EvidenceProf Blog

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

Thursday, July 15, 2021

Sixth Circuit Finds Detective's Statements Didn't Violate Rule 704(a)

Federal Rule of Evidence 704(a) provides that

An opinion is not objectionable just because it embraces an ultimate issue.

So, would it violate this Rule, in a prosecution of a defendant for possessing a firearm after being convicted of a misdemeanor offense of domestic violence, if

The court permitted the government to introduce a video at trial, in which the detective asked [the defendant]: “You are not allowed to possess a gun, first of all. You can't have one in your house. You can't have one in your hand, right, first of all?”...[The defendant] responded “Right,” and the detective continued, “All right. So you know this, that you can't have a firearm, right?”

These were the facts in United States v. Draper, 2021 WL 2948857 (6th Cir. 2021). In rejecting the defendant's appeal, the court concluded that

At issue is whether this assertion amounted to a legal conclusion and, if so, whether the district court erred in admitting it. While the Federal Rules of Evidence permit the admission of opinions that embrace an ultimate issue, see Fed. R. Evid. 704(a), a district court may exclude improper legal conclusions....In practice, “we have generally excluded expert testimony for stating a ‘legal conclusion’ only when the witness explicitly testifies, in ‘specialized’ legal terminology, that a defendant violated (or did not violate) the law.”....We review such claims for abuse of discretion, “because it is often difficult to determine whether a legal conclusion is implicated in the testimony.”....

This evidence does not rise to the level of an impermissible legal conclusion. The words that the detective used do not contain a “separate, distinct and specialized meaning in the law.”...For the term “possession,” we have suggested that “there is no distinction between the legal term of art and the common vernacular usage that would render the testimony inadmissible under Rule 704.”....If anything, the statements by the detective look more like the statement of a legal rule than a legal conclusion. She did not say that Draper violated the law; she asked him whether he knew the relevant law.



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