Thursday, August 13, 2009
Just The Facts, Ma'am: Court Of Appeals Of Minnesota Notes Distinction Between Legal And Factual Testimony Under Rule 704
Like Federal Rule of Evidence 704(a), Minnesota Rule of Evidence 704 provides that "[t]estimony 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." The Committee Comment to that Rule goes on to state that "[e]xpert and lay witnesses will not be precluded from giving an opinion merely because the opinion embraces an ultimate fact issue to be determined by the jury." Instead, the Comment indicates that "If the witness is qualified and the opinion would be helpful to or assist the jury as provided in rules 701-703, the opinion testimony should be permitted." In turn, Minnesota Rule of Evidence 701 states that lay opinion testimony is only admissible if it is "helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." These are the basic principles governing the admission of lay opinion testimony on ultimate issues, and, as the recent opinion of the Court of Appeals of Minnesota in State v. Ngacah, 2009 WL 2431994 (Minn.App. 2009), makes clear, the Committee Comment to Rule 704 also provides the answer to the ultimate answer to whether lay opinion testimony embracing an ultimate issue is admissible.
In Ngacah, a jury convicted Arthur Gacheru Ngacah of domestic assault inflicting bodily harm based on evidence that he slapped the face of a woman who was reported to be his girlfriend. At trial, Officer Alison Mickman, who responded to the 911 call reporting the assault,
testified that the victim had a mark “right above her cheekbone near her eye, and I would say maybe two inches across and an inch down. There was no bruising yet but it was very red.” The prosecutor then asked the officer, “And in your opinion, based on your training and experience, was that consistent with someone who had just been hit?” Officer Mickman answered, "Yes."
After he was convicted, Ngacah appealed, claiming that Officer Mickman's testimony was "expert opinion testimony that [wa]s inadmissible on the ground that it [went] to an ultimate issue." First, the court disagreed that Officer Mickman was an expert witness, concluding, "The state made no effort to establish her qualifications as an expert witness, and we do not regard the substance of her testimony to be a matter of "scientific, technical, or other specialized knowledge.'"
Second, the court rejected Ngacah's argument that Officer Mickman's testimony was inadmissible because it embraced an ultimate issue, noting that such testimony is permissible under Minnesota Rule of Evidence 704. That is not to say, however, that all ultimate issue testimony is admissible under the Rule. Instead, the court noted that the Committee Comment to Rule 704 provides that
In determining whether or not an opinion would be helpful or of assistance under these rules a distinction should be made between opinions as to factual matters, and opinions involving a legal analysis or mixed questions of law and fact. Opinions of the latter nature are not deemed to be of any use to the trier of fact.
This distinction is similar to the distinction that many federal courts make between testimony embracing ultimate issues, which is admissible, and testimony embracing ultimate legal conclusions, which is not. And because the court found that Officer Mickman's testimony was strictly factual, it was admissible under Minnesota Rule of Evidence 704.