§704 Opinion on an Ultimate Issue

• Library: Evidence Restated Deskbook (2021 Ed.)

§704 Opinion on an Ultimate Issue

A. Expert Opinion Testimony

1. On an ultimate issue. Except as provided in paragraph 2 below, testimony by an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. This includes, in a criminal case, evidence that the defendant did or did not suffer from a mental disease or defect to determine whether the defendant is criminally responsible as provided in § 552.030, RSMo 2016, the not guilty by reason of insanity defense, and to prove that the defendant did or did not have a state of mind that is an element of the offense as provided in § 552.015(8), RSMo 2016, the diminished capacity defense.

2. On deliberation and guilt or innocence. An expert witness testifying in a criminal case may not state an opinion

a. as to 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;

b. as to whether the defendant actually deliberated; or

c. on the guilt or innocence of the defendant.

These matters are for the trier of fact alone. But the expert may state an opinion as to whether the defendant had the ability to deliberate.

B. Lay opinion testimony. A lay witness may not testify in the form of an opinion or inference when it embraces an ultimate issue to be decided by the trier of fact.

Notes

A. Expert Opinion Testimony

On an ultimate issue

The law in Missouri is clear: An expert may testify to the expert's opinion regarding an ultimate issue in a case as long as the opinion is otherwise admissible, i.e., meets the usual requirements for the provision of an expert opinion—that the expert's knowledge of the issue in question is superior to that of the ordinary juror, and the opinion testimony will aid the jury in deciding the ultimate issue. Doe v. MacFarlane, 207 S.W.3d 52, 64 (Mo. App. E.D. 2006); see also §702, supra.

Expert testimony on an ultimate issue is specifically authorized in all actions by § 490.065, RSMo Supp. 2019, which was repealed and reenacted effective August 28, 2017. (See §702 above for the types of actions covered by subsection 1 and those covered by subsection 2 of the reenacted statute.) This is so because subsection 1(2) states that "[t]estimony by . . . an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Likewise, subsection 2(3) states that "[a]n opinion is not objectionable just because it embraces an ultimate issue."

Inasmuch as repealed § 490.065 allowed expert testimony on an ultimate issue in all civil cases, but caselaw disallowed such testimony when it would invade the province of the jury, it is anticipated that caselaw will continue to disallow it in civil cases when it would invade the province of the jury. Likewise, although repealed § 490.065 did not apply to criminal cases, caselaw allowed it, but disallowed it in criminal cases when it would invade the province of the jury, Thus, it is anticipated that caselaw will continue to disallow it in criminal cases where this is so. This seems highly certain in view of the specific adoption of FRE 704(b), prohibiting expert testimony 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, because "[t]hose matters are for the trier of fact alone." Section 490.065.2(3)(b).

The following cases illustrate admissibility of ultimate issue expert testimony:

Negligence. An expert may testify as to the expert's opinion concerning the ultimate issue of whether a party was negligent, provided that the standard for determining negligence that is used by the expert is the same standard to be applied by the jury under the instructions of the court. The term "negligence" should be defined in the question that the expert is asked to be sure that the same standard is being applied. Lee v. Hartwig, 848 S.W.2d 496, 498 (Mo. App. W.D. 1992); Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 513–14 (Mo. App. E.D. 2007); Wacker v. St. Francis Med. Ctr., 413 S.W.3d 37, 39 (Mo. App. E.D. 2013) (for a "submissible" medical malpractice case, the "plaintiff must offer evidence showing (1) an act or omission of the defendant failed to meet the requisite standard of care, (2) the act or omission was performed negligently, and (3) the act or omission caused the . . . injury. . . . [T]he plaintiff's standard of care expert must offer an opinion regarding the objective standard of care that is generally accepted in the profession.") (citations omitted).

Intent to gain a commercial advantage. In an action seeking an injunction and damages for misappropriation of a celebrity's name and on the issue of whether the defendants intended to gain a financial advantage by using the name, it was proper to allow expert witness testimony that the use of the name was intended by the defendants to gain a commercial advantage because "[t]he subject about which [the expert] . . . testified—the use of celebrities to endorse or otherwise gain commercial advantage in the marketplace—is not a subject of everyday experience with which a lay juror would be inclined to be familiar." Doe v. McFarlane, 207 S.W.3d 52, 64 (Mo. App. E.D. 2006).

Investigating officer regarding traffic accident fault or which actions contributed to accident. An investigating officer may not provide an opinion regarding fault or the degree of fault of a motorist because "there is a substantial risk that the jury, or some members of it, will accord undue weight to his testimony and fail to give proper consideration to the rest of the evidence" and "a jury, usually composed of adult drivers for the most part, is capable of reaching its own conclusions with regard to fault and degree of fault in a...