Opposition Brief — Sprynczynatyk v. General Motors Corp.

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Supreme Court, U.S,

2d. & D

FEB OF 1986

No. 85-1045 JOSEPH F. SPANIOL, JR,

In The

Supreme Court of the United States

October Term, 1985

VIVIAN SPRYNCZYNATYK and

PAUL SPRYNCZYNATYK,

Petitioners

Vs.

GENERAL MOTORS CORPORATION,

Respondent

ray

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

ray

McCUTCHEN, DOYLE, BROWN David M. Heilbron

& ENERSEN (Counsel of Record)

Three Embarcadero Center James B. Lewis

San Francisco, California . Joseph M. Stockwell

94111 Three Embarcadero Center

: focni

PEARCE, ANDERSON & DURICK gees California

314 East Thayer Avenue 415) 393-2

Bismarck, North Dakota 58502 Pie ange

JOHN P. RALEIGH Christine A. Hogan

General Motors Corporation 314 East Thayer Avenue

3044 West Grand Boulevard Bismarck, North Dakota

Attorneys for Respondent

February 7, 1986 General Motors Corporation

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTION PRESENTED

A fourteen year old boy drove a 1980 GM Chevrolet

Citation off a steep gravel road in North Dakota. The

boy’s mother was very badly hurt. She and her husband

sued GM on a product liability theory that called for the

boy to have hit the brakes. But the boy said and swore

three times after the accident that he had not used the

brakes at all. So the boy was sent to Texas to be hypo-

tized. The hypnotist disregarded safeguards he endorsed.

Ile knew what counsel was interested in, led the boy to it,

and the boy, full of, hope, followed. Ilypnotized, he said

he had hit the brakés as hard as he could.

The Disteict Court, sitting in diversity, purported to

follow State v. Brown, 387 N.W.2d 138 (N.D. 1983), and

admitted the boy’s testimony without determining whether

it was reliable or whether its probative value outweighed

its prejudicial effect. The Court of Appeals reversed on

other grounds, not challenged here, remanded, and directed

the District Court on remand to make that determination.

The question presented is this:

Is a federal court in a diversity action required to

admit testimony changed by hypnosis even if it is unre-

liable or its prejudicial effect outweighs its worth, if any?

RULE 28.1 STATEMENT

General Motors Corporation is not a subsidiary or an af-

filiate of a/publicly owned corporation. All subsidiaries

and affiliates of General Motors Corporation are wholly-

owned except

Alambrados y Cireuitos Electricos, S.A. de C.V. (Mexico)

Aralmex SJA. de C.V. (Mexico)

Automotriz Geneor S.A. (Eeuador)

Autos y Maquinas del Ecuador S.A. (AYMESA) (Keua-

dor)

Cableados de Juarez, S.A. de C.V. (Mexico)

CABLESA-Industria de Componentes Electricos Limitada

(Portugal)

Compania Nacional de Direcciones Automotrices, S.A. de

C.V. (Mexico)

Componentes Mecanicos de Matamoros, S.A. de C.V.

(Mexico)

Compresores Delfa, C.A. (Venezuela)

Conductores y Componentes Electricos, de Juarez, S.A.

de C.V. (Mexico)

Conveseco Vehicle Sales GmbH (West Germany)

Daewoo Automotive Components, Ltd. (ISorea)

Daewoo Motor Co., Ltd. (IXorea)

Delmex de Juarez, S.A. de (.V. (Mexico)

Delnosa, S.A. de _C.V. (Mexico)

Delredo, S.A. de C.V. (Mexico)

Deltronics de Matamoros, S.A. de C.V. (Mexico)

DHB—Componentes Automotivos S.A. (Brazil)

Fabrica Colombiana de Automotores S.A. (“Colomotores” )

(Colombia )

General Motors Argentina S.A. (in liquidation) (Argen-

tina)

General Motors de Colombia S.A. (Colombia)

General Motors Egypt, S.A.E. (Egypt)

General Motors Espana, S.A. (Spain)

General Motors France (France)

General Motors Hellas, A.B.E.E. (Greece)

General Motors-Holden’s Limited (Australia)

General Motors Iran Limited (Iran)

lil

General Motors Kenya Limited (Kenya)

General Motors Korea Co., Ltd. (Korea)

General Motors del Peru S.A. (Peru)

General Motors de Portugal, Limitada (Portugal)

General Motors Terex do Brazil Ltda. (Brazil)

GM Allison Japan Limited (Japan)

GM Fanue Roboties Corp. (USA)

GM Locomotivas Ltda. (Brazil)

Hua Tung Automotive Corporation (Rep. of China)

Industries Meeaniques Maghrebires, S.A. (Tunisia)

Industrija Delova Automobila, Kikinda (Yugoslavia)

INLAN-Industria de Componentes Meeanicos, Lda. (Port-

ugal)

Tsuzu Motors Limited (Japan)

Isuzu Motors Overseas Distribution Corp. (Japan)

Kahelwerke Reinshagen GmbH (West Germany)

Kabelwerke Reinshagen Werk Berlin GmbH (West Ger-

many )

Kabelwerke Reinshagen Werk Neumarkt GmbH (West

Germany )

Moto Diesel Mexicana, S.A. de C.V. (Mexico)

Motor Enterprises, Ine. (TSA)

New United Motor Manufacturing, Ine. (USA)

Omnibus BB Transportes, S.A. (Keuador)

Probure Pronerties (Proprietary) Limited (South Africa)

Procastle (Proprietary) Limited (South Africa)

Promotora de Partes Electronicos Automotrices (Mexico)

Propine Properties (Proprietarv) Limited (South Africa)

PT. Mesin Isuzu Indonesia (Indonesia)

Rimir, S.A. de C.V. (Mexico)

Rio Bravo Electricos, S.A. de C.V. (Mexico)

Saudi American Machinery Maintenance Company

(SAMMCO) (Saudi Arabia)

Senalizacion v Aecesorios del Automovil Yorka, S.A.

(Spain)

Sistemas Electricos vy Conmutadores, S.A. de C.V.

(Mexico)

Suzuki Motor Co.. Ltd. (Japan)

Unieables. S.A. (Spain)

Vauxhall Votors Limited (England)

Vestiduras Fronterizas, S.A. de C.V. (Mexico)

TABLE OF CONTENTS

STATEMENT OF THE CASE

A. The Accident .

e.*

Sed

Page

QUESTION PRESENTED . Bint ou the et Aen OD i

RULE 28.1 STATEMENT ..... ll

TABLE OF AUTHORITIES ......... vi

STATUTES INVOLVED .... 1

B. Plaintiffs’ Theory and the Difficulty With It = 3

C. The Solution: Hypnosis in Texas 5)

Guidelines for hypnotic refreshment of

memory ........ a

The hypnosis session 5

Dangers with hypnosis and problems with

this hypnosis session . 7

D. Proceedings in the District Court 10

EK. The Court of Appeals’ Ruling ... 1}

REASONS FOR DENYING THE WRIT. 12

I THE CASE IS NOT RIPE FOR REVIEW 12

Il. THE DECISION BELOW WAS SOUNDLY

BASED ON RELEVANT AUTHORITY 12

The Law 13

1. The Old Law and the New Law 13

2. The Valdez-Hurd-Eighth Cireuit

aA Aeneas Seine are 15

Plaintiffs’ Distinctions With No Differ-

ence 1h

Conclusion 1

IV.

TABLE OF CONTENTS—Continued

Page

Il. THERE IS NO CONFLICT AMONG THE

CIRCUITS TO BE RESOLVED

A. Both the Eighth and Ninth Cireuits Ap-

ply Federal Law in Determining the Ad-

missibility of Testimony Affected by

IHvpnosis in Diversity Cases

B. Both the EKighth and Ninth Circuits Re-

quire Safeguards in Connection with Tes-

timony Affected by Hypnosis u

NEITHER RULE 601 NOR. .THE ERIE

DOCTRINE REQUIRED APPLICATION

OF NORTH DAKOTA LAW TO ADMIT

RODNEY’S TESTIMONY

A. North Dakota Law «

B. Rule 601

C. Ente

1. The Federal Rules are valid under

Erie

2. No case plaintiffs cite requires appli-

eation of state law SP en

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

Alsbach v. Bader, No. 66470 (Mo. Nov. 21, 1985)

(available Feb. 1, 1986, on LEXIS, Missouri

Library, Civil File) ... ete Sena Ae ee ee

Ballou v. Henri Studios, Inec., 656 F.2d 1147 (5th

BR NED istics csantnsdsticacisienioe oul clam wctmvnctiecsietomamencenen tates 26

