Record and brief — Kimberlin v. United States

Office - Suareme Court, U.S.

FILED

JAN 30 1982

. STEVAS.

C. FRN

8121430

No.

—

In Tue

Supreme Court of the United States

Ocroser Term, 1981

BRETT KIMBERLIN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

— —— —

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN L. GUBBINS

Suite 2300

Three First National Plaza

Chicago, Tllinois 60602

(312) 444-1000

Attorney for Petitioner

Ricwarp Ler Owen, II

Legal Researcher

— m— — — —— —

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED

1. Whether denials of a motion to suppress evidence

on double jeopardy claims, and/or a motion to suppress

hypnotically induced testimony are final orders within

the meaning of 28 U.S.C. § 1291.

2. Whether, on a multiple count indictment, evidence

of a crime to which a defendant is found not guilty in

one count may be used in a subsequent trial of counts on

which the original jury was unable to make a finding.

8. Whether hypnotically induced testimony deprives

a defendant of his right to confront his accusers.

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED .. . . .

I

Denials Of A Motion To Suppress Evidence

Based On Double Jeopardy Claims, And A

Motion To Suppress Hypnotically Induced

Testimony Are Final Orders Within The

Meaning Of 28 U.S.C. § 1291 . . . . . .

II.

On A Multiple Count Indietment, Evidence

To Which A Defendant Is Found Not Guilty

In One Count May Not Be Used In A Sub-

sequent Trial Of Counts On Which The

Original Jury Was Unable To Make A

Finding

III.

— Induced Testimony Denies A

H

Defendant His Right To Confront His Ac-

113

APPENDIX—Seventh Circuit’s Order Dismiss-

ing Consolidated Appeals

iv

TABLE OF AUTHORITIES

Cases

SUPREME COURT:

Abney v. United States, 431 U.S. 651 (1977) .. 5, 7

Ashe v. Swenson, 397 U.S. 436 (1970)

. . ln

California v. Greene, 399 U.S. 149 (1970) 26

Cohen v. Beneficial Industrial Loan Corp., 337

1K T— 6, 7, 8

Gilbert v. California, 388 U.S. 263 (1967) 25

In re Nielson, 131 U.S. 176 (1889) . 15

Manson v. Brathwaite, 432 U.S. 98 (1977) ......... 22

Moore v. Illinois, 434 U.S. 200 (1977) . 26

Pointer v. Texas, 380 U.S. 400 (1965) . 22, 25

Simmons v. United States, 390 U.S. 377 (1968) ... 22

95 5 States v. Oppenheimer, 242 U.S. 85 1

United States v. Wade, 388 U.S. 218 (1967) ...... 25, 26

COURT OF APPEALS AND DISTRICT COURTS:

Frye v. United States, 293 F. 1013 (D.C. Cir.

D 18. 22

Green v. United States, 138 U.S. App. D.C. 184,

rr. 12

Hughes v. Mathews, 576 F. 2d 1250 (7th Cir.

r . 18

United States v. Castro, 629 F. 2d 456 (7th Cir.

. Ä A 13

United States v. Day, 591 F. 2d 861 (D.C. 1978) 12

United States v. Gurney, 418 F. Supp. 1265 (M.D.

J — ee 11

United States v. Mespoulede, 597 F. 2d 329 (2nd

Cir. 1979) — 12

United States v. Papadakis, 510 F. 2d 287 (2nd

Cir. 1975), cert. denied, 21 U.S. 950 . 17

STATE CASES:

State v. Mack, Minn., 292 N. W. 2d 764. 25

* v. Cornier, (1964) 42 Misc. 2d 963, 249

Z 13

Stuart v. State, (1978) Texas, 561 S. W. 2d 181 . 11

tate v. Kerwin, (1975) Vt., 340 A. 2d 45 11

CONSTITUTIONAL PROVISIONS

AND STATUTES:

U.S. Const. amend. VI . . . . „„. 21. 25

TS U.S.C. 0h 90

„%. ERS 1. 5, 6

vi

OTHER AUTHORITIES:

Did Your Eyes Deceive You?, 29 Stan. L. Rev.

Hypnosis and Evidence: Help or Hindrance?, 347

Hypnosis and Suggestibility, An Experimental

Approach, Hull, (1968) ..... . ..- g.

Hypnotism, Suggestibility and the Law, 31 Neb. L.

Rev. 575 (1952) . . . . . .. .. ...: · r.

Hypnotism, An Objective Study in Suggestibility,

Weitzenhoffer, (1953) . .... . . ..

Hypnotic 12 — Hilgard & Ernest, 1966 ..

Hypnotized Witnesses May Remember Too Much,

64 A. B. A. J. 187 (1978) ...... ......

Human Behavior Magazine, April, 1978 .

Inherent Problems In The Use o, Pretrial Hypnosis

8 11 — Witness, 68 Cal. L. Rev. 313

The Fundamental Problem in Hypnosis Research

as Viewed from Istorical Perspective, Hypnosis:

Research Developments and Perspectives, 1972 .

The Nature of Hypnosis: Artifact and Essence,

Jour. of Abnormal and Social! Psychiatry, Vol.

58, No. 3 (1959) . . . ...... 2.2. ;

The Use Of H Induced Statements in Criminal

Cases, 25 Ohio St. L. J. 1, 14 (1946) .

The Use and Misuse of Hypnosis In Court, 27 Int.

J. Cunical & Experimental Hypnosis 311 (1979) .

Update on Hypnosis in Criminal Law, Margolin

E Arguimbau, 1978 ä ——

In Tae

Supreme Court of the United States

Ocroser Term, 1981

BRETT KIMBERLIN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

—_C_CO OOOO SOMO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The order of the United States Court of Appeals for

the Seventh Circuit is unpublished, and is attached

hereto as Appendix A.

