# Opposition Brief — Specht v. Jensen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0398%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1008 ## Text 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 il 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! ] ) ; _ ; ] i” hy sf ; hus } z ~ 2 { ’ ] i 1O linited Nt Jens HOS F98d 549 {)t (‘iy ] " ; | ~~ 1] ; > {vs | ~ 41] 197¢ » {, perre / Sf Z 729 | we <4 ‘ { , iJS4 ) lf 17 Vu P Webl Sasa & Cast / bel | } Z 454 it { , | Oss 1s 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 | | | | | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0398%3A2. Public record. Not legal advice.