Opposition Brief — Specht v. Jensen

No. 88-762 oec i

In the Supreme Court of the United States

October Term, 1988

ty

Vv

O. GEORGE SPECHT, JR. AND JUNE B. SPECHT,

Petitioners,

ROGER JENSEN, DOUG MARTIN AND

DON OWENS,

Respondents.

a

On Petition For Writ Of Certiorari To

United States Court Of Appeals For The Tenth Circuit

sy

VV

BRIEF IN OPPOSITION

TxHeopore S. HaLtasy

(Counsel of Record)

Rosert M. Liecuty

Hartasy & McCrea

1873 South Bellaire Street

Writers V, Suite 1400

Denver, Colorado 80222

Telephone: (303) 691-5300

COCKLE LAW BRIEF PRINTING CO., (806

or call collect (402) 342-2831

) 225-6964

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE CASE . 2

I re 13

SIN, okt istic wig eed otinka a onsendesigebegcaaaimcnieneiannn 26

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TABLE OF AUTHORITIES

Page

CASES

A Adalman v. Baker, Watts and Co., 807 F.2d 359

(4h Cir, 16) 2... ee ee 17

Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210

GGG Ce, BOG DP mrciencnconnncaannS cheep 18

Blum v. Yaretsky, 457 U.S. 991 (1982) ..... ie 23

Cooley v. United States, 501 F.2d 1249 (9th Cir.

1974), cert. denied, 419 U.S. 1123 (1975) ..... 18

Davis v. Combustion Engineering, Inc., 742 F.2d

916 (6th Cir. 1984) 24

DiBella v. County of Suffolk, 574 F.Supp. 151

(E.D.N.Y. 1983), aff’d, 762 F.2d 990 (2d Cir. 1985) 17

Hart-Anderson v. Hauck, 748 P.2d 937 (Mont. 1988) 23

Hogan v. American Te lephone & Te legraph Co.,

812 F.2d 409 (Sth Cir. 1987) 18

Loeb v. Hammond, 407 F.2d 779 (7th Cir. 1969) 1s

Mara «& ‘Of ee Ine. Vv. Dine rs’ Club, Ine., 550 F.2d

905 (2nd Cir. 1977). cert. de nie d. 434 U.S. SH 1

(1977) 14, 15, 16, 20

Owe 7 wv. Ke rr-MecGe f & Tp., 698 F.2d 236 (5th

Cir. 1983) 17

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 22

Stole, Penn Central Transportation, 583 F.2d

896 (6th Cir. 1978) 1S

Torres v. County of Oakland, 758 F.2d 147 (6t}

Cir. 1985) 18, 24

United States v. Curtis, 782 F.2d 593 (6th Cir.

1986) 19

United States v. Hearst, 563 F.2d 1331 (9th Cir.

1977) 24, 25

TABLE OF AUTHORITIES—Cont!

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Comment, Expert Legal Testimony. 97 Harv. L.

Rev. 797 (1983-84) 20

No. 88-762

ee -QO—__-—_—_-

In the Supreme Court of the United States

October Term, 1988

— 0

QO. GEORGE SPECHT, JR. AND JUNE B. SPECHT,

Petitioners,

ROGER JENSEN, DOUG MARTIN AND

DON OWENS,

26 spondents.

On Petition For Writ Of Certiorari To

United States Court Of Appeals For The Tenth Circuit

The petition presents no issue that warrants this

Court’s consideration and accordingly should be denied.

The Tenth Cireuit’s en banc opinion for which review is

sought is reported at 853 F.2d 805.

=)

COUNTERSTATEMENT OF THE CASE

The questions presented by Petitioners set forth no

legal issues that warrant this Court’s consideration and

fail to address the only issue considered by the Tenth

Cirenit, en banc, to wit:

Whether Fod. R. Evid. 702 premits an attorney, called

as an expert witness in a 42 USC, 1983 action, to

stute his views of the law which governs the verdict

and opine whether police officers’ conduct violated

that law.

Petitioners asserted claims under 42 U.S.C. § 1983 al

leging unconstitutional searches of Petitioners’ home and

office allegedly occurring while private repossessors at

tempted (pursuant to a court order) to reclaim a com-

puter. Respondents are police officers who directed or were

directed to keep the peace regarding same. To prove their

claim. Petitioners offered for expert testimony an attorney,

Daniel Sears, who specialized in criminal law including

Fourth Amendment searches. Petitioners’ attorney repre-

sented to the trial court that Sears would: (1) be qualified

as an expert in the area of search and seizure, constitution-

al law and criminal procedure; and (2) be asked hypotheti-

cal questions to obtain his opinion regarding a) whether a

search took place in both the home and the business, b)

whether there was a consent to search, ¢) what constitutes

a proper search, and d) whether exigent circumstances ex-

isted (Vol. VI, 368-69).

Respondents made a lengthy record objecting to Sears’

proffered testimony (Vol. VI, 873-87). Prior to Sears tes

tifving, the trial court inquired of Petitioners’ counsel,

“Now, are you indicating that this is an area of a fact

that he is going to give opinion on?” (Emphasis added.)

Petitioners’ counsel responded :

First of all, I don’t think it’s limited any more under

the expert witness law that you couldn’t call an ex-

pert to testify to his opinion of the law. So that’s my

first response; but yes, I believe that this is an area

of fact. I’m going to give him a hypothetical set of

facts that are based on the evidence. Based upon

those facts, I’m going to ask him if it’s his opinion

based upon those facts that these various things took

place: (1) a search: (2) a consent search, or whether

consent was voluntary, and (3) and finally, that with-

out one of those two and without exigent circum-

stances—and T’ll ask him whether he believes there

were exigent circumstances at both—in both instances

[the search of business and the search of residence]

—bhbased upon the lack of those three things, what kind

of a search was this in his opinion. And he will say

that in his opinion, it was an tllegal search based on

those facts (emphasis added).

(Vol. VI, 369-70) Thus, it was made clear from the start

that Sears’ testimony would involve legal concepts of

search, consent, exigent circumstances and, ultimately, an

opinion that it was an i/legal search, notwithstanding Pe-

titioners’ assertion that such concerned matters of fact.

Direct-examination by Petitioners’ counsel included

the following legal opinions of Sears (references are to

App. C):

“It is normally recognized that warrantless entry

into any premises are per se unreasonable and con-

stitute an unlawful search.” p. 62.

“(I]f the people whom you have indicated were

approached with regard to gaining access to the

premises did not have the authority to consent to

a search, then the entire episode, the entry into

the premises, the subsequent search and inspection

of the premises, would constitute an unlawful

search.” p. 62.

In responding to a question concerning to which

areas of Petitioner’s office his legal conclusions

would apply, Sears testified: “If there is no con-

sentual—if there is no free and voluntary consent

by an authorized person to give access to the

premises, then it would include all portions inside

the building, both common areas as well as the

private areas of any individual whose premises

are searched.” p. 62.

After Petitioners’ counsel set forth a second hy-

pothetical which recapped the facts from Peti-

tioners’ point of view, attorney Sears said that,

“Yes, [ would conclude a search did take place.”

p. 63.

‘*First of all, as I indicated in my initial response

with regard to the search of the business prem-

ises, it must start from the basie premise that any

warrantless search is per se unreasonable. From

that point forward, again, there are various excep-

tions to that doctrine which may make a search

lawful.

‘*As applied to these facts, it would be my under-

standing that a search could be conducted only on

several bases: First of all, if there was probable

eause to believe that the property that was being

sought is on the premises and if there is

exigent circumstances to believe that either the

property is going to be removed or evidence is

going to be destroyed, then an entry could take

place on that basis. The only other basis that

I’m aware of would be on a consensual basis; and

a consensual search must be premised on a free

and knowing waiver of the right to refuse to con-

sent to a search. And if that is preceded by any

colorable claim of authority, such as process which

is not tantamount to a valid search warrant, any

subsequent search, which I’ve already indicated

took place, would be unlawful.’’

Question: “Do I understand, then, your opin-

ion to be that there was not a consensual search ?’’

Answer: “That is correct, based upon the

submission of the process apparently to Mrs.

Specht, on the basis of your indication it was not

a valid search warrant, on the basis of the an-

nouncement that there was an intention to search

for property. On those bases, I would submit that

there was no free and knowing consent entered on

the basis of the facts that have been presented.’’

pp. 63-64.

* “It would be my opinion that all persons that en-

tered the premises conducted a search... [on the

basis that] the initial invitation, if it may be called

that, of Officer Owens to enter the premises was

not tantamount to a consensual search. If there

was not a further invitation extended to the other

individuals, certainly their rush ifto the premises

would be an unlawful intrusion. Any sightings or

observations that took place, any wanderings

jthrough the premises, would be tantamount to an

‘unlawful search.’’ p. 65.

Sears gave further legal opinions under direct examina-

tion which were not set forth by Petitioners in Appendix C

(references are to Vol. III of the record below) :

'Representation by Petitioners that Appendix C constitutes

the “entire testimony’ of Sears on direct examination (Pet. 3,

62) is incorrect.

‘‘There is another doctrine as an exception to a

warrantless search which legitimizes what is called

‘plain-view observations.” The difficulty with

that doctrine under this set of cireumstances is

that an officer has to be where he has a right to

be before observations can be deemed an excep-

tion to a warrantless search or an unreasonable

search.’’ p. 55, Il. 14-19.

When asked if his opinion would change if Mrs.

Specht had in fact invited the persons into her

home, Attorney Sears replied that “ [i]t would

change only if I knew Mrs. Specht knew she had

a right to refuse their entry, if they had stated

their purpose for being there, if she was aware

that they were there to search the premises, if

she was fully aware of all attendant rights, in-

cluding the right to refuse their entry. ... After

all those conditions were satisfied, then she would

be in a position to consent to searech.’’ p. 55, 1. 23

through p. 56, |. 6.

