§ 24.06 ULTIMATE ISSUE RULE: FRE 704

• Jurisdiction: United States

§ 24.06. ULTIMATE ISSUE RULE: FRE 704

Rule 704 abolishes the "ultimate issue" prohibition, under which a witness was precluded from giving an opinion on the ultimate issues in a case. The ultimate issue prohibition was justified on the ground that opinions on ultimate issues "invade the province of the jury" or "usurp the function of the jury." For a number of reasons, this rationale was never persuasive. First, difficult questions of application are involved in distinguishing "ultimate facts" from other "facts." Second, the witness can never usurp the function of the jury. The jury is not bound by an opinion, even one by an expert, and is instructed that it may disregard the opinion of witnesses, including those of experts.¹³⁵ Of course, the jury may be unduly influenced by the opinion of a particular witness, especially an expert, but this problem exists whether the witness is offering an opinion or testifying about observed facts.¹³⁶

Finally, the principal defect in the ultimate issue rule is that it establishes the wrong standard for the admissibility of opinion testimony. The test should be whether the opinion, lay or expert, assists the jury, and not whether the opinion relates to the ultimate issues in the case. In many instances, the jury needs an opinion on issues that could be classified as "ultimate." For example, in a drug case, a chemist may be called to the witness stand to identify the substance seized by the police as cocaine, which, of course, is an element of the crime. In such a case, an opinion on the "ultimate issue" is both desirable and necessary.

[A] Other Rules

Abolition of the rule prohibiting opinions, lay or expert, on ultimate issues does not mean that all such opinions are admissible. The change only means that admissibility is governed by Rule 701 (lay opinions) and Rule 702 (expert opinions) both of which require the opinion to be helpful.¹³⁷ The federal drafters commented:

The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have sufficient mental 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.¹³⁸

One court observed: "No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible."¹³⁹

Courts often attempt to determine whether the terms used by the witness have a distinct and specialized legal meaning that is different from the vernacular. According to the Fourth Circuit, the "rule makes ultra-fine distinctions, with...