Brotherhood of Locomotive Firemen v. Bangor &

Aroostook Railroad, 389 U.S. 3827 (1967)... a ae

Bundy v. State, 471 So. 2d 9 (Fla. 1989) oe 17

Campus Sweater & Sportswear v. M.B. Kahn Con-

struction Co., 515 F. Supp. 64 (D.S.C. 1979),

aff'd, 644 F.2d 877 (4th Cir. 1981) .. 26

Collins v. State, 52 Md. APP. 186, 447 A.2d 1272

EB rereerereceeeccrerrrvevvveverveeevenecnncnmnansnansnns sania 13, 14, mn 17, 21

Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d

1190 (1983) .... sithasuinieeisteeite -saiavineasitteaseatsioisesseecisissoncsse maa

Commonwealth v. Nazaroviteh, 496 Pa. 97, 4386

A.2d 170 (1981) —cctttniiheaianintinninsnsiesaestieisiaisilnntissiaaae ae

de Vries v. St. Paul Fire & Marine Insurance Co.,

716 F.2d 939 (1st Cir. 1983) ............ 7 a. 16

Erie Railroad v. Tompkins, 304 U.S. 64

(1938) a. 28, 25, 26, 27, 28

Estelle v. Gamble, 429 U.S. 97 (1976) 12

Fabian v. E. W. Bliss Co., 582 F.2d 1257 (10th Cir.

a , 27

Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956) oo. 27

Frye v. United States, 295 Fed. 1013 (D.C. Cir

BN, oseccssossswronctvncorstmsssnsinicesgsSonesieniovisessinianiesi ites tricia A a

Gibbs v. State Farm Mutual Insurance Co., 544 F.

Cs ES, | ee <P

Vil

TABLE OF AUPTHORTTIES —Continued

Page

Greiner v. Volkswagenwerk A.G., 540 F.2d 85 (3d

Cir. 1976) 27

Hamilton Shoe Co. v. Wolf Brothers, 240 U.S, 251

(1916) 12

Hanna v. Plumer, 380 U.S. 460 (1965) 95, 26

Harding v. State, 5 Md. App. 230, 246 A.2d 302

(1968), cert. denied, 395 U.S, 949 (1969) 13, 15,17,

20, 21, 22

In re ‘Agent Orange’? Product Liability Litiga-

tion, 580 F. Supp. 690 (F.D.N.Y. 1984) 26

In re Air Crash Disaster Near Chicago, [linois on

Mav 25, 1979, 701 F.2d 1189 (7th Cir.), cert. de-

nied, 464 U.S. 866 (1983) 26

Jones v. Wyrick, 415 F.Supp. 108 (E.D. Mo.),

aff'd, 542 F.2d 1013 (Sth Cir. 1976) 98

Joy Manufacturing Co. v. Sola Basie Industries,

697 F.2d 104 (38d Cir. 1982) 26

Kirshner v. Broadhead, 671 F.2d 1034 (7th Cir.

1982) IR

Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir.

1975) 13, 20, 21

Lego v. Twomey, 404 U.S. 477 (1972) Is

Lemieux v. Superior Court, 182 Ariz, 214, 644 P.2d

1800 (1982) 16

MeInnis v. A.M.F., Ine., 765 F.2d 240 (1st Cir. 1985) 6

Memphis Bank and Trust Co. v. Tennessee Farm-

ers Mutual Insurance Co., 619 S.W.2d 395 (Tenn.

Ct. App. 1981) 16

Morreale vy. Prinee, 486 Pa. 51, 258 A.2d 508 (1969) 27

Morrow v. Greyhound Lines, 541 F.2d 715 (8th

Cir. 1976)

Vill

TABLE OF AU THORERIES Continned

Page

Nix v. Williams, - - U.S. —, 104 $5.C‘'t. 2501 (1981) 18

Olson v. Green, 668 F.2d 421 (Sth Cir.), cert. de-

nied, 456 U.S. 1009 (1982) ssdecieas antenna, oa

People v. Ebanks, 117 Cal, G52, 49 PY 1049 (1897) a!

People v. Gonzalez, 415 Mich. 615, 829 N.W.2d 748

(os Et ER EON RR Aiea ele RE ES |

People v. Hansleben, 86 Mich. App. 718, 2738 N.W.

2d 539 (1978). .... mere , ; Vi

People v. Hughes, 59 N.Y.2d 525, 466 N.Y.S.2d

255, 453 N.F..2d 484 (1983) cee | 14,17

People v. Quintanar, 659 P.2d 710 (Colo Ct. App.

Fath he PERE. Spar Ree pee nee ae eiiet amines 14,17

People v. Shirley, 31 Cal. 8d 18, 181 Cal. Rptr. 248,

641 P.2d 775, cert. denied, 459 U.S. 860 (1982) passim

People v. Smrekar, 68 Ill, App. 8d 379, 24 Ill.

Dee. 707, 385 N..2d S48 (1979) ¥

Peterson vv. State, 448 NEW G73 (ind. 1983) >

Potter v. St. Louis-San Francisco Railway, 622

F.2d 979 (Sth Cir, 1980) DS

Raney fs Hlones well, fue. 540 Pivd 932 (Stir Cir, VOTE) o7

Rexrode v. American Laundry Press Co., 674 F.2d

$26 (10th Cir.), cert. dented, 459 U.S. 862 (1982) 27

Rhodes v. Michelin Tire Corp., 542 I. Supp. 60

(B.D. Ny. 1982) ...... s 26

Shaw v. Gathwright, 487 F. Supp. 459 (1.D. Va.

1980). ......... sonakcasempcocsenceai a ‘ ; 25

Sprynezynatyk v. General Motors Corp., 771 F.2d

1112 (Sth Cir. 1985) . : passim

State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d

386, cord. denied, 461 US. 946 (1983) . li

TABLE OF AUTHORITIES. —Continued

State v. Benehum, 07 NM. G82, 648 Pied 246 (1981) 7

State v. Brown, 887 N.W.2d 188 (NLD. 19838)..10, 13, 18, 28

State ex rel. Collins v. Superior Court, 182 Ariz.

180, 644 Pied 1266 (1982) 14.17

State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert.

dened, U.S. ~LO6 S.Ct. O75 (1985) 14

State v. Hurd, 86 N.J. 525, 482 A.2d 86 (1981) 16,17

State v. Iwakiri, 106 [daho 618, G82 P.2d 571 (1984) \7

State v. Jorgenson, 8 Or, App. 1,492 P.2d 312 (1971) 21

State v. Mack, 2902 N.W.2d 764 (Minn. 1980)

13, 14. 15. 16.17

State v. Martin, 101 Wash. 2d 713, 684 P.2d 651

(1OS4) 13

State v. Palmer, 210 Neb. 206, 313 NW. 2d 648 (7981) 14.17

State v. Peoples, 311 N.C. 515. 319 SB 2d 177 (1984) 17

United States v. Adams, 581 F.2d 198 (9th Cir.),

ert, denved, 489 U.S. 1006 (1978) 13, 21, 22

United States v. Awkard, 597 F.2d 667 (9th Cir.

L979) 13. 21, 22

United States v. Matlock, 415 U.S. 164 (1974) Ls

United States v. Valdez, 722 F.2d 1196 (Sth Cir.

LOS4+) 1D. 16,17, Bd

United Telecommunieations v. American Televi-

sion and Communications Corp., 5386 F.2d 1310

(10th Cir. 1976) 26

Warner v. Transamerica Insurance Co., 759 F.2d

1347 (Sth Cir, 1984) 26

Wyller v. Fairchild Hiller Corp., 508 F.2d 506

(Sth Cir, 1974) 13, 20, 21

TABLE OF AUTHORITIES—Continued

Page

STATUTES

Federal Rules of Evidence, Pub. L. No. 93-595,

86 Stat. 1926 (1975) ealebecart Casta sina) het . B

Rules Enabling Act, 28 U.S.C. § 2072 2s ceessanennne 25

Rules of Decision Act, 28 U.S.C. § 1652 20. 26

United States Code

RULEs

Federal Rules of Civil Procedure

pees S28) tereestes) .. zee 28

Federal Rules of Evidence

SN ee te

Re Ge occ Sere er eee 29, 33. V4.