Petitioners’ attorney asked Mr. Sears to assume

that if Mrs. Specht was not aware of her right to

refuse entry and ‘‘wasn’t advised of those rights,

would your opinion as to the search occurring,

the legality of the search, or the consent of the

search change?’’ Sears responded that ‘‘my opin-

ion would not change.’’ p. 56, Il. 13-23.

‘It would be my conclusion that it was the joint

activity of all persons who entered the premises.”’

p. 57, Il. 19-20.

At this point, Respondents’ counsel commenced cross-

examination of Sears. Of necessity this examination af-

forded Sears the opportunity to express further legal opin-

ions: however, Respondents’ counsel had no choice but to

conduct such examination in light ef Sears’ testimony per-

—

‘

mitted in direct examination (references are to Vol. III

of the record below) :

‘*If there is an owner or possessor of the premises

that has joint occupancy of the premises, that per-

son may be in a position to consent to a search.’’

p. 102, ll. 16-18.

‘*A search can be accomplished if someone is stand-

ing with their eyes opened in a place where they

have no right to be.’’ p. 109, ll. 13-14.

‘*(I]t would be my—it is my opinion that once

the other four officers entered without invitation

that there was joint action on behalf of all five

of them, and it was an unlawful intrusion. The

clearest factor that in my opinion turns any in-

vitation that was extended into an unlawful in-

trusion by Officer Owens is when he demonstrates

that he is there to search for a computer and that

he has a court order, which was not a valid search

warrant.’’ p. 113, ll. 3-10.

Question: “How do you find... [the private re-

possessor’s] actions to be actions pursuant to

state authority?”

Sears: ‘‘Because he was acting in concert with

state law enforcement officers.’’ p. 113, 1. 24

through p. 114, 1. 2.

When asked what ‘‘acting in concert’’ meant,

Sears testified as follows: ‘‘A knowing partici-

pation in the endeavor. Now you want me to

outline the facts that I relied upon? * * * It would

be on the basis that there was apparently joint

activity after Officer Owens was on the prem-

ises of the other four to enter.’’

Question: ‘‘Through prior agreement with Offi-

cer Owens?’’ :

Sears: ‘‘Certainly tacit agreement by their ac-

tions. * * * It would be my position on the basis

that there is an unlawful intrusion when the

other four entered the premises that until and

unless there is an indication that one or more

of them are withdrawing from the participation

of the activity inside that yes, they have joined

in concert with that single purpose.’’ p. 115, Il. 8-

9 and p. 115, 1. 23 through p. 116, 1. 2 and p. 116,

1. 22 through p. 117, 1. 2.

Redirect-examination by Petitioners’ counsel:

* After Petitioners’ counsel added two pages of

additional assumptions regarding the search of

Mr. Specht’s office, Sears responded, “[a]s to

my conclusion as to whether an unlawful search

was conducted under those circumstances, my

opinion would not change.” p. 124, Il. 3-5.

*

‘‘And even if that person [who allowed certain

defendants to enter the office building] had the

authority and the standing to consent to a search,

it would be my conclusion that that consent was

obtained under a colorable claim of authority and

therefore no valid consent could enter.’’ p. 124,

I]. 14-18.

‘* As T indicated, even assuming that Mrs. Specht’s

invitation to Officer Owens to enter... fher

house] at that point in time was free and knowl-

edgeable, the subsequent entry of the officers viti-

ated any consent for entry on onto the premises;

and any search thereafter that was conducted by

walking through the premises, observing the con-

tents within the living accommodations, would

not be plainsight observations by officers or in-

dividuals who were in a position where they had

a right to be. And considering all the cireum-

stances that have been presented to me during the

course of the hypothetical questions, it is my firm

judement that there was no consensual search af-

forded the officers.” p. 126, Il. 8-19.

ae

9

**Since the initial entry was illegal, it would be

my conclusion that any acts, any further intru-

sions into the premises, were also unlawful.’’ p.

126, Il. 20-22.

Question: ‘‘Assume an additional fact . . . that

Mrs. Specht didn’t know the difference between

a search warrant and a court order to search.

Would that change your opinions in any way?’’

Answer: ‘‘No. Again I believe we go back to

my first response this morning that by presen-

tation of some claim of authority, the officers,

unless that claim is afforded by a valid search

warrant—any consent that is sought is obtained

under a colorable claim of authority. ...’’ p. 126,

1. 23 through p. 127, 1. 6.

Question: ‘‘Assuming these additional facts that

I have given to you today as to the residence,

would that in any way—would they in any way

change your opinion that the search at the resi-

dence was a joint action participated in by all

five parties?”’

Answer: ‘‘No.’’

Question: ‘‘And as to Hampden Industries,

assume the new facts that I gave you as to Hamp-

den Industries. Would those new facts in any

way change your opinion as to the participation

of the one officer now and the three persons from

the Denver area [the private repossessors] as to

their joint action and participation in the search ?’’

