text:
Lockhart v. Fretwell/Dissent Stevens

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

Concerned that respondent Fretwell would otherwise receive the “windfall” of life imprisonment, see ante, at 366, 370, the Court today reaches the astonishing conclusion that deficient performance by counsel does not prejudice a defendant even when it results in the erroneous imposition of a death sentence. The Court's aversion to windfalls seems to disappear, however, when the State is the favored recipient. For the end result in this case is that the State, through the coincidence of inadequate representation and fortuitous timing, may carry out a death sentence that was invalid when imposed.

[p377] This extraordinary result rests entirely on the retrospective application of two changes in the law occurring after respondent's trial and sentencing. The first of these changes, on which the Court relies explicitly, affected the eligibility of defendants like Fretwell for the death penalty. The second change, never directly identified as such, is the Court's unprincipled transformation of the standards governing ineffective-assistance claims, through the introduction of an element of hindsight that has no place in our Sixth Amendment jurisprudence.

In my view, the Court of Appeals correctly determined that “fundamental unfairness exists when a prisoner receives a death sentence rather than life imprisonment solely because of his attorney's error.” The Court's post hoc rationale for avoiding this conclusion, self-evident until today, is both unconvincing and unjust.

I
“Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). For that reason, we have held squarely that the right to counsel guaranteed by the Constitution is a right to the “effective assistance of counsel.” See United States v. Cronic, 466 U.S. 648, 654 (1984). Absent competent counsel, ready and able to subject the prosecution's case to the “crucible of meaningful adversarial testing,” there can be no guarantee that the adversarial system will function properly to produce just and reliable results. Id., at 656. See Strickland v. Washington, 466 U.S. 668, 684–687 (1984).

In some cases, the circumstances surrounding a defendant's representation so strongly suggest abridgment of the [p378] right to effective assistance that prejudice is presumed. When, for instance, counsel is prevented from offering assistance during a critical phase of the proceedings, or labors under a conflict of interest that affects her performance, then we assume a breakdown in the adversarial process that renders the resulting verdict unreliable. See United States v. Cronic, 466 U.S., at 658–660. We need not, even if we could, inquire further into the precise nature of the prejudice sustained. See Glasser v. United States, 315 U.S. 60, 75–76 (1942). It is enough that the adversarial testing envisioned by the Sixth Amendment has been thwarted; the result is constitutionally unacceptable, and reversal is automatic. See United States v. Cronic, 466 U.S., at 656–657; Holloway v. Arkansas, 435 U.S. 475, 489 (1978).

In Strickland v. Washington, 466 U.S. 668 (1984), the Court decided that certain errors by counsel will give rise to a similar presumption of adversarial breakdown. Because the consequences that attend such a presumption—the setting aside of a conviction or sentence—are so serious, the Court took pains to limit the class of errors that would support an ineffective-assistance claim. First, an error must be so egregious that it indicates “deficient performance” by counsel, falling outside the “wide range of reasonable professional [p379] assistance.” Id., at 687, 689. Second, the error must be so severe that it gives rise to prejudice, defined quite clearly in Strickland as “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., at 694. Many significant errors, as the Court recognized in Kimmelman v. Morrison, 477 U.S. 365, 381–382 (1986), will not meet this “highly demanding” standard. But those that do will require reversal, not because they deprive a defendant of some discrete and independent trial right, but because, as Strickland held, they reflect performance by counsel that has “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U.S., at 686.

Under this well-established standard, as the District Court and Court of Appeals both determined, respondent is entitled to relief on his ineffective-assistance claim. That his counsel's performance was so wanting that it was “deficient” for Strickland purposes is not contested. Nor can it be seriously disputed that the decision reached would “reasonably likely have been different,” id., at 696, but for counsel's failure to make a double-counting objection supported by Eighth Circuit law. Under Strickland, this is the end of the inquiry. Respondent has identified an error of such magnitude that it falls within the narrow class of attorney errors precluding reliance on the outcome of the proceeding. See id., at 691–692. In Sixth Amendment terms, it is as though respondent had shown an actual conflict of interest, or the complete absence of counsel during some part of the sentencing proceeding: The adversary process has malfunctioned, and the resulting verdict is therefore, and without more, constitutionally unacceptable.

[p380] This is not, however, the standard that the Court applies today. Instead, the Court now demands that respondent point to some additional indicia of unreliability, some specific way in which the breakdown of the adversarial process affected respondent's discrete trial rights. Ante, at 369–370. But this is precisely the kind of harmless-error inquiry that the Court has rejected, time and again, in the Sixth Amendment context. When a criminal proceeding “loses its character as a confrontation between adversaries,” United States v. Cronic, 466 U.S., at 656–657, the harm done a defendant is as certain as it is difficult to define. Accordingly, we consistently have declined to require that a defendant who faces the State without adequate assistance show how he is harmed as a result. See Cuyler v. Sullivan, 446 U.S., at 349; Holloway v. Arkansas, 435 U.S., at 489–491; Hamilton v. Alabama, 368 U.S. 52, 55 (1961); Williams v. Kaiser, 323 U.S. 471, 475–477 (1945). “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S., at 76.

[p381] The Court compounds its error by insisting that respondent make his newly required showing from the vantage point of hindsight. Hindsight has no place in a Sixth Amendment jurisprudence that focuses, quite rightly, on protecting the adversarial balance at trial. Respondent was denied “the assistance necessary to justify reliance on the outcome of the proceeding,” Strickland v. Washington, 466 U.S., at 692, because his counsel's performance was so far below professional standards that it satisfied Strickland's first prong, and so severely lacking that the verdict “would reasonably likely have been different absent the errors,” id., at 696, under the second prong. It is simply irrelevant that we can now say, with hindsight, that had counsel failed to make a double-counting objection four years after the fact, his performance would have been neither deficient nor prejudicial. For as it happened, counsel's failure to object came at a time when it signified a breakdown in the adversarial process. A post hoc vision of what would have been the case years later has no bearing on the force of this showing.

Not surprisingly, the Court's reliance on hindsight finds no support in Strickland itself. Strickland makes clear that the merits of an ineffective-assistance claim must be “viewed as of the time of counsel's conduct.” Id., at 690. As the Court notes, this point is stated explicitly with respect to 's first prong, the quality of counsel's performance. Ante, at 371–372. What the Court ignores, however, is that the same point is implicit in 's entire discussion of the second prong. By defining prejudice in terms of the effect of counsel's errors on the outcome of the proceedings, [p382] based on the “totality of the evidence before the judge or jury,” 466 U.S., at 695, the Strickland Court establishes its point of reference firmly at the time of trial or sentencing.

