Rule 704 of the Federal Rules of Evidence: A Guide to the Ultimate Issues of Fact

When admitting expert testimony in federal court, establishing that the witness’s testimony is both reliable and relevant is only half the battle. It is just as important to know the opinions to which an expert cannot attest. Governed by Article VII of the Federal Rules of Evidence, expert admissibility, in many respects, is afforded broad discretion. This wide latitude extends to whether an expert can testify about the ultimate issues at hand. While Federal Rule of Evidence 704 clearly permits experts to offer their opinions on an ultimate issue of the case, there are still certain exceptions and limitations within this rule. In order to properly admit an expert opinion concerning an ultimate issue, the testimony should be sufficiently narrowed so that the fact-finder is still free to reach its own legal conclusion.

Expert Requirements Under the Federal Rules of Evidence

As a primer, it is important to keep in mind the standards set forth in the entirety of Article VII of the Federal Rules of Evidence, the section which governs the admissibility of expert testimony. At the outset, Rule 701 makes clear the distinction between a lay witness, one whose testimony relies on personal perception, and an expert. Rule 702 elaborates on the definition, stating that an expert’s opinion is admissible if:

• (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
• (b) the testimony is based on sufficient facts or data
• (c) the testimony is the product of reliable principles and methods
• (d) the expert has reliably applied the principles and methods to the facts of the case

Rule 702 was amended in response to the United States Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which enumerated a non-exhaustive list of factors for the courts to consider when determining whether to admit expert testimony.

Rule 703 delves into the bases on which an expert’s opinion may rely, and broadly allows consideration of any facts or data that an expert in that particular field would rely upon. Rule 703 permits an expert to base opinions on any such relevant information, regardless of admissibility, although otherwise inadmissible facts cannot be disclosed to a jury unless “their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”

The Significance of Rule 704 – What is an Ultimate Issue?

Rule 704 is of particular significance because it expressly states that an expert opinion is “not objectionable just because it embraces an ultimate issue,” which is in direct contradiction to older case law that reserved findings on ultimate issues solely for the jury. As explained in its Advisory Committee Notes, the purpose of the Rules is assist the trier of fact. “In order to render this approach fully effective and to allay any doubt on the subject, the so-called ‘ultimate issue’ rule is specifically abolished by the instant rule.” The common law strictures preventing an expert from testifying on an ultimate issue were deemed to be “unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information.”

That being said, Rule 704 does not define what an “ultimate issue” is. Of course, the definition can vary according to the context of the specific case. It is more useful to define what an ultimate issue is not: a legal conclusion. The Advisory Committee Notes state that the provisions of Rule 704 “afford ample assurances against the admission of opinions which would merely tell the jury what result to reach…” As an example provided in the Notes, the question, “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed.

While an expert “may opine on an issue of fact within the jury’s province,” he “may not give testimony stating ultimate legal conclusions based on those facts.” United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991). Testimony should not communicate a legal standard, explicit or implicit, to the jury, as this would compete with the judge’s functions of instructing the jury on the law. See Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992). Some examples of opinions that go beyond the ultimate issue into impermissible legal conclusion territory include: a legal expert in a civil rights case stating that a “search” was conducted of plaintiffs’ residence (Specht v. Jensen, 853 F.2d 805 (10th Cir. 1993)); testimony in a worker’s products liability case which uses the terms “defective” or “unreasonably dangerous” when describing a machine (Perez v. Townsend Engineering Co., 562 F.Supp.2d. 647 (M.D. Pa. 2008)); testimony stating defendants violated a statute imposing a certain standard of care (Iacangelo v. Georgetown University, 2010 WL 48070 (D.D.C. 2008).

Overall, the purpose of an expert offering an opinion as to one of the ultimate issues of the case is to help the trier of fact, not replace them.

The FRE 704 Exception – A Criminal Defendant’s Mental State

The one exception specifically enumerated in Rule 704 concerning the ultimate issue at trial is a criminal defendant’s mental state. Rule 704(b) explicitly states that: “[i]n 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.”

This subdivision was added pursuant to the Insanity Defense Reform Act of 1984 and is the only specific exception carved out in the Rule. The amendment was added in response to the 1982 trial of John Hinckley Jr., during which President Reagan’s attempted assassin was found not guilty by reason of insanity. Courts have recognized that the purpose of the Rule “is to prevent a jury adjudicating an insanity claim from becoming thoroughly confused by medical experts’ testimony about the ultimate legal issues.” United States v. Kristiansen, 901 F.2d 1463, 1466 (8th Cir. 1990).

While historical evidence has indicated that Congress intended for the Rule only to apply to psychiatric testimony, some courts have held that the Rule applies to all opinions as to whether a defendant possessed the requisite mental state to commit the crime. See United States v. Newman, 849 F.2d 156, 165 (5th Cir.1988) (an expert “may not offer an opinion on the ultimate issues of whether the defendant was in fact induced to commit the crime or lacked predisposition.”).

Overall, the breadth of Rule 704 affords experts greater opportunities to state their opinion then under older common law rules. However, it is important to be aware of the limitations and exceptions to Rule 704 so that your expert’s testimony is within the applicable strictures.