Answer: ‘‘No.’’ p. 127, l. 18 through p. 128, |. 2

and |. 22.

‘*[A}n unlawful search was conducted of Hamp-

den Industries and all the premises located with-

in that common building.’’ p. 128, ll. 24-25 through

Sp Ae Bs

10

* When Petitioners’ attorney asked Sears what his

opinion meant concerning the participation of the

police officers, Sears responded:

‘*That would be pursuant to my conclusion that

there was joint activity and that all persons were

involved in an unlawful search.”’

Question: ‘‘ And yesterday in response to... [Re-

spondent attorney’s] questions, | believe you—in

response to his question about state action, in your

opinion, does that constitute state action, in these

two instances?"’

Answer: “Yes.” p. 129, ll. 13-20.

When Petitioners’ attorney asked Sears specif-

ically with respect to his understanding of the law

and whether Sears’ opinions would change as it

related to Sears® understanding of the law as it

existed in 1978, 1980, 1982, 1984, Sears answered

his opinions would be the same, “[b]ased upon my

reading of the law. ...” p. 130, ll. 10-24.

Recross-examination by Respondents’ counsel:

Question: “‘Mr. Sears, do you agree that all

your opinions .. . depend on two things: (1) your

understanding of the facts as have been given

to you by ... [| Petitioners’ counsel], and (2) your

understanding of the law as it applies to those

facts?”’

Answer: ‘‘Yes.’’ p. 131, ll. 7-13.

* Question: ‘‘Cutting throngh all the gobble-

dygook, if they say they’re there to pick up a

computer, she invites them in, are they in there

by consent?”’

Answer: ‘‘Not under those limited cireum-

stances, no.”’

Question: ‘*Not in your opinion, anyway ?’’

a os

11

Answer: ‘‘No.’’

Question: “And in making that statement, you’re

presuming what the law is to those sets of facts.

I mean you have to.”

Answer: ‘‘T am rendering an opinion on my

basis—on the basis of my understanding of the

current law and the progression of law of search

and seizure over the last number of years.’’ p.

152, 1. 16 through p. 133, 1. 1.

Question: ‘*Have you ever been known to dis-

agree with the court as to what the law of the

cireuit is?’’

Answer: ‘‘Absolutely.’’

Question: “All right. So you’re not saying

that you ean affirm to this jury that your under-

standing of the law is going to be identical to

... [the trial court’s] understanding of the law

is in this area?”’

Answer: “[The trial court’s] . . . understanding

of the law is controlling in this ease.’’ p. 133, Il.

7-15.

At pages 135 through 139, Respondents’ counsel

questioned Sears hypothetically regarding wheth-

er a teacher’s entrance into a student’s locker

constituted a Fourth Amendment search, which

included this colloquy:

Question: “Now, is it your understanding of the

state of the law... that if a law enforcement offi-

cer merely facilitates the search by a private in-

dividual that that private individual was other-

wise going to undertake anyway, in your opinion,

is that prohibited under the Fourth Amendment?’’

Answer: ‘‘I believe it is... .’’ p. 137, 1. 20

through p. 138 1. 2.

12

Along these same lines as above regarding wheth-

er state action occurred, Sears stated that *‘l

don’t think it has to be at the direction or

control of [a] police officer. At least that’s not

my understanding .... It’s a matter of whether

it is jointly participated in with law epforce-

ment agents.’’ p. 141, I. 10-13.

Redirect-examination by Petitioners’ counsel:

*

Question: ‘‘Mr. Sears, in talking about this

purpose between the private individual and the

police officer, does this purpose have to be to

conduct a search, or can it be some other common

motive, such as seeking the recovery of a com-

puter ?”’

Answer: “Well, . . . under the cireumstances

presented here, I don’t characterize any differ-

ence.” p. 142, IL 20-25.

Question: ‘‘Would it be correct, then, under the

facts as you know them, as [ have given them

to you, as I have asked you to assume, that none

of your opinions would change, then, as to the

reasonableness of the search, [and] the participa-

tion of the parties? Is that correet?”’

Answer: ‘*That’s correct.”’

Question: ‘‘It’s your opinion that you found

this common purpose. [t that correct ?’’

Answer: ‘‘Based upon the facts that have

been revealed to me, ves.’* p. 148, IL 4-12.

Sears: ‘‘My understanding is that there were

pronouncements both from law enforeement as

well as Mr. Jacobs that the intent was to search ;

and I deem that to be a concert of action with a

common purpose,”*

Question: ‘*And the facts, then, as I gave them

to you, after hearing them as to actually what

13

happened-—would you deem that to be either con-

cert of action or joint activity?”

Answer: “That would be my conclusion, yes.” p.

143, 1. 19 through p. 144, 1. 1.

