[author: Dirk D. Larsen]
Joseph Burton, et al. v. Gary Sanner
California Court of Appeal, Fourth Appellate District (June 21, 2012)
Expert testimony is a frequent—and often integral—feature of civil trials involving a wide range of issues. In this case, where the defendant claimed he shot the plaintiffs in self-defense, the Court of Appeal addressed the admissibility of expert testimony on the crucial issue of whether the defendant’s conduct was objectively reasonable.
On the evening of August 8, 2008, Jennifer Sanchez and her boyfriend, Joseph Burton, decided to go to the home of Sanchez’ ex-husband, Gary Sanner, to retrieve some of her belongings. The two had been drinking alcohol, and before leaving Sanchez called Sanner, who did not answer the phone but, hearing Sanchez’ message, believed that she was intoxicated. At about midnight, Burton called the Sheriff’s Department to request an escort, which was unavailable at that hour. Burton and Sanchez thus went to Sanner’s home with Burton’s teenage children, Jessica and Joseph Eric (J.E.), and with Sanchez’ teenage son, Shayne. When they arrived, Sanner recognized Burton’s vehicle and, fearing trouble, called 911 and loaded his shotgun. Burton and Sanchez knocked at the front door while Shayne and J.E. went to the back, took a screen off of a window and opened the window. Sanner fired his shotgun through the open window, mortally wounding J.E. He then heard someone say “break the window” at the front and fired through the front window, seriously injuring Sanchez.
Burton and Sanchez sued Sanner for wrongful death and personal injury. Sanner asserted the defense of necessity, or self-defense. Over Sanner’s repeated objections, the trial court admitted the testimony of the plaintiffs’ expert witness, Scott Reitz, a retired police officer. Reitz had trained more than 100,000 police officers and military troops in marksmanship and deadly force, and had trained up to 10,000 civilians in firearm use and safety. In his testimony, Reitz offered the opinion that Sanner’s conduct “was not a reasonable response” to the situation he confronted. Reitz listed a number of options that Sanner should have utilized, including various types of warnings, before resorting to deadly force. The jury found that Sanner was negligent, and that his negligence was a substantial factor in causing the plaintiffs’ harm. Sanner appealed.
The Court of Appeal reversed. It noted that, under well-established law, the opinion of an expert is admissible when it is “related to a subject that is sufficiently beyond common experience” that the expert’s opinion would assist the jury. However, where the jury is just as competent as the expert to evaluate the evidence and draw conclusions, “the need for expert testimony evaporates.”
The topic Reitz testified about was Sanner’s assertion of self-defense, which required a showing that (1) Sanner reasonably believed that plaintiffs were going to harm him, and (2) Sanner used only the amount of force that was reasonably necessary to protect him. This reasonableness standard, the court noted, is an objective standard, one especially suitable to be determined by the jury. Unless the defendant raises circumstances that the jury might not otherwise understand as the basis for self-defense, expert testimony is not relevant to the determination. In this case, Sanner raised no circumstances that would call for expert opinion. Reitz’ opinion thus did not aid the jurors, but supplanted them.
The Burton court distinguished cases that found expert testimony admissible for determining the reasonableness of deadly force. Those cases all pertain to shootings by police officers, who are trained in particular techniques that “the jury may not understand without expert assistance.” Unlike private citizens, police officers must act affirmatively and use force as part of their duties, and cases involving police officers may turn on the propriety of chosen police tactics or emergency procedures.
After finding that the trial court should not have admitted Reitz’ testimony, the Burton court addressed whether the error constituted a miscarriage of justice requiring reversal of the judgment. The court held that it did. First, Sanner did not designate an expert to refute Reitz’ opinions—presumably realizing that such testimony was inadmissible—thus magnifying the impact of Reitz’ testimony. Second, the trial court essentially allowed Reitz to instruct the jury on his erroneous view of the applicable legal principles, even though only the judge may instruct the jury on the law. Third, Reitz indicated throughout his testimony that Sanner should be held to the same standard as a police officer trained in the use of deadly force, or as Reitz teaches civilians in his classes, although the jury instructions contain no such requirement and there was no evidence that Sanner had such training. Under these circumstances, the court held, admitting Reitz’ testimony constituted a miscarriage of justice.
The Burton decision draws a clear line between topics suitable for expert opinion—such as police tactics—and questions left solely to the jury. In doing so, it reaffirms the jury’s ability to evaluate laypersons’ conduct and reach conclusions without expert assistance.
For a copy of the complete decision see: