Hewitt v. Maryland State Board of Censors

McWieeiams, J., delivered the opinion of the Court. We shall be concerned here with the sequelae of Hewitt v. Md. Bd. of Censors, 241 Md. 283 , 216 A. 2d 557 (1966). We reversed the order of the trial judge (Byrnes, J.) disapproving the licensing of a film entitled “This Picture Is Censored.” We remanded the case for a new hearing, which took place on 8 March 1966. This appeal is from the order of the trial judge (Harris, J.) disapproving, again, the licensing of the film, pursuant to the provisions of Code, Art. 66A, § 19 (1957 Cum.

Supp. 1965) 1 Since there is a description of the film in Hewitt , we shall not repeat it here. Can such an order of the trial judge, in proceedings brought pursuant to § 19 of Art. 66A, be supported without expert testimony is the single, narrow issue we are called upon, for the first time, to decide. Necessarily excluded, however, would be those “rare case[s] where there could be no doubt that the film ⁵⁷⁷ is obscene * * * [and where the film] not only speaks for itself but screams for all to hear that it is obscene.” Dunn v. Md. Bd. of Censors, 240 Md. 249, 255, 257 , 213 A. 2d 751 (1965). It will be recalled that Roth v. United States, 354 U. S. 476 (1957) (as expanded in Fanny Hill 2 ) requires the trial judge to find, before the film can be proscribed, that “three elements must coalesce: it must be established that (a) [whether to the average person, applying contemporary community standards] the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Mr. Justice Brennan, who announced the judgment of the Court in Fanny Hill and in whose opinion the Chief Justice and Mr. Justice Fortas joined, went on to say: “A book [film] can not be proscribed unless it is found to be utterly without redeeming social value.

This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three constitutional criteria is to be applied independently; the social value of the book [film] can neither be weighed against nor cancelled by its prurient appeal or patent offensiveness.” See also Dunn, supra, at 253 . In Yudkin v. State, 229 Md. 223, 182 A. 2d 798 (1962) Yudkin, who displayed and sold copies of Henry Miller’s Tropic of Cancer, was charged with violating Code, Art. 27, § 418 (1957 Cum. Supp. 1965).

Yudkin “was not permitted to offer the testimony of certain witnesses, such as professors of English literature, literary critics, authors of books, and other persons, who may have been able to qualify as experts?’, id. at 226 (emphasis supplied), who would testify that the book was not obscene; that it would not arouse the ⁵⁷⁸ prurient interest of the average person; that it had literary merit; and that it had-received critical acceptance as literature, In reversing Yudkin’s.conviction we held it was.error to exclude the proffered expert testimony. Judge Horney, who wrote the Court’s bpinion,. quoted Mr. Justice.Frankfurter as saying that the “psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts.” 3 In Levine v. Moreland, 229 Md. 231, 237 , 182 A. 2d 484 (1962), décided the same day as Yudkin , the question whether Tropic of Cancer was lawfully removed from the Montgomery County Public'Library was considered. In' remanding the case for further proceedings, Judge Horney,' who again spoke for the Court, said; “For if and when a trial of the issue of obscenity takes place, both sides will, of course, have full opportunity to summon such expert 'and other witnesess as each may desire to testify regarding literary merit, contemporary community standards and-prurient interest. We point out, however, that the. testimony of such witnesses.