JURISDICTION

The order of the United States Court of Appeals for

the Seventh Circuit was entered on November 24, 1981.

Associate Justice John Paul Stevens extended the time

within which to file a petition for a writ of certiorari to,

and including, January 30, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1291.

28

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment by a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself; nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

United States Constitution, Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the state and district wherein the crime shall have

been committed, which district shall have been previous-

ly ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

Title 28, United States Code § 1291

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the

United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

the District Court of the Virgin Islands, except where a

direct review may be had in the Supreme Court.

—s—

STATEMENT OF THE CASE

February 28, 1979, Petitioner Brett Kimberlin (here-

inafter “petitioner”) was charged in a 34 count indict-

ment returned by the grand jury for the United States

District Court for the Southern District of Indiana. Trial

was had to a jury on all 34 counts, and, on October 8,

1980, the jury found petitioner not guilty of count 25,

guilty of counts 26 through 34, and were unable to reach

a decision as to counts one through 24. The district court

declared a mistrial as to counts one through 24 and

dismissed the jury.

Count 25 of the indictment, to which the jury found

petitioner not guilty, alleged that petitioner had a 1974

felony conviction for perjury, and that in 1978 he had

transported two boxes of .223 caliber ammunition from

Ohio to Indiana. Counts 26 through 34, to which the jury

found petitioner guilty, alleged that petitioner had

illegal possession of patches and insignia of a type

prescribed for use by the federal government.

May 18, 1981, petitioner was back before the district

court for trial on counts one through 24 of the

indictment. Prior to jury selection, the district court

ordered that counts 23 and 24 be severed for trial

purposes from counts one through 22. This was due to:

(a) the remoteness in time between the offenses charged

in counts 23 and 24 from the remaining counts; and, (b)

the likelihood of prejudicial impact on the jury because

petitioner’s alleged 1974 conviction for perjury was a

material and included element of the offenses charged in

counts 23 and 24. Counts 23 and 24 alleged that

petitioner, being a convicted felon, had illegally come

into possession of explosives.

a

Following a second trial, petitioner was found guilty

on counts 23 and 24 of the indictment, on June 3, 1981.

Prior to his third trial, on counts one through 22,

petitioner filed a motion to suppress evidence to be

offered at that trial on the grounds that certain evidence

to be introduced would violate the double jeopardy

clause of the United States Constitution. The motion was

filed and denied on August 24, 1981. On the same date

petitioner filed his notice of appeal.

Prior to trial petitioner also filed a motion to suppress

evidence to be offered at his third trial on the grounds

that the testimony of certain witnesses had been gained

through the use of hypnotism and that this would deny

him the right to confront his accusers. The motion was

denied and a notice of appeal was filed.

Appeals of the denial of both motions were taken to

the United States Court of Appeals for the Seventh

Circuit. November 24, 1981, the court of appeals

dismissed the appeals concluding that the orders

appealed from were not final orders thus the court of

appeals lacked jurisdiction to hear the appeals.

—5—

REASONS FOR GRANTING THE PETITION

The reasons for this Court to grant the petition will be

divided into three parts: (1) the jurisdictional question of

whether the denial of the motions were final orders and

were appealable to the Seventh Circuit Court of Appeals

and to this Court, (2) whether the denial of the motion to

exclude evidence was in violation of the double jeopardy

clause of the United States Constitution, (3) whether the

denial of the motion to suppress hypnotically induced

testimony was in violation of the right to confront

witnesses clause of the United States Constitution. There

is a conflict among the various Circuit Courts and for

that reason this Court should grant the Writ of

Certiorari.

WHETHER DENIALS OF A MOTION TO SUPPRESS

EVIDENCE BASED ON DOUBLE JEOPARDY CLAIMS,

AND A MOTION TO SUPPRESS HYPNOTICALLY IN-

DUCED TESTIMONY ARE FINAL ORDERS WITHIN

THE MEANING OF 28 U.S.C. § 1291.

In Abney v. United States, 431 U.S. 651 (1977) this

Court granted certiorari to determine whether a pretrial

order denying a motion to dismiss an indictment on

double jeopardy grounds is a final decision within the

meaning of 28 U.S.C. § 1291, and thus immediately

appealable.

In holding that such pretrial orders rejecting claims

of former jeopardy were final decisions for purposes of

§ 1291, this Court recognized that § 1291 did not

uniformly limit appellate jurisdiction to those final

judgments which terminate an action. Although a

pretrial order denying a motion to dismiss an indict-

ment on double jeopardy grounds lacks the finality

ati

traditionally considered indispensable to appellate re-

view such orders fall within the “small class of cases”

placed beyond the confines of the final judgment rule by

the holding in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949).

The Cohen case was a derivative action brought in

federal diversity jurisdiction. The defendants demanded

that plaintiffs post a $125,000 bond, invoking a New

Jersey statute that made derivative action plaintiffs

holding small amounts of stock liable for the expenses

and attorney’s fees incurred by successful defendants,

and required security for payment. The district court

ruled that the statute was not applicable in a diversity

action. The court of appeals reversed, and was affirmed

by this Court. Before addressing the merits of the

question, this Court ruled that the order denying the

request for security was a final decision, appealable

under § 1291, even though the case itself was far from

ultimate disposition.

First, the matter to be reviewed must have been

finally disposed of by the district court, so that its

decision is not tentative, informal or incomplete. This

Court’s further statement that appeal gives a power of

review, not intervention, underscores the purpose of this

requirement. So long as there is a plain prospect that

the trial court may itself alter the challenged ruling,

there is little justification for immediate appellate

intrusion. The bare fact that the court has power to

change its ruling, however, does not preclude review. It

is enough that no further consideration is contemplated.

Second, the matter to be reviewed must be “separable

from, and collateral to, rights asserted in the action.”

