U.S. v. Kimberlin

Decision Date09 January 1987
Docket Number83-2190,Nos. 82-1025,83-2191 and 83-2341,s. 82-1025
Citation805 F.2d 210
Parties21 Fed. R. Evid. Serv. 1121 UNITED STATES of America, Plaintiff-Appellee, v. Brett C. KIMBERLIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Donald Morano, Chicago, Ill., for defendant-appellant.

John J. Thar, Robert C. Perry, Asst. U.S. Attys., Indianapolis, Ind., for plaintiff-appellee.

Before CUMMINGS and CUDAHY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

In Appeal No. 82-1025 defendant Brett Kimberlin appeals from conviction and sentence on Counts 1 through 22 of an indictment containing 34 counts. The first 22 counts arose out of eight explosions in Speedway, Indiana from September 1, 1978 through September 6, 1978.

In Counts 1 through 8, each corresponding to one of the explosions, defendant was charged with possession of a firearm (destructive device) not registered to him, in violation of 26 U.S.C. Sec. 5861(d). In Counts 9 through 16, he was charged with manufacture of a firearm in violation of Chapter 53 and Sec. 5861(f) of 26 U.S.C. In three counts (17, 18, and 22), he was charged with maliciously damaging by explosive the property of an entity receiving federal financial assistance, in violation of 18 U.S.C. Sec. 844(f), and in three counts (19, 20, and 21) with so damaging property at a business used in and affecting interstate commerce, in violation of 18 U.S.C. Sec. 844(i). In Count 22, it was also charged that personal injury resulted, augmenting the maximum penalty prescribed by Sec. 844(f). 1

The first 22 counts were originally tried in September, 1980, with all other counts. At that first trial, the jury acquitted on Count 25, convicted on Counts 26 through 34, but could not agree on a verdict on Counts 1 through 24. The second trial (in May, 1981) was confined to Counts 23 and 24, and resulted in conviction. The convictions and sentences at these trials were, for the most part, affirmed on appeal. See United States v. Kimberlin, 781 F.2d 1247, 1249 (7th Cir.1985). 2 The third trial, August 17 to October 15, 1981, was a retrial of the first 22 counts. This trial is the subject of Appeal No. 82-1025.

In 1983 motions for new trials as to each group of counts, claimed to be based on newly discovered evidence, were denied. Appeals were taken and consolidated in this court with No. 82-1025. No. 83-2190 relates to Counts 1 through 22, the third trial; No. 83-2191 to Counts 23 and 24, the second trial; and No. 83-2341 to Counts 26 through 34, the first trial.

I. APPEAL NO. 82-1025

A principal issue arises from the fact that six witnesses had been hypnotized during the investigation of the bombings in the fall of 1978.

A motion to suppress the testimony of these witnesses was heard and denied before trial. There was testimony by the two hypnotists involved, by knowledgeable experts concerning the dangers of hypnosis, and by special agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) who had been involved in the process. Tape recordings of the hypnotic sessions were placed in evidence, along with transcripts thereof and statements of the witnesses, taken in two instances before the hypnotic session.

Judge Steckler decided to permit the jury to hear the testimony of the hypnotized witnesses, with cautionary instructions. The form of the instruction given each time a hypnotized witness testified, was agreed upon by counsel. It told the jury not to attach greater weight or significance to testimony of witnesses who have undergone hypnosis than that given to the testimony of other witnesses, and that the jury may judge what effect, if any, the process of hypnosis had upon the witness' memory and ability to recall.

Defense counsel had stated: "[W]e have selected two tapes that we would like for the Court to hear and one is a hypnotic session with Mr. Carr and the other is hypnotic session with Mr. Rogers and we would request these be heard as merely illustrative of what the hypnotic sessions were like." The judge listened to these two tapes.

In colloquy just before argument, Judge Steckler indicated what he described as his "leaning":

[W]hile those guidelines [previously referred to as recommended by the Tenth Circuit] did not obtain in the case here at bar I feel there was not such an abuse by suggestive questions in the interrogation of the subjects under hypnosis that their recall would be so contaminated that a jury should be precluded from hearing their post hypnotic trance recall or testimony.

Now, a jury has a right to hear it but they must be cautioned. They certainly have a right to weigh it but with very carefully drawn cautionary instructions.

