 (concurring opinions).

       Before Ferguson v. Georgia, it might have been argued that a defendant’s ability to present an unsworn statement would satisfy this right. Once that procedure was eliminated, however, there was no longer any doubt that the right to be heard, which is so essential to due process in an adversary system of adjudication, could be vindicated only by affording a defendant an opportunity to testify before the factfinder.

       This right reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify. See, e. g., Gagnon v. Scarpelli, 411 U. S. 778, 782, 786 (1973) (probation revocation); Morrissey v. Brewer, 408 U. S. 471, 489 (1972) (parole revocation); Goldberg v. Kelly, 397 U. S. 254, 269 (1970) (termination of welfare benefits).

       On numerous occasions the Court has proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right. See, e. g., Nix v. Whiteside, 475 U. S. 157, 164 (1986); id., at 186, n. 5 (Blackmun, J., concurring in judgment); Jones v. Barnes, 463 U. S. 745, 751 (1983) (defendant has the “ultimate authority to make certain fundamental decisions regarding the case, as to whether to . . . testify in his or her own behalf”); Brooks v. Tennessee, 406 U. S. 605, 612 (1972) (“Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right”).

       Numerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant’s right to testify. See, e. g., Chambers v. Mississippi, 410 U. S., at 302 (“In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence”); Washington v. Texas, 388 U. S. 14, 23, n. 21 (1967) (opinion should not be construed as disapproving testimonial privileges or nonarbitrary rules that disqualify those incapable of observing events due to mental infirmity or infancy from being witnesses).

       The rule leaves a trial judge no discretion to admit this testimony, even if the judge is persuaded of its reliability by testimony at a pretrial hearing. Tr. of Oral Arg. 36 (statement of the Attorney General of Arkansas).

       The Arkansas Supreme Court took the position that petitioner was fully responsible for any prejudice that resulted from the restriction on her testimony because it was she who chose to resort to the technique of hypnosis. 288 Ark. 566, 580, 708 S. W. 2d 78, 86 (1986). The prosecution and the trial court each expressed a similar view and the theme was renewed repeatedly at trial as a justification for limiting petitioner’s testimony. See App. 15, 20, 21-22, 24, 36. It should be noted, however, 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.

       See, e. g., Contreras v. State, 718 P. 2d 129 (Alaska 1986); State ex rel. Collins v. Superior Court, County of Maricopa, 132 Ariz. 180, 207-208, 644 P. 2d 1266, 1293-1294 (1982); People v. Quintanar, 659 P. 2d 710, 711 (Colo. App. 1982); State v. Davis, 490 A. 2d 601 (Del. Super. 1985); Bundy v. State, 471 So. 2d 9, 18-19 (Fla. 1985), cert. denied, 479 U. S. 894 (1986); State v. Moreno, 68 Haw. 233, 709 P. 2d 103 (1985); State v. Haislip, 237 Kan. 461, 482, 701 P. 2d 909, 925-926, cert. denied, 474 U. S. 1022 (1985); State v. Collins, 296 Md. 670, 464 A. 2d 1028 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N. E. 2d 1190 (1983); People v. Gonzales, 415 Mich. 615, 329 N. W. 2d 743 (1982), opinion added to, 417 Mich. 1129, 336 N. W. 2d 751 (1983); Alsbach v. Bader, 700 S. W. 2d 823 (Mo. 1985); State v. Palmer, 210 Neb. 206, 218, 313 N. W. 2d 648, 655 (1981); People v. Hughes, 59 N. Y. 2d 523, 453 N. E. 2d 484 (1983); Robison v. State, 677 P. 2d 1080, 1085 (Okla. Crim. App.), cert. denied, 467 U. S. 1246 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 110, 436 A. 2d 170, 177 (1981); State v. Martin, 101 Wash. 2d 713, 684 P. 2d 651 (1984). See State v. Ture, 353 N. W. 2d 502, 513-514 (Minn. 1984).