To justify its revision of the Strickland standards for judging ineffective-assistance claims, the Court relies in large part on Nix v. Whiteside, 475 U.S. 157 (1986). Ante, at 370. Nix cannot, however, perform the heavy duty the Court assigns it. A rather unusual case, Nix involved a claim that counsel was ineffective because he refused to present a defense based on perjured testimony. It should suffice to say here that reliance on perjured testimony and reliance on current Court of Appeals case law are not remotely comparable, and that to suggest otherwise is simply disingenuous. But if further distinction is needed, we need not search far to find it.

First, the Court's decision in Nix rests in part on the conclusion that counsel's refusal to cooperate in presentation of perjury falls “well within the range of reasonable professional conduct acceptable under Strickland.” Nix v. Whiteside, 475 U.S., at 171; cf. United States v. Cronic, 466 U.S., at 656, n.19 (“Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one ”). In other words, ineffective-assistance claims predicated on failure to make wholly frivolous or unethical arguments will generally be dispensed with under 's first prong, without recourse to the second, and hence will not raise the questions at issue in this case.

To the extent that Nix does address 's second, or “prejudice,” prong, it does so in a context quite different from that presented here. In Strickland, the court cautioned that assessment of the likelihood of a different outcome should exclude the possibility of “a lawless decisionmaker,” who fails to “reasonably, conscientiously, and impartially appl[y] the standards that govern the decision.” 466 U.S., at 695. The Nix Court faced what is perhaps a [p383] paradigmatic example of the “lawlessness” to which Strickland referred, in the suggestion that perjured testimony might have undermined the decisionmaker's judgment, and concluded quite correctly that the defendant could not rely on any outcome-determinative effects of perjury to make his claim. Nix v. Whiteside, 475 U.S., at 175; see also id., at 186 (BLACKMUN, J., concurring in judgment). I do not read the Court's decision today as suggesting that a state trial court need fear the label “lawless” if it follows the decision of a United States Court of Appeals on a matter of federal constitutional law. Accordingly, 's discussion of perjury and lawlessness is simply inapposite to the issues presented here.

II
It is not disputed in this case that the performance of respondent's counsel was so deficient that it met the Strickland standard. What deserves emphasis here is the proven connection between that deficiency and the outcome of respondent's sentencing proceeding, as well as the presumptive effect of counsel's performance on the adversarial process itself.

Respondent was convicted of committing murder in the course of a robbery. The Arkansas trial court then held a separate sentencing hearing, devoted exclusively to the question whether respondent was eligible for the death penalty, or would instead receive a life sentence without parole. The State relied on two aggravating circumstances to establish its right to execute respondent. The first—the alleged purpose of avoiding arrest—was found by the jury to be unsupported by the evidence. The second—that the felony was committed for purposes of pecuniary gain—was obviously supported by the evidence, as respondent had already been convicted of robbery in connection with the murder. Thus, the critical question on which respondent's death eligibility turned was whether it was permissible, as a matter of law, to “double count” by relying on pecuniary gain as an [p384] aggravating circumstance and also on robbery as an element of the crime.

Counsel's duty at this stage of the proceedings was clear. In addition to general investigation and preparation for the penalty phase, counsel's primary obligation was to advise the trial judge about the correct answer to this crucial question of law. Had he handled this professional responsibility with anything approaching the “reasonableness” demanded by Strickland, 466 U.S., at 687–691, he would have found an Eighth Circuit case directly in point, addressing the same Arkansas statute under which respondent was sentenced and holding such double counting unconstitutional. Collins v. Lockhart, 754 F.2d 258, 261–265, cert. denied, 474 U.S. 1013 (1985). The failure to find that critically important case constitutes irrefutable evidence of counsel's inadequate performance. The fact that Collins was later overruled does not minimize in the slightest the force of that evidence.

Moreover, had counsel made a Collins objection to the pecuniary gain aggravating circumstance, we must assume that the trial court would have sustained it. As the District Court stated: “Although Collins has since been overruled, it was the law in the Eighth Circuit at the time of [respondent's] trial and this Court has no reason to believe that the trial court would have chosen to disregard it.” 739 F. Supp. 1334, 1337 (ED Ark. 1990). Neither petitioner nor the Court relies on disagreement with this finding. See n.5, supra. Nor could they. As we explained in Strickland, it is not open to the State to argue that an idiosyncratic state trial judge might have refused to follow circuit precedent and overruled a Collins objection. 466 U.S., at 695.

Applying Strickland to these facts, the District Court correctly held that counsel's failure to call the trial judge's attention to Collins constituted ineffective assistance and “seriously undermined the proper functioning of the adversarial process.” 739 F. Supp., at 1336. Because it granted relief on this basis, the District Court found it unnecessary to [p385] reach additional ineffective-assistance claims predicated on counsel's alleged failure to investigate or prepare for the penalty phase. Id., at 1337–1338. By the time the case reached the Court of Appeals, deficient performance was conceded, and the Eighth Circuit had only to affirm the District Court conclusion that “a reasonable state trial court would have sustained an objection based on Collins had Fretwell's attorney made one.” 946 F.2d, at 577.

Thus, counsel's deficient performance, in the form of his failure to discover Collins and bring it to the court's attention, is directly linked to the outcome of respondent's sentencing proceeding. Because of counsel's error, respondent received the death penalty rather than life imprisonment. [p386] 946 F.2d, at 577. Under Strickland, of course, respondent need not show quite so much; it is sufficient that “the decision reached would reasonably likely have been different absent the errors.” 466 U.S., at 696. A fortiori, a showing of outcome determination as strong as that made here is enough to support a Strickland claim.

In my judgment, respondent might well be entitled to relief even if he could not show prejudice as defined by 's second prong. The fact that counsel's performance constituted an abject failure to address the most important legal question at issue in his client's death penalty hearing gives rise, without more, to a powerful presumption of breakdown in the entire adversarial system. That presumption is at least as strong, if not stronger, than the inferences of adversarial malfunction that required reversal in cases like Holloway and Glasser, see supra, at 377–378. In other words, there may be exceptional cases in which counsel's performance falls so grievously far below acceptable standards under 's first prong that it functions as the equivalent of an actual conflict of interest, generating a presumption of prejudice and automatic reversal. I think this may well be one of those cases in which, as we wrote in Holloway, reversal would be appropriate “even if no particular prejudice is shown and even if the defendant was clearly guilty.” 435 U.S., at 489 (internal quotation marks and citation omitted).

Of course, we need not go nearly so far to resolve the case before us. Under the Strickland standard that prevailed until today, respondent is entitled to relief on his ineffective-assistance claim, having shown both deficient performance and a reasonable likelihood of a different outcome. The Court can avoid this result only by effecting a dramatic change in that standard, and then applying it retroactively to respondent's case. In my view, the Court's decision marks a startling and most unwise departure from our commitment [p387] to a system that ensures fairness and reliability by subjecting the prosecution's case to meaningful adversarial testing.

