The Diminishing Dominion of Expert Opinion: Missouri's Imposition of the Ultimate Issue Rule.

AuthorFigenshau, Michael S.

    In August 2017, the Missouri General Assembly amended its expert testimony statute, Section 490.065. (1) The newly-enacted Section 490.065.2(3)(b) states, "In a criminal case, an expert witness shall 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." (2) Section 490.065.2(3)(b) is identical to Federal Rule of Evidence 704(b) ("Rule 704(b)"). (3) This change is significant because issues in criminal cases, such as deliberation with respect to homicide and the affirmative defense of insanity, frequently implicate defendants' mental states. (4) In addition, Rule 704(b) and its state-law counterparts have drawn significant scholarly criticism as unduly restricting helpful expert testimony. For example, one scholar argues Rule 704(b) produces "counterproductive" and "troubling" results by "requir[ing] the jury, as the finder of fact, to reach a conclusion as to the defendant's mental state without the benefit of the most useful testimony the expert could offer." (5)

    Consider the case of United States v. West, where the defendant, charged with bank robbery, asserted the affirmative defense of insanity. (6) The trial court appointed a psychiatrist who concluded West suffered from schizoaffective disorder, a severe mental disease. (7) The psychiatrist also concluded that West appreciated the wrongfulness of his actions in robbing the bank--a finding that would be fatal to West's insanity defense. (8) Defense counsel invoked Rule 704(b) to argue that although the psychiatrist could testify that West suffered from schizoaffective disorder, the psychiatrist could not testify that West appreciated the wrongfulness of his conduct. (9) Rule 704(b) allowed this result by drawing a distinction between the two statements: the former was an opinion on the ultimate issue of West's mental state, but the latter was not. (10) This distinction afforded defense counsel the "thrill of using the state-appointed expert to distort the factfinding process." (11) The United States Court of Appeals for the Seventh Circuit agreed with defense counsel, holding that Rule 704(b) would block the psychiatrist's opinion that West could appreciate the difference between right and wrong, but would not operate to exclude the psychiatrist's conclusion that West suffered from schizoaffective disorder. (12) The court, however, was "clearly concerned that the expert's testimony, bereft of its ultimate conclusion, would be misrepresentative. " (13)

    Although the federal reporters contain many cases with odd problems arising under Rule 704(b), Missouri reporters contain little law about Section 490.065.2(3)(b). Since its promulgation, the Missouri Court of Appeals has addressed Section 490.065.2(3)(b) in three criminal cases but found it inapplicable in each case. (14) Thus, although psychiatric testimony plays a pivotal role in criminal proceedings, (15) no case has turned on the admission or exclusion of evidence pursuant to Section 490.065.2(3)(b). This Note serves as a prospective guide, based on both state and federal jurisprudence, to the application of Section 490.065.2(3)(b) in Missouri criminal cases that question the admissibility of psychiatric evidence pertaining to the defendant's requisite mental culpability for the crime charged.

    Part II of this Note provides a brief history of Rule 704(b) and examines possible motivations for the Missouri General Assembly's enactment of Section 490.065.2(3)(b). Part III discusses the three Missouri Court of Appeals cases that mention Section 490.065.2(3)(b). Part III emphasizes that, although Section 490.065.2(3)(b) has not yet determined the outcome of a case, it is prudent to understand and interpret Section 490.065.2(3)(b) for when it is implicated in future cases. Part IV suggests Missouri courts must inquire into both state and federal jurisprudence to properly determine the admissibility of psychiatric testimony in criminal trials.


    This Part discusses relevant history before Missouri's enactment of Section 490.065.2(3)(b) in 2017. Subpart A examines Rule 704 in its original form, which abolished the "ultimate issue" rule, (16) discussed infra, and Subpart B examines Congress's addition of Rule 704(b), which revives the ultimate issue rule in criminal cases. (17) Finally, Subpart C highlights State v. Clements, a 1990 case in which the Missouri Court of Appeals relied on Rule 704(b) in holding that exclusion of certain expert testimony on the defendant's mental state deprived him of a fair trial. This Part suggests that Clements marks the beginning of Missouri courts' longstanding alignment with federal jurisprudence with respect to expert testimony on a criminal defendant's mental state.