This requirement was voiced in other ways as well, but

apparently the various phrases refer to the same basic

criterion. Thus the matter raised by the appeal must not

aun

be a step toward final judgment, in which it would

“merge”; it must not “affect, or * * * be affected by,

decision on the merits”; and it must be so “independent

of the cause itself” that appellate decision need not await

disposition of other matters. The purposes of this

requirement relate closely to the basic purposes of the

final judgment rule itself. In fact, it helps protect

against repetitive consideration of the same matters by

the court of appeals—so long as the matter is so

collateral that it need not entail consideration of the

merits, it may be reviewed immediately with no greater

cost in appellate time than if review were postponed. In

addition, this requirement helps improve the quality of

appellate review—if the matter is one whose decision is

affected by decision on the merits, review before trial of

the merits might reach a result that would not be

accepted on later appeal. Finally, this requirement may

minimize the intrusion on continuing trial court pro-

ceedings, sce it may often prove possible for trial

preparation and even trial to continue pending appeal of

the separable question.

Third, there must be a risk of important loss if

present review is not available. In Cohen, this Court

noted that the right to security for expenses of defense

would not be merged in final judgment, and could be

lost, probably irreparably, if the defendants should win

after trial on the merits. The asserted right was found

too important to be denied review.

Finally, the court stated that not every question

affecting security would be appealable, and noted that

the instant case involved a serious and unsettled

question.

The Abney court was in no doubt that pretrial orders

rejecting claims of former jeopardy met the Cohen test.

In the first place there can be no doubt that such orders

constitute a complete, formal and, in the trial court, a

final rejection of a criminal defendant’s double jeopardy

claim. There are simply no further steps that can be

taken in the District Court to avoid the trial the de-

fendant maintains is barred by the Fifth Amendment’s

guarantee. Hence, Cohen’s threshold requirement of a

fully consummated decision is satisfied.

Moreover, the very nature of a double jeopardy claim

is such that it is collateral to, and separable from the

principal issue at the accused’s pending criminal trial,

i.e., whether or not the accused is guilty of the offense

charged.

Finally, the rights conferred on a criminal accused by

the double jeopardy clause would be significantly

undermined if appellate review of double jeopardy

claims were postponed until after conviction and sen-

tence. To be sure, the Double Jeopardy Clause protects

an individual against being twice convicted for the same

crime, and that aspect of the right can be fully

vindicated on an appeal following final judgment, as

the government suggests. However, this Court has long

recognized that the double jeopardy clause protects an

individual against more than being subjected to double

punishments. It is a guarantee against being twice put

to trial for the same offense.

In conclusion the court held that pretrial orders

rejecting claims of former jeopardy, such as that

presently before you, constitute “final decisions” and

thus satisfy the jurisdictional prerequisites of § 1291.

Just such an order is on review here.

In the District Court when oral argument was held

pertaining to the motion to exclude evidence, the

government argued that the question did not present a

double jeopardy question but the evidence was ad-

missible under the Federal Rules of Evidence, 404(b).

——

The merits of this argument is discussed in the second

part of the reasons for granting this writ. Likewise the

merits of excluding hypnotically induced testimony will

be discussed in the third part of the reasons for the

granting of this writ. However, if this court agrees the

decisions of the District Court were final then this court

has jurisdiction to hear this appeal.

WHETHER, ON A MULTIPLE COUNT INDICTMENT,

EVIDENCE OF A CRIME TO WHICH A DEFENDANT

IS FOUND NOT GUILTY IN ONE COUNT MAY BE

USED IN A SUBSEQUENT TRIAL OF COUNTS ON

WHICH THE ORIGINAL JURY WAS UNABLE TO

MAKE A FINDING.

The motion to exclude evidence was filed and denied

on August 24, 1981, the notice of appeal was filed the

same day. The motion to exclude evidence raised double

jeopardy issues in regards to the admission of evidence

as to counts 23 and 34 of the original 34 count

indictment which evidence had been adduced at prior

trials.

Kimberlin was acquitted on October 8, 1980, of count

25 which stated as follows:

The Grand Jury Further Charges That:

On or about September 21, 1978, in the Southern

District of Indiana, Brett C. Kimberlin, having

been convicted of perjury, a crime punishable by

imprisonment for a term exceeding one year, On

January 18, 1974, in the Southern District of

Indiana, knowingly did transport ammunition, that

is, two boxes of .223 caliber Remington ammunition,

in interstate commerce, from the Southern District

of Ohio, into the Southern District of Indiana, in

violation of Title 18, United States Code, Section

922(G\ 1)

—10—

The motion to exclude evidence argued that principles of

double jeopardy, Res Judicata, and collateral estoppel

rendered inadmissible all evidence previously adduced

as to the alleged interstate transportation of ammunition

on September 21, 1978. The motion included any and all

evidence pertaining to the vehicle in which the ammuni-

tion was found and to the contents of that vehicle

because the acquittal must have been premised on an

implicit finding that petitioner was not the owner or

possessor of the vehicle on September 21, 1978.

Kimberlin was convicted of counts 26-34 on October 8,

1980. These counts are not set out in full but involve

possession of patches and insignia of a type prescribed

for use by the federal government. The motion to

exclude evidence argued that having been once forced to

defend against those counts, and respond to the evidence

adduced as to those counts, and having been convicted,

petitioner Kimberlin would be subjected to multiple

punishment by the double jeopardy clause if forced to

respond to the identical evidence in a subsequent trial

on different charges.