III
Changes in the law are characteristic of constitutional adjudication. Prior to 1985, most of those changes were in the direction of increasing the protection afforded an individual accused of crime. To vindicate the legitimate reliance interests of state law enforcement authorities, however, and in recognition of the state interest in preserving the outcome of trials adhering to contemporaneous standards, the Court often refused to apply its new rules retroactively. In Teague v. Lane, 489 U.S. 288, 310 (1989), the Court gave full expression to its general policy of allowing States “to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards,” holding that the claims of federal habeas petitioners will, in all but exceptional cases, be judged under the standards prevailing at the time of trial.

Since 1985, relevant changes in the law often have been in a different direction, affording less rather than more protection [p388] to individual defendants. An even handed approach to retroactivity would seem to require that we continue to evaluate defendants' claims under the law as it stood at the time of trial. If, under Teague, a defendant may not take advantage of subsequent changes in the law when they are favorable to him, then there is no self-evident reason why a State should be able to take advantage of subsequent changes in the law when they are adverse to his interests.

The Court, however, takes a directly contrary approach here. Today's decision rests critically on the proposition that respondent's ineffective-assistance claim is to be judged under the law as it exists today, rather than the law as it existed at the time of trial and sentencing. Ante, at 372. In other words, respondent must make his case under Perry v. Lockhart, 871 F.2d 1384 (CA8), cert. denied, 493 U.S. 959 (1989), decided four years after his sentencing; unlike the State, he is not entitled to rely on “then-existing constitutional standards,” Teague, 489 U.S., at 310, which rendered him ineligible for the death penalty at the time that sentence was imposed.

I have already explained why the Court's reliance on hindsight is incompatible with our right to counsel jurisprudence. It is also, in my judgment, inconsistent with case law that insists on contemporaneous constitutional standards as the benchmark against which defendants' claims are to be measured. A rule that generally precludes defendants from taking advantage of post-conviction changes in the law, but allows the State to do so, cannot be reconciled with this [p389] Court's duty to administer justice impartially. Elementary fairness dictates that the Court should evaluate respondent's ineffective-assistance claim under the law as it stood when he was convicted and sentenced—under Collins, and also under Strickland as it was understood until today.

As I see it, the only windfall at issue here is the one conferred upon the State by the Court's decision. Had respondent's counsel rendered effective assistance, the State would have been required to justify respondent's execution under a legal regime that included Collins. It is highly unlikely that it could have met this burden in the Arkansas courts, see supra, at 384–385, and it almost certainly could not have done so in the federal courts on habeas review. Now, however, the State is permitted to exploit the ineffective assistance of respondent's counsel, and the lapse in time it provided, by capitalizing on postsentencing changes in the law to justify an execution. Because this windfall is one the Sixth Amendment prevents us from bestowing, I respectfully dissent.

title: Lockhart v. Fretwell/Dissent Stevens


text:
Page:The House at Pooh Corner (1961).pdf/79

 “Yes,” said Tigger. “When they want to.”

“I love jumping,” said Roo. “Let’s see who can jump farthest, you or me.”

“I can,” said Tigger. “But we mustn’t stop now, or we shall be late.”

“Late for what?”

“For whatever we want to be in time for,” said Tigger, hurrying on.

In a little while they came to the Six Pine Trees.

“I can swim,” said Roo. “I fell into the river, and I swimmed. Can Tiggers swim?”

“Of course they can. Tiggers can do everything.”

“Can they climb trees better than Pooh?” asked Roo, stopping under the tallest Pine Tree, and looking up at it.

“Climbing trees is what they do best,” said Tigger. “Much better than Poohs.”

“Could they climb this one?”

“They’re always climbing trees like that,” said Tigger. “Up and down all day.”

“Oo, Tigger, are they really?”

“I’ll show you,” said Tigger bravely, “and you can sit on my back and watch me.” For of all the things which he had said Tiggers could do, the only one he felt really certain about suddenly was climbing trees.

“Oo, Tigger, oo, Tigger, oo, Tigger!” squeaked Roo excitedly.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:John Brown's body by Stephen Vincent Benét.djvu/14

 Where the skyscrapers lift their foggy plumes

Of stranded smoke out of a stony mouth

You are that high stone and its arrogant fumes,

And you are ruined gardens in the South

And bleak New England farms, so winter-white

Even their roofs look lonely, and the deep

The middle grainland where the wind of night

Is like all blind earth sighing in her sleep.

A friend, an enemy, a sacred hag

With two tied oceans in her medicine-bag.

They tried to fit you with an English song

And clip your speech into the English tale.

But, even from the first, the words went wrong,

The catbird pecked away the nightingale.

The homesick men begot high-cheekboned things

Whose wit was whittled with a different sound

And Thames and all the rivers of the kings

Ran into Mississippi and were drowned.

They planted England with a stubborn trust.

But the cleft dust was never English dust.

Stepchild of every exile from content

And all the disavouched, hard-bitten pack

Shipped overseas to steal a continent

With neither shirts nor honor to their back.

Pimping grandee and rump-faced regicide,

Apple-cheeked younkers from a windmill-square,

Puritans stubborn as the nails of Pride,

Rakes from Versailles and thieves from County Clare,

The black-robed priests who broke their hearts in vain

To make you God and France or God and Spain.


text:
Page:The House at Pooh Corner (1961).pdf/80

 So he sat on Tigger’s back and up they went.

And for the first ten feet Tigger said happily to himself, “Up we go!”

And for the next ten feet he said:

“I always said Tiggers could climb trees.”

And for the next ten feet he said:

“Not that it’s easy, mind you.”

And for the next ten feet he said:

“Of course, there’s the coming-down too. Backwards.”

And then he said:

“Which will be difficult

“Unless one fell

“when it would be

“EASY.”

And at the word “easy” the branch he was standing on broke suddenly, and he just managed to clutch at the one above him as he felt himself going and then slowly he got his chin over it  and then one back paw  and then the other  until at last he was sitting on it, breathing very quickly, and wishing that he had gone in for swimming instead.

Roo climbed off, and sat down next to him.

“Oo, Tigger,” he said excitedly, “are we at the top?”

“No,” said Tigger.

“Are we going to the top?”


text: John Brown's Body (1928)/Invocation

title: John Brown's Body (1928)/Invocation


text:
Page:The Monk, A Romance - Lewis (1796, 1st ed., Volume 1).djvu/202

 taining the truth of my conjectures. Suddenly I was aware of some one below pacing hastily backwards and forwards. Every thing now appeared to me an object of suspicion. With precaution I drew near the window, which, as the room had been long shut up, was left open in spite of the cold. I ventured to look out. The beams of the moon permitted me to distinguish a man, whom I had no difficulty to recognize for my host. I watched his movements. He walked swiftly, then stopped and seemed to listen: he stamped upon the ground, and beat his stomach with his arms, as if to guard himself from the inclemency of the season: at the least noise, if a voice was heard in the lower part of the house, if a bat flitted past him, or the wind rattled amidst the leafless boughs, he started, and looked round with anxiety.

"Plague take him!" said he at length with extreme impatience; "what can he be about?"