    1. Rule 704 in its Original Form

      As originally proposed by the United States Supreme Court's Advisory Committee on the Rules of Evidence ("the Advisory Committee"), and adopted without change by Congress, Rule 704 provided that "testimony in the form of an opinion or inference is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact." (18) Today, Rule 704(a), which resembles the original text of Rule 704, states that "[a]n opinion is not objectionable just because it embraces an ultimate issue." Rule 704(a) embodies the modern consensus of courts that any witness's opinion, whether lay or expert, should be admitted at trial when helpful to the trier of fact. (19) According to the Advisory Committee, Rule 704 abolished the common law "ultimate issue" rule. (20) The "ultimate issue" rule prohibited any witness from giving an opinion regarding issues that were the exclusive province of the jury to decide, such as the guilt or innocence of a defendant. (21) The Advisory Committee Notes to Rule 704 criticize categorical limitations on the ultimate-issue testimony as "unduly restrictive," difficult to apply, and useful only to deprive the trier of fact of useful information." (22) As one scholar argues,

      The reasoning behind [Rule 704] is sound: assuming that an expert provides a solid foundation and explanation on an issue for which the factfinder needs assistance, the expert should not be precluded from providing a logical and helpful conclusion to his testimony. The factfinder is simply left hanging if the expert is not permitted to cap off the testimony by stating a conclusion on the ultimate issue to which the expert is testifying. Sometimes, a conclusion on an ultimate issue ties the expert's testimony into a coherent whole, and as such it helps the jury to understand the issues in dispute. (23) In similar fashion, the Advisory Committee characterized the purpose of the "ultimate issue" rule, to prevent witnesses from "usurping the province of the jury," as "empty rhetoric" that leads to "odd verbal circumlocutions. " (24) The rationale for precluding ultimate opinion psychiatric testimony extends to any ultimate mental state of the defendant that is relevant to the legal conclusion sought to be proven. (25) The Advisory Committee has fashioned its Rule 704 provision to reach all legal issues for which experts provide testimony, for example, premeditation in a homicide case, or lack of predisposition in entrapment. (26)

    2. Congress's Subsequent Alteration of Rule 704

      The public became outraged with the policy of permissibility in the Federal Rules of Evidence toward expert testimony following the acquittal of John Hinckley, Jr., for the shooting and attempted assassination of President Ronald Reagan, Press Secretary James Brady, and two others in 1981. (27) At trial, psychiatric experts for both the prosecution and the defense offered divergent opinions as to whether Hinckley could form the requisite specific intent. (28) The jury eventually found Hinckley not guilty by reason of insanity. (29)

      In a relatively swift response to the Hinckley verdict, Congress passed the Insanity Defense Reform Act of 1984, one provision of which added a subdivision (b) to Rule 704. (30) In clear conflict with the Advisory Committee Note, (31) Rule 704(b) "plainly revives the ultimate issue rule in criminal cases" by prohibiting an expert in a criminal case from testifying to whether the defendant did or did not have the requisite mental state to commit the charged crime. (32) The merits of Rule 704(b) are the subject of contentious debate. On one hand, the legislative intent is clearly to limit psychiatrists to "presenting and explaining their diagnoses," and to prevent them from being asked to speak in terms of "legal or moral constructs" that could be construed by a jury as outcome determinative. (33) On the other hand, some scholars criticize the addition of Rule 704(b) as "rais[ing] the very anomaly" discussed in the Advisory Committee Note--that an expert could say something about the defendant's mental state but "simply cannot say the buzzword 'intent' or 'incapable of understanding the wrongfulness of his actions.'" (34) However, Rule 704(b) is highly unlikely to change. (35)

    3. State v. Clements

      In State v. Clements, (36) decided before the Legislature enacted Section 490.065.2(3)(b), the Missouri Court of Appeals, Southern District, invoked Rule 704(b) to hold that certain expert testimony deprived a criminal defendant of a fair trial. (37) In Clements, the State's expert witness testified the defendant deliberated and therefore satisfied the deliberation element of first-degree murder. (38) The trial court instructed the jury on the definition of "deliberation" and on the State's first- and second-degree murder instructions. (39) Because the jury had already found Clements guilty of the homicide, "Dr. Harte' s answer bore directly on the crucial element of its degree." (40) Clements claimed Dr. Harte "invad[ed] the province of the jury" by making the "ultimate decision" as to...

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