Counts 23 and 24 are not set out in full but charged

that petitioner Kimberlin received explosives which

receipt was made illegal by the fact that he had a prior

felony conviction. The first trial of these counts resulted

in a hung jury on October 8, 1980. These counts were

severed for the purpose of the second trial which

resulted in a conviction of counts 23 and 24 on June 3,

1981. Petitioner Kimberlin had been forced to defend

against these charges and the evidence adduced pur-

suant thereto on two separate occasions and after a

severance. Petitioner’s motion to exclude evidence argued

that to force petitioner to defend against that evidence a

third time after an earlier severance violated principles

of double jeopardy.

ahha

The doctrine that evidence of other crimes can be

admitted in a criminal proceeding is well received by all

courts. There is, however, a split in decisions pertaining

to the issue herein. That is whether evidence of a crime

which the petitioner had been found guilty of is admiss-

ible at a subsequent trial.

Several states have held the evidence inadmissible. In

People v. Ulrich (1963) 30 Ill. 2d 94, 195 N.E. 2d 180,

where the Supreme Court of Illinois held that evidence

of an alleged offense by defendant on a 6-year old girl

who had accompanied an 8-year was prejudicial and

inadmissible, where the offense on either girl was not

committed within view of the other and where defen-

dant had previously been acquitted of the offense on the

6-year old. In State v. Kerwin (1975) Vt., 340 A. 2d 45,

the Supreme Court of Vermont held that where the

charge arose out of defendant’s allegedly shooting at

hunters on his property, admission of evidence that

defendant later held hunter at gunpoint, of which

charge defendant had previously been acquitted, was

prejudicial error. In People v. Carbell (1977) Mich., 259

N.W. 2d 193, the Court of Appeals of Michigan held that

admission of evidence tending to show defendant’s prior

similar criminal acts was prejudicial error. In Stuart v.

State (1978) Texas, 561 S.W. 2d 181, the Court of

Criminal Appeals, en banc held that reversible error

was committed by the admission of evidence concerning

a prior occurrence involving an alleged rape of which

defendant had been previously acquitted.

Various federal courts have held that when a defen-

dant has been acquitted the evidence of the acquitted

crime may not be used in subsequent trials. In United

States v. Gurney, 418 F. Supp. 1265 (M.D. Fla. 1976),

Chief Judge Young held that evidence could not be

introduced at trial for the purpose of relitigating issues

which had previously been determined by the acquittal

of defendant as to five counts of the seven- count indict-

ment, said issues more specifically being an alleged trans-

action wherein defendant was supposed to receive a free

condominium in Florida; whether defendant told his then

law partners that the law firm could not take clients doing

business with the United States Government; and whether

defendant instructed one named individual in a telephone

conversation not to give an FHA project to another named

individual.

Chief Judge Kaufman in United States v. Mespoulede,

597 F. 2d 329 (2nd Cir. 1979) held that where defendant

was charged in a two-count indictment with conspiracy

to distribute cocaine and with possessing approximately

1.2 kilograms of cocaine with an intent to distribute, and

jury acquitted defendant on possession count, but failed

to reach a verdict on conspiracy count, so that trial

court declared a mistrial on that charge, element of

collateral estoppel contained in double jeopardy clause

operated to preclude government from introducing evi-

dence in subsequent prosecution on conspiracy count

that defendant had possessed cocaine involved in subject

transaction inasmuch as first jury had necessarily re-

solved question in defendant’s favor when it acquitted

him of possession.

Circuit Judge Mackinnon wrote in United States v. Day,

591 F. 2d 861 (D.C. 1978), evidence of one defendant's par-

ticipation in prior crimes was inadmissible under the doc-

trine of collateral estoppel where the defendant had been

acquitted of those charges. District of Columbia Circuit

Court of Appeals also held in Green v. United States, 138

U.S. App. D.C. 184, 426 F. 2d 661 (1970) that admission

against defendants of evidence that had been the subject

of a count of which defendants had been acquitted in a

previous trial was inadmissible in the second trial under

the doctrine of collateral estoppel. In Green, the first

trial for various offenses relating to a robbery ended in

ation

a mistrial when the jury could not reach a verdict.

However thereafter, the trial judge directed a verdict of

acquittal on one of the counts, unauthorized use of a

vehicle in violation of D.C. Code § 22-2204. At a second

trial, defendants were convicted of robbery and assault

over appellant’s objection that they had been acquitted

of the count concerning unauthorized use of a vehicle. A

witness was permitted to testify at the second trial that

on the evening before the robbery, he and the appellants

stole the car which was the subject of the count and that

they used the same car in the robbery. The Seventh

Circuit Court of Appeals in United States v. Castro, 629

F. 2d 456 (1980), Circuit Judge Swygert, held that

doctrine of collateral estoppel operated to foreclose

government from introducing evidence in second trial

concerning defendant’s membership in a conspiracy to

distribute illegal drugs where combinations of persons

in first and second alleged conspiracies were en-

compassed by same agreement and facts essential to

conspiracy conviction in second trial were determined

favorably by jury in its verdict of acquittal on

conspiracy count in first trial.

The doctrine of collateral estoppel, as applied in

criminal cases, precludes the relitigation of a question of

fact distinctly put in issue in the former proceeding and

not merely collaterally in question. People v. Cornier

(1964) 42 Misc. 2d 963, 249 NYS 2d 521.

Kimberlin relies on this Court’s decision in Ashe v.

Swenson, 397 U.S. 436 (1970), where this court defined

collateral estoppel as being an awkward phrase, but

stands for an extremely important principle in our

adversary system of justice. It means simply that when

an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be

litigated between the same parties in any future lawsuit,

although first developed in civil litigation, collateral

onion

estoppel has been an established rule of federal criminal

law at least since this Court’s decision more than 50

years ago in United States v. Oppenheimer, 242 U.S. 85

(1916).

In cases wherein a previous judgment is reflected in a

general verdict the court examining a collateral estoppel

claim must review the record of the prior proceeding to

determine whether a rational trier of fact could have

grounded its verdict upon an issue other than that which

the defendant seeks to foreclose from consideration.