He spoke in a low voice; but as he


text:
Page:John Brown's body by Stephen Vincent Benét.djvu/18

 Receive the dream too haughty for the breast,

Receive the words that should have walked as bold

As the storm walks along the mountain-crest

And are like beggars whining in the cold.

The maimed presumption, the unskilful skill,

The patchwork colors, fading from the first,

And all the fire that fretted at the will

With such a barren ecstasy of thirst.

Receive them all—and should you choose to touch them

With one slant ray of quick, American fight,

Even the dust will have no power to smutch them,

Even the worst will glitter in the night.

If not—the dry bones littered by the way

May still point giants toward their golden prey.


text:
Page:The Monk, A Romance - Lewis (1796, 1st ed., Volume 1).djvu/203

 was just below my window, I had no difficulty to distinguish his words.

I now heard the steps of one approaching. Baptiste went towards the sound; he joined a man, whom his low stature and the horn suspended from his neck declared to be no other than my faithful Claude, whom I had supposed to be already on his way to Strasbourg. Expecting their discourse to throw some light upon my situation, I hastened to put myself in a condition to hear it with safety. For this purpose I extinguished the, which stood upon a table near the bed: the flame of the fire was not strong enough to betray me, and I immediately resumed my place at the window.

The objects of my curiosity had stationed themselves directly under it. I suppose that, during my momentary absence, the woodman had been blaming Claude for tardiness, since when I returned to the window the latter was endeavouring to excuse his fault.

"However," added he, "my diligence


text:
Page:John Brown's body by Stephen Vincent Benét.djvu/17

 And should that task seem fruitless in the eyes Of those a different magic sets apart To see through the ice-crystal of the wise No nation but the nation that is Art,

Their words are just. But when the birchbark-call Is shaken with the sound that hunters make The moose comes plunging through the forest-wall Although the rifle waits beside the lake.

Art has no nations—but the mortal sky Lingers like gold in immortality.

This flesh was seeded from no foreign grain But Pennsylvania and Kentucky wheat, And it has soaked in California rain And five years tempered in New England sleet

To strive at last, against an alien proof And by the changes of an alien moon, To build again that blue, American roof Over a half-forgotten battle-tune

And call unsurely, from a haunted ground, Armies of shadows and the shadow-sound.

In your Long House there is an attic-place Full of dead epics and machines that rust, And there, occasionally, with casual face, You come awhile to stir the sleepy dust;

Neither in pride nor mercy, but in vast Indifference at so many gifts unsought, The yellowed satins, smelling of the past, And all the loot the lucky pirates brought.

I only bring a cup of silver air, Yet, in your casualness, receive it there.


text:
Page:The House at Pooh Corner (1961).pdf/81

 “No,” said Tigger.

“Oh,” said Roo rather sadly. And then he went on hopefully: “That was a lovely bit just now, when you pretended we were going to fall-bump-to-the-bottom, and we didn’t. Will you do that bit again?”

“NO,” said Tigger.

Roo was silent for a little while, and then he said, “Shall we eat our sandwiches, Tigger?” And Tigger said, “Yes, where are they?” And Roo said, “At the bottom of the tree.” And Tigger said, “I don’t think we’d better eat them just yet.” So they didn’t.

By and by Pooh and Piglet came along. Pooh was telling Piglet in a singing voice that it didn’t seem to matter, if he didn’t get any fatter, and he didn’t think he was getting any fatter, what he did; and Piglet was wondering how long it would be before his haycorn came up.

“Look, Pooh!” said Piglet suddenly. “There’s something in one of the Pine Trees.”

“So there is!” said Pooh, looking up wonderingly. “There’s an Animal.”

Piglet took Pooh’s arm, in case Pooh was frightened.

“Is it One of the Fiercer Animals?” he said, looking the other way.

Pooh nodded.

“It’s a Jagular,” he said.


text:
Page:John Brown's body by Stephen Vincent Benét.djvu/16

 All day the snow fell on that Eastern town

With its soft, pelting, little, endless sigh

Of infinite flakes that brought the tall sky down

Till I could put my hands in the white sky

And taste cold scraps of heaven on my tongue

And walk in such a changed and luminous light

As gods inhabit when the gods are young.

All day it fell. And when the gathered night

Was a blue shadow cast by a pale glow

I saw you then, snow-image, bird of the snow.

And I have seen and heard you in the dry

Close-huddled furnace of the city street

When the parched moon was planted in the sky

And the limp air hung dead against the heat.

I saw you rise, red as that rusty plant,

Dizzied with lights, half-mad with senseless sound,

Enormous metal, shaking to the chant

Of a triphammer striking iron ground.

Enormous power, ugly to the fool,

And beautiful as a well-handled tool.

These, and the memory of that windy day

On the bare hills, beyond the last barbed wire,

When all the orange poppies bloomed one way

As if a breath would blow them into fire,

I keep forever, like the sea-lion's tusk

The broken sailor brings away to land,

But when he touches it, he smells the musk,

And the whole sea lies hollow in his hand.

So, from a hundred visions, I make one,

And out of darkness build my mocking sun.


text:
Page:The House at Pooh Corner (1961).pdf/82

 “What do Jagulars do?” asked Piglet, hoping that they wouldn’t.

“They hide in the branches of trees, and drop on you as you go underneath,” said Pooh. “Christopher Robin told me.”

“Perhaps we better hadn’t go underneath, Pooh. In case he dropped and hurt himself.”

“They don’t hurt themselves,” said Pooh. “They’re such very good droppers.”

Piglet still felt that to be underneath a Very Good Dropper would be a Mistake, and he was just going to hurry back for something which he had forgotten when the Jagular called out to them.

“Help! Help!” it called.

“That’s what Jagulars always do,” said Pooh,


text:
Page:John Brown's body by Stephen Vincent Benét.djvu/15

 These were your lovers in your buckskin-youth.

And each one married with a dream so proud

He never knew it could not be the truth

And that he coupled with a girl of cloud.

And now to see you is more difficult yet

Except as an immensity of wheel

Made up of wheels, oiled with inhuman sweat

And glittering with the heat of ladled steel.

All these you are, and each is partly you,

And none is false, and none is wholly true.

So how to see you as you really are,

So how to suck the pure, distillate, stored

Essence of essence from the hidden star

And make it pierce like a riposting sword.

For, as we hunt you down, you must escape

And we pursue a shadow of our own

That can be caught in a magician's cape

But has the flatness of a painted stone.

Never the running stag, the gull at wing,

The pure elixir, the American thing.

And yet, at moments when the mind was hot

With something fierier than joy or grief,

When each known spot was an eternal spot

And every leaf was an immortal leaf,

I think that I have seen you, not as one,

But clad in diverse semblances and powers,

Always the same, as light falls from the sun,

And always different, as the differing hours.

