ULTIMATE ISSUE (Z)
FRE 704
When an expert is testifying, an expert may express an opinion that addresses an ultimate issue of fact, but opinions or inferences regarding the mental state of the defendant are reserved for the trier of fact when that mental state is an element of the crime charged or a defense to that crime. Just because a lay witness is opining on an ultimate issue does not make it automatically objectionable. However, in order for a lay witness or expert to testify to an ultimate issue, materiality and foundation requirements must be met.
Examples
- “Did Mr. Booth murder President Lincoln?”
- “In your opinion, do you believe the defendant broke into the house with malicious intent?”
- “Can you testify as to the mental state of the defendant prior to and during the crime?”
FRE 704. Opinion on Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
Summary
Ultimate opinions are allowed for experts and lay witnesses. However, Rule 704(b) prevents testimony in criminal cases involving a mental issue. Although an ultimate issue opinion may be admitted under Rule 704(a), it may still be excluded because it is not “helpful” to the trier of fact under Rule 701, does not “assist” the trier of fact under Rule 702, or fails the probativity-prejudicial balancing of Rule 403.
When attempting to exclude testimony under Rule 704, consider whether the testimony meets relevancy and materiality requirements, whether the testimony is usurping the role of the jury, whether the testimony is even helpful to the jury, and whether the testimony is barred by another rule of evidence.
Case Law (Ultimate Issue)
- U.S. v. Huether, 673 F.3d 789 (8th Cir. 2012) (computer forensic expert allowed to state that defendant was the one who had put child porn on the hard drives confiscated from defendants’ residences; no violation of Rule 704(b), although this may have been an ultimate opinion, it was not a mental state)
- U.S. v. Graf, 610 F.3d 1148 (9th Cir. 2010) (an attorney’s testimony that he told defendant that the company’s medical plans did not comply with state and federal law and that marketing them would be a crime was admissible not to show that it was a crime but to show that defendant was on notice that his conduct was illegal; if it had been admitted to show that it was in fact illegal, it would be impermissible testimony on a matter of law under Rule 701 and Rule 702)
- Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356 (Fed. Cir. 2008) (patent lawyer with little technical expertise could not testify as to noninfringement and invalidity of patent)
- Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195 (3d Cir. 2006) (expert witness could testify about the customs and practices in the securities industry, but she could not testify to whether a party complied with legal duties under security laws)
- C.P. Interests, Inc. v. Cal. Pools, Inc., 238 F.3d 690 (5th Cir. 2001) (expert witnesses will not be allowed to present conclusions of law to the trier-of-fact)
- Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997) (lay opinion testimony may address the ultimate issue)