An examination of the record of the trial held before

Judge Noland will reveal that the only rational basis for

the jury’s verdict of acquittal as to count 25 was that the

petitioner did not transport or possess the ammunition

described therein in the blue over white Chevrolet on

September 21, 1978. Implicit in that finding is that the

defendant did not own or possess the Chevrolet or its

content. That issue was hotly contested at the prior trial,

and the jury elected to believe the defense. Ashe

therefore clearly prohibits the re-litigation of owner-

ship or possession of the Chevrolet containing the

ammunition; and evidence attempting to link petitioner

Kimberlin to the Chevrolet or its contents must thus be

excluded.

Testimonial or other evidence pertaining to counts 26

through 34, and original counts 23 and 24, must be

excluded for the reason that the admission of said

evidence would subject the accused to multiple punish-

ment for the same offenses, in violation of the double

jeopardy clause, and due to the fact that the government

will be seeking to utilize evidence used to obtain

convictions in the first two trials in order to attempt to

obtain convictions at this third trial.

The question as to whether evidence used to obtain

convictions on counts 26 through 34 and counts 23 and

83

24 can be used to obtain convictions in the instant trial

is somewhat different from the question as to whether

the government can now use evidence which was

previously used at the trial wherein petitioner Kimber-

lin was acquitted on count 25. Petitioner again relies

upon the collateral estoppel doctrine enunciated in Ashe

v. Swenson, supra, even though in Ashe the prosecution

used the same evidence which resulted in a prior

acquittal to obtain a conviction, while petitioner Kimber-

lin seeks to exclude evidence used in prior proceedings

which resulted in convictions. In its broadest sense,

collateral estoppel “means simply that when an issue of

ultimate fact has once been determined by a valid and

reliable judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.” Ashe,

supra. Although not re-charged now with counts 23 and

24 and counts 26 through 34, Kimberlin is once again

placed in the position of having to defend against the

allegations in those counts. This is the precise situation

which the double jeopardy clause was created to

prevent, for the constitutional guarantee against jeopardy

protects not only against a second prosecution after a

prior acquittal; but it also prohibits a second prosecution

after a conviction. In re Nielson, 131 U.S. 176 (1889),

and multiple punishments for the same offense, Ex parte

Lang, 18 Wall. 163. If the evidence sought to be excluded

by petitioner is admitted at trial, and he is subsequently

convicted and sentenced, he will suffer multiple punish-

ment for the offenses alleged in original counts 23 and

24, and 26 through 34. Therefore, the evidence must be

excluded.

At the hearing on August 24, 1981 in front of the

Honorable William E. Steckler, the government argued

that there was no double jeopardy or collateral estoppel

issue. Rather it was evidence which was admissible under

Rule 404(B) of the Federal Rules of Evidence. The basis

1 *

for the government’s argument at that time was simply

that under Rule 404(B) other crimes or acts could be

used if it was being used for the purpose of showing,

intent, opportunity, preparation, plan, scheme or design,

knowledge, identity and motive. (page 11 of hearing

transcript). Kimberlin believes we are dealing with a lot

more serious issues, that is, may the government after

presenting their evidence to one jury who finds the

defendant not guilty turn around and use that same

evidence in another trial to help convict the defendant

for another crime.

During the argument the government contended that

they wanted to use the evidence to show a “series of facts

and conduct which are so blended or connected with the

one on trial as that proof of one incidentally involves the

other, and explains the circumstances thereof, and tends

logically to prove necessary essential elements of the

crimes charged. Now your honor, there has been on

acquittal on counts 1 through 22. Collateral estoppel

or double jeopardy can only apply—No. 1, collateral

estoppel can only apply if there is acquittal. There has

been no acquittal.” (Hearing transcript p. 12) Kimber-

lin believes that the government is wrong in that as-

sessment. Ashe, supra. Goes beyond acquittals, Kim

berlin contends that double jeopardy and collateral

estoppel goes to the evidence used in a prior trial which

the defendant was found guilty, that is putting into

evidence at the second trial evidence which Kimberlin

has already been asked to defend against. Rule 403

states: “Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.” The government conceded that the evidence

= =

would be prejudicial but the value outweighed the

prejudicial effect it would have.

Although all state jurisdictions agree that no evidence

may be introduced which seeks solely to prove that the

accused has a criminal disposition, the question of when

evidence of a particular criminal as may be admitted is

so perplexing that the cases sometimes seem as numerous

“as the sands of the sea.”

The prohibition against other crimes evidence takes

two forms in the United States. Subdivision (B) of Rule

404 follows previous federal practice in adopting a so-

called “inclusionary” rule which admits all evidence of

other crimes relevant to an issue in a trial, except that

which tends to prove only criminal disposition. United

States v. Papadakis, 510 F. 2d 287 (2nd Cir. 1975), cert.

denied, 21 U.S. 950. Under the “exclusionary” rule

prevailing in the majority of other jurisdictions, all

other crimes evidence is excluded unless it is relevant to

specified facts and propositions, such as identity, motive,

common scheme or plan, and knowledge.

Kimberlin should not be held to defend a second time

against evidence related to a crime, count 25, that he

had been found not guilty of; also, he should not be held

to defend against the evidence a second time where the

jury had already determined, counts 23 and 24 and

counts 26 through 34, that he was guilty. The prejudicial

effect would outweigh the relevance of the evidence.

III.

WHETHER HYPNOTICALLY INDUCED TESTI-

MONY DEPRIVES A DEFENDANT OF HIS RIGHT

TO CONFRONT HIS ACCUSERS.

Allowing Kimberlin to be plac.d in jeopardy, trial,

after the testimony of the witnesses had been hypnotically

==

induced is denying Kimberlin his right to confront

witnesses and a fair impartial trial. Kimberlin filed a

motion to suppress which was denied and this inter-

locutory appeal followed.

The general test for determining the admissibility of a

new scientific technique was enunciated in Frye v.