Rule 701 ........ a Foe Ree ee Pee ger eee ieee Sra 25

ES Ce cht hy cee ene blithe ee Py 25

OTHER

10 J. Moore & H. Bendix, Moore’s Federal Prac-

eee Be eee ceee cn enne One connote 25

Saltzburg, Standards of Proof and Preliminary

Questions of Fact, 27 Stan. L. Rev. 271 (1975)... 18

3 J. Weinstein & M. Berger, Weinstein’s Evidence,

WEE) A oe EO . DB

7 Wigmore, Evidence § 2035 (Chadbourn rev. 1978) .. 18

TABLE OF AUTHORITIES—Continued

Page

19 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice & Procedure: Jurisdiction § 4512 (1982) ............. 26, 27

21 C. Wright & K. Graham, Federal Practice &

Procedure: Evidence (1977)

AN ee ee ee

wi. ee 24

23 C. Wright & K. Graham, Federal Practice &

Procedure: Evidence (1980)

No. 85-1045

ray

—

In The

Supreme Court of the United States

October Term, 1985

VIVIAN SPRYNCZYNATYK and

PAUL SPRYNCZYNATYK,

Petitioners

VS.

GEMERAL MOTORS CORPORATION,

Respondent

“Ff

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Respondent General Motors Corporation respectfully

requests this Court to deny the petition for writ of cer-

tiorari seeking review of the Eighth Cireuit’s opinion in

this case reported at 771 F.2d 1112.

———__ -— —— -I)---— — — — --

STATUTES INVOLVED

Federal Rule of Evidence 403:

Rule 403. Exclusion of Relevant Evidence on Grounds

of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be exeluded it

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 cum-

ulative evidence.

—_— a —GQ-—-—- —

STATEMENT OF THE CASE

A. The Accident

On July 16, 1980, petitioner Vivian Sprynezynatyk

and her son Rodney, age 14, were driving on a gravel road

in North Dakota. Rodney was at the wheel. He had just

gotten his learner’s permit a couple of weeks before, and

Vivian was teaching him how to drive. (R.T. 116) They

went up a hill and started down tlie other side. (R.T. 96-

101, Kxs. 1-2) The road, still gravel, was steep, about an

11%. grade (R.'T. 215, 691, Ex. 28), and rough, like a wash-

board. (R.T. 120)

Rodney let the car pick up speed. (R.T. 199-200)

’ to the right. (R.T. 101, 227)

Rodney steered it back to the left, but then it jerked right

again. (R.T. 103-04, 211) Rodney steered to the left

again, crossed the middle of the road and headed for the

left ditch. He was into loose gravel. (R.T. 104, 202-03,

227) Ie steered back right, saw the right “ditch coming

closer’’ (R.T. 205), and panicked. (t.T. 245-46) He took

his hands off the wheel, and closed his eyes. (R.T. 206)

The car ‘jerked sharp

The car went into the right ditel and rolied over. Vi-

vian Sprynezynatyk’s neck was broken and she is a quad-

riplegic. (R.T. 109, 1415 et seq.)

The car was a 1980 Chevrolet Citation manufactured

by respondent General Motors Corporation (**GM"").

Vivian sued GM for her injuries in the United States Dis-

trict Court for the Distriet of North Dakota, alleging neg-

ligence and strict liability. Her husband sued for loss of

consortium and lost services. Jurisdiction was based on

diversity of citizenship. (C.R. 1-4)

B. Plaintiffs’ Theory and the Difficulty With It

Nothing wrong with the car had caused it to jerk right

those two times, and there was no explanation about why

it had exeept the road and driver error. (R.T. 499-500,

636-37) Plaintiffs’ lawyers’ theory was that Rodney hit

the brakes after he steered the car back right the third

time, that the rear brakes locked, and that that made the

ear spin off the road. (R.T. 61-65)

The difficulty was that Rodney said and swore three

times that he had not hit the brakes. Thus, twelve days

after the accident, he gave a sworn statement about it.

“He said, ‘‘I didn’t apply the brakes at all’? (R.T. 230-

31) ‘Two years later Rodney swore at deposition, ‘1

didn’t use any brakes at all.’’ (R.T. 222, 225-26)!

C. The Solution: Hypnosis in Texas

After the deposition, without notice to the court or

GM (C.R. 98), Rodney was sent to Texas to be hypnotized.

The hypnotist was Dr. Robert Gordon, a psychologist with

a law degree. Hypnosis piayed a ‘‘very limited’’ role in

Dr. Gordon’s practice (R.T. 150-34, 152-53), but he had

worked on other things with plaintiffs’ lawyers many

times before. (R.T. 154)

1. Guidelines for hypnotic refreshment of memory.

GM’s expert was Dr. Martin Orne, president of the

International Society of Hypnosis, editor of the Interna-

tional Journal of Clinical and Experimental Hypnosis,

and senior author of the Enevelopedia Britannica’s article

1 Though Rodney speculated that “it could have been possible”

that he used the brakes, his “best recollection’’ remained that

he ‘‘did not apply them.” (R.T. 245-46)

on hypnosis. (C.R. 110, Orne Aff., Exs. A, B, C) His

eminence is repeatedly recognized in the case law. See,

e.g., People v. Shirley, 31 Cal. 3d 18, 63, 181 Cal. Rptr.

243, 270, 641 P.2d 775, 802, cert. denied, 459 U.S. 860

(1982).

Dr. Orne has proposed guidelines for the use of hyp-

nosis to enhance memory if hypnotically enhanced testi-

mony is to be admitted at trial at all. (He does not be-

lieve it should.) The guidelines have been adopted by the

Criminal Investigation Department, Army, Navy, Air

Force, Marines, Treasury Department, and the British

Home Office. (R.T. 957-39)

The guidelines eall for these procedures, among

others:

1. The hypnotist ‘tshould get a written statement of

the facts’? he is told about the case before hypnosis, so

there is no doubt what he knows about it; a hypnotist who

knows what is at issue is apt, by ‘‘subtle cuing,’’ unwit-

tingly to suggest responses to the subjeet in hypnosis.

(R.T. 931-32 (Orne) )

2. The hypnotist should tape record the pre-hypnosis

interview, so there is no doubt what was said during it:

for if the hypnotist suggests a response, the subject will

‘‘respond that way’? in hypnosis. (R.T. 933-54 (Orne) ;

169 (Gordon) )

3. The hypnotist should determine what the subject

knows about the case at the pre-hypnosis interview; that

is ‘‘erucial’’? (R.T. 934 (Orne)), since liypnosis may not

be ‘‘indicated’’ or ‘‘safe’’? except where one has ‘‘difficul

tv in recollection’? (R.T. 155 (Gordon)), and is in fact

counterproductive if one does recall. (R.T. 914, 919-20, 948

(Orne) )

4. The hypnotist should conduct a post-hypnosis in-

terview, and tape-record it; the post-hypnosis interview

is necessary to ‘‘know what really went on in hypnosis.”’

(R.T. 934 (Orne) )

Dr. Gordon ‘‘strongly endorsed’’ the guidelines (R.T.

985), but he did not follow them and did none of those

things. (R.T. 135-36, 142-43, 169-76, 179, 238) Therefore

we do not know exactly what happened pre- and_post-

hypnosis, except this: Plaintiffs’ attorneys told Dr. Gor

don before hypnosis that (a) Rodney had ‘‘lost his mem-

ory of the aceident’’ or had ‘‘little or no memory of it’

(not so) (R.T. 135-56, 171 (Gordon)): and (b) ‘‘there was

a problem with the brakes’’ (plaintiffs’ liability theory).

(R.T. 171-72)

The hypnosis session was videotaped (with one gap),

so there is a record of what went on there.

2. The hypnosis SESSION

Dr. Gordon put a ring on a coffee table, told Rodney

to focus on it and be filled by it, and put him into a trance.

He told Rodney ‘‘the mind can reach back and recollect

things that you never thought were possible.’’ He said

‘‘we only have to reach back and recall it .... I’m going

to let you show me how well vou can do that now.’’ (EExs.

4-7, the videotape) Plaintiffs’ lawyer was watching

through a one-way mirror, and Rodney knew that. (R.T.

234)

Dr. Gordon took Rodney through the day and eve-

ning of the accident, and up the gravel hill and down it.

2 At trial Dr. Gordon could not recall whether they told him

that before or during the hypnosis session (R.T. 172), but at dep-

osition he was clear it was before (Gordon depo., Do. No. 182,

pp. 134-35). Dr. Gordon was admittedly ‘not naive.’” He un-

derstood that the alleged brake problem “would go to the es-

sential matter of liability.” (/bid.)

LN RT EN

He praised Rodney, and told Rodney he and his family

were proud of him as they went along. When they

started down the hill, Dr. Gordon began asking Rodney

where his feet were: Where is vour left foot?) Where is

your right foot?) Where are your feet? (xs. 4-7)

Thirty-two times he asked that, and his voice rose as he

did. (R.T. 179 (Gordon); R.V. 954 (Orne); Iexs. 4-7)

But Rodney did not answer that he had hit the brakes un

til, finally, this happened:

“RODNEY: Uh-huh. And [| see that I’m going

to go in the [left] diteh and hit the

fence...