(if it is otherwise' competent) is admissible and should then be received. . “While it is true that an exhibit of allegedly obscene material—such as Tropic of Cancer—speaks for itself and must in every case be perused and examined with care by the trier of facts that has. the. responsibility of determining the issue of obscenity, that does not.mean, as we pointed out in Yudkin v. State, 229 Md. 223 , 182 A. 2d 798 (1962), decided contemporaneously herewith, that ■ other, competent evidence tending to show obscenity' or the lack of it should be excluded as irrelevant or immaterial. . “Of course, the qualifications of expert or skilled witnesses to testify is á matter for the trial court to pass upon in the first, instance. See Yudkin v. State, supra.” (Emphasis supplied.) ⁵⁷⁹ In Trans-Lux v. Md. Censor Board, 240 Md. 98, 112 , 213 A. 2d 235 (1965) we reversed the order of the trial judge disapproving the licensing of the film “A Stranger Knocks.” Judge Barnes, for the Court, said; - “The Board offered no evidence before the' lower court of my expert or other opinion indicating that the film appealed to the prurient interest or was not a serious work of art. It only offered in evidence the film itself, contending that the two1 scenes complained of in the film met the burden of proof imposed upon it by the Act of 1965.” In Dunn, supra, the Board offered only the film, “Lorna.” 4 -Judge Hammond, for the Court, said: “In our view, neither the judge who may sit in the circuit court to review the action of the Board nor the judges of this Court ordinarily would be qualified to determine whether a film exceeded these constitutional standards or tests zvithout enlightening testimony on these points. In ‘A Stranger Knocks/ while the Board did not offer such testimony, the producer and would-be exhibitor of that picture did.

For example, it was shown that the United States Bureau of Customs had admitted the film as not obscene, and that it had been exhibited in twenty-three states to not less than 250,000 people without apparent harmful effects. The philosophical background of the picture was described by its producer in an affidavit. Favorable criticisms by experienced critics all over the country were presented. Other experts in the field testified that the pic ⁵⁸⁰ ture was not obscene.” 240-Md. at 255-56.

(Emphasis supplied.) “Testimony of the type given as to ‘A Stranger Knocks’ and offered in Yudkin and Levme as to ‘Tropic of Cancer’ should be available to the Board as to almost every film it thinks is obscene. * * * [W]e do not feel qualified to say by virtue of a viewing of the picture only—anymore than was Judge Prendergast, in our opinion—that to the average person applying either local or national contemporary community standards the dominant theme of ‘Eorna’ was an appeal to prurient interest, or that the picture exceeded customary limits of candor in its representations of sex or the sexual mores of the community pictured or that it was utterly without redeeming social importance or literary or artistic value.” 240 Md. at 257. In Hewitt, supra, the trial judge arranged for a jury panel to view the film and thereafter based his order, in part, on the answers to questionnaires submitted to them. In reversing his order and remanding the case, we said: “It will also be observed that there was no showing that any of the jurors had the expertise, skill or experience necessary to be able to give expert or meaningful testimony on the nature and limits of contemporary community (whether local, regional or national) standards of tolerance in the area of obscenity, or the customary limits of candor .in the description or representation of sex, or the factors to be considered in determining whether a film has redeeming social importance. We do- not, at this time, hold that such a showing would have been essential to the admissibility ■of their testimony, assuming they were, in all other respects, competent wtinesses; we simply say we find it difficult to perceive how such testimony can, in these ■circumstances, be helpful to the trial judge.” 241 Md. at 292 .

(Emphasis supplied.) ⁵⁸¹ In his concurring opinion in Barmy Hill, Mr. Justice Douglas was moved to observe: “We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except as in our capacity as private citizens. * * * If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated.” (Emphasis supplied.) The author of a note entitled The Use of Expert Testimony in Obscenity Litigation, 1965 Wisc. L. Rev. 113, 131-32, 5 after discussing a number of recent decisions, including Yudkin, supra, concludes: “Obscenity litigation appears to1 be on the increase, and it is, therefore, important that the lower courts be equipped with evidentiary rules which will enable them to effectively utilize expert testimony in these lawsuits. In the meantime, the lower courts should take it upon themselves to become aware of the problems involved in the use of expert testimony in obscenity actions, and exercise that judicial supervision which is most likely to make such testimony reliable and effective.

It is extremely important that trial courts develop this ability in any event, for the evidentiary rules that appellate courts eventually evolve for future guidance are certain to vest a significant amount of discretion in the trial judge. Appellate courts can formulate the rules, but trial judges must apply them. And, as pointed out throughout this Note, the complex problems involved in determining the proper role of expert witnesses in obscenity litigation create a formidable challenge to both the formulation and the application of these rules.” (Emphasis supplied.) ⁵⁸² But see Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5 (1960), wherein is espoused the notion that appellate judges are as capáble as any expert to determine whether material is obscene.

We think it is obvious that this Court has welcomed expert testimony in cases arising under § 19 of Art. 66A. And, while it may not be quite as obvious, it is nevertheless true that we have, at times, suggested, if not actually encouraged, the use of expert witnesses in these cases. We must now decide whether expert testimony is necessary to support orders of this kind. We have said many times that whether a witness is qualified to express an opinion on the subject as -to which he is called to testify,' is a matter for the trial court to pass upon in the first instance and that the court’s ruling will not be reversed unless it is shown to have been based upon an error of law or to have been the result of an abuse of judicial discretion.

Yudkin, supra; Turner v. State Roads Comm., 213 Md. 428 , 132 A. 2d 455 (1957) and the cases therein cited. In obscenity litigation, however, this Court will be required to scrutinize more closely the rulings of the trial judge in respect of the qualifications and competency of witnesses offered as experts. In Jacobellis v. Ohio, 378 U. S. 184, 190 (1964), Mr. Justice Brennan explicitly declared that “this Court [the Supreme Court]- cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” In United States v. Klaw, 350 F. 2d 155 (1965), Judge Moore, speaking for the Court of Appeals of the Second Circuit, in an obscenity appeal, said: “The most cursory perusal of the cases makes it obvious that the various agencies, officers, judges and juries that initially find material ‘obscene’ do not have the last word to say on the matter. Rather, the Supreme Court has left no doubt that any abnegation of judicial supervision in the ‘obscenity’ field would be inconsistent with its duty to uphold constitutional guarantees. * * * Thus, the Court has definitely accepted the responsibility of being the final arbiter and ⁵⁸³ has refused to accept the judgments of officials, judges or juries to the contrary.

The ‘sufficient evidence’ test on review advocated by the Chief Justice has not been adopted. See Jacobellis v. State of Ohio, supra, 378 U. S. at 190, n. 6 , 84 S. Ct. 1676 (dissenting opinion). The burden on this court at this appellate stage should be no less. And the enlarged judicial function in this area requires that we consider the proof or lack thereof and the manner in which the case was placed before the jury, not just whether the material could possibly be brought within the range of the so-called ‘obscenity’ statute.” Id. at 160.

The trial judge must be mindful, therefore, of our obligation to assess his rulings in this regard in light of their objective correctness instead, merely, of determining whether he has, or has not, abused his discretion or- that he is in error as to the law. Our most recent discussion of the status of the expert witness in our courts will be found in State Health Dep’t v. Walker, 238 Md. 512, 520-22 , 209 A. 2d 555 (1965). The trial judge, in that case, refused to allow Robert Brown, Chief of the Bureau of Environmental Hygiene of the Maryland Department of Health to express an opinion, in respect of a proposed sewage disposal system on Assateague Island, holding that, in the circumstances, he failed to qualify as an expert witness. We quote, at some length, from Judge Marbury’s opinion because of the relevance of his language to the issue under consideration. “This case presents a basic question of evidence, i.e., upon what conditions and under what circumstances may a witness deemed to be an expert, express an opinion in the field of his expertise.

This Court has dealt many times with expert and opinion testimony. An expert opinion derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert. Doyle v. Rody, 180 Md. 471 , 25 A. 2d 457 . The premises of fact must disclose that the expert is sufficiently familiar with the subject matter under investigation to elevate his opinion above the realm of conjecture and ⁵⁸⁴ speculation, for no matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient factual basis to support a rational conclusion is shown.

State, Use of Stickley v. Critzer, 230 Md. 286 , 186 A. 2d 586 , and cases cited therein; Hammaker v. Schleigh, 157 Md. 562 , 147 Atl. 790 . The opinion of an expert, therefore, must be based on facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked fi> supply the substantial facts necessary to support such conclusion. The facts upon which an expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere conjecture or guess. Marshall v. Sellers, 188 Md. 508 , 53 A. 2d 5 . “Despite all of his education and sanitation experience, Brown was not sufficiently familiar with the whole of Assateague Island or the particular properties belonging to the appellee, to be able to express any honest and meaningful opinion as to the effect the soil and geological conditions there present would have upon the functioning of a sewage disposal system.