In response to an inquiry by Petitioners’ attor-

ney whether it mattered if an officer or private

person was the leader, Sears responded: ** Well,

. again, as I understand the law in this area,

you have to evaluate the totality of the cireum-

stances; and I think you have to evaluate the

activity that was participated in by all the indi-

viduals. So, no, it does not alter or change my

opinion.”’ p. 144, IL 9-13.

7

ARGUMENT

The Tenth Cireuit en banc properly recognized and

applied legal principles consistent with those recognized

by cireuit courts throughout the country. First, it noted

that Rule 702 does not permit an expert to encroach upon

the trial court’s authority to instruct the jury on the ap-

plicable law, stating ‘‘it would be a waste of time if wit- -

nesses or counsel should duplicate the judge’s statement

of the law, and it would intolerably confound the jury to

have it stated differently’? (App. B 42). The court fur-

ther referred to Fed. R. Evid. 704 and its advisory notes

that make clear that opinions which merely tell the jury

what result to reach or that are phrased in terms of in-

adequately explored legal criteria are prohibited. Finally,

the court below recognized that ‘testimony which articu-

lates and applies the relevant law .. . circumvents the

jury’s decision-making function by telling it how to decide

. —

14

the ease” (App. B 43). The court properly concluded that

“the expert in this case was improperly allowed to instruct

the jury on how it should decide the case” (App. B 44).

The rationale of the Tenth Cireuit is not in conflict with

any circuit court.

The Tenth Cireuit recognized that a witness may

properly be called upon to aid the jury in understanding

the facts and evidence even though reference to those facts

is couched in legal terms (App. B 46). The court noted

that an expert’s testimony is proper under Rule 702 if the

expert does not attempt to define the legal parameters

within which the jury must exercise its fact-finding func-

tion (App. B 47). It then stated:

However, when the purpose of testimony is to direct

the jury’s understanding of the legal standards upon

which their verdict must be based, the testimony can-

not be allowed. In no instance can a witness be per-

mitted to define the law of the ease (App. B 47).

The legal principles enunciated by the court below are in

conformity with the decisions of the cirenit courts through-

out the country. The most often cited case authority relat-

ing to the admissibility of legal opinion is Marx € Co., Inc.

v. Diners’ Club, Inc., 550 F.2d 505 (2nd Cir. 1977), cert.

denied, 434 U.S. 861 (1977). The Marz court considered

whether the trial court properly admitted the testimony

of a securities attorney regarding legal standards. The

appellate court recognized that the expert, having been

qualified in the area of securities regulation, was com-

petent to explain practices ordinarily followed by lawyers

and corporations in shepherding a registration statement

through the SEC. Id. at 508-09. However, it found re-

versible error where the expert testified not only as to the

15

customary practices of the trade, but as to the legal stan-

dards he believed derived from a contract that should

have governed defendants’ conduct. Id. at 509. The court

noted that the expert not only construed the contract, but

“repeatedly gave his conclusions as to the legal signifi-

cance of various facts adduced at trial’’ (id. at 510)—pre-

cisely what the trial court below permitted Sears to do.

The Mara court made clear that such legal opinions

would not have been otherwise admissible even if the wit-

ness had been qualified as an expert in contract law,

stating:

It is not for witnesses to instruct the jury as to ap-

plicable principles of law, but for the judge. As Pro-

fessor Wigmore has observed, expert testimony on law

is excluded because *‘the tribunal does not need the

witness’ judgment ... [T]he yudge (or the jury as in-

structed by the judge) can determine equally well

.”’ The special legal knowledge of the judge makes

the witness’ testimony superfluous. VII Wigmore on

Evidence § 1952. at 81.

Id. at 509-10 (emphasis in original).

The Marz court explained why expert legal opinions

were superfluous:

As Professor MeCormick notes, such testimony

‘‘amounts to no more than an expression of the [wit-

ness’] general belief as to how the case should be de-

eided.’”, McCormick on Evidence, §12 at 26-27. The

admission of such testimony would give the appear-

ance that the court was shifting to witnesses the re-

sponsibility to decide the case. McCormick on Evi-

dence 412, at 27. It is for the jury to evaluate the

facts in the light of the applicable rules of law, and

16

it is therefore erroneous for a witness to state his

opinion on the law of the forum.

Id. at 510.

Significantly, the Second Circuit in Marz recognized

the danger inherent in cross-examination under such cir-

cumstances:

[Compelling the opponent to cross-examine to repair

the damage is to invite disaster, for much will turn on

the obstinaney of the expert, and repetition before a

jury, especially on cross-examination, is likely to im-

press the jury. The applicable law, not being foreign

law, could, in no sense, be a question of fact to be de-

cided by the jury.

Id. at 511.

The Sixth Cireuit in United States v. Zipkin, 729 F.2d

384 (6th Cir. 1984), followed Marz in finding reversible

error in permitting a bankruptcy judge to testify as an

expert witness on matters of law, to wit, his understanding

of the Bankruptey Act and the meaning of a written order

he had issued. Holding the admission of such testimony

regarding questions of law to be both improper and preju-

dicial, the court stated:

It is the function of the trial judge to determine the

law of the case. It is impermissible to delegate that

function to a jury through the submission of testi-

mony on controlling legal principles.