“DR. GORDON: You see you are going to hit it.

What are you gomyg to do? Where

is vour right foot?

“RODNEY: Qn the brake.

“DR. GORDON: Where is your left foot?

“RODNEY: Over the elntch.

“DR. GORDON: What are vou dong with your right

foot and how much pressure are

you putting on the brakes?

SRODNEY: Pushing.

“DR. GORDON: How hard?

‘“RODNEY: Hard,

“DR. GORDON: As hard as you can?

“RODNEY : Uh-huh.’’ ((R.T. 239-40) emphasis

added )

Shortly afterward, Dr. Gordon left the room and con

ferred with plaintiffs’ lawyer. He came back, asked a

few questions, then said he was ‘‘very, very pleased.”’

Then he brought Rodney out of the trance. He told Rod

ney he would be in a ‘‘beautiful place’? when he came out

of it, where ‘‘you love everybody and everybody loves

you’’ and ‘‘yvou feel terrific.’’

Rodney and Dr. Gordon smiled and shook hands and

the session ended. Rodney felt as if a burden had been

lifted from his shoulders. (R.T. 236 (Rodney); C.R. 107)

3. Dangers with hypnosis and problems with this

hypnosis session

Hypnosis as therapy is accepted and widely used; as

Dr. Orne explained, it may serve its therapeutic goal re-

gardless of whether what the patient ‘‘relives’’ is facet or

fantasy. (R.T. 894-900) But hypnosis meant to refresh

or reform one’s memory so one ean testify to it is some-

thing else. There it matters whether what the patient

relives—and testifies to—is fact or fantasy. (R.T. 915-

16 (Orne): 166 (Gordon) )3

Dr. Orne explained that hypnosis as truth finder ts

unreliable, and in particular was unreliable here. Dr. Gor-

don essentially agreed with him. The dangers are these:

Suggestion. One under hypnosis suspends critical

judgment, and wants very much to please the hypnotist.

Consequently, he is in a ‘‘state very vulnerable to subile

suggestions.’? (R.T. 887-88, 906-07, 934 (Orne)) When

made, they ‘‘contaminate’’ the patient’s memory, because

they change it. (R.T. 142, 157 (Gordon) ; 889-90 (Orne) )

Dr. Gordon’s advice to Rodney that ‘*the mind can

reach back and recollect things that vou never thought

were possible’? was a ‘“nowerful, expheit’? suggestion.

Its effect was to encourage invention. (R.T. 911, 949

(Orne); 159-60, 179 (Gordon)) Dr. Gordon’s 52 ques

tions about Rodney’s feet were also suggestions. Ac

3 As Dr. Orne explained, hypnosis may be a useful investiga-

tive tool, “recognizing that each item is merely a lead and noth-

ing else.” A lead is not testimony. It can simply be followed,

and may turn something up—or prove an “embarrassment.”

(R.T. 920-21 (Orne))

cording to Dr. Orne, they were the “fatal flaw,’’ for they

told Rodney what Dr. Gordon was interested in. (R.T. 953-

00 (Orne)) In fact, Rodney did not say he applied the

brakes at all until Dr..Gordon put a leading question that

told Rodney exactly what Dr. Gordon was interested in:

How much pressure did you put on the brakes? (Not,

did you apply them?).

Dr. Gorden made his suggestions the more forceful

by his intense tone of voice (R.T. 953-55 (Orne)) and

made Rodney the more apt to accept them by praising him

when he responded well (including seven times after Rod-

ney talked about where his feet were). (R.T. 888

(Orne) )

Dr. Orne testified Dr. Gordon’s suggestions would

‘fassure a change in memory.’* (R.T. 954)

C'onfabulation. One under hypnosis may ‘‘confabu-

late.’’ Confabulation means making up details one does not

recall but that seem to fit. One is particularly prone to

confabulate in response to suggestions. (R.T. 162-65

(Gordon) ; 908-10 (Orne) )

Neither hynotist nor patient can tell what is eonfabu-

lation and what is real memory without checking what the

patient says against objective data. (R.T. 158, 162-63,

175-76 (Gordon) ) Rodney said only three things that could

be checked that way. They show he confabulated. He

said he watched ‘‘The Price Is Right’? on TV on the acei-

dent day, but it was on before he got up; he said he

watehed ‘‘The Beverly Hillbillies’? also, but it was not on

at all that day; and he said his sister fed the dogs, but she

was out of town. (R.T. 951-53 (Orne); R.T. 254-55, 241

(Rodney) )

Hopes. Before hypnosis Rodney had heard about

some brake problems in Chevrolet Citations, and ‘‘knew”’

if the brakes were hit hard the car could spin. (R.T. 237

(Rodney)) He wanted to be hypnotized to find out

whether the accide1it was his fault or the car’s, and nat-

urally he hoped very much it was the ear’s. (R.T. 943-46

(Orne) )

Hypnosis plays on hopes and fantasies, and in hyp-

nosis a strong hope ‘‘very likely’’ will become memory.

(R.T. 943-46 (Orne) )

Altered Memory. Plaintiffs’ lawyers told Dr. Gor-

don that Rodney had no or little recollection of the acei-

dent. That was not so. Rodney had given a ful! state

ment and then a deposition about the accident before hyp

nosis, and it was ‘‘striking how fairly complete’’ his mem-

ory was. (R.T. 941 (Orne) )

Neither subject nor hypnotist can tell whether what

the subject says in hypnosis is fact or fantasy, even where

he has no memory before hypnosis. (R.T. 144-45, 157-58,

162-63, 175-76 (Gordon); 904, 915-16, 946-48, 956 (Orne) )

If one has a clear memory before hypnosis, the ‘‘likeli-

hood”? that a hypnotic memory replacing it will be more

accurate ‘‘is so low that you can virtually discount it.’

(RT. 956 (Orne) )

Altered Witness. One believes that what he ‘‘re-

lives’*’ in hypnosis really happened, and with “‘great con

vietion.’’ (R.T. 947 (Orne)) Believing he has found

truth, he will likely be a most confident witness. (R.T.

176 (Gordon)) Indeed, ‘‘very few’? researchers would

say that ‘Shypnosis does not destroy the ability to eross

examine.’’ (RT. 977 (Orne) )

Rodney’s hypnotic memory replaced his pre-hypnosis

memory. He went on to testify to his ‘‘new memory,’’ an

altered witness. (R.T. 9560 (Orne); 238 (Rodney) )

D. Proceedings in the District Court

GM moved in limine to exclude testimony as to Rod-

ney’s hypnotically induced memory on the grounds, among

others, that hypnosis is not generally accepted or reliable,

and that this hypnosis did not meet procedural safeguards

and was like tampering with physical evidence. (C.R.

97-100) The district court did not determine whether

hypnosis is generally accepted or reliable, or whether this

hypnosis complied with any procedural safeguards. — It

cited State v. Brown, 337 N.W. 2d 138 (N.D. 1983), ruled

that Rodney’s credibility was for the jury, not the court,

and denied the motion. (11/28/83 Tr. pp. 94-99)

Plaintiffs called Dr. Gordon as part of their case-in-

chief and offered the videotapes of Rodney's livpnosis ses-

sion in connection with Dr. Gordon’s testimony. GM _ ob-

jected to admission »f the videotapes because they were

hearsay and prejudicial. The court overruled the objee-

tion. (R.T. 145-47) GM asked for a cautionary instruc-

tion that the tapes not be taken as proof of the truth of

the matters Rodney recounted in them. The court did not

vive the instruction, and instead told the jury ‘‘the pur-

pose of viewing the tapes is to permit you to evaluate

the opinions that you will subsequentiy hear." (R.T. 147;

R.T. 1304-05; CLR. 194) The jury then watched the video-

tapes. .

Plaintiffs’ liability case was, at best, weak. After trial,

the district court itself said that had ‘‘Rodney not been

permitted to offer his hypnotically induced recall, the ver-

dict on liability might well have been different.”” (.\pp.

A32; C.R. 274)

The jury awarded plaintiffs over $5,000,000 in dam-

ages. (C.R. 225)

E. The Court of Appeals’ Ruling

The Eighth Circuit held that the videotapes of Rod-

ney’s hypnosis session were hearsay and that their admis-

sion during plaintiffs’ case in chief without an adequate

instruction was prejudicial error. It therefore reversed

and remanded for a new trial. (App. All: 771 F.2d at

1118) Plaintiffs do not challenge that ruling here.

