Specht v. Jensen
| Decision Date | 03 August 1988 |
| Docket Number | Nos. 85-1457,85-1533,s. 85-1457 |
| Citation | 853 F.2d 805 |
| Parties | 26 Fed. R. Evid. Serv. 718 O. George SPECHT, Jr., and June B. Specht, Plaintiffs-Appellees, v. Roger JENSEN, Doug Martin, and Don Owens, Defendants-Appellants, and Pat Tellier and Ken Jacobs, Defendants. O. George SPECHT, Jr., and June B. Specht, Plaintiffs-Appellants, v. Roger JENSEN, Doug Martin, Don Owens, Pat Tellier, and Ken Jacobs, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Arthur H. Bosworth, II, (Michael J. Peterson, with him on the brief), of Bosworth & Slivka, Denver, Colo., for plaintiffs-appellees.
Theodore S. Halaby (Robert Mark Liechty, with him on the briefs), of Halaby & McCrea, Denver, Colo., for defendant-appellant Jensen.
Before HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK and BRORBY, Circuit Judges.
ON REHEARING EN BANC
This case is before the court for rehearing en banc of one issue; in all other respects the panel opinion 1 stands. The question considered is whether Fed.R.Evid. 702 will permit an attorney, called as an expert witness, to state his views of the law which governs the verdict and opine whether defendants' conduct violated that law. We conclude the testimony was beyond the scope of the rule and thus inadmissible.
This case is an action for damages pursuant to 42 U.S.C. Sec. 1983 grounded upon allegedly invalid searches of the plaintiffs' home and office. The underlying facts are set forth in the panel opinion and need not be restated here. 2 What is germane for present consideration is whether defendants' conduct involved a "search" within the meaning of the Fourth Amendment and whether plaintiffs consented to the search were issues to be determined by the jury.
After testimony had been presented by the plaintiffs to establish the underlying facts, plaintiffs' counsel informed the court he wished to call an attorney who, after being given "a hypothetical of the facts that are in evidence in this case," would be asked if he believed that a search took place in the plaintiffs' home and business. Counsel stated that the witness would then be asked "based on the same facts in evidence whether he believed a consent search of either the business or the residence had been taken or undertaken." Finally, counsel proposed to ask the witness:
[B]ased on his knowledge in these areas what would constitute a proper search, or the proper documents constituting or allowing a search and would expect that he would say as follows: That if there is no search warrant, if there is no consent, if there are no exigent circumstances, that the search is illegal per se. And that would be the extent of his testimony. 3
Defense counsel objected to the propriety of the testimony, suggesting that the subject was beyond the scope of Rule 702. He argued, "here we have an issue involving whether or not this [testimony] intrudes on the province of this court in terms of the law." Counsel continued:
[W]hat constitutes [a] reasonable or unreasonable search is a matter of law. How the jury applies that law to these facts is the province of the jury. But the law must be defined by the Court, not by an expert witness. ... [I]n order for [the expert] to testify, he must first presume what the Court is going to instruct as to the law; and if he doesn't presume what he thinks the Court is going to instruct as to the law, he must ... define his own definitions of the law; and that's where the intrusion of the Court is germane.
....
Now, is [the expert] going to tell the jury what the law is upon which he is going to apply a hypothetical set of facts, or is this court going to tell the jury what the standard is?
Following those remarks, the court ruled:
THE COURT: Although the Court doesn't have the precise instruction that it intends to give, the instruction would be along the line that the Constitution protects citizens against unreasonable searches; that this means that a search warrant must be obtained from a judicial officer before a search can be made of a home or an office; that there are exceptions to this requirement, one being a search by consent. Where there is consent, the law enforcement officers may reasonably conduct a search to the extent of the consent.
With this ruling, the expert was allowed to testify, and he did so at length. On the basis of hypothetical questions tailored to reflect plaintiffs' view of the evidence, the expert concluded there had been no consent given, and illegal searches had occurred.
We begin our analysis with a careful look at the contents and purpose of Fed.R.Evid. 702. It states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
As noted by the advisory committee:
There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.
(Citation omitted.) Judge Weinstein expressed a similar point:
The test expressed in Rule 702--will the expert testimony "assist the trier of fact to understand the evidence or to determine a fact in issue"--emerges as the central concern of Article VII [of the Federal Rules of Evidence]. Although there were more restrictions on opinion evidence before the enactment of the Federal Rules, helpfulness to the trier of fact was seen then as an essential condition of admissibility.
3 Weinstein's Evidence, p 702 (1985).
Our judgment must therefore be guided by consideration of whether the testimony of the attorney expert aided the jury in its determination of critical issues in this case. We must also consider, however, whether the expert encroached upon the trial court's authority to instruct the jury on the applicable law, for it is axiomatic that the judge is the sole arbiter of the law and its applicability. As one scholar noted:
A witness cannot be allowed to give an opinion on a question of law.... In order to justify having courts resolve disputes between litigants, it must be posited as an a priori assumption that there is one, but only one, legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.... To allow anyone other than the judge to state the law would violate the basic concept. Reducing the proposition to a more practical level, it would be a waste of time if witnesses or counsel should duplicate the judge's statement of the law, and it would intolerably confound the jury to have it stated differently.
Stoebuck, Opinions on Ultimate Facts: Status, Trends, and a Note of Caution, 41 Den.L.Cent.J. 226, 237 (1964) (footnote omitted).
The concern that an expert should not be allowed to instruct the jury is also emphasized in Fed.R.Evid. 704, which allows witnesses to give their opinions on ultimate issues. In the advisory notes to this rule, the committee stated:
The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural object of his bounty to formulate a rational scheme of distribution?" would be allowed.
The committee's illustration establishes the starting point for analysis of admissibility by distinguishing between testimony on issues of law and testimony on ultimate facts. While testimony on ultimate facts is authorized under Rule 704, the committee's comments emphasize that testimony on ultimate questions of law is not favored. The basis for this distinction is that testimony on the ultimate factual questions aids the jury in reaching a verdict; testimony which articulates and applies the relevant law, however, circumvents the jury's decision-making function by telling it how to decide the case.
Following the advisory committee's comments, a number of federal circuits have held that an expert witness may not give an opinion on ultimate issues of law. In Marx & Co. v. Diners' Club, Inc., 550 F.2d 505 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977), for example, the Second Circuit held it was error for the trial court to allow a lawyer to render his opinions on the legal obligations arising from a contract and on the legal significance of various facts in evidence. The court stated, 550 F.2d at 509-10. Similarly, the Fourth Circuit decided the testimony of an attorney on the meaning and applicability of "domestic" (as opposed to foreign) law would be inadmissible as an invasion of the province of the judge. See Adalman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir.1986). In Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir.1983), the Fifth Circuit held that a witness's offering a legal...
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...especially since the judge might later issue instructions that are inconsistent with both expert opinions. See, e.g., Specht v. Jensen , 853 F.2d 805, 808-809 (10th Cir. 1988). The prohibition against expert opinion on an issue of law has been applied in many contexts. For example, expert o......
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...especially since the judge might later issue instructions that are inconsistent with both expert opinions. See, e.g., Specht v. Jensen , 853 F.2d 805, 808-809 (10th Cir. 1988). The prohibition against expert opinion on an issue of law has been applied in many contexts. For example, expert o......
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Attacking the Opposing Expert
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