Rule 2:704. Opinion on Ultimate Issue (rule 2:704(a) Derived from Code § 8.01-401.3(b) and (c))

• Library: A Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:704. OPINION ON ULTIMATE ISSUE (Rule 2:704(a) derived from Code § 8.01-401.3( B) and (C))

(a) Civil cases. In civil cases, no expert or lay witness shall be prohibited from expressing an otherwise admissible opinion or conclusion as to any matter of fact solely because that fact is the ultimate issue or critical to the resolution of the case. But in no event shall such witness be permitted to express any opinion which constitutes a conclusion of law. Any other exceptions to the "ultimate fact in issue" rule recognized in the Commonwealth remain in full force.

(b) Criminal cases. In criminal proceedings, opinion testimony on the ultimate issues of fact is not admissible. This Rule does not require exclusion of otherwise proper expert testimony concerning a witness' or the defendant's mental disorder and the hypothetical effect of that disorder on a person in the witness' or the defendant's situation.

NOTES

Subdivision (a). The Code provision governing in civil litigation is implemented in Rule 2:704(a). It bears noting that this "ultimate opinion" doctrine applies to both expert and lay witnesses, neither of whom may be prohibited from expressing an otherwise admissible opinion or conclusion as to any matter of fact solely because that fact is the ultimate issue or critical to the resolution of the case. The Rule carries forward the traditional ban in Virginia on testimony in the form of an opinion which essentially constitutes a conclusion of law. The Rule creates a "preset" or default position requiring admission of opinions on ultimate issues, but expressly recognizes not only the continuing ban on bald...