United States, 293 F. 1013 (D.C. Cir. 1923) as follows:

Just when a scientific principle of discovery crosses

the line between the experimental and demonstra-

ble stages is difficult to define. Somewhere in this

twilight zone the evidential force of the principle

must be recognized, and while courts will go a long

way in admitting expert testimony deduced from a

well-recognized scientific principle or discovery, the

thing from which the deduction is made must be

sufficiently established to have gained general

acceptance in the particular field in which it

belongs.

Frye has been followed in the majority of jurisdictions.

See Hughes v. Mathews, 576 F. 2d 1250 (7th Cir.

1978).

Hypnotically induced memory enhancement is so

unreliable that it has not gained general acceptance in

the scientific community as a technique for accurate

recall. Thus, evidence derived from this technique is, a“

init io, inadmissible.

To determine the admissibility and the reliability of

this method, hypnotic enhancement (and possible alter -

ation) of memory, it is necessary to understand the uses

and possible abuses of hypnosis. Before scientific

evidence can be admitted, it must be reliable and it

must have achieved general acceptance in the scientific

community. It should further be noted that the ac-

ceptance must be for the purpose for which the scientific

method is being used. The problem is that the primary

purpose for which hypnosis is accepted is use in therapy

==

and other medical uses, but there is no general scientific

acceptance of hypnosis as a mechanism for accurately

determining truth. See Herman, The Use of Hypno-

Induced Statements in Criminal Cases, 25 Ohio St. LJ.

1, 14 (1946). Thus, the therapeutic use of hypnosis must

be distinguished from its use in the courtroom. To put

this issue in perspective it is helpful to paraphrase an

example from a speech given by a recognized expert in

the field: If an adult patient complains of incest during

childhood, it matters little whether the complaint is in

reality a fantasy or a report of historic events. However,

turning the same statement over to a police detective

could result in a prosecution. This matters a great deal

to the possible defendant. See generally Orne, Hypno-

tism, Suggestibility and the Law, 31 Neb. L. Rev. 575

(1952).

Hypnosis, by its very nature, is a process of suggestion.

The classic works on the subject, by their titles indicate

that suggestion and hypnosis are synonymous. See, e. g.,

Hull, Hypnosis and Suggestibility, An Experimental Ap-

proach, (1968), and Weitzenhoffer, Hypnotism, An Ob-

jective Study In Suggestibility (1953). It is not surprising,

therefore, that the subject of hypnosis often comes to

think, either voluntarily or through suggestion by the

hypnotist, that false statements are true.

If a subject is suggestible, several dangers spring to

mind. Perhaps the most chilling is the possibility that

the hypnotist can suggest the “memories” he or she

wishes to elicit. Less malicious, but more likely is the

possibility that the hypnotist may subconsciously coerce

the subject by “cues” to give desired responses, or simply

ask leading questions. See Orne, The Nature of Hypnosis:

Artifact and Essence”, Jour. of Abnormal and Social

Psychiatry, Vol. 58, No. 3 (1959) at pp. 277, 283 and

296-7.

8

The physical surroundings or the presence of other

people in the room in which hypnosis is being performed

may influence the result. Additionally, the subjeet may

have a desire to conform, to please the hypnotist, or to

achieve symmetry in testimony. See Woocher, Did Your

Eyes Deceive You? 29 Stan. L. Rev. 969 (1978). These

dangers are exacerbated when, as in the case at bar, a

police officer aware of the information sought conducts

the hypnosis. Special Agent Donovan of Alcohol, Tobacco

and Firearms was present at Carr’s and Jones’ hypnosis

and testified that he communicated questions to Detective

Appleby, the hypnotist. These questions were not pre-

served; therefore, the suggestibility of these questions

cannot be ascertained. The variances in the hypnosis

subjects identification and recall lead to the presump-

tion that these questions were unduly suggestive. In the

absence of safeguards, the inherent unreliability of

hypnotic memory enhancement because of suggestibility,

has been succinctly summarized as follows:

The hypnotized subject’s impulsion to produce

expected responses, which even incorporates his

own subjective conviction, may also be described

as the subject’s impulsion to validate what he be-

lieves the hypnotist expects. Moreover, this tendency

to validate the shared expectations is quite inde-

pendent of the contents of these beliefs .. .

No investigator is such a paragon of scientific

objectivity that he completely escapes blinding

emotional commitment to his favorite hypothesis.

Even the most brilliant and cautious of men have a

sizeable talent for intellectual self-delusion. When,

however, as in the investigation of hypnosis, this

penchant to self-delusion is harnessed to the hyp-

notized subject’s validating tendency, it is extreme-

ly difficult—unless the most rigorous experimental

controls are applied—for any investigator to avoid

being drawn into the vortex of pseudology.

fia

Shor, “The Fundamental Problem in Hypnosis Research

as Viewed from Istorical Perspective,” In HYPNOSIS: RE-

SEARCH DEVELOPMENTS AND PERSPECTIVES at 38-39.

(Fromm and Shor, eds. 1972). (Emphasis in original).

Thus, the post-hypnotic statements must be excluded.

There is extensive evidence in the literature that hyp-

nosis may make subjects more confident in their recall

without making them any more accurate. Eg., Hilgard

& Ernest, HYPNOTIC SUGGESTIBILITY (1965). On the

basis of both extensive research on and experimentation

with the phenomenon of age regression. Professor Orne

states that hypnosis facilitates the appearance of two

distinct tendencies in subjects: (1) a modest increase in

memory recall; and (2) a proclivity to confabulate (i.e.,

to fill in those historical aspects that the individual can-

not remember in an effort to comply with the hypnotists

suggestions.) See Orne, Hypnotized Witnesses May Re-

member Too Much, 64 A.B.A.J. 187 (Feb., 1978). These

tendencies illustrate that material produced during hyp-

notic revivification, or immediately thereafter, might

not necessarily be historically accurate. Unless this ma-

terial is subject to independent verification, there is no

way for the subject, or even a psychologist or psychia-

trist with extensive experience in the field, to distin-

guish between an actual memory and a confabulation.

