Specht v. Jensen
1988 WL 79738, 853 F.2d 805 (1988)
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Rule of Law:
Federal Rule of Evidence 702 does not permit an attorney called as an expert witness to testify regarding the governing law or to offer opinions on whether the parties' conduct violated that law, as this usurps the trial court's exclusive role in instructing the jury on legal principles.
Facts:
- Plaintiffs' home and office were subjected to searches.
- Plaintiffs initiated an action for damages pursuant to 42 U.S.C. § 1983, alleging these searches were invalid.
- The legal questions of whether the defendants’ conduct involved a “search” within the meaning of the Fourth Amendment and whether plaintiffs consented to the search were central issues to be determined by the jury.
- Plaintiffs' counsel proposed calling an attorney as an expert witness to offer opinions on whether a search took place, whether consent was given, and whether the search was illegal per se, based on a hypothetical of the facts in evidence.
Procedural Posture:
- Plaintiffs (Specht, et al.) sued defendants (Jensen, et al.) in a federal trial court for damages under 42 U.S.C. § 1983, alleging invalid searches of their home and office.
- During the trial, the court permitted plaintiffs' counsel to call an attorney as an expert witness to offer opinions on whether a search took place, whether consent was given, and whether the search was illegal per se.
- The trial court entered a judgment after the jury returned a verdict.
- Defendants appealed to the United States Court of Appeals for the Tenth Circuit.
- A panel of the Tenth Circuit heard the appeal and issued an opinion, which is referred to as 'Specht v. Jensen, 832 F.2d 1516 (10th Cir.1987)'.
- The Tenth Circuit decided to rehear one issue en banc (with all active judges) concerning the admissibility of the attorney expert's testimony.
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Issue:
Does Fed.R.Evid. 702 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?
Opinions:
Majority - John P. Moore, Circuit Judge
No, Fed.R.Evid. 702 does not permit an attorney expert witness to state views of the law governing the verdict or opine on whether conduct violated that law, as such testimony goes beyond assisting the trier of fact and encroaches upon the court's authority. The court emphasized that the judge is the sole arbiter of the law and its applicability. While Rule 704 permits opinion testimony on ultimate facts, it does not favor testimony on ultimate questions of law, as the latter circumvents the jury’s decision-making function by instructing it how to decide the case. The court cited precedent from other circuits to draw a clear line between permissible testimony on issues of fact and impermissible testimony articulating ultimate principles of law. The admission of such testimony by an attorney-expert is harmful because the jury may perceive the expert as more knowledgeable than the judge, leading to undue prejudice, and it creates the potential for confusion from dueling legal experts. The court clarified that while an expert may refer to the law in expressing an opinion to aid understanding of facts, they cannot define the legal parameters for the jury’s verdict or define the law of the case. The matter was remanded to the original panel for further consideration of the cross-appeal.
Dissenting - Seymour, Circuit Judge, with whom McKay, Circuit Judge, joins
Yes, the expert testimony should be considered harmless error, if error at all, because the expert's view of the law largely aligned with the judge's instructions and the jury was properly instructed to follow the judge's law. The dissent argued that trial judges have broad discretion in admitting expert evidence, and rulings should be sustained unless manifestly erroneous. While acknowledging that expert testimony merely setting out legal principles might be excludable as unhelpful under Rule 702, its admission is not per se prejudicial error. The expert, Daniel Sears, acknowledged on cross-examination that his opinions were his own view of the law, not necessarily the court’s, and that the trial court’s understanding of the law was controlling. Crucially, the expert's definition of an illegal search was essentially the same as the judge's instructions. The jury was explicitly instructed to apply the law as stated by the court and to determine the weight of expert testimony, which should preclude a finding of prejudice. The dissent criticized the majority for failing to distinguish between stating the law (which might be excludable) and applying it to facts (which Rule 704 allows, even for ultimate issues), and for not demonstrating actual prejudice, especially given the similarity between the expert’s and judge’s legal definitions.
Analysis:
This case reinforces the fundamental principle that judges, not expert witnesses, define the law for the jury, even when those experts are attorneys. It clarifies the boundary between permissible expert testimony on ultimate facts (under Federal Rule of Evidence 704) and impermissible testimony on ultimate questions of law. The decision warns against the potential for jury confusion and undue influence when an attorney expert, 'imbued with mystique,' encroaches on the judicial function, thereby significantly impacting how legal experts can be utilized in federal courts and preserving the integrity of the judicial process.
