The Cherry On Top Of The Prosecutorial Sundae: Why Improperly Admitted Rule 704 Evidence Will Almost Never Lead To A Reversal

Federal Rule of Evidence 704 provides 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.

After reading the recent opinion of the Fifth Circuit in United States v. Setser, 2009 WL 1299562 (5th Cir. 2009), I made a realization regarding this Rule: Testimony improperly admitted under it will almost never lead to a reversal.

In Setzer, siblings 

Gregory and Deborah Setser...were convicted of involvement in a Ponzi scheme focused on soliciting funds from Christian groups for largely mythical deals involving real estate and retail products. As in a classic Ponzi scheme, as new investments came in (eventually totaling $173 million), some of the new money was used to pay earlier investors. The take-home for the personal use of the Setsers and their co-conspirators was shown to be about $58 million.

After they were convicted, Deborah appealed her sentence and Gregory appealed his conviction. As part of his appeal, Gregory alleged that the district court improperly allowed the court appointed receiver to testify at trial that his operations constituted "security fraud" and a "Ponzi scheme." According to Gregory, these claims were improper legal conclusions under Federal Rule of Evidence 704(a), and the government even conceded that the receiver should not have referred to Gregory's operations as "security fraud." 

Indeed, the district court agreed as well, and after the receiver rendered this testimony, the court gave cautionary instructions "both specifically informing the jury not to draw inferences about Setser's state of mind from the receiver's testimony, and emphasizing that the jury was not bound by the receiver's conclusions and must undertake an independent evaluation of the evidence." (This seems to indicate to me that the district court found the receiver's testimony objectionable under both Federal Rule of Evidence 704(a) and Federal Rule of Evidence 704(b)).

After he was convicted, Gregory claimed that these cautionary instructions were insufficient and that he was entitled to a new trial, but the Fifth Circuit disagreed, finding that "[t]he government's evidence against Setser was considerable, with numerous other witnesses whose testimony could independently have allowed the jury to convict," rendering the admission of the receiver's testimony harmless error. As support, the court cited to two previous Fifth Circuit opinions (which were actually cited by Gregory), which had found that district court errors in admitting evidence under Federal Rule of Evidence 704 were harmless.

This got me thinking that testimony improperly admitted under Federal Rule of Evidence 704 will almost never lead to a reversal. Why? Well, Rule 704 testimony is the cherry on top of the prosecutorial sundae. In other words, the classic case where Rule 704 testimony is admitted involves facts like Setzer: The prosecution has gobs of evidence and testimony overwhelmingly showing the defendant's guilt, but then a prosecution witness crosses the line by putting a bow on top of the package and telling the jury that the defendant committed "fraud." On appeal, the defendant can then point to the trial court's error in admitting this testimonial conclusion, but, based upon the overwhelming evidence supporting that conclusion, the court is almost certainly going to find harmless error and affirm the conviction.

-CM