The Eighth Cireuit also went on to rule that the dis-

trict court erred in admitting Rodney’s hypnotieally in-

duced testimony without determining its reliability and

whether its worth, if any, outweighed its prejudicial effect

The Court adopted a version of Dr. Orne’s safeguards and

directed the district court, in making that determination,

to consider ‘‘to what degree the safeguards were followed’”’

and to ‘‘take into account... the appropriateness of using

hypnosis for the kind of memory loss involved, and whefher

there is any evidence to corroborate the hypnotieally in-

duced testimony.’’ (App. A22; 771 F.2d at 1128) Tts hold-

ing essentially restates the standard of Federal Rule of

Kvidenece 403:

“Wile hold that the district eourt should, before trial,

scrutinize the circumstances surrounding the hvpnosis

session, consider whether the safeguards we have ap-

proved were followed and determine in light of all the

circumstances if the proposed hupnotically enhanced

testimony is sufficiently reliable and not overly preju-

dicial to be admitted,’’ (App. A22-A25; 771 F.2d at

1125) (emphasis added).

The Eighth Cireuit directed the district court to make that

determination on remand.

The d f court has not made that determination as

to reliability because plaintiffs petitioned to bring the

ease here before it was remanded there. So plaintiffs ask

this Court to rule that hyvpnotically induced testimony is

admissible whether or not it is reliable and whether or not

its worth outweighs its prejudicial effect.

REASONS FOR DENYING THE WRIT

I. THE CASE IS NOT RIPE FOR REVIEW

The Kighth Cireuit found the admission of the video-

tapes of Rodnev’s hypnosis session during plaintiffs’ case-

in-chief was prejudicial error, and therefore remanded for

retrial. (App. A27; 771 F.2d at 1125.) Plaintiffs do not

argue with that ruling here. Instead, they seek review only

of the Court of \ppeals’ additional ruling on the admissi-

bility of Rodney’s live testimony.

‘*(Blecause the Court of Appeals remanded the case,

it is not yet ripe for ‘review by this Court.’’ Brotherhood

of Locomotive Firemen v. Bangor & Aroostook Railroad,

389 U.S. 327, 328 (1967). See also Estelle v. Gamble, 429

U.S. 97, 114-115 ((1976) (Stevens, J., dissenting) ; //amal-

ton Shoe Co. v. Wolf Brothers, 240 U.S. 251, 257-58 (1916).

Indeed, the issue plaintiffs put to this Court will be moot

if on remand the district court excludes Rodney’s hypnoti-

cally induced testimony but plaintiffs prevail, or if the dis-

trict court admits the testimony but GM prevails. There

is no need to decide moot issues, and it is an imposition on

this Court to ask it to decide appeals piecemeal.*

II. THE DECISION BELOW WAS SOUNDLY BASED

ON RELEVANT AUTHORITY

Plaintiffs claim that the Fighth Cireuit’s decision is

wrong on the merits. They rely on old, and bad, law (Sub-

part A) and distinctions without a difference (Subpart B).

4 Even if the admissibility of testimony affected by hypnosis

were certain to be an issue after retrial, it would be better de-

cided after the district court has had an opportunity to make

iindings that bear on its reliability.

A. The Law

1. The Old Law and the New Law

In 1968 the Maryland Court of Special Appeals af-

firmed the admission into evidence of hypnotically induced

testimony, the first court in the United States to do so.

Ilardina v. State, 5 Md. App. 230, 246 A.2d 302 (1968),

cert. dented, 395 U.S. 949 (1969). Several jurisdictions fol-

lowed Harding including, in a fashion, the Ninth Circuit,

the first and only federal cireuit to follow it. Kline v. Ford

Motor Co., 523 F.2d 1067 (9th Cir. 1975); Wyller v.

Fairchild Hiller Corp., 503 F.2d 506, 509 (9th Cir. 1974) ;

but see United States v. Awkard, 597 F.2d 667, 669 n. 2

(9th Cir. 1979); United States v. Adams, 581 F. 2d 193, 198,

199 n. 12 (9th Cir.), cert. denied, 4839 U.S. 1006 (1978).

Harding and descendants everlooked Frye v. United

States, 293 Fed..1013 (D.C. Cir. 1923) and the fifty (now

sixty) vears of precedent that followed it. Frye held that

the result of a scientific technique (there a lie detector test)

is inadmissible unless the technique has ‘‘gained general

acceptance in the particular field in which it belongs.’’? 293

Fed. at 1014. State +. Mack, 292 N.W. 2d 764, 767-68 (Minn.

1980) held the Frye ‘‘general acceptance’? test applicable

to hypnosis. Thereafter case after case followed Mack, and

the ‘‘most recent decisions by other jurisdictions have con-

sistently applied’? Frye. Collins v. State, 52 Md. App. 186,

198, 447 A.2d 1272, 1279 (1982); State v. Martin, 101

Wash. 2d 713, 721, 684 P.2d 651, 655 (1984) (the ‘‘substan-

tial majority’? applies Frye); Commonwealth v. Kater, 388

Mass. 519, 526-27, 447 N.B.2d 1190, 1196 (1983) (same).

5 See cases collected in People v. Shirley, 31 Cal. 3d at 36-38,

181 Cal. Rptr. at 253-54, 641 P.2d at 785-86. Shirley relates

the applicable history in detail.

Mack and its descendents exhaustively reviewed the

scientific literature and experts’ opinions — most promi-

nently Drs. Orne’s and Diamond’s — respecting hypnosis.

Upon that review, Wack and every case after it applying

Frye found that hypnosis, even if properly condueted, fails

Frye’s test: Hypnosis is not ‘‘generally acecepted’’ by the

scientific community as a reliable means to restore, refresh,

or find memory. To the contrary, the ‘‘overwhelming con-

sensus of expert opinion’’ is that it is not reliable, and

there is no ‘‘doubt’’? about that. People v. Shirley,

31 Cal. 3d at 23, 40, 66, 181 Cal. Rptr. at 244, 255-56, 272,

641 P.2d at 776, 787, S04. Consequently. every case follow-

ing Mack and applying Frye holds hypnotically induced

testimony inadmissible. See State ex rel. Collins v. Supertor

Court. 132 Ariz. 180, 196, 644 P.2d 1266, 1282 (1982) (Ari-

zona): People v. Shirley, 31 Cal. 3d 18, 66, 181 Cal. Rptr.

243, 273, 641 P.2d 775. 804, cert. denied, 459 U.S. 860 (1982)

(California); People v. Quintanar, 659 P.2d 710, 711 (Colo.

Ct. App. 1982) (Colorado); Peterson v. State, 448 N.K.2d

673 (Ind. 1983) (Indiana); State v. Haislip, 237 Kan. 461,

701 P.2d 909, cert. denied, — U.S. —, 106 8S. Ct. 575 (1985)

(Kansas); Collins v. State, 52 Md. App. 186, 205, 447

A.2d 1272, 1283 (1982) (Maryland); Commonwealth v.

Kater, B88 Mass. 519, 447 N.E.2d 1190 (1983) (Massachu-

setts): People v. Gonzalez, 415 Mich. 615, 626, 329 N.W.2d

743, 748 (1982) (Michigan); Alsbach v. Bader, No. 66470

(Mo. Nov. 21, 1985) (available Feb. 1, 1986, on LEXIS,

Missouri library, Civil file (Missouri)); State v. Palmer,

210 Neb. 206, 218, 313 N.W.2d 648, 655 (1981) (Nebraska) ;

People v. Ilughes, 59 N.Y.2d 525, 466 N.Y.S.2d 255, 265-66,

453 N.E.2d 484, 495 (1983) (New York): and Cosmoin-

wealth v. Nazarovitch, 496 Pa. 97, 110, 486 A.2d 170, 177

(1981) (Pennsylvania).

As for [Harding and descendents, that is ‘‘moribund

precedent.” For in 1982 the same Maryland court that

decided //arding in the first place repudiated it, held that

Mack and Frye govern instead, and so dealt the Harding

line its ‘‘coup de grace.’’? See People v. Shirley, 31 Cal. 3d

at 48, 181 Cal. Rptr. at 261, 641 P.2d at 792; Collins v.

State, 52 Md. App. at 195-96, 447 A.2d at 1278.

Hypnosis as memory restorer is not generally accepted

for the same reasons Dr. Orne — and often Dr. Gordon —

advised the district court it was not: (1) The hypnotie

subject is ‘‘highly susceptible to suggestion,’’ even ‘‘that

which is subtle and unintended,’’ and his ‘‘eritieal judg-

ment’? is impaired. (2) The subject ‘Shas a compelling de-

sire to please the hypnotist by reacting positively to these

sugvestions . (3) Neither subject nor hypnotist nor

anyone else can tell whether a memory generated during

hypnosis is fact, fantasy, or ‘‘econfabulation.’’ (4) The sub-

ject becomes utterly ‘‘econvineed of the absolute truth of the

account he made while under hypnosis,’* and it is ‘‘impos-

sible to cross-examine such a witness in a meaningful way.”’

