Specht v. Jensen
Citation and Court
853 F.2d 805 (10th Cir. 1988), United States Court of Appeals for the Tenth Circuit
Facts
In a civil case, plaintiffs’ counsel called an attorney as an expert witness who testified about whether the defendant’s conduct violated the Fourth Amendment and whether it constituted a “search” under federal law. The district court admitted the testimony; defendants objected that the attorney was testifying about legal conclusions that were within the court’s exclusive province.
Issue
Whether an attorney may testify as an expert witness to instruct the jury on what the law is and whether the defendant’s conduct violated that law.
Holding
The Tenth Circuit held that it was reversible error to admit the attorney’s testimony because it went beyond the permissible scope of expert testimony by instructing the jury on the law and directing a verdict on the ultimate legal issue.
Rule / Doctrine
Under FRE 702, an expert may testify about matters of fact and may embrace the ultimate issue in a case (FRE 704), but an expert witness — particularly an attorney — may not instruct the jury on what the law is. That function belongs exclusively to the court. Expert legal testimony that tells the jury how to decide legal issues usurps the role of the judge and invades the province of the court.
Significance
Specht v. Jensen is the leading case on the prohibition against attorney expert testimony on pure legal conclusions. It draws the critical line between permissible expert testimony on mixed law-and-fact questions and impermissible “legal narrative” testimony that simply tells the jury what the law requires.