Yet, through each altered garment that you wore,

The naked body, shaking the heart's core.


text:
Page:The House at Pooh Corner (1961).pdf/83

much interested. “They call ‘Help! Help!’ and then when you look up, they drop on you.”

“I’m looking down,” cried Piglet loudly, so as the Jagular shouldn’t do the wrong thing by accident.

Something very excited next to the Jagular heard him, and squeaked:

“Pooh and Piglet! Pooh and Piglet!”

All of a sudden Piglet felt that it was a much nicer day than he had thought it was. All warm and sunny

“Pooh!” he cried. “I believe it’s Tigger and Roo!”

“So it is,” said Pooh. “I thought it was a Jagular and another Jagular.”

“Hallo, Roo!” called Piglet. “What are you doing?”

“We can’t get down, we can’t get down!” cried Roo. “Isn’t it fun? Pooh, isn’t it fun, Tigger and I


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Page:No More Parades (Albert & Charles Boni).djvu/180

 had adopted his slow pomposity in order to give the grotesque object at the table with them time to recover from his confusion. She hated him for it. What right had he to make himself appear a pompous ass in order to shield the confusion of anybody?

The second-lieutenant came out of his confusion to exclaim, actually slapping his thigh:

"There you are, madam Trust the captain to know everything I don't believe there's a question under the sun you could ask him that he couldn't answer They say up at the camp He went on with long stories of all the questions Tietjens had answered up at the camp

Emotion was going all over Sylvia at the proximity of Tietjens. She said to herself: "Is this to go on for ever?" Her hands were ice-cold. She touched the back of her left hand with the fingers of her right. It was ice-cold. She looked at her hands. They were bloodless She said to herself: "It's pure sexual passion it's pure sexual passion  God! Can't I get over this?" She said: "Father You used to be fond of Christopher Get our Lady to get me over this It's the ruin of him and the ruin of me. But, oh damn, don't For it's all I have to live for She said: "When he came mooning back from the telephone I thought it was all right I thought what a heavy wooden-horse he looked For two minutes Then it's all over me again I want to swallow my saliva and I can't. My throat won't work

She leaned one of her white bare arms on the tablecloth towards the walrus-moustache that was still snuffling gloriously:

"They used to call him Old Sol at school." she said.


text:
Page:The House at Pooh Corner (1961).pdf/84

 are living in a tree, like Owl, and we’re going to stay here for ever and ever. I can see Piglet’s house. Piglet, I can see your house from here. Aren’t we high? Is Owl’s house as high up as this?”

“How did you get there, Roo?” asked Piglet.

“On Tigger’s back! And Tiggers can’t climb downwards, because their tails get in the way, only upwards, and Tigger forgot about that when we started, and he’s only just remembered. So we’ve got to stay here for ever and ever—unless we go higher. What did you say, Tigger? Oh, Tigger says if we go higher we shan’t be able to see Piglet’s house so well, so we’re going to stop here.”

“Piglet,” said Pooh solemnly, when he had heard all this, “what shall we do?” And he began to eat Tigger’s sandwiches.

“Are they stuck?” asked Piglet anxiously.

Pooh nodded.

“Couldn’t you climb up to them?”

“I might, Piglet, and I might bring Roo down on my back, but I couldn’t bring Tigger down. So we must think of something else.” And in a thoughtful way he began to eat Roo’s sandwiches, too.

Whether he would have thought of anything before he had finished the last sandwich, I don’t know, but he had just got to the last but one when there


text:
Page:The House at Pooh Corner (1961).pdf/85

 was a crackling in the bracken, and Christopher Robin and Eeyore came strolling along together.

“I shouldn’t be surprised if it hailed a good deal tomorrow,” Eeyore was saying. “Blizzards and whatnot. Being fine today doesn’t Mean Anything. It has no sig—what’s that word? Well, it has none of that. It’s just a small piece of weather.”

“There’s Pooh!” said Christopher Robin, who didn’t much mind what it did tomorrow, as long as he was out in it. “Hallo, Pooh!”

“It’s Christopher Robin!” said Piglet. “He’ll know what to do.”

They hurried up to him.

“Oh, Christopher Robin,” began Pooh.

“And Eeyore,” said Eeyore.

“Tigger and Roo are right up the Six Pine Trees, and they can’t get down, and”

“And I was just saying,” put in Piglet, “that if only Christopher Robin”

“And Eeyore”

“If only you were here, then we could think of something to do.”

Christopher Robin looked up at Tigger and Roo, and tried to think of something.

“I thought,” said Piglet earnestly, “that if Eeyore stood at the bottom of the tree, and if Pooh stood on Eeyore’s back, and if I stood on Pooh’s shoulders”


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 “And if Eeyore’s back snapped suddenly, then we could all laugh. Ha ha! Amusing in a quiet way,” said Eeyore, “but not really helpful.”

“Well,” said Piglet meekly, “I thought”

“Would it break your back, Eeyore?” asked Pooh, very much surprised.

“That’s what would be so interesting, Pooh. Not being quite sure till afterwards.”

Pooh said “Oh!” and they all began to think again.

“I’ve got an idea!” cried Christopher Robin suddenly.

“Listen to this, Piglet,” said Eeyore, “and then you’ll know what we’re trying to do.”

“I’ll take off my tunic and we’ll each hold a corner, and then Roo and Tigger can jump into it, and it will be all soft and bouncy for them, and they won’t hurt themselves.”

“Getting Tigger down,” said Eeyore, “and Not hurting anybody. Keep those two ideas in your head, Piglet, and you’ll be all right.”

But Piglet wasn’t listening, he was so agog at the thought of seeing Christopher Robin’s blue braces again. He had only seen them once before, when he was much younger, and, being a little over-excited by them, had had to go to bed half an hour earlier than usual; and he had always wondered since if they were really as blue and as bracing as he had


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Page:The House at Pooh Corner (1961).pdf/87

 thought them. So when Christopher Robin took his tunic off, and they were, he felt quite friendly to Eeyore again, and held the corner of the tunic next to him and smiled happily at him. And Eeyore whispered back: “I’m not saying there won’t be an Accident now, mind you. They’re funny things, Accidents. You never have them till you’re having them.”

When Roo understood what he had to do, he was wildly excited, and cried out: “Tigger, Tigger, we're going to jump! Look at me jumping, Tigger! Like flying, my jumping will be. Can Tiggers do it?” And he squeaked out: “I’m coming, Christopher Robin!” and he jumped—straight into the middle of the tunic. And he was going so fast that he bounced up again almost as high as where he was before—and went on bouncing and saying, “Oo!” for quite a long time—and then at last he stopped and said, “Oo, lovely!” And they put him on the ground.

“Come on, Tigger,” he called out. “It’s easy.”

But Tigger was holding on to the branch and saying to himself: “It’s all very well for Jumping Animals like Kangas, but it’s quite different for Swimming Animals like Tiggers.” And he thought of himself floating on his back down a river, or striking out from one island to another, and he felt that that was really the life for a Tigger.