F.g., People v. Shirley, 31 Cal. 3d at 45-44, 65-66, 181 Cal.

Rptr. at 258, 272, 641 P.2d at 789-90, 803-04; Collins v. State,

o2 Md. App. at 199-201, 447 A.2d at 1280: State v. Mack,

292 N.W.2d at 768-69; pp. 7-9, above.

2. The Valdez-Hurd-Fighth Circut Rule

Other courts have found the same shortcomings with

hypnotically induced testimony that JZJach did, but have

not gone so far. They strike a middle ground between

Mack and Harding and hold that the testimony might be

admitted if, among other things, the hypnosis session fol-

lows the procedural safeguards proposed by Dr. Orne to

the distriet court. United States v. Valdez, 722 F.2d 1196

(Sth Cir. 1984) (applying Federal Rule 405); State v.

ITurd, 86 N.J.525, 482 A.2d 86 (1981).

The Eighth Cireuit essentially followed Valdez and

Hurd.

B. Plaintiffs’ Distinctions With No Difference

Plaintiffs attack the Eighth Circuit’s decision by dis-

tinctions with no difference. First they say the Eighth

Cireuit’s decision improperly relied on criminal cases. But

whether the cases are civil or criminal is beside the point.

The reason for the Mack and Valdez-Hurd® rules is that

hypnotically induced testimony is unreliable, and ‘‘[uJn-

reliable evidence is unreliable evidence in any forum.”’

de Vries v. St. Paul Fire & Marine Insurance Co., 716 F.2d

939, 945 (1st Cir. 1983) (quoting Wemphis Bank and Trust

Co. v. Tennessee Farmers Mutual Insurance Co., 619 SW.

2d 395, 496 (Tenn. Ct. App. 1981)). Lemieux v. Superior

Court, 132 Ariz. 214, 215, 644 P.2d 1300, 1301 (1982) :

‘The concerns that this court expressed in determin-

ing that posthypnotie testimony is unreliable in crimi-

nal trials are equally applicable in eivil litigation.”’

Second, plaintiffs claim that ‘‘[mJany of the cases

cited in the [Eighth Cireuit’s|] opinion base their holding

0) a specific constitutional requirement’? and ‘‘a constitu-

tional ov procedural right peculiar to the criminal defend-

ant.’? (Pet. 18) That is also wrong. The Kighth Cireuit’s

opinion cites seventeen cases. Ten do not mention consti-

iutional rights of a criminal defendant as a basis for their

6 Plaintiffs say “Hurd itself realized that different standards

were appropriate in the civil area and specified what those

standards should be.’”’ (Pet. 19) That is wrong. Hurd expressly

refrained from deciding “whether all of the procedural require-

ments [it set forth] would be necessary” in a civil case, though

expressing the belief that {als a minimum .. . a recording of

the session is essential.’’ 432 A.2d at 97 n. 6.

holdings.’ The other seven that do found the unreliability

of hypnosis an independent basis for their holdings as a

matter of evidence law.’ Indeed, several apply their hold

ings to hypnotically induced testimony offered by the de

fense as well as by the prosecution,’ and therefore obviously

do not depend on a criminal defendant’s constitutional

rights.

Third, plaintiffs speculate that ‘‘li]t is entirely pos

sible, if not in fact likely, that most of the criminal cases

upon which the opinion relies are applying the beyond a

reasonable doubt standard of proof to the preliminary

7 People v. Shirley, 31 Cal. 3d 18, 181 Cal. Rptr. 243, 641 P.2d

775, cert. denied, 459 U.S. 860 (1982); People v. Quintanar, 659

P.2d 710 (Colo. Ct. App. 1982); Bundy v. State, 471 So. 2d 9 (Fla.

1985); State v. lwakiri, 106 Idaho 618, 682 P.2d 571 (1984); People

v. Smrekar, 68 Ill. App. 3d 379, 24 Ill. Dec. 707, 385 N.E.2d 848

(1979); Collins v. State, 52 Md. App. 186, 447 A.2d 1272 (1982);

People v. Gonzalez, 415 Mich. 615, 329 N.W.2d 743 (1982); State

v. Mack, 292 N.W.2d 764 (Minn. 1980); State v. Palmer, 210 Neb.

206, 313 N.W.2d 648 (1981); Commonwealth v. Nazarovitch, 496

Pa. 97, 436 A.2d 170 (1981).

8 United States v. Valdez, 722 F.2d 1196, 1201 (5th Cir. 1984);

State ex rel. Collins v. Superior Court, 132 Ariz. 180, 183, 644

P.2d 1266, 1269 (1982); State v. Hurd, 86 N.!. 525, 546-47, 432

A.2d 86, 97 (1981); State v. Beachum, 97 N.M. 682, 691, 643 P.2d

246, 255 (1981); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d

255, 264-65, 453 N.E.2d 484, 494 (1983); State v. Peoples, 311 N.C.

515, 531-32, 319 S.E.2d 177, 187 (1984); State v. Armstrong, 110

Wis. 2d 555, 574-76, 329 N.W.2d 385, 396, cert. denied, 461 U.S.

946 (1983). Four of these cases (Valdez, Hughes, Beachum, and

Armstrong) relied only on due process as the alternative ground.

Civil defendants are, of course, alco entitled to due process.

9 People v. Shirley, 31 Cal. 3d 18, 67, 181 Cal. Rptr. 243, 273,

641 P.2d 775, 805, cert. denied, 459 U.S. 860 (1982) fexcepting

criminal defendant from general prohibition because of right to

testify in his own behalf); Collins v. State, 52 Md. Apn. 186, 202-

03, 447 A.2d 1272, 1281-82 (1981): State v. Mack. 292 N.W.2d

764, 771 (Minn. 1980); State v. Beachum, 97 N.M. 682, 690, 643

P.2d 246, 254 (1981). Other cases not referred to in the Fishth

Circuit’s opinion have done the same. F.¢., People v. Hansleben

86 Mich. App. 718, 273 N.W.2d 539 (1978).

question of whether the hypnotically-aided testimony is

credible or competent.’’ (Pet. 20). Nothing suggests that

any of those cases was influenced at all by the reasonable

doubt standard. Moreover, the burden of proof for pre-

liminary facts is not generally more stringent in criminal

than civil eases. The preponderance of the evidence test ap-

plies to preliminary fact questions in either case. F.g.,

Nix v. Williams, — U.S. —, 104 S.Ct. 2501, 2509 n. 5 (1984) ;

United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974);

Lego v. Twomey, 404 U.S. 477, 488 (1972)."°

Last, plaintiffs complain that the Eighth Cireuit’s de-

cision enacts ‘ta two-witness, or corroboration rule in civil

cases where hypnosis is an issue.’’ (Pet. 23-24). Plaintiffs

say that corroboration is solely a criminal law require-

ment. That is false. Corroboration may be required by réa-

son of (1) the charge or issue (not all of which are crimi-

nal) or (2) the kind of witness, irrespective of the issue.

7 Wigmore, Hridence § 20355, at 348 (Chadbourn rey, 1978).

There is certainly good reason to require corroboration of

a witness’ hypnotically induced testimony; no one ean tell

whether the testimony is true memory or confabulation

without checking it against other evidence. Indeed, even

the North Dakota decision on which plaintiffs rely affirmed

admission of the testimony in part because it was corrobo-

rated. State v. Brown, 387 N.W.2d at 153,

in any case, the Eighth Circuit did not lay down an

ironclad corroboration requirement. It said that corrobora-

0 Plaintiffs’ quotation from Saltzburg, Standards of Proof and

Preliminary Questions of Fact, 27 Stan. L. Rev. 271, 305 (1975)

is out of context, and that article does not support their distinc-

tion. It notes that the standard is the same in civil and criminal

cases. It argues for a different standard only respecting con-

fessions, dying declarations, and declarations against interest.

That, obviously, has nothing to do with this case.

tion is a ‘‘factor’’ the district court ‘‘shoula take into ae-

count’? in determining reliability and applying the Rule

403 balancing test. (App. A22; 771 F.2d at 1128) Do

plaintiffs really contend that corroboration is not relevant

to reliability?

C. Conclusion

The Eighth Cireuit’s decision was soundly based on

relevant authority. Indeed, this is not just an antiseptic

vase. This is an egregious case. One must see it for what

it was.

