EvidenceProf Blog

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

Sunday, July 18, 2021

Second Circuit Holds District Court improperly Precluded Psychiatrist From Answering PTSD Hypothetical

Federal Rule of Evidence 704(b) provides that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

So, assume that a defendant with PTSD is charged with various child pornography