This problem is compounded especially since the subject

may have an absolute conviction about his recall of a

certain event, regardless of whether it was an actual

memory or a mere confabulation. See Margolin & Argu-

imbau, Update on Hypnosis in Criminal Law, (Practic-

ing Law Institute, 1978) at p. 837, 838-839.

Not only does such evidence have the usual hearsay

problems, but the use of such testimony violates the

Sixth Amendment to the U.S. Constitution, which pro-

vides that the accused shall enjoy the right of confronta-

tion; and basic to the right of confrontation is the right

—22—

of eross- examination. The hypnotie process which ereates

new memories“ may well be irreversible: the original

memory cannot be questioned. In these instances, the

tampering with human memory by suggestion, leading

questions, or confabulation may lead to a firm conviction

in falsehood that cannot be shaken.

Absent a validation procedure such as confirmation of

the reliability of the procedure as viewed by the scien-

tific community, under Frye v. United States, 293 F.

1013 (D.C. Cir. 1923), testimony of a prosecution identi-

fication witness who has undergone hypnosis on the sub-

ject of his testimony must be viewed as inadmissible as

in violation of the defendants rights of confrontation and

cross-examination. See Pointer v. Texas, 380 U.S. 400

(1965).

Hypnotically induced eyewitness identification evi-

dence must be excluded because it also violates defend-

ant’s right to due process. In Simmons v. United States,

390 U.S. 377, 384 (1968), cited with approval in Manson

v. Brathwaite, 432 U.S 98 (1977), evidence will be

excluded where the pretrial identification procedure is

“so impermissibly suggestive as to give rise to a substan-

tial likelihood of irreparable misidentification.”

The key phrase in the Simmons standard is “irrepara-

ble mis-identification.” The Court has recognized in all

the cases that the true danger of suggestive pretrial

identification procedures is that an initial misidentifica-

tion may not be rectifiable through the ordinary device

of cross-examination. The essential defect of hypnosis is

that if there is misidentification, it is inevitably irrepar-

able. The original memory is altered forever.

Martin Orne, President of International Society of

Hypnosis, quoted in Human Behavior Magazine, April,

1978, stated: “unfortunately, a witness who is uncertain

about his (or her) recall of a particular set of events can,

—23—

with hypnosis, be helped to have absolute subjective con-

viction about what had happened—though the cer-

tainty can as easily relate to a confabulation as to an

actual memory .. .” Ernest Hilgard, Director of Stan-

ford University’s Laboratory of Hypnosis Research, in

the same article said “it is well-known that hypnotists

may implant memories, so that the hypnotized person

accepts them as his (or her) own.”

Authorities agree that hypnosis is vot a useful tool for

ensuring the accuracy of a subject’s recall. Diamond, In-

herent Problems in the Use of Pretrial Hypnosis on a

Prospective Witness, 68 Cal. L.Rev. 313 (1980); Spiegel,

Hypnosis and Evidence: Help or Hindrance? 347 Annals

N.Y. Acad. Sci. 73, 79 (1979). The authorities state that

while hypnosis often can produce remarkably accurate

recall, it is also prone to yield sheer fantasy, willful lies,

or a mixture of fact with gaps filled in by fantasy.

Several features of the hypnotic experience explain

why hypnosis, unless carefully controlled, is not gener-

ally accepted as a reliable means of obtaining accurate

recall. First, a person undergoing hypnosis is extremely

vulnerable to suggestions. In describing the events he is

reliving, he will tend to shape his “recall” in response to

intentional or inadvertent cues from the questioner.

These cues may be as obvious as leading questions or as

subtle as the inflection of the questioner’s voice or

degree of apparent approval by the hypnotist. Diamond,

supra, at 333; Orne, supra, at 318, 326. In addition, a

subject often will incorporate into his response his no-

tion of what is expected of him. Authorities note that

there ave particular problems of suggestibility when the

subject is aware of a preferred response or when the

examiner has a preconceived theory that is likely to in-

fluence his questioning. Jd. at 322 because of the unpre-

dictability of what will influence a subject, it is difficult

afin

even for an expert examining a videotape of a hypnotic

session to identify possible cues. Diamond, supra, at 339.

A second aspect of hypnosis that contributes to its

unreliability is the loss of critical judgment. A person

under hypnosis is more willing to speculate and will

respond to questions with a confidence he would not

have as a waking person. Orne, supra, at 319.

The third and perhaps most troubling phenomenon is

the tendency to confuse memories evoked under hypnosis

with prior recall. See Diamond, supra, at 333-34, 335-36;

Orne, supra, at 320. As a matter of course, a subject is told

that he will remember what he has recalled under hyp-

nosis after he wakes from the trance. In response to this

post-hypnotic suggestion, most subjects will indiscrimi-

nately mix their hypnotic recall together with their

waking memory. Many experts believe that the subject

is then unable to evaluate critically the resulting mem-

ory to determine what he himself believes is the accu-

rate version. See Diamond, supra, at 335-36; Orne,

supra, at 318-320. Furthermore, he will have strong

subjective confidence in the validity of his new recall,

which will make it difficult for an expert or a jury to

judge the credibility of his memory. Diamond, supra, at

339-40; Orne, supra, at 320; Spector & Foster, supra, a.

593.

