Monday, May 26, 2008
Imagine John Lennon Dead, Take 2: Memorial Day Case Reveals That Tennessee Allows Expert Opinion Testimony On Premeditation
The opinion of the Court of Criminal Appeals of Tennessee in State v. Mobley, 2007 WL 1670195 (Tenn. Crim.App. 2007), reveals that Tennessee allows expert opinion testimony on whether a defendant acted with or without premeditation. In Mobley, Brandon Mobley was convicted of two counts of first degree murder, especially aggravated robbery, and setting fire to personal property. The evidence presented at trial indicated that Mobley killed two men on Memorial Day, 2003, over an unpaid drug debt and then burned the car in which he shot the victims.
Before Mobley testified, defense counsel sought to call Dr. Pam Auble, who was prepared to testify that she examined and performed personality tests on Mobley, which led to her belief that Mobley suffered from major depression, viewed himself in a bleak way, and had trouble controlling emotions. Dr. Auble would have testified that Mobley tended to respond first, and think second, and thus that due to the Mobley's mental diseases or defects, he could not have premeditated the shooting. The State objected to this proposed testimony, and the trial judge sustained the objection. After Mobley testified, however, the State withdrew its objection to Dr. Auble's testimony, and she went on to fully testify about the Mobley's mental issues and their effect on his ability to premeditate.
After Mobley was convicted, he appealed, claiming, inter alia, that the trial judge improperly excluded Dr. Auble's testimony, and the Court of Criminal Appeals of Tennessee agreed that the trial judge initially acted in error, but found this error to be harmless because Dr. Auble was later allowed to testify. This decision seems correct and straightforward to me, but the interesting aspect of the decision is that Dr. Auble would not have been allowed to testify under the Federal Rules of Evidence.
Both Tennessee Rule of Evidence 704 and Federal Rule of Evidence 704(a) provide that expert opinion testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact, which would make expert opinion testimony about premeditation non-objectionable. However, as I havenoted before, in 1984, after the public outrage that resulted from Mark David Chapman's insanity defense in his trial for murdering John Lennon and John Hinckley, Jr.'s insanity defense in his alleged "Taxi Driver" inspired attempt on the life of Ronald Reagan, Congress decided to pass the Insanity Defense Act of 1984.
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." Rule 704(b), however, wasn't crafted solely to prevent expert opinion testimony on the issue of insanity; instead, it was fashioned to reach issues such as "premeditation in a homicide case, or lack of predisposition in entrapment." S. Rep. No. 225, 98th Cong., 1st Sess. 230 (1983).
Tennessee, however, has never adopted a state counterpart to Federal Rule of Evidence 704(b). Instead, it enacted T.C.A. Section 39-11-501, which states that "no expert witness may testify as to whether the defendant was or was not insane." According to the 1996 Advisory Committee Comments to Tennessee Rule of Evidence 704, this is the only ultimate issue outside the scope of expert testimony, which explains why Dr. Auble's testimony on premeditation was admissible.