Rodney’s deposition testimony did not fit plaintiffs’

liability theory, so Rodney was sent to Texas to be hypno-

tized. The lawyer-hypnotist did business with plaintiffs’

counsel. The hypnotist endorsed Dr. Orne’s safeguards, but

did not follow them. Rodney had a good memory of the ac-

cident, but the hypnotist was told he did not. The hypnotist

was told there was (supposedly) ‘ta problem with the

brakes.’

so he knew what plaintiffs’ counsel was interested

in. The hypnotist’s questions to Rodney (32 in ten minutes

about feet and brakes) ‘‘undoubtedly’’ suggested te Rod-

ney what he was interested in, and led him to it. Rodney

was a teenage boy, and his mother had been badly hurt

while he was driving their ear. Before hypnosis he had

heard there might have been some problem with the ear’s

brakes. He hoped very much the accident was the car’s

fault, not his, so he followed where he was led, and no sur-

prise; hypnosis plays on hopes.

To say the least, all those things made Rodney's hyp-

notically induced testimony ‘‘even less trustworthy’? than

it usually is. And add this: Rodney had a good memory

of the accident, ‘‘striking’’ how complete, before hypnosis.

There was no occasion to hypnotize him in the first place,

and no good end to be served by it. For where one has a

good memory before hypnosis, the likelihood that a hyp-

notice memory replacing it will be more accurate ‘tis so

low you can virtually discount it.’’

Even the ‘‘moribund’’ //arding line only permits one

who has lost memory before hypnosis to testify to a ‘‘re-

freshed’’ memory after hypnosis. See, e.g., Hardimg v.

State, 5 Md. App. at 236, 246 A.2d at 306 (‘‘lost

memory’’). We have found no case anywhere that permits

one who has a good memory before hypnosis to testify to a

changed memory afterward, and plaintiffs cite none. This

should not be the first. Changing good memory by hypnosis

offends the process of the court and compromises its in-

tegrity, particularly where the changed good memory was

sworn to at deposition. nd offends to no good end,

Certainly a federal court, whether sitting in diversity

or not, is not precluded from dealing with that offense.

III. THERE IS NO CONFLICT AMONG THE

CIRCUITS TO BE RESOLVED

Plaintiffs argue that certiorari should be granted be-

cause the Eighth Cireuit’s decision conflicts with decisions

of the Ninth Cireuit on two grounds: (1) The Ninth Cir-

cuit applies state law to determine the admissibility of

hypnotically induced testimony. (2) The Ninth Cireuit ad-

mits hypnotically induced testimony without requiring any

safeguards. (See Pet. 16-17). Neither proposition is cor-

rect.

A. Both the Eighth and Ninth Circuits Apply Fed-

eral Law in Determining the Admissibility of Tes-

timony Affected by Hypnosis in Diversity Cases

Plaintiffs point to Wyller v. Fairchild Hiller Corp.,

5038 F.2d 506 (9th Cir. 1974) and Aline v. Ford Motor Co..

923 F.2d 1067 (9th Cir. 1975). Both eases predate the

Federal Rules of Evidence, and neither states whether it

applied state or federal law. Since then the Ninth Cirenit

has made it clear that the Rules govern the admissibility

of evidence im diversity cases. Gibbs +. State Farm Mu-

tual Insurance Co., 544 F.2d 428, 428 n.2 (Oth Cir. 1976),

Moreover, Wwler and Aline also apparently applied a

federal rule.

Wyller was an Alaska case but does not cite Alaska

law. it cites two cases from other states, Harding ve. State,

2 Mad. App. 250, 246 A\.2d 302 (1968), cert. dented, 395 U.S.

949 (1969), and State v. Jorgenson, 8 Or. App. 1, 492 P.2d

312 (1971), neither of which is now good law.'' Aline was a

California case. It relies on Wyller, a federal case, not

California law; and it ignores a California case eritical of

hypnosis. People rv. Rbanks, 117 Cal. 652, 665, 49 P. 104),

1058 (1897)."*

The most recent Ninth Cireuit case is United States v.

Awhard, 597 F.2d 667 (98th Cir. 1979). It referred to

iWyller, Kline, and United States vo Adams, O81 F.2d 195

(9th Cir), cert. denied, 439 US. 1006 (1978) as resolving

the admissibility issue ‘tin this cireuit..? 597 F.2d at 669.

That is a reference to a federal rule, invariant from state

to state within the cireuit.

"1 The same court that decided Harding repudiated it in Collins

v. State, 52 Md. App. 186, 447 A.2d 1272 (1982). Jorgenson was

overruled by statute. Or. Rev. Stat. § 136.675 (1981).

2 California now prohibits the admission of hypnotically in-

duced testimony. People v. Shirley, 31 Cal. 3d 18, 181 Cal. Rptr.

243, 641 P.2d 775, cert. denied, 459 U.S. 860 (1982).

B. Both the Eighth and Ninth Circuits Require Safe-

guards in Connection with Testimony Affected

by Hypnosis

Plaintiffs also claim that the Ninth Cireuit rule is

‘directly opposed to the opinion of the Eighth Circuit

herein.’’ (Pet., 17). That is not so.

The Eighth Cireuit rule requires the trial judge to

determine reliability, taking into account whether appro-

priate safeguards have been followed in the hypnosis ses-

sion. (App. A22-A25; 771 F.2d at 1122-23) The Ninth Cir

euit’s approach is essentially the same. See, e.g., Awhard,

O97 F.2d at 669 n. 2:

‘We have suggested procedures to be followed during

hypnosis to ensure that post-hypnosis statements are

truly the subject’s own recollections. ... Objections to

the sub,ect testimony on the ground that such proce-

dures were not followed should be heard by the district

judge before irial, or out of the presence of the Jury

on voir dire of the witness.”’

Accord, Adams, DS1 F.2d at 188-99:

“Great care must be exercised to insure that state-

ments after hypnosis are the product of the subject's

own recollections, rather than of recall tainted by sug-

gestions received while under hypnosis.*’

Both circuits require the trial judge to determine the

reliability of hypnotically induced testimony, taking into

account the procedures followed in the hypnosis session.

Thus, the cireuits do not have ‘‘contrary positions,’* and

there is no conflict between them.

IV. NEITHER RULE 601 NOR THE ERIE DOCTRINE

REQUIRED APPLICATION OF NORTH DAKOTA

LAW TO ADMIT RODNEY’S TESTIMONY

Plaintiffs contend that Rodney's testimony was ad-

missible under North Dakota law and that Federal Rule of

Kividence 601 and possibly Erie Ratlroad v. Tompkins, 304

U.S. 64 (1958), required this diversity court to apply North

Dakota law here. Plaintiffs are wrong on ail counts.

A. North Dakota Law

Plaintiffs rely on State v. Brown, 337 N.W.2d 138

(N.D. 1983). Their reliance is misplaced. Brown held

hypnotieally induced testimony admissible where, among

other things, (1) ‘‘a valid investigatory purpose existed”’

for the hypnosis because the witness lacked significant re

eall; (2) there were no “impermissible suggestions** in the

hypnosis session; and (3) the hypnotically induced testi

mony was ‘‘eorroborated by other evidence.** 337 NW. 2d

at 152-53.

The opposite of those facts exists here. (1) Rodney

had good, not lost, reeall. (2) There were impermissible

suggestions from beginning to end of this hypnosis session.

(5) Rodney's testimony was not corroborated by anything.

Brown did not approve hypnosis that changes testi

mony sworn to by a witness whose memory is good, much

less where the change is the work product of a session like

this one. Therefore no Rule 601 or Erie issue arises to be

gin with—but neither applies anyway.

B. Rule 601

Rule 601 provides that ‘tin civil actions and it oceed

ings, with respect to an element of a claim or defense as to

which State law supplies the rule of decision, the com

petency of a witness shall be determined in accordance with

state law.’’ Plaintiffs contend that whether Rodney's

iestimony was admissible was a competeney question, so

Rule 601 and therefore North Dakota law applies (assum-

ing the testimony would be admissible under it).