729 F.2d at 387. While the prosecution argued that any

error was not prejudicial because defense counsel demon-

strated on cross-examiuation that the bankruptcy judge’s

view of the law was erroneous, the Zipkin court disagreed,

‘stating:

17 e

Although defense counsel made a diligent effort to

discredit Judge Ray’s direct testimony, we cannot con-

clude that there was no prejudice. The testimony of

Judge Ray included his legal conclusions. These are

not a proper subject of testimony and their prejudi-

cial effect substantially outweighed any probative

value they might have had. In effect Judg- Ray’s

testimony amounted to a statement that under the

applicable law the defendant was guilty.

Id.

Notwithstanding that Zipkin arose in a criminal con-

text, it is indistinguishable from the case at bar. Cross-

examination only served to compound the prejudice to Re-

spondents.

Marz and Zipkin are but two examples of federal ap-

pellate courts uniformly recognizing the inadmissibility

of expert testimony concerning principles of law. See,

e.g., Second Circuit: DiBella v. County of Suffolk, 574

F.Supp. 151, 152-54 (E.D.N.Y. 1983), aff’d, 762 F.2d 990

(2d Cir. 1985) (exclusion of expert testimony of assistant

district attorney regarding what constitutes probable cause

was proper because such testimony is inadmissible under

Rules 701 and 702 in that it was not helpful to trier of

fact and concerned a subject for which expert testimony

was not appropriate) ; Fourth Circuit: Adalman v. Baker,

Watts and Co., 807 F.2d 359, 365-68 (4th Cir. 1986) (af-

firming the inadmissibility of legal testimony regarding

securities laws disclosure); Fifth Circuit: Owen v. Kerr-

McGee Corp., 698 F.2d 236, 239-40 (5th Cir. 1983) (trial

court properly sustained objection to question by defen-

dant of its own expert as to canse of accident because

question sought from witness concerned his opinion as

18

to legal, not factual, cause of accident); Sixth Circuit:

Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210 (6th Cir.

1987) (a witness may not instruct the jury as to applicable

principles of law since that is the responsibility of the

judge); Torres v. County of Oakland, 758 F.2d 147, 151

(6th Cir. 1985) (error to allow legal testimony as to what

constitutes ‘‘discrimination,’’ but error harmless because

‘fonly one brief question out of a rather lengthy trial’’) ;

Stoler v. Penn Central Transportation, 583 F.2d 896 (6th

Cir. 1978) (no abuse of discretion in prohibiting expert

witness from testifying he believed crossing was ‘‘extra

hazardous’’ since the expert was being asked for what

amounted to a legal opinion); Seventh Circuit: Loeb v.

Hammond, 407 F.2d 779, 781 (7th Cir. 1969) (no error in

trial court’s refusal to allow an attorney to testify as to

the legal significance of various papers signed by the par-

ties); Eighth Circuit: Hogen v. American Telephone &

Telegraph Co., 812 F.2d 409, 411-12 (8th Cir. 1987) (expert

legal opinion on what constitutes discrimination inadmis-

sible because ‘‘discriminate’’ is a lega] term); Ninth Cir-

cuit: Vucinich v. Paine, Webber, Jackson & Curtis, Inc.,

803 F.2d 454, 461 (9th Cir. 1986) (distinguished the per-

missibility of expert opinion regarding rules of New York

Stock “Exchange and National Association of Security

Dealers from the impermissibility of expert opinion on

federal law, as to which federal judges are authority) ;

Cooley v. United States, 501 F.2d 1249, 1253-54 (9th Cir.

1974), cert. denied, 419 U.S. 1123 (1975) (in the orderly

trial of a ease, the law is given to the jury by the court

and not introduced as evidence, recognizing it would be

most confusing to a jury to have legal material introduced

‘as evidence).

Thus, the Second, Fourth, Fifth, Sixth, Seventh,

Eighth and Ninth Circuits are not in conflict with that

which the court below held: that opinion evidence on the

governing law and the expression of legal coonclusions

are inadmissible.

It is clear that if legal testimony such as Sears’ were

permitted, each side of a controversy would present its

own legal expert. All of the problems inherent in permit-

ting Sears’ testimony would be compounded, and the re-

sulting confusion to the jury and invasion of the court’s

province would be exacerbated.

The Second Cireuit in United States v. Ingredient

Technology Corp., 698 F.2d 88 (2d Cir. 1983), recognized

the problem:

[I]t would be very confusing to a jury to have oppos-

ing opinions of law admitted into evidence as involv-

ing a factual question for them to decide.

698 F.2d at 97. See also, United States v. Curtis, 782 F.2d

593, 599 (6th Cir. 1986).

