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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, May 7, 2010

D.C. Follies?: D.C. Court Of Appeals Seems To Find That D.C. Courts Don't Apply Federal Rule Of Evidence 704(b)

Federal Rule of Evidence 704 indicates that

(a) Except as provided in subdivision (b), 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.

(b) No 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

While D.C. doesn't has codified rules of evidence, D.C. courts clearly apply Federal Rule of Evidence 704(a) in their opinions. Before the recent opinion of the District of Columbia Court of Appeals in Gaines v. United States, 2010 WL 1806662 (D.C. 2010), it appeared that the same held for Federal Rule of Evidence 704(b), but now I'm not so sure.

In Gaines, Kendrick Gaines was convicted of two counts of possession with intent to distribute a controlled substance. At trial, Gaines didn't seem to dispute that he had drugs or intended to distribute them; instead, he claimed that he was subjected to a pretextual and unconstitutional stop. That argument, however, was unsuccessful at trial and unsuccessful on appeal.

On appeal, Gaines also argued, inter alia, that the trial court erred in allowing the prosecution to elicit the testimony of a drug expert, who opined based upon the facts of the case that Gaines possessed the subject drugs with intent to distribute. Relying upon Federal Rule of Evidence 704(b), Gaines claimed "that an expert witness may not '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.'"  

The District of Columbia Court of Appeals disagreed, finding that Gaines

did not raise this issue in the trial court, however, and we have long held that the local law of evidence in this jurisdiction does not prohibit expert witnesses from stating opinions on ultimate facts or issues to be resolved by the jury. See, e.g., Wilkes v. United States, 631 A.2d 880, 883 n. 7 (D.C.1993); Lampkins v. United States, 401 A.2d 966, 970 (D.C.1979). Particularly in light of the absence of any substantial dispute at trial over [Gaines'] intent to distribute, we are satisfied that the trial court did not commit plain error on this issue.

The court clearly seemed to be finding (a) that Gaines did not preserve the issue for appeal, and (b) that any error by the trial court was harmless error. That said, the court also seemed to be saying pretty clearly that expert testimony regarding a criminal defendant's mental state or condition is admissible as ultimate fact/issue testimony. In other words, the court seemed to be saying that D.C. courts apply Federal Rule of Evidence 704(a) but not Federal Rule of Evidence 704(b). And, frankly, I couldn't find a single opinion in which a D.C. court had previously applied Federal Rule of Evidence 704(b).

So, why did I say above that, before Gaines, it appeared that D.C. courts apply Federal Rule of Evidence 704(b) in their opinions? Well, in Steele v. D.C. Tiger Market, 854 A.2d 175, 181 (D.C. 2004), the District of Columbia Court of Appeals held that

Expert opinion testimony is not inadmissible “merely because it amounts to an opinion upon ultimate facts.” Lampkins v. United States, 401 A.2d 966, 970 (D.C.1979); accord, FED. R. EVID. 704(a) ("Except as provided in subdivision (b) [regarding testimony about the mental state or condition of a defendant in a criminal case], 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.").

In other words, the court seemed to be saying that despite its opinion in Lampkins, it would apply Rule 704(b) to exclude expert testimony on mental state or condition in a future case. But in Gaines, that no longer held true, with the court merely applying Lampkins to defeat the defendant's argument. Would the court have made the same decision if the defendant preserved the issue or if the alleged error was not harmless? I'm not sure, but it doesn't seem likely to me.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/704b-dc--gaines-v-us----a2d------2010-wl-1806662dc2010.html

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