Rule 704 Opinion on Ultimate Issue

• Jurisdiction: Arizona

Testimony 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.

Comment

This rule allows opinion testimony that "embraces" an ultimate issue,[1] but it does not allow the witness to give an opinion on the ultimate issue itself.[2] As provided in Rules 701 and 702, opinion testimony should be limited to testimony that will assist the trier-of-fact to understand the evidence or to determine a fact in issue, that is, to resolve factual questions. The task of applying the law to the facts, however, remains the province of the trier-of-fact, and so a witness is not allowed to express an opinion that a person was negligent, liable, competent, or guilty.[3] Nor may the witness give an opinion about the accuracy, reliability, or truthfulness of a particular person, or quantify the percentage of such persons who are truthful.[4] Further, an expert may give an opinion of the defendant's state of mind at the time of the offense only when the defendant raises an insanity defense.[5]

Cases

704.010 Opinion evidence is admissible even if it involves an ultimate issue in the case.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994) (because defendant had changed his appearance between time of crime and time of trial, and because witnesses, who were defendant's acquaintances, knew how defendant looked at time of crime, witnesses were permitted to view surveillance tapes and give their opinion whether person in tape was defendant).

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992) (because testimony that there was a "perfect paint match" between paint on victim's bicycle and bumper of defendant's car was necessary aspect of expert's opinion that defendant's vehicle struck victim's bicycle, trial court properly admitted this testimony, even though jurors could determine for themselves whether the two samples matched).

Dunham v. Pima County, 161 Ariz. 304, 778 P.2d 1200 (1989) (trial court should have allowed expert to give opinion about dangerousness of intersection where accident occurred).

Fuenning v. Superior Ct., 139 Ariz. 590, 680 P.2d 121 (1983) (in DUI case, police officer may give opinion that defendant displayed symptoms of intoxication, but should not give opinion that defendant was driving while intoxicated, which amounts to giving opinion on defendant's guilt).

State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983) (medical examiner allowed to give opinion that decedent was a victim of a homicide rather than accident).

Bliss v. Treece, 134 Ariz. 516, 658 P.2d 169 (1983) (police officer allowed to give opinion that plaintiff was following defendant too closely).

State v. Williams, 132 Ariz. 153, 644 P.2d 889 (1982) (expert allowed to give opinion whether sharpened stick was a dangerous instrument).

State v. Lummus, 190 Ariz. 569, 950 P.2d 1190 (Ct. App. 1997) (court was concerned that officer testified that, on an intoxication scale of 1 to 10, defendant was a 10+, but held that error was harmless beyond a reasonable doubt).

Souza v. Fred Carriers Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (Ct. App. 1997) (accident reconstruction expert should have been permitted to give opinion on how and why accident happened; trial court therefore erred in granting defendant's motion for summary judgment).

State v. Corona, 188 Ariz. 85, 932 P.2d 1356 (Ct. App. 1997) (expert testimony on how a person can promote a gang by stating name of gang and by making threats did not amount to telling jurors how to decide the case).

State v. Verdugo, 180 Ariz. 180, 883 P.2d 417 (Ct. App. 1993) (trial court properly allowed officer to testify whether term "kilo" was a code used by narcotics dealers and to define that term for jurors).

State v. Schroeder, 167 Ariz. 47, 804 P.2d 776 (Ct. App. 1990) (witness was called as investigating officer and not as expert witness on child abuse victims; witness's testimony that victim appeared to be telling truth did not require reversal of conviction).

State v. Bedoni, 161 Ariz. 480, 779 P.2d 355 (Ct. App. 1989) (trial court did not err in allowing arresting officer to describe symptoms of intoxication based on his experience, and then answer that defendant's conduct seemed to be influenced by alcohol).

State ex rel. McDougall v. Ricke, 161 Ariz. 462, 778 P.2d 1358 (Ct. App. 1989) (opinion testimony of BAC based on HGN test is admissible).

State v. Superior Ct. (DeWolf), 152 Ariz. 327, 732 P.2d 218 (Ct. App. 1986) (expert was allowed to testify that all persons are affected by alcohol at level of 0.08 percent or above).

State v. Carreon, 151 Ariz. 615, 729 P.2d 969 (Ct. App. 1986) (police officer permitted to give opinion that, based on way in which defendant carried cocaine and money, drugs were possessed for sale).

State v. Blevins, 128 Ariz. 64, 623 P.2d 853 (Ct. App. 1981) (accident reconstruction experts allowed to give opinion on cause of collision).

State v. Gentry, 123 Ariz. 135, 598 P.2d 113 (Ct. App. 1979) (police officer permitted to testify that defendant was driving based on circumstances of accident).

Continental Bank v. Wa-Ho Truck Brokerage, 122 Ariz. 414, 595 P.2d 206 (Ct. App. 1979) (expert witness on banking practices permitted to express opinion in affidavit concerning ultimate issue, notwithstanding "specific facts" requirement in Ariz. R. Civ. P. 56(e)).

704.020 Testimony must assist the jurors to understand the evidence or to determine a fact in issue and not merely tell the jurors how they should decide the case.

State v. Mauro, 159 Ariz. 186, 766 P.2d 59 (1988) (in cases involving insanity defense, expert testimony concerning defendant's state of mind at time of crime is permitted, thus trial court properly allowed state to cross-examine expert by asking hypothetical questions concerning defendant's state of mind).

State v. Ortiz, 158 Ariz. 528, 764 P.2d 13 (1988) (trial court properly allowed testimony about defendant's ability to reflect or premeditate generally, but precluded expert from giving opinion whether defendant had premeditated or acted reflexively at time of crime).

State v. Rivera, 152 Ariz. 507, 733 P.2d 1090 (1987) (psychiatrist would be permitted to testify about defendant's general tendency to act without reflection, but would not be allowed to testify whether...