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Page:The Pima Indians.pdf/172

] the second section. As there are but three finger holes the range of notes is not great and they are very low and plaintive.

These instruments are usually ornamented with geometric designs having no symbolic significance at the present time among the Pimas. A bit of cloth or ribbon is sometimes attached to the middle of the flute, as in specimen c, figure 80.

Any shallow basket of sufficient size, such as are in common use in every household for containing grain or prepared food, may be transformed into a drum by simply turning it bottom up and beating it with the hands. In accompanying certain songs it is struck with a stick in rapid glancing blows.

The notched or scraping stick is in very general use to carry the rhythm during the singing of ceremonial songs. When one end of the stick is laid on an overturned basket and another stick or a deer's scapula is drawn quickly over the notches the resulting sound from this compound instrument of percussion may be compared with that of the snare drum. However, it is usually held in the hand and rasped with a small stick kept for the purpose. So important are these instruments in Pima rain ceremonies that they are usually spoken of as "rain sticks."

There are four scraping sticks in the collection. One of these (fig. 81, a), is smoothly cut, tapering, and evidently very old. The wood has not been identified, though it resembles ironwood. There are six small notches at the side of the handle, possibly fulfilling some mnemonic purpose. At the base of the series of notches is a broad X; there is another at the middle, and evidences of a third appear at the tip, which is broken away. There are 36 deep transverse

title: Page:The Pima Indians.pdf/172


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168 notches on the lower part and 49 on the upper. This stick was used for the cure of the piholt disease (p. 265) and was probably obtained from the Yaquis. The other three sticks (c, e, f) are much rougher and are undoubtedly of Pima make. The two large ones (c, e) have deep notches, which are few in number.

The gourd rattle is used in most Pima ceremonies. It is made by fitting a wooden handle to a gourd in which gravel have been placed. The handle passes through the center and, reduced in diameter, projects slightly from the larger end, as shown in figure 82, which also illustrates the distribution of the perforations, which are said to be for the purpose of "letting the sound out." It will be observed that the sacred number 4 is represented by the principal lines of holes extending longitudinally. About a dozen specimens were seen and none were decorated in any way except in the arrangement of the perforations; the handles were invariably rudely made.

A disk rattle that has been used in the Navitco ceremonies was secured at the village of Pe’-eptcĭlt. It is not a Pima instrument, but whether Papago or Yaqui the writer can not say. It contains two sets of four tin disks loosely held by wires passing through a wooden handle. The sound emitted resembles that of tambourine rattles (fig. 83).

From the same individual who used the disk rattle the writer obtained a rattle that had been used as a belt during the Navitco ceremonies. It is made of successive layers of canvas, red cotton cloth, oilcloth, and an old braided hatband, to which are attached by leather strings 21 brass cartridge shells (fig. 84).

There are two sets of cocoon rattles in the collection that were worn on the calves of the legs in certain ceremonies. The cocoons were

title: Page:The Pima Indians.pdf/173


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Page:The Pima Indians.pdf/174

] obtained from the Papagos or Yaquis of Sonora. They are of a species of bombycid moth; their outer coverings have been removed, and a few gravel have then been sewed in each cocoon. There are 70 pairs of cocoons in one strand and 66 in the other (fig. 85). The rustling sound given out by this number of rattles is not unlike the warning of the rattlesnake.

At the village of Sacaton Flats at least one turtle-shell rattle is still used in the treatment of the "turtle disease," although no specimen of such rattle was seen.

title: Page:The Pima Indians.pdf/174


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Page:The Pima Indians.pdf/175

170 Hoof rattles, usually of dewclaws, were of universal distribution among the American Indians and were common among the Pimas, though none are to be found at the present day. Bartlett figures such a rattle in his Personal Narrative (, 223).

Dancing was frequently indulged in by both sexes and was accompanied by song, together with instrumental music furnished by the basket drum and the rattle. The dancers stood in a circle with arms extended across the shoulders of those adjoining. This position did not permit much freedom, and movements were confined to stamping the feet and bending the body. When food was plentiful dances might occur at any time. Their number increased and their moral character sadly deteriorated as the men relaxed their vigilance after peace was made with the Apaches. The energy formerly expended on the warpath was then wasted in debauchery. The dances began in the morning and lasted all day. Both men and women came with freshly painted faces and bodies, the women with their hair neatly dressed. Each woman brought a contribution of food in the form of mesquite dumplings, corn and wheat pinole or tortillas, meat, and the like. Throughout the day a few at a time stopped to eat, so that the dancing and the feasting both proceeded without interruption. For an account of the war dances, see page 205; puberty dance, page 182.

Of course all festivals partook somewhat of the nature of sacred ceremonies, but when this element was at a minimum, as in the saguaro harvest festival, its description may properly appear here with the arts of pleasure. These festivals were of annual occurrence, except during the occasional seasons when the fruit failed. The leading feature of these gatherings was the preparation and drinking of navait or saguaro liquor, and they became drunken orgies in which, since the introduction of knives and firearms, men were sometimes killed. The Government has prohibited "tizwin drunks," as they are called by the whites, though they are still surreptitiously held.

The sirup of the saguaro fruit is boiled for two days in the preparation of the liquer, and in the meantime the people gather and dance in the plaza nearest to the spot where the large ollas are simmering. During the final carousal all the men and some of the women become intoxicated. Through the influence of the missionaries, the native police under the agent's orders, and the actively exerted influence of the more intelligent men in the tribe, the custom is dying out. The subchief, Kâemâ-â (pl., c), at Gila Crossing has been a zealous advocate of temperance for a number of years. and it is not unlikely that the folly of such debaucheries was apparent to

title: Page:The Pima Indians.pdf/175


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Page:The Pima Indians.pdf/176

176 some members of the Pima community during preceding generations before outside influences were brought to bear upon them. Indeed, soine measure of prudence was enforced by the fact that the Apaches were hovering upon the outskirts of the villages watching for an opportunity to attack when the warriors were incapacitated for resistance.

The "Name song" is a social device that accomplishes the ends of organized charity, together with those of the ordinary festival. If a village suffers from a scarcity of food, it visits one where the crops have been plentiful and shares in the bountiful harvest in the following manner: The visitors camp outside the village and come in during the evening to learn the names of the residents and to arrange these names in the song, which provides places for two names in each stanza. There are seventy stanzas in the song, and if there are more than twice that number of visitors it may be repeated and other names substituted. Each visitor assumes the name of a resident of the village as a seal of fellowship and for the purpose of contributing to the pleasure of the festivities of the morrow, when the strangers come into the village to sing. As the song is sung and a name is called the wife or daughter of the person of that name runs with some light object, and the wife or daughter of the person who has assumed the name for the day pursues the other woman to take it away from her. If she is unable to catch her, some of the other visiting women aid in capturing the runner, and she leads her captors to where "the value of her husband’s name," in the form of corn, wheat, beans, or other foodstuffs, is ready to be presented to the visitor.