Kimberlin is placed in a position of cross-examining

witnesses whom actually believe what they are saying

since the testimony is hypnotically induced. It would be

impossible for defense counsel to shake the testimony, if

false, since the witness does not believe it to be false. In

light of that, Kimberlin is being denied his right to con-

front his accusers. Hypnosis, by its very nature, is a pro-

cess of suggestion. By their titles, the classic works on

the subject indicate that suggestion and hypnosis are

synonymous. It is not surprising, therefore, that the sub-

—25—

ject under hypnosis often comes to think, either volun-

tarily or through suggestion by the hypnotist, that false

statements are true. Trial, October, 1981, Hypnosis- En-

hanced Testimony: Valid Evidence or Prosecutor’s Tool?

The Minnesota Supreme Court said in State v. Mack,

292 N.W. 2d 764: “in addition to its historical unreliabil-

ity, a ‘memory’ produced under hypnosis becomes hard-

ened in the subject’s mind. A witness who was unclear

about his ‘story’ before che hypnotic session becomes con-

vinced of the absolute truth of the account he made

while under hypnosis. This conviction is so firm that the

ordinary ‘indicia of reliability’ are completely erased,

and hypnotic subjects have been able to pass lie detector

tests while attesting to the truth of statements they

made under hypnosis which researchers know to be

utterly false. It would be impossible to cross-examine

such a witness in any meaningful way.” id. at 769.

The sixth amendment provides that, “in all criminal

prosecutions, the accused shall enjoy the right . . To be

confronted with the witnesses against him.” The con-

frontation clause is made applicable to state criminal

prosecutions through the fourteenth amendment.

Basic to the right of confrontation is the right of cross-

examination. Pointer v. Texas, 380 U.S. 400 (1965). As

the court said in Pointer, “there are few subjects, per-

haps upon which this court and other courts have been

more nearly unanimous than in their expressions of

belief that the right of confrontation and cross-examina-

tion is an essential and fundamental requirement for the

kind of fair trial which is this country’s constitutional

goal. Id. at 405.

Moreover, this court recently reaffirmed that United

States v. Wade, 388 U.S. 218 (1967) and Gilbert v. Cali-

fornia, 388 U.S. 263 (1967) sought to preserve the right

of confrontation from undue pretrial manipulation of

*

witnesses. Moore v. Illinois, 434 U.S. 220 (1977) (See

particularly this court’s reference to the danger that a

witness who has once made an identification will be pre-

disposed to adhere to this identification in subsequent

testimony at trial, and the suggestion that one function

of counsel at a lineup could be to cross-examine the (wit-

ness) to test (her or his) identification before it hard-

ened.) Note 5, 434 U.S. at 230.

The danger perceived in Wade and Moore was that a

pretrial procedure might so solidify a witness’ views as

to prevent effective cross-examination, thereby depriv-

ing the defendant of the sixth amendment right to con-

front accusers, in other areas, too, the confrontation

clause is read to prevent reliance upon testimony which

is solidified by pretrial suggestions. For instance, in

California v. Green, 399 U.S. 149 (1970), this court con-

sidered the applicability of the confrontation clause to

the admissibility of prior inconsistent statements and

noted: “the main danger in substituting subsequent for

time y cross-examination seems to lie in the possibility

thai the witness’ false testimony is apt to harden and

become unyielding to the blows of truth in proportion as

the witness has opportunity for reconsideration and

influence by the suggestions of others, whose interest

may be, and often is, to maintain falsehood rather than

truth.”

There is no practice in which false testimony is more

“apt to harden and become unyielding to the blows of

truth” than hypnosis. Absent a validation procedure tes-

timony of a prosecution identification witness who has

undergone hypnosis on the subject of his or her testi-

mony must be viewed as inadmissible as in violation of

the defendant’s rights of confrontation and cross-ex-

amination.

Hypnotized witnesses may be so inculcated with faise

information as to affect their response to polygraph

tests, and the widespread recognition that hypnosis “can

bolster a witness whose credibility would easily have

been destroyed by cross-examination, force the conclu-

sion that hypnosis, by its nature destroys the ability to

cross-examine a witness effectively.

The district court denied the motion to suppress thus

making a final decision and there was no inclination

that he would change his mind (Kimberlin had had one

trial which ended in a hung jury where the district

court allowed the testimony of witnesses who had been

hypnotically induced). This was certainly a collateral

matter thus appropriate for interlocutory procedural

appeal.

CONCLUSION

The petition for a writ of certiorari should be granted

to review the district court’s ruling or reverse the sev-

enth circuit court of appeals and order that court to

review the district court. This court should not allow

district courts in criminal cases to make final decisions

and force criminal defendants to trial and deny them

fundamental constitutional rights.

Respectfully submitted,

JOHN L. GUBBINS

Suite 2300

Three First National Plaza

Chicago, Illinois 60602

(312) 444-1000

Attorney for Petitioner

Ricuarp Lez Owen, II

Legal Researcher

—la—

APPENDIX

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 23, 1981

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 81-2396 and vs.

81-2397

BRETT C. KIMBERLIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 79-Cr-7—William E. Steckler, Judge.

This matter comes before the court for its considera-

tion upon the following documents:

1. The “CONSOLIDATED MOTION To Disuiss APPEAL

No. 81-2396 AND APPEAL No. 81-2397” filed herein

on October 28, 1981, by counsel for the plaintiff-

appellee.

2. The “APPELLANT'S RESPONSE TO MOTION To

Dismiss” filed herein on November 10, 1981, by

counsel for the defendant-appellant.

—2a—

On consideration thereof,

It Is ORDERED that the motion to dismiss these ap-

peals is hereby GRANTED and these appeals from a deci-

sion of the United States District Court for the Southern

District of Indiana are hereby DISMISSED.

Both of these appeals are from interlocutory orders

and do not represent final appealable orders as required

by Title 28, United States Code, Section 1291 nor do

they come within the “collateral order doctrine” as set

out in Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949). Because the orders appealed from are

not final orders this court lacks jurisdiction to hear

these appeals. Petitioner may seek review of these issues

on direct appeal of his criminal case.