Presumably, if expert legal opinion were to be per-

mitted, a legal expert could render legal conclusions on

any legal issue arising in a § 1983 case. The following are

examples: whether the officers acted in good faith or had

qualified immunity from suit, whether their conduct con-

stituted excessive force, whether a false arrest occurred,

or whether the conduct rose to a level of constitutional

deprivation. In short, litigation under $1983 would

deteriorate into a battle of legal experts, leaving in shreds

the basic tenet that the federal judge is the final arbiter

20

of federal law and leaving the jury in a morass of con-

fusion.

As the Marz court cautioned in the context of securi-

ties litigation :

With the growth of intricate securities litigation over

the past forty years, we must be especially careful not

to allow trials before juries to become battles of paid

advocates posing as experts on the respective sides

concerning matters of domestic law.

590 F.2d at 511.

The growth in recent years of intricate 4 1983 litiga-

tion has matched the growth of intricate securities litiga-

tion. The necessity for special care to avoid such potential

battles of legal experts, recognized by the Marz court, is

just as applicable to § 1983 cases as it is to security cases.

Where Sears applied his understanding of the law to

assumed facts, his testimony consisted of improper legal

conclusions. See United States v. Jensen, 608 F.2d 1349,

1356 (10th Cir. 1979); see also, Comment, Expert Legal

Testimony, 97 Harv. L. Rev. 797, 797 (1983-84) (‘‘[I]t

remains black-letter law that expert legal testimony is not

permissible’).

The following analysis of Sears’ testimony focuses

primarily on direct examination because cross-examina-

tion, redirect-examination and _ recross-examination of

Sears merely compounded the problems presented in the

direct testimony, as the Varx court predicted would occur.

Marz, 550 F.2d at 511. Sears’ testimony began with three

pages of hypothetical facts regarding the alleged search at

21

Mr. Specht’s office (Vol. ILI, 42-45).2 Sears’ first opinion

was that the hypothetical facts allowed him to “conclude

that a search was conducted” (45, ll. 9-10). Of course,

Sears, speaking as an attorney, was addressing the legal

definition of “search” rather than a lay understanding of

the term.

Thereafter, Sears discussed the per se unreasonable-

ness of warrantless entries, whether there was a consentual

search, whether there was proper authority to consent to

the search and whether a search was unlawful (45, ll. 16-

24). In response to being asked to assume that ‘‘the pres-

ence of the police officer and the document [the writ of pos-

session] had a great effect on... [the] decision to let them

in the building,’ Sears said that this would ‘‘reinforce my

opinion’’ (47, |. 19 through 48, 1. 4).

At this point in his direct examination Sears had in-

structed on legal elements necessary for determination of

an unlawful Fourth Amendment seareh: there was no war-

rant, there was no consent, and there was state action be-

cause of the presence of the police officer.

Sears then was given a lengthy hypothetical regarding

the search of Petitioners’ home. At the end of the hypo-

thetical, Sears responded with the legal conclusion that

a search did take place (51, 1. 12). This was not a factual

conclusion a non-lawyer would give, but was premised

upon his understanding of legal principles. He there-

after instructed further on the law of search and seiz-

ure by commencing a legal analysis of the assumed facts

2Unless otherwise indicated, the remaining citations are to

Vol. Ill, record below.

22

under the legal doctrines of search, probable cause, exigent

circumstances, consent and colorable claim of authority,

as he understood them to be (52, 1. 19 through 53, 1. 25). At

no time did Sears resolve any factual issues as to what

occurred in Petitioners’ home or business. As with a

medical expert, the facts given Sears were always as-

sumed; but, unlike medical expert testimony, Sears

did not explain matters of a sufficiently technical nature

that would assist the jury in its determination of facts

prior to applying the court-rendered law. Instead, Sears

merely gave his rendition of the legal principles applicable

to the assumed factual context.

Sears’ testimony pursuant to direct examination con-

tinued with his legal conclusions that “all persons that

entered the premises conducted a search’? (55, ll. 2-3), that

this search was unlawful (55, 1. 13), and that the ‘‘plain-

view doctrine’? exception did not apply (55, Il. 14-19).

Again, none of these were factual conclusions but were

legal conclusions based upon his understanding of the law

as applied to the assumed facts.

Sears then testified that his opinion that the search

was unlawful ‘‘would change only if I knew Mrs. Specht

knew she had a right to refuse their entry, ...if she was

fully aware of all attendant rights, including the right to

refuse their entry and... [that she was not] faced

with a colorable claim of authority’’ (55, ll. 23 through 56,

1-8)

a

ee

3This opinion was contrary to this Court’s holding in

Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973); and United

(Continued on following page)

-~

Finally, Sears’ direct testimony concluded with his

legal opinion that ‘‘it was the joint activity of all persons

who entered the premises’’ (57, ll. 19-20). Sears’ refer-

ence to ‘‘joint activity,’’ another legal doctrine, required

Respondents’ counsel on cross-examination to inquire into

Sears’ understanding of the law upon which he based his

conclusion that *‘joint activity’’ existed. Sears affirmed

that ‘‘if a law enforcement officer merely facilitates the

search,”’ that that violates the Fourth Amendment (137,

ll. 22 through 158, 1. 2). This also was not the law‘ and

was contrary to the court’s instructions. Sears’ finding

of joint activity based upon a misconception of the law

prejudiced Respondent officers because without joint ac-

tivity, the acts of the private citizens could not be imputed

to the Respondent officers. Thus, there would be no req-

uisite ‘‘state action’’ to make a search unlawful under the

Fourth Amendment.

