Specht v. Jensen

— 806 — ON REHEARING EN BANC JOHN P. MOORE, Circuit Judge. This case is before the court for rehearing en banc of one issue; in all other respects the panel opinion1 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. I. This case is an action for damages pursuant to 42 U.S.C. § 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: [BJased 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 — 807 — 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. II. A. 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, ¶ 702[01] (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 á 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 — 808 — 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 ease. 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, “legal opinions as to the meaning of the contract terms at issue ... was testimony concerning matters outside [the witness’s] area of expertise.... It is not for witnesses to instruct the jury as to the applicable principles of law, but for the judge.” 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 conclusion on the contributory negligence of a party infringed upon the jury’s role in deciding the case. Finally, in United States v. Zip kin, 729 F.2d 384 (6th Cir.1984), the Sixth Circuit reversed the trial court’s decision to allow a bankruptcy judge to testify regarding his interpretation of the Bankruptcy Act and his own orders. “It is the function of the trial judge to determine the law of the case,” the court stated. “It is impermissible to delegate that function to a jury through the submission of testimony on controlling legal principles.” 729 F.2d at 387. The courts in these decisions draw a clear line between permissible testimony on issues of fact and testimony that articulates the ultimate principles of law governing the deliberations of the jury. These courts have decried the latter kind of testimony as directing a verdict, rather than assisting the jury’s understanding and weighing of the evidence. In keeping with these decisions, we conclude the expert in this case was improperly allowed to instruct the jury on how it should decide the ease. The expert’s testimony painstakingly developed over an entire day the conclusion that defendants violated plaintiffs’ constitutional rights. He told the jury that war-rantless searches are unlawful, that defendants committed a warrantless search on plaintiffs’ property, and that the only applicable exception to the warrant requirement, search by consent, should not vindicate the defendants because no authorized person voluntarily consented to allow a search of the premises. He also stated that the acts of the private individual could be imputed to the accompanying police officer to constitute sufficient “state action” for a § 1983 claim. By permitting the jury to hear this array of legal conclusions touching upon nearly every element of the plaintiffs’ burden of proof under § 1983, the trial court allowed the expert to supplant both the court’s duty to set forth the law and the jury’s ability to apply this law to the evidence. Given the pervasive nature of this testimony, we cannot conclude its admission was harmless. There is a significant difference between an attorney who states his belief of what law should govern the case and any other expert witness. While — 809 — other experts may aid a jury by rendering opinions on ultimate issues, our system reserves to the trial judge the role of adjudicating the law for the benefit of the jury. When an attorney is allowed to usurp that function, harm is manifest in at least two ways. First, as articulated in Marx & Co. v. Diners’ Club, Inc., the jury may believe the attorney-witness, who is presented to them imbued with all the mystique inherent in the title “expert,” is more knowledgeable than the judge in a given area of the law. Marx, 550 F.2d at 512. Indeed, in this case, the expert’s knowledge and experience was made known to the jury by both the court and counsel in a manner which gave his testimony an aura of trustworthiness and reliability. Thus, there is a substantial danger the jury simply adopted the expert’s conclusions rather than making its own decision. Notwithstanding any subsequent disclaimers by the witness that the court’s instructions would govern, a practical and experienced view of the trial world strongly suggests the jury’s deliberation was unduly prejudiced by the expert’s testimony.4 Second, testimony on ultimate issues of law by the legal expert is inadmissible because it is detrimental to the trial process. If one side is allowed the right to call an attorney to define and apply the law, one can reasonably expect the other side to do the same. Given the proclivity of our brothers and sisters at the bar, it can be expected that both legal experts will differ over the principles applicable to the case. The potential is great that jurors will be confused by these differing opinions, and that confusion may be compounded by different instructions given by the court, see United States v. Curtis, 782 F.2d 593, 599 (6th Cir.1986); United States v. Ingredient Technology Corp., 698 F.2d 88, 97 (2d Cir.1983). We therefore conclude the expert’s testimony on the ultimate issues of law was not harmless as contended by the dissent. B. The line we draw here is narrow. We do not exclude all testimony regarding legal issues. We recognize that a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms. For example, we have previously held that a court may permit an expert to testify that a certain weapon had to be registered with the Bureau of Alcohol, Tobacco, and Firearms. United States v. Buchanan, 787 F.2d 477, 483 (10th Cir.1986). In that case, however, the witness did not invade the court’s authority by discoursing broadly over the entire range of the applicable law. Rather, the expert’s opinion focused on a specific question of fact.5 See also Huddleston v. Herman & MacLean, 640 F.2d 534, 552 (5th Cir.1981), modified on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) (attorney expert in securities law allowed to testify that a statement in a prospectus was standard language for the issuance of a new security because this information helped the jury weigh the evidence of defendants’ scienter); United States v. Garber, 607 F.2d 92 (5th Cir.1979) (trial court erred in refusing to let experts on income tax law testify regarding whether failure to report funds received for sale of blood plasma constituted income tax evasion). These cases demonstrate 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 — 810 — must exercise its fact-finding function. 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 cannot be allowed. In no instance can a witness be permitted to define the law of the case. Plaintiffs seek to avoid this conclusion by arguing the expert testimony here was no different from a medical expert testifying that specific conduct constitutes medical malpractice. We do not believe, however, there is an analog between the testimony of the medical expert and that of the legal expert because the former does not usurp the function of the court. The testimony of the medical expert in plaintiffs’ hypothesis is more like that of the legal expert who explains a discrete point of law which is helpful to the jury’s understanding of the facts. The cross appeal in this case has been left unresolved owing to the panel’s disposition. We therefore remand this matter to the original panel for further consideration. Footnotes [1] Specht v. Jensen, 832 F.2d 1516 (10th Cir.1987). [2] See Specht, 832 F.2d at 1519-20. [3] When questioned by the court whether the witness would be testifying on "an area of fact,” plaintiffs’ counsel did not directly answer but explained the witness would render opinions on whether there had been a search, whether there had been consent to the search, whether the consent was voluntary, and whether there were exigent circumstances to permit a warrantless search. Because the testimony was to be based upon hypothetical questions which assumed the existence of the essential facts, we believe there could be no "area of fact” involved. Thus, contrary to the plaintiffs’ present assertions, counsel’s representation clearly indicated the expert’s testimony would cover only questions of law. [4] Indeed, one is constrained to ask why it is helpful to the jury to present expert testimony on the law if the witness himself states, as he did here, that anything he says is subject to correction by the judge. Is this not more confusing than helpful? The question is rhetorical and stands as further example why a lawyer's testimony on ultimate issues of law is improper. [5] By contrast, the expert in the instant case did not testify on issues of fact because he based his opinions on hypothetical facts. The expert added nothing to resolve the salient factual issues of the case.