## Facts

- O. George Specht, Jr. and June B. Specht sued law enforcement defendants under 42 U.S.C. § 1983 for damages arising from allegedly unlawful searches of their home and business office.
- At trial, central disputes included whether the defendants’ conduct constituted a Fourth Amendment “search” and whether the Spechts consented.
- After fact witnesses, the Spechts called an attorney as an “expert” to answer hypotheticals based on evidence and to opine whether a search occurred, whether it was consensual, and whether it was “illegal per se” absent a warrant, consent, or exigent circumstances.
- The trial court admitted the attorney’s testimony, and a jury returned a verdict for the Spechts.
- A Tenth Circuit panel affirmed; the court then granted limited rehearing en banc solely on the admissibility of the attorney’s legal-opinion testimony under Federal Rule of Evidence 702.

## Issues

1. Whether Fed. R. Evid. 702 permits an attorney expert to state the law governing the verdict and to opine that defendants’ conduct violated that law (including whether conduct constituted a “search” and lacked consent).
2. If such testimony was inadmissible, whether its admission was harmless or required reversal and a new trial.

## Decision

- The en banc court held the attorney’s legal-opinion testimony exceeded the scope of Rule 702 and was inadmissible.
- The court concluded the error was not harmless because the testimony addressed core liability questions, including whether a “search” occurred and whether consent existed.
- The judgment for the Spechts was reversed, and the case was remanded for a new trial.

## Legal Principles

- Rule 702 allows expert testimony only when it assists the trier of fact in understanding evidence or determining a fact in issue; it does not permit experts to supply governing legal standards.
- The court, not witnesses, instructs the jury on the law; the jury applies that law to the facts.
- Expert testimony that states legal rules, declares conduct “illegal,” or otherwise provides legal conclusions improperly tells the jury what result to reach and risks confusing the jury with a competing source of law.
- Experts may testify about technical or specialized factual matters (e.g., practices or procedures) that help the jury evaluate evidence, but may not opine on ultimate legal questions framed as legal conclusions.

## Conclusion

The en banc Tenth Circuit held that admitting an attorney’s expert testimony on what the law required and whether the defendants’ conduct was an unlawful search was improper under Rule 702, and because the testimony went to central disputed issues, the verdict could not stand and a new trial was required.


Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988) (en banc)