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January 8, 1982


The opinion of the court was delivered by: PARKER


On November 17, 1981, this Court entered an opinion, 525 F. Supp. 1342, and order suppressing statements obtained from the defendant John W. Hinckley, Jr. by federal law enforcement officers during a 30 minute interrogation on March 30, 1981, the day of his arrest. Suppressed at the same time were certain documents seized from the defendant's cell by personnel of the Butner Correctional Facility during an alleged search for contraband on July 24, 1981.

 The suppression of Hinckley's responses solicited during the half-hour FBI interrogation was founded on a line of Supreme Court decisions barring the prosecution from making its case with statements of an accused held in custody prior to his having waived, or effectively having waived, counsel. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1968); Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Suppression of the documents was supported by Fourth Amendment considerations. Bell v. Wolfish 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975), cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 529 (1978).

 The November 17th ruling stopped short of addressing the implications of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) and Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975), where the Supreme Court allowed the prosecution to make use of unconstitutionally obtained evidence for purposes of impeachment. Also left unresolved was the question of the admissibility and the use by the prosecution of the suppressed statements and documents as a rebuttal to Hinckley's insanity defense. Indeed, the government prosecutors had announced previously that they did not expect or consider it appropriate to use the questioned evidence in their case-in-chief to prove guilt but only for rebuttal purposes on the issue of responsibility in view of the defendant's previously announced insanity defense. Counsel were invited to submit post-hearing memoranda addressing and focusing on the prosecution's use of the evidence determined to have been unlawfully secured and seized in light of Harris and Hass.

 Both parties responded. In addition, the government filed a motion for clarification and reconsideration of the order suppressing the statements and the documents. The motion was heard on December 14, 1981, and the Court reserved ruling in order to review the authorities and arguments addressed by counsel. On December 16, 1981, before the Court had opportunity to rule, the government appealed from the November 17th opinion and order. The motion for reconsideration was then denied and the Court indicated that a statement of reasons would follow. This memorandum supplies both a clarification of the November 17th ruling and the reasons for the Court's denial of the government's motion for reconsideration.


 First as to the clarification. One concern of the government is the scope of the ruling, i.e., whether the court's opinion and order related to all March 30th declarations of the defendant or only to those statements secured during the half-hour period of interrogation. It is only those statements secured from Hinckley by the FBI agents at the Washington Field Office between 7:00 and 7:30 p.m. that are suppressed. It also follows that the Court's ruling precludes any demeanor testimony by the agents concerning the manner in which Hinckley responded to their questions, as well as their perception of his responses. Likewise, this applies as to any testimony of government psychiatrists who may have later interviewed those agents and relied upon their accounts, impressions and reactions as to what occurred in arriving at their opinions and conclusions on the question of the defendant's responsibility.

 The Court adopts the same position as to the documents seized by the Butner officials from the defendant's cell while he was incarcerated as a pretrial detainee. The ruling was intended to and does bar the prosecution from utilizing in any manner, by either the Butner personnel or the prosecution expert witnesses, the suppressed documents.


 Turning now to the other problems presented. Harris, Hass, and, more recently, United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980), permit the admission of suppressed evidence and provide an exception to the exclusionary rule in a narrowly defined set of circumstances. A central thread running through the cases is a recognition that a defendant's credibility is a proper target of attack through his prior inconsistent statements and, thus, may be impeached even by evidence impermissibly obtained by law enforcement officers. The majority opinion of Justice White in Havens makes the point:

In both (Harris and Hass) the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant's obligation to speak the truth in response to proper questions. We rejected the notion that the defendant's constitutional shield against having illegally seized evidence used against him could be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.... Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case.
It is essential, therefore, to the proper functioning of the adversary system that, when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant's obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning.... He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination.

 446 U.S. at 626-27, 100 S. Ct. at 1916-17 (citations omitted).

 The prosecution argues that the Court should limit its November 17th ruling and that the suppression of Hinckley's March 30th statements and the July 24th documents should be restricted and applicable to their burden only as related to the crimes charged in the indictment and their case-in-chief. The prosecution then argues that it should be permitted to take advantage of Hinckley's statements and documents to rebut and counter any expert testimony and ...

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