When there are many participants in the ceremony nearly the entire day may be consumed in its performance. When some of the resident villagers are destitute, only the names of those who have plentiful crops are used. The visitors give nothing but their services as singers, and they receive very substantial rewards. Etiquette requires that the visit be returned within a reasonable time—late the same season or during the following year. However, when the nomadic Papagos come to give the Pimas entertainment the visit can so seldom be returned that the gifts are more of the nature of exchanges by barter, with the advantages in favor of the Papagos. The Pimas always received the Papagos cordially, though rarely returning their visits—so rarely that in the last fifty years the Pimas have sung the name song but twice in Papagueria, the two visits being to Suijotoa.

The men received thorough training in speed and endurance in running during their raids into the Apache country, but they had few sports that tended toward physical improvement except the foot races. Sometimes a woman ran in a contest against a man, she

title: Page:The Pima Indians.pdf/176


text:
User talk:Moyeju

Editorial comments
Wikisource does not insert editorial comments into works. We present them just as they were published. The poems by Dickinson are presented just as they appear in their source text, without additions or comments. If you are aware of another edition, and have a public domain copy, we can add another edition of the poem in another location and connect the two as versins of the same poem, but we would not insert new text into the first one. If, however, the "new" text is from a published source that is not in the public domain, then it cannot be hosted here at all. --EncycloPetey (talk) 23:59, 14 January 2024 (UTC)

title: User talk:Moyeju


text: Page:A complete collection of the English poems which have obtained the Chancellor's Gold Medal - 1859.djvu/35


text:
Page:A Treatise of the Covenant of Grace (John Ball).djvu/264

 252

not that he found them friends or brethren, or children, but that he might make them such, as by the participation of the benefits of his death they are made such indeed. The faithfull are the seed or children of Christ, which he hath brought forth with pain and travell. Isai. 53. 10, 11. The inheritance of Christ, which he hath purchased by his death, given unto him of the Father, that they might be redeemed from death, and possessed of him for their Salvation. Psal. 2. 8. as the Psalmist elsewhere expounds it, All the ends of the world shall remember and turne unto the Lord: and all the kinreds of the Nations shall worship before thee. And if Christ died thus for his people, seed, inheritance, sheep, and Church, he died not equally for all and every man: for then in his death he considered none to be made his sheep or brethren before others, nor did he purchase grace that one should be made the child of God rather then another. For though grace be distributed, in different degrees, yet that being so common to them that beleeve and them that beleeve not, that sometimes the greater measure is given to them that reject and cast it off, it cannot be the cause why one man differs from another.

Many things are answered to this argument; As first, that it is not said Christ died for his sheep, or brethren only, and that his dying for them doth not exclude others; as Paul saith, Christ died for him, applying the death of Christ to himself, but not excluding others. But the instance is not like; for these words (for me) are not disjunctive to distinguish Paul from the rest of the faithfull, but from unbeleevers, or them that were not in the same state or kind. This is a priviledge common to Paul with all beleevers, that Christ died for him: in respect of them then it is not disjunctive, but in respect of them who be not partners in that prerogative, it is disjunctive. Therefore the example doth rather prove the speech to be restrictive, then otherwise: for as these words of Paul, Who loved me, and gave himself for me, distinguish Paul from the company of unbeleevers, and so are exclusive: in like manner are these words of our Saviour, I lay down my life for my sheep, restrictive and exclusive. In those Texts there is no exclusive particle expressed, but the proposition for sense is restrictive. For when difference or distinction is contained in some terme, the Proposition is for sense exclusive, no lesse then if it was


text:
Portal:Edward Fitzgerald (1763-1798)

Works about Fitzgerald

 * The life and death of Lord Edward Fitzgerald, 2 vols. by Thomas Moore (1832)
 * Vol. 1
 * Memoirs of Lord Edward Fitzgerald by Thomas Moore (1835)
 * Fitzgerald, Edward (patriot) in Appletons' Cyclopædia of American Biography (1900)
 * The life of Lord Edward Fitzgerald, 1763-1798 by Ida Ashworth Taylor (1904)

title: Portal:Edward Fitzgerald (1763-1798)


text:
Rock v. Arkansas

Petitioner was charged with manslaughter for shooting her husband. In order to refresh her memory as to the precise details of the shooting, she twice underwent hypnosis by a trained neuropsychologist. These sessions were tape-recorded. After the hypnosis, she remembered details indicating that her gun was defective and had misfired, which was corroborated by an expert witness' testimony. However, the trial court ruled that no hypnotically refreshed testimony would be admitted, and limited petitioner's testimony to a reiteration of her statements to the doctor prior to hypnosis, as reported in the doctor's notes. The Arkansas Supreme Court affirmed her conviction, ruling that the limitations on her testimony did not violate her constitutional right to testify, and that criminal defendants' hypnotically refreshed testimony is inadmissible per se because it is unreliable.

Held:

1. Criminal defendants have a right to testify in their own behalf under the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment's privilege against self-incrimination. Pp. 49–53.

2. Although the right to present relevant testimony is not without limitation, restrictions placed on a defendant's constitutional right to testify by a State's evidentiary rules may not be arbitrary or disproportionate to the purposes they are designed to serve. Pp. 53–56.

3. Arkansas' per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his or her own behalf. Despite any unreliability that hypnosis may introduce into testimony, the procedure has been credited as instrumental in obtaining particular types of information. Moreover, hypnotically refreshed testimony is subject to verification by corroborating evidence and other traditional means of assessing accuracy, and inaccuracies can be reduced by procedural safeguards such as the use of tape or video recording. The State's legitimate interest in barring unreliable evidence does not justify a per se exclusion because the evidence may be reliable in an individual case. Here, the expert's corroboration of petitioner's hypnotically enhanced memories and the trial judge's conclusion that the tape recordings indicated that the doctor did not suggest responses with [p45] leading questions are circumstances that the trial court should have considered in determining admissibility. Pp. 56–62.

288 Ark. 566, 708 S.W.2d 78 (1986), vacated and remanded.

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.

title: Rock v. Arkansas


text:
Page:The Necromancer, or, The Tale of the Black Forest Vol. 2.djvu/107

 I must bend my aged knees to him, who dwelleth in heaven, and the pangs of conscience are not to be trifled with."

The Judge and the Sheriffs gazed at each other in dumb silence at these words, and none of them were inclined to question him any farther. Seeing this, he informed them voluntarily of every particular of the sacrilege, and of the family which had been plunged into want and misery, by the rapacious monks, whose church and convent had been robbed, by means of a forged will: He at the same time confessed where and in what manner the jewels, and the gold and silver furniture, had been turned into money, and by what means the sums those articles had fetched had been conveyed to the family, without acquainting the innocent sufferers with the names of their secret benefactors.