Plaintiffs’ argument turns on the conten’ a that *‘the

Kighth Cireuit is... bound by North Dakota’s determina

tion that the issue —- does COnCETH whet ror not Roch e\

Sprynezynatyk was a competent witness.’* (Pet. 14) The

c*\ 1? kocle aT

idea is that in a diversity case ‘compete

Rule 601 meas what the State saves it means

That is preposterous on its fac

mine what federal rules mean, And plaintiffs admit that

no case supports their view. (Pet. 14) They rely ent rel

on a passage from 21 C. Wright & K. G aham, /

Practice & Procedure: Evidence § 5056, at 208 (19 .

that passage concerns Rule 104, which relates to det

tion of preliminary facts by the court, not Rule 601

passage simply says that ther san argumel treat the

‘“state method of determining’’ competency or priviles

should be followed. ‘*State method of determiming”™’ does

not mean how a state construes “compel

procedures a state court uses in adjudical

facts

Wright and Grahar elsew he ( ! i) i | rls ? TI i] STi

law ought not determine what ‘tcompetency ~ means

they opine that state law

tutes a “‘presumptlo eu hie ne

of Rules 502 a d oO] ) ~ sta I cle

likely to be ‘Shapha ard or ““‘orte-l nad’ } ’ =} .

sive to Congress’ purpose. 21 Wright & Gral

91356, at 60S O77): V3I1 54230 at (OT 1POS0) hea «

reasoning applies to Rule 60]

The EKighth Cireuit did **not view this issue as a con

petency question Dut as an e\ dentia pro \ ! I

contro! of the district eourt and (oOVerned§’ (it iv

{ \pp \20; 741 Bo2d at 1122 ‘hat is ¢o ect In Rule OO,

‘‘competency’’ refers to basic qualifications to be a wit-

ness. (**Every person is competent to be a witness except

as otherwise provided in these rules."") The question here

was not whether Rodney possessed the basic qualifications

to be a witness. United States v. Valde>, 722 F.2d 1196,

1204 (Sth Cir, 1984): People vo Shirley, 31 Cal. Sd at 67,

181 Cal. Rptr. at 275, 641 P.2d at 805. Tt was rather what

this competent witness could testify about. He could testify

to his prehypnosis recollection. He could not testify, for

example, to hearsay or some opinions. (Rules 701, S02)

And he could not testify to what he was indueed to say in

that hypnosis session if the testimony’s prejudicial effect

outweighed its worth. (Rule 408) Rule 601 does not change

Rules 701, 802 or 408. (As to Rule 403, see next paragraph. )

Cc. Erie

Even assuming a witness is competent under applicable

state law in a diversity case, the trial judge retains power

to exelude his testimony under Rule 403, F.¢.. 10.0. Moore

& H. Bendix, Moore's &ederal Practres GOLO4, VE

(2d Kd. 1985): see alse ad... at VEZ: 5 J. Weinstein & AM,

Plaintiffs appear to arene, however, tha re Raidroad ,?.

Tompkins, S04 U.S. 64 (1988) undoes the Federal Rules.

There is nothing to that amazing thesis.

1 The Federal Rules are valid under tere

Hianna v. Plumer, 380 U.S. 460 (1965), holds that not-

withstanding Krie, the Federal Rules of Civil Procedure

apply in a divers'ty action unless a given rule exceeds the

mandate of the Rules Enabling Act (28 U.S.C. ° 2072) 01

the Constitution. 7d. at 471. Congress enacted the Federal

Rules of Evidence, Pub. L. No. 93-595, 8S Stat. 1926 (1975),

so they ‘‘stand on even firmer ground than that of the

Rules of Civil Procedure,’’ 19 C. Wright, A. Miller & E.

Cooper, Federal Practice and Procedure: Jurisdiction

§ 4512, at 192 (1982), and are presumptively valid under

Erie. Hanna, 380 U.S. at 471. Congress obviously did not

exceed its constitutional power to regulate the federal

courts in enacting the Federal Rules of Evidence for fed-

eral courts. Rather, ‘‘since all of the Evidence Rules can

rationally be viewed as rules of procedure (the constitu-

tional standard announced in /lanna v. Plumer), they all

clearly are constitutional.’’ 19 Wright, Miller & Cooper,

supra, at 193 (footnote omitted). Therefore the Rules

themselves, the Rules of Decision Act (28 U.S.C, § 1652

(1976) ), and the Constitution’s supremacy clause mandate

that they apply in diversity actions. Jn re Air Crash Dis-

aster Near Chicago, Illinois on May 25, 1979, 701 F.2d 1189,

1193 (7th Cir.), cert denied, 464 U.S. 866 (1985).

That is settled law. F.g.. Welnnis v. A.M. ., Inc., 765

F.2d 240, 244-245 (1st Cir. 1985): Warner v. Transamerica

Tnsurance Co., 739 F.2d 1347, 1351 n. 6 (Sth Cir. 1984) ; Jn re

Air Crash Disaster, 701 F.2d at 1198 (7th Cir. 1983); Joy

Manufacturing Co. v. Sola Basic Industries, 697 F.2d 104,

110 (3d Cir. 1982); Ballou v. Henri Studios, Inc., 656 F.2d

1147, 1153 (Sth Cir. 1981); Gibbs v. State Farm Mutual In-

surance Co., 544 F.2d 423, 429 n.2 (9th Cir. 1976); United

Telecommunications v. American Television and Communt-

cations Corp., 536 F.2d 1310, 1316 (10th Cir. 1976) ; Rhodes

v. Michelin Tire Corp., 542 F. Supp. 60, 61 (.D. Ky. 1982) ;

Campus Sweater & Sportswear v. M.B. Kahn Construction

Co., 515 F. Supp. 64, 98 (D.S.C. 1979), aff'd, 644 F.2d 877

(4th Cir. 1981); In re ‘‘ Agent Orange”’ Product Liability

Litigation, 580 F. Supp. 690, 695 (1.D.N.Y. 1984).

2. No case plaintiffs cite requires application of state

law.

Plaintiffs point to several diversity cases that (they

say) have followed state evidence law. (Pet. 8-9) None

helps them.

Most looked to state law to determine the materiality

of evidence. Materiality is a substantive, not evide >, law

question, governed by the states under Erie. 19 C. vo right,

A. Miller & E. Cooper, Federal Practice d Procedure:

Jurisdiction § 4512, at 194 (1982). Thus, Rexrode +. Ameri

can Laundry Press Co., 674 F.2d 826 (10th Cir.), cert. de-

nied, 459 U.S. 862 (1982), held industry safety standards in-

admissible in a strict liability design defect case because

‘irrelevant’? to provide a defense under a state substantive

law. 674 F.2d at 831." Raney v. Honeywell, Inc., 540 F.2d

932 (Sth Cir. 1976) and Morrow v. Gre yYhound Lines, Ine.,

041 F.2d 715 (8th Cir. 1976) likewise determined the ma-

teriality of expert testimony about inflation in connection

with damages under state substantive law. And Greiner +.

Volkswagenwerk A.G., 540 F.2d 85 (3d Cir. 1976) held evi-

dence of drinking without proof of intoxication inadmissible

in a negligence action because immaterial under Pennsyl-

vania law. Fisher v. Dye, 386 Pa. 141, 148, 125 A.2d 472.

476 (1956); Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d

908, 009 (1969) (such evidence ‘thas no role to play in any

vase’’). But even if Gremer did apply Pennsylvania evi-

dence law, it was tried before the Federal Rules of Kyi-

13, Rexrode referred to Fabian v. E. W. Bliss Co., 582 F.2d 1257,

1260-61 (10th Cir. 1978) as “adoptling] the position that State

evidentiary law would be applied in determining the admissibil-

ity of industry safety standards in diversity strict liability cases,’

674 F.2d at 831 n.17, but that was clearly just loose usage. Fabian

did not concern the admissibility of evidence at all, much less

what law controlled it, but a jury instruction.

dence were effective, 540 F.2d at S8, and decided unde

former Fed. R. Civ. P. 43(a), 540 F.2d at 90, which the Fed

eral Rules of Evidence superseded.

Plaintiffs’ other cases are beside the point. Airshner

v. Broadhead, 671 F.2d 1034 (7th Cir. 1982), said that testi-

mony was inadmissible ‘‘under the standards laid down

in either the Indiana ease or the federal decisions.’* 671

I.2d at 1040. Potter v. St. Louis-San Francisco Railway,

622 F.2d 979, 983 (Sth Cir. 1980) refused to apply a state

case to exclude contested evidence. And Olson v. Green,

668 F.2d 421 (Sth Cir.), cert denied, 456 U.S. 1009 (1982);

Jones v. Wyrick, 415 IF. Supp. 108 (E.D. Mo.), aff'd,

542 F.2d 1013 (Sth Cir. 1976); and Shaw v. Gathwright,

487 F. Supp. 459 (E.D. Va. 1980) were habeas corpus pro-

ceedings reviewing state criminal trials, not diversity

Cases.

There is nothing to plaintiffs’ /rve claim.

— a)

CONCLUSION

The petition should be denied.

Respectfully submitted,

David M. Heilbron

James B. Lewis

Joseph M. Stockwell

McCUTCHEN, DOYLE, BROWN Three Embarcadero Center

& ENERSEN San Francisco, CA 94111

(415) 393-2000

PEARCE, ANDERSON & Harry J. Pearce

DURICK Christine A. Hogan

314 East Thayer Avenue

john P. Raleigh Bismarck, ND 58502

(701) 223-2890

Of Counsel

Attorneys for Respondent

General Motors Corporation

February 7, 1986

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.