The record indicates that he had made only two trips to Assateague and that the first of these was to inspect an area at the northern end of the island, far removed from the locations involved here. On his second trip he inspected the Ocean Beach development, a section of which includes the parcels belonging to appellee.” “Educational and field experience are important in determining whether a witness is an expert qualified to pass judgment in a given case, but they alone are not sufficient to supply the basis upon which to rest an opinion. The opinion of an expert must be based on knowledge gained from observation or experience, standard books, maps of recognized authority, or any other reliable sources. Casualty Ins.

Co. v. Messenger, 181 Md. 295 , 29 A. 2d 653 . Here, the trial court ⁵⁸⁵ cannot be said to have abused its discretion, for the judge was exceedingly careful to determine that neither Brown nor anyone in his Department other than Miss Schoolfield and Dr. Waesche, who reached conclusions contrary to Brown, had made an investigation to determine the conditions prevailing on the island. With such a limited opportunity for personal observation and no reliable information available from other sources, it is manifest that any opinion on this subject expressed by Brown would have amounted to mere conjecture. Such opinions, even by experts, are not admissible.” It must not be supposed that we are suggesting quite so strict a rule in obscenity cases (i.e., cases arising under § 19 of Art. 66 A).

The average person, however, is certainly not qualified to give expert testimony in this area. The fact that he might have a degree in education, sociology or theology does not, per se, make him qualified; nor does the mere fact that he is a social worker, a probation officer, a teacher, a priest, minister or rabbi. Something more is required. He need not, of course, be an authority but there must be an affirmative showing (and an opportunity to cross-examine thereon) that he is possessed of some special and sufficient knowledge and information, however acquired, which would elevate his opinion above the realm of conjecture, speculation or personal reaction, in respect of any one of the three elements of the test promulgated in Roth and expanded most recently in Fanny Hill.

His knowledge and information may have been acquired in his business or in his profession or it might be the by-product of an avocation, sport or hobby. He may have sought it assiduously or he may have absorbed it casually. Mr. Crawford H. Greenewalt, for instance, is a chemist by profession. His occupation is chairman (formerly president) of E. I. du Pont de Nemours & Co. He is not an ornithologist.

Yet there is probably not a court in the world which would not declare him qualified to testify as an expert on the coloring, configuration, classification and flight characteristics of hummingbirds. 6 The term “expert” has many ⁵⁸⁶ lights and shadows. It can denote a man who is a recognized authority and, perhaps as accurately, a fellow who once went to the-city. At what point between those two extremes he will be allowed to express an opinion on the witness stand will be for the trial judge to decide in the first instance. But whatever his status in life may be, his qualifications can not be assumed; they, must be established by evidence.

The quality or quantity of that evidence occasionally may require some adjustment, depending upon the exigencies of the moment, and in such circumstances the trial judge will need to exercise the full measure of his judgment, skill and discretion. While we stand by our holding in Hewitt in respect of admissibility, we now advance one step- further and hold that such testimony, standing alone, cannot, support an order disapprov- ' ing a film for. licensing because it is said to be obscene. We must- now consider the qualifications of the witnesses .who- appeared .before the trial-judge and appraise their testimony. We shall discuss, first the witnesses who do not qualify as experts by any standards. , John-E. Patterson is the supervisor of a group, of probation officers in the division of juvenile causes of the Baltimore courts.

He- is a graduate of Morgan State College and he has .taken special courses (subjects undisclosed) at' the University .of Maryland, Howard University and the University of Penn-sylvania. He was “not very familiar” with any area outside of ■Baltimore. He “felt” that he had “some general idea” of the standards of .tolerance of the “local community” in the “por.trayal of sexual matters.” He “was inclined to. think” the film “appeals to prurient interest.” He. thought the film had no social importance “unless the argument against boards of censors” which “was the underlying theme” is of social impor ⁵⁸⁷ tance. His cross-examination disclosed that he had “made no particular studies of contemporary motion pictures;” that he did not claim “any special or expert knowledge in the field of motion pictures;” that he