(Continued from previous page)

States v. Watson, 423 U.S. 411 (1976). The prejudice result-

ing from Sears’ erroneous instruction on the law was further

compounded by the trial court’s erroneous refusal to permit

cross-examination of Sears’ legal error by citing case authority

(see 65, Il. 10-15). In Hart-Anderson v. Hauck, 748 P.2d 937, 943

(Mont. 1988), the court held that it was error for the trial

court to permit an attorney to give his legal opinion; and where

such testimony was allowed, under Rule 705 it was further error

to preclude cross-examination of the witness regarding case law

inconsistent with his opinions.

4See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

24

In an analogous context, courts have permitted expert

testimony involving limited use of legal terms where such

terms are within the common understanding of a juror;

however, testimony that includes words which have a spe-

cific legal meaning not within common understanding is

not permitted. See Torres supra, 758 F.2d 147 at 1ol

(‘‘The best resolution of this type of problem is to deter-

mine whether the terms used by the witness have a sepa-

rate, distinct and specialized meaning in the law different

from that present in the vernacular. If they do, exclu-

sion is appropriate’’); Davis v. Combustion Engineering.

Inc., 742 F.2d 916, 919-20 (6th Cir. 1984) (testimony that

plaintiff was terminated because of age is admissible but

testimony involving an opinion regarding **unlawful’’ age

discrimination is inadmissible; however, because testimony

on this letter point was slight, error was harmless) ; United

States v. Hearst, 563 F.2d 1331, 1351 (9th Cir. 1977) (in-

terpreted the Advisory Committee’s exclusion of opinions

phrased in terms of “inadequately explored leral criteria”

as referring to terminology, “the meaning of which is not

reasonably clear to laymen”).

This principle distinguishes Respondent Officer Owens’

testimony regarding whether a search took place from

that of Attorney Sears. Contrary to Petitioners’ argu-

ment (see Pet. 12), Owens’ testimony was of an entirely

different character than Sears’ testimony. Officer Owens

testified as follows:

Question: If you didn’t think ... [the private citizen]

had the power to do those things |/.e., seareh the resi-

dence}, when vou were inside the Specht residence and

{the citizen] ... said, ‘‘We have a court order to

search the residence,’’ why didn’t you interrupt and

say, ‘‘No, you don't’?

25

Answer: He was making no attempt to search any-

thing, so I made no attempt to explain the situation.

(Vol. VIII, 769) Obviously, Owens was using the term

‘*search’’ in its lay sense: he believed that no one was look-

ing through rooms, looking under objects, looking behind

doors, or doing other such things that lay people would

characterize as a search. This testimony was permissible

because Owens aided the jury in determining factually

what conduct the men pursued while they were inside Peti-

tioners’ residence; it did not provide a legal characteriza-

tion of that conduct. Consequently, Owens’ testimony was

purely factual and admissible.

On the other hand, Sears’ testimony began where

Owens’ testimony concluded. Sears was instructed to as-

sume what conduct the actors pursued after which he ap-

plied the legal characterizations of ‘‘search’’ and ‘‘unlaw-

ful search.’’ This is a perfect example of an unadorned

legal conclusion. Or, applying the rationale of Hearst,

563 F.2d at 1351, Sears set forth ‘‘inadequately explored

legal criteria’’ because the jury had no independent under-

standing of Sears’ legal terms.

Petitioners have cited no case similar to the instant

ease in which an attorney expounds on constitutional prin-

ciples. Petitioners instead cite cases in which an expert

renders an opinion that, to the extent it may involve a legal

principle, is nonetheless in terms susceptable to lay under-

standing or in the context of explaining a course of con-

duct.

Petitioners’ arguments that their due process and

equal protection rights have been violated by the en

26

banc court’s decision (Pet. 6), and that the Tenth Circuit

opinion has ‘‘prohibited the use of a hypothetical as the

basis for an expert opinion’’ (Pet. 13), are groundless. The

court below merely noted that because the legal expert

assumed hypotheticals and did not attempt to resolve fac-

tual issues, see Pet. 47, n.5, this demonstrated that the ex-

pert did not resolve factual issues. The Tenth Cireuit did

not intimate in any way that the use of hypotheticals upon

which an expert could base his opinion was hereafter pro-

hibited.

III. CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

THEODORE S, HaLaBy

(Counsel of Record)

Rosert M. Liecury

Havasy & McCrea

1873 South Bellaire Street

Writers V, Suite 1400

Denver, Colorado 80222

~ Telephone: (303) 691-5300

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