The astonishment of the whole court increased with every word the old man uttered, and as soon as he had finished his confession,


text:
Rock v. Arkansas/Dissent Rehnquist

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 [p63] 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 [p64] 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 often-times 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 [p65] 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 al., 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.

title: Rock v. Arkansas/Dissent Rehnquist


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Page:Biographies of representative women of the South (IA biographiesofrep01coll).pdf/5

 MISS MILDRED LEWIS RUTHERFORD.


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.


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Rock v. Arkansas/Opinion of the Court

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 [p46] 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 [p47] 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. [p48] 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 [p49] 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 [p50] 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, 81 S.Ct., at 763.

[p51] 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").

[p52] 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), [p53] 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.)

III
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 [p54] 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 [p55] 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 [p56] 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.

[p57] 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 [p58] 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 [p59] 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 [p60] 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 [p61] 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 posthypnosis 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.

[p62] 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.

title: Rock v. Arkansas/Opinion of the Court


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In 1961, British Railways had a total route mileage of 17,830 and a running track mileage of 34,150.

The route mileage was made up approximately as follows:—

No. of tracks Route miles Miles open for freight only

Route with four tracks or over 1,500 100

Route with three tracks 400 100

Route with double track 10,000 1,200

Single track 5,900 2,700

17,800 4,100

The total cost of maintaining this route system and of maintaining and operating the associated signalling system, exclusive of any allocation of interest on the capital employed, is £110 m. per annum. This is the cost of providing only the route on which trains can be run, i.e. the cost of providing the signalled track.

The estimated casts per route mile and the total costs of track in the various maintenance categories are shown below. Estimates in this form can only be broad approximations, but they serve to show the high cost of even low category routes.

The total cost of providing the route system, which, it should be emphasised, excludes the costs of associated sidings, yards, stations, and depots, amounts to nearly a quarter of the railways' total revenue. This is a fixed cost, in the full sense of the term, all the while the route system remains unchanged, and its high level emphasises the necessity for matching the railway system to available traffics so as to ensure a high average level of loading. Moreover, the figures: for the cost per mile of various categories of route make it clear that quite high traffic densities are necessary, even on single track route, to cover route cost alone.


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 The capital cost of providing sidings, yards, stations and depots is just as firmly fixed as the cost of providing route, but the cost of operating these facilities does vary to some extent with the level of traffic using them. Even so, the extent of this variation is small, especially on a short term basis, and a large part of shunting and terminal costs must be regarded as fixed, all the while the associated route system remains unchanged, or until stations are actually closed, or closed to some forms of traffic.

It is these considerations which make so interesting the information derived from the traffic density surveys, the results of which are presented more fully in Appendix 1. In what immediately follows, reference is made only to salient features, but further references are made in subsequent sections, where we return to considerations of various classes of traffic.

The traffic surveys, which were made in great detail, extended over only one week, the week ending on 23rd April, 1961, because it was impossible to continue the massive recording effort involved for a longer period. It was realised, therefore, that conclusions about some streams of traffic and about some parts of the system which are affected by seasonal changes could not be based firmly on the traffic surveys alone. Subject to this limitation, however, there can be little doubt about the general reliability of the picture revealed.

The tables and graphs in Appendix 1 show how pronounced is the disparity in loading between heavily loaded and lightly loaded parts of the route system. One third of the route mileage carries only 1 per cent. of the total passenger miles. Similarly, one third of the mileage carries only 1 per cent, of the freight ton miles of British Railways. The lightly used part of the system includes most of the single track branch line, of which there are 5,900 miles and of which 2,700 miles are open to freight traffic only. The proportion of British Railways' total, passenger and freight revenue corresponding with this proportion of total traffic movement is £4½ m., while the cost of providing this route is some £20 m.

One half of the total route mileage carries about 4 per cent. of the total passenger miles. Similarly, one half of the mileage carries about 5 per cent. of the total freight ton miles of British Railways. The corresponding apportionment of total passenger and freight revenue is S20 m., and the estimated cost of providing this part of the track is of the order of £40 m. Therefore, in so far as it is reasonable to judge earnings in terms of the traffic movement provided, one half of the system earns far less than sufficient to cover the cost of providing route to permit the movement, with no allowance whatever for movement or other costs. By contrast, the other half of the system has earnings which cover its. route costs more than six times.

It is recognised that the foregoing basis of consideration does not take account of the actual nature of the traffics on lightly loaded lines, of any special cost and charging feature associated with these traffics, nor of any contributory value which they may have to the remainder of the system. These matters will be considered later, however, and it will be found that so far from being exceptionally good traffics, most of the traffics fed to the rest of the system are of the less favourable kinds, and that their contribution of marginal revenue is small if not negative.

The disparities in the flow of traffics through stations are even more pronounced than those found in relation to routes. This is not surprising, because apart from the large variation in the size of the stations themselves, many of the smaller ones are on routes which are also lightly loaded.


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 parts of the total traffic mixture are associated with particular routes. It is also necessary to consider the potential effects of improved handling of traffic and the possibilities of attracting more or better traffics.

The extent to which this has been found possible is described in sections which follow.

The distribution of passenger traffic over the routes of British Railways is shown by Map No. 1. Numerous references will be made to this map in.followhg sections, where passenger traffics are considered in the three main groups which have already been referred to, namely:—

indent=2|*Fast and semi-fast train services.

Stopping-train services.

Suburban services.

The characteristics which distinguish these three types of service are clear, even though the groups merge into each other so that sharp boundaries between them can only be drawn arbitrarily.

Fast and Semi-Fast Trains

Fast and semi-fast trains provide inter-city services. They depend, for the attraction of traffic, upon the provision of rapid transits between the centres of population which they serve and upon well-chosen departure and arrival times in relation to the social and business habits of the community. To achieve the speed required they must be limited-stop trains, and to be successful financially they must draw a substantial number of passengers from the cities which they link. In general, the greater the distances covered by such services the more closely the number and timing of trains can be matched to the volume of demand, so that train loadings can be kept high. Also, because such services normally operate over densely loaded routes where the system cost is well covered by the total traffic, there is less reason to run lightly loaded trains which yield very little margin over their own direct costs, since they may displace more profitable traffic.

With a few minor exceptions, fast and semi-fast services are located upon only those routes shown as full lines on the traffic density map (Map No. l), and on those lines, away from the urban areas, they carry a high proportion of the total passenger flow.

To date, receipts from fast and semi-fast inter-city trains have been fairly stable and may be expected to remain so. They have not, however, kept pace with rising costs and the margin of receipts over direct costs does not make the contribution to the system which it should.

Inter-city distances in Britain are such that the squeezing out of rail traffic by the combined assault of air over the longer distances and the private car over the shorter distances is far less serious here than in larger and less densely populated countries such as the United States, where the process is almost complete.

Even though main road congestion is being reduced in many places, urban congestion remains at such a level as to discourage use of private cars for even medium distance journeys between large centres of population on grounds of