Later, during argument of counsel, he said:

Now, what I have heard leads me to conclude that there was no abusive suggested interrogation.

There were one or two very minor places and I say very minor where one might claim that the question was suggestive to elicit a particular answer but I analyzed that testimony very carefully and I just cannot bring myself around to believe that the interrogators had a wrongful motive, had a pro-prosecution motive in the manner in which they conducted the interrogation.

At trial, the jury heard testimony similar to that in the pretrial hearing, and the court gave the agreed cautionary instruction at the time of the testimony and repeated it in the instructions at the close of trial.

In 1978, when the investigation took place, and in 1981 when the pre-trial hearing and trial occurred, there was ample precedent for Judge Steckler's view that the jury should hear the testimony and decide questions of weight and credibility in the light of evidence offered as to the dangers inherent in hypnotism and the circumstances of the hypnotic sessions involved.

A leading case was Harding v. State, 5 Md.App. 230, 246 A.2d 302, 306 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969). 3 The weight of the evidence was a question for the trier of fact. This view retained vitality after 1981. See, e.g., Pearson v. State, 441 N.E.2d 468, 473 (Ind.1982); Chapman v. State, 638 P.2d 1280, 1285 (Wyo.1982); State v. Armstrong, 110 Wis.2d 555, 575, 329 N.W.2d 386, cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983); State v. Wren, 425 So.2d 756, 759 (La.1983).

Attention had, however, been directed in academic writings to real dangers that the process of hypnosis may cause a witness to give testimony he believes to represent his true recollection, but in fact does not. In 1968 in response to the Harding decision, the United States Department of Justice instructed United States Attorneys "that before using hypnosis on any witness, the United States Attorney must obtain the written authorization of the Assistant Attorney General of the Criminal Division." FBI employees were instructed to take no part in such interrogation without a specific grant of authority. By 1979, the FBI issued a memorandum not only requiring advance authorization, but stating "[y]ou should consider utilizing only a pyschiatrist, psychologist, physician, or dentist who is qualified as a hypnotist.... It is important that you either audio or video tape the entire session.... Video tape, however, is the preferred method of recording these sessions." On December 14, 1979, ATF, after internal discussions over several years, adopted procedural guidelines. The requirements include: a licensed mental health professional as hypnotist, advance headquarters approval, tape or video recording, questions that are not leading, and precaution to avoid suggestive comments.

Hypnosis is defined as "the act of inducing artificially a state of sleep or trance in a subject by means of verbal suggestion by the hypnotist or by the subject's concentration upon some object. It is generally characterized by extreme responsiveness to suggestions from the hypnotist." Black's Law Dictionary 668 (5th ed. 1979).

Several dangers are associated with hypnosis. One is hyper-suggestiveness. It makes hypnosis subjects susceptible to suggestion. Diamond, Inherent Problems in the Use of Pretrial Hypnosis as a Prospective Witness, 68 Cal.L.R. 313, 314, 316, 333 (1980) (hereinafter cited as Diamond). Suggestions may deliberately or unwittingly come from the hypnotist or his attitude, demeanor, expectations, tone of voice and body language as well as the context and purpose of the hypnotic sessions. Id. at 333. The hypnotist cannot avoid implanting suggestions.

Another inherent danger is hyper-compliance. It creates two goals for hypnosis subjects, the desire to succeed in being hypnotized and to please the hypnotist. See e.g., Brown v. State, 426 So.2d 76, 83 (Fla.App.1983); People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 271, 723 P.2d 1354, 1382, cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982).

Confabulation is also a problem associated with hypnosis. Confabulation has been defined as "fill[ing] in those aspects which the individual cannot remember in an effort to comply with the suggestions of the hypnotist." Orne, The Use and Misuse of Hypnosis in Court, 27 International Journal of Clinical and Experimental Hypnosis 311, 319 (1979) (hereinafter cited as Orne). Confabulation causes occasional memory distortion, sheer fantasy and willful lies or a mixture of fact and fantasy. Orne at 317-19.

Two more problems arise after the hypnosis session and stem directly from the use of hypnotically enhanced testimony in court. Studies show that jurors tend to perceive hypnosis as an infallible method of discovering the truth, when it is not. Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N.U.L.Rev. 1, 4-5 (1977); Note, The Admissibility of Testimony Influenced by Hypnosis, 67 Va.L.R. 1203, 1208-09,...

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