       The Arkansas court relied on a California case, People v. Shirley, 31 Cal. 3d 18, 723 P. 2d 1354, cert. denied, 459 U. S. 860 (1982), for much of its reasoning as to the unreliability of hypnosis. 288 Ark., at 575-578, 708 S. W. 2d, at 83-84. But while the California court adopted a far stricter general rule — barring entirely testimony by any witness who has been hypnotized — it explicitly excepted testimony by an accused:
      “[W]hen it is the defendant himself — not merely a defense witness — who submits to pretrial hypnosis, the experience will not render his testimony inadmissible if he elects to take the stand. In that case, the rule we adopt herein is subject to a necessary exception to avoid impairing the fundamental right of an accused to testify in his own behalf.” 31 Cal. 3d, at 67, 723 P. 2d, at 1384.
      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.

       Some jurisdictions have adopted a rule that hypnosis affects the credibility, but not the admissibility, of testimony. See, e. g., Beck v. Norris, 801 F. 2d 242, 244-245 (CA6 1986); United States v. Awkard, 597 F. 2d 667, 669 (CA9), cert. denied, 444 U. S. 885 (1979); State v. Wren, 425 So. 2d 756 (La. 1983); State v. Brown, 337 N. W. 2d 138, 151 (N. D. 1983); State v. Glebock, 616 S. W. 2d 897, 903-904 (Tenn. Crim. App. 1981); Chapman v. State, 638 P. 2d 1280, 1282 (Wyo. 1982).
      Other courts conduct an individualized inquiry in each case. See, e. g., McQueen v. Garrison, 814 F. 2d 951, 958 (CA4 1987) (reliability evaluation); Wicker v. McCotter, 783 F. 2d 487, 492-493 (CA5) (probative value of the testimony weighed against its prejudicial effect), cert. denied, 478 U. S. 1010 (1986); State v. Iwakiri, 106 Idaho 618, 625, 682 P. 2d 571, 578 (1984) (weigh “totality of circumstances”).
      In some jurisdictions, courts have established procedural prerequisites for admissibility in order to reduce the risks associated with hypnosis. Perhaps the leading case in this line is State v. Hurd, 86 N. J. 525, 432 A. 2d 86 (1981). See also Sprynczynatyk v. General Motors Corp., 771 F. 2d 1112, 1122-1123 (CA8 1985), cert. denied, 475 U. S. 1046 (1986); United States v. Harrington, 18 M. J. 797, 803 (A. C. M. R. 1984); House v. State, 445 So. 2d 815, 826-827 (Miss. 1984); State v. Beachum, 97 N. M. 682, 689-690, 643 P. 2d 246, 253-254 (App. 1981), writ quashed, 98 N. M. 51, 644 P. 2d 1040 (1982); State v. Weston, 16 Ohio App. 3d 279, 287, 475 N. E. 2d 805, 813 (1984); State v. Armstrong, 110 Wis. 2d 555, 329 N. W. 2d 386, cert. denied, 461 U. S. 946 (1983).

       Hypnosis has been described as “involv[ing] the focusing of attention; increased responsiveness to suggestions; suspension of disbelief with a lowering of critical judgment; potential for altering perception, motor control, or memory in response to suggestions; and the subjective experience of responding involuntarily.” Council Report, 253 J. A. M. A., at 1919.

       “[W]hen hypnosis is used to refresh recollection, one of the following outcomes occurs: (1) hypnosis produces recollections that are not substantially different from nonhypnotic recollections; (2) it yields recollections that are more inaccurate than nonhypnotie memory; or, most frequently, (3) it results in more information being reported, but these recollections contain both accurate and inaccurate details. . . . There are no data to support a fourth alternative, namely, that hypnosis increases remembering of only accurate information.” Id., at 1921.

       Courts have adopted varying versions of these safeguards. See n. 16, supra. Oregon by statute has a requirement for procedural safeguards for hypnosis. Ore. Rev. Stat. § 136.675 (1985).

       This disposition makes it unnecessary to consider petitioner’s claims that the trial court’s order restricting her testimony was unconstitutionally broad and that the trial court’s application of the order resulted in a denial of due process of law. We also need not reach petitioner’s argument that Arkansas’ restriction on her testimony interferes with her Sixth Amendment right to counsel. Petitioner concedes that there is a “substantial question” whether she raised this federal question on appeal to the Arkansas Supreme Court. Reply Brief for Petitioner 2.

      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.” Ante, at 55-56, n. 11. I fail to discern any meaningful constitutional difference between such rules and the one at issue here.