Hermann v. United States

¶1(concurring) :

¶2As in Parks v. United States, D.C.App., 294 A.2d 858 (1972), the trial judge here “refused to consider” (id. at 860) the defense evidence on national standards — that is, “the trial judge erroneously ruled that the ‘door [was not] open for [appellants] to rely upon [the experts’] testimony.’ ” Id.This is clear from his statement quoted in the opinion of the court. Accordingly, I concur in this holding.

¶3Parks, however, cannot be read as requiring the prosecution to come forward with contrary expert testimony on national standards every time the defense introduces expert testimony on that subject. Since the trial judge in Parksrefused to consider defense testimony in the first instance, and that was his error of law, any comments by the Parkspanel on the evi-dentiary burden of the prosecution to withstand a motion for judgment of acquittal was a purely gratuitous observation and not a statement of case law. It is nonetheless entirely probable that the Bar and the trial court might construe such extended remarks to be a holding in Parks. To that extent, such a view of Parkswill surely permit a trial of this type to degenerate into a battle of “experts.” The issue simply is not presented for decision here and was not presented in Parks. Cf. In re Niblack, 476 F.2d 930 (D.C.Cir., 1973).

¶4In discussing the “evaporation” approach in Parksand in comparing it to a rebut-table presumption, this court has not ruled that in all such obscenity cases the prosecution must come forward with contrary expert testimony. Cf. Greene v. United States, 114 U.S.App.D.C. 266, 267 n. 1, 314 F.2d 271, 272 n. 1 (1963), where the presumption of sanity survives introduction of evidence of nonresponsibility and may be considered by the jury in deliberation. That presumption alone is enough to carry the burden of proving responsibility in the face of the defense of insanity if the fact finder is so persuaded. Greene v. United States, supra; Hawkins v. United States, 114 U.S.App.D.C. 44, 310 F.2d 849 (1962); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc). Indeed, as with the presumption of sanity, the nature of the “presumed” obscene material is subject to acceptance or rejection by the fact finder (judge or jury) on the question of guilt based on “human experience” about which the opinion of the court speaks, supra. There is nothing in the Parksholding, despite some discussion of the metaphysics of proof burden, which would require the prosecution, under penalty of a directed judgment of acquittal, to use contrary expert testimony on national standards. With defense evidence on national standards the question of guilt becomes factual, not legal under the obscenity per se ruling. See Heinecke v. United States, 111 U.S.App.D.C. 98, 294 F.2d 727 (1961). In light of well-established law that a fact finder is free to reject any “expert’s” qualifications or the verity of his opinions, e. g., Burke v. Washington Hospital Center, 475 F.2d 364 (D.C.Cir., *271973),1Parkscannot be read as mandating production of government expert testimony on the evidentiary issue of contemporary standards. In determining the issue of obscenity, the fact finder may reject the defense evidence on contemporary standards. In so doing the fact finder may consider along with the experiences in the affairs of life2 the material or exhibition without other proof on the element of contemporary standards. Thus, the prosecution could, if it chose, proceed to verdict on the basis of the nature of the subject matter of the case. Of course, ultimate constitutional protection of that subject matter always resides with the appellate court and in most instances with the United States Supreme Court. I agree with the hope expressed in footnote 5 of the court’s opinion that the Supreme Court will resolve the procedural and substantive uncertainties in the obscenity area. Despite the conceded importance of the First Amendment it would seem that too much judicial resource is expended in these types of cases where expression of ideas gives way to attempted sexual stimulation, a biological phenomenon hardly worthy of this kind of constitutional protection.

¶5I must confess some misgivings at the notion that anyone can in all candor profess expertise in such national community standards. What may be shown in this type of movie house in the District of Columbia or across the nation is hardly as reflective of “standards” as it is of capacity for some community toleration.3 This record reveals a film depicting in ultimate detail every imaginable kind of multicouple sexual act. With such, it hardly serves the interests of the community or the First Amendment purposes to limit trial determination of obscenity to a choice between self-professed experts willing to judge the extent of the nation’s conscience. I submit that neither Parksnor this holding can or should go so far. Indeed, this film is so clearly obscene that it falls squarely within Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204 (1961).

The photographs which are exhibits in this case are conclusive autoptical proof of obscenity and filth.

In the case at bar the photographs were filthy, self-evidently and indisputably. We think that photographs can be so obscene — it is conceivably possible that they be so obscene — that the fact is incontrovertible. These photographs are such. [Id. at 9-10, 294 F.2d at 205-206.]

¶6We should remember that dependence on expert witnesses on questions of fact so closely tied to the ultimate fact issue amounts to a dangerous abdication of the responsibility of the courts to adjudicate. As to the insanity defense, Chief Judge Bazelon has colorfully and accurately described this abdication to experts as giving them a “stranglehold on the process.” United States v. Brawner, 471 F.2d 969, 1011 (D.C.Cir.1972) (Bazelon, C. J., separate opinion).