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Univ. of South Carolina School of Law

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Tuesday, January 15, 2008

Imagine John Lennon Is Dead: How The Beatle's Murder Changed Evidence Law Forever

The recent release of the movie "The Killing of John Lennon" and the forthcoming "Chapter 27" bring to mind just how much the actions of Mark David Chapman altered not only music history, but also the rules of evidence.  At the time that Chapman's alleged obsession with "The Catcher in the Rye" led him to shoot and kill the former Beatle, Federal Rule of Evidence 704 stated "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."  Thus, Chapman's attorney was able to present expert testimony that Chapman was "insane," even though such testimony embraced an ultimate issue to be decided by the jury. 

However, after the public outrage that resulted from Chapman's insanity defense and John Hinckley, Jr.'s insanity defense in his alleged "Taxi Diver" inspired attempt on the life of Ronald Reagan, Congress decided to pass the Insanity Defense Act of 1984. See United States v. Gastiaburo, 16 F.3d 582, 588 (4th Cir. 1994).  As a result of this Act, Rule 704(b) was added to the Federal Rules of Evidence.  According to Rule 704(b), "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."  After this amendment, defense experts in cases governed by the federal rules of evidence can no longer testify that the defendant is "insane," although they can give a diagnosis of a patient and testify as to the characteristics of the diagnosed disease. See, e.g., United States v. Childress, 58 F.3d 693, 728 (D.C. Cir. 1995).  Most states have followed suit, as is evidenced by the recent decision of the Court of Criminal Appeals of Tennesse in State v. Jones, 2008 WL 65322 (Tenn.Crim.App. 2008).

Although this rule was "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," courts have since found that it "applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto," often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995).  Thus, for instance, in a trial for first degree murder, an expert could not testify that based upon his interview with the defendant, he believed that the defendant acted with premeditation. See United States v. DiDomenico, 985 F.2d 1159, 1173 (2nd Cir. 2003).  And then there's the crazy recent Nebraska sexual assault case which prosecutors recently abandoned after the judge banned the use of the word "rape" pursuant to Nebraska's version of the rule.  Conversely, under the rule, a defendant would not be able to establish his defense of self-defense through an expert's opinion testimony that the defendant had an actual belief that he needed to use self-defense at the time of his alleged crime. See, e.g., Angelo v. Henry, 2007 WL 1731118 (9th Cir. 2007).

All of this makes me wonder whether Congress should revisit its decision.  I understand the concern that jurors can unduly defer to the conclusions of expert witnesses, shifting decisionmaking authority.  However, does that mean that the solution should be that we ban these conclusions or that we allow experts on both sides to reach disparate conclusions and leave it to jurors to decide which one to believe?  With cases such as the Nebraska case taking the Rule to its extreme, I'm starting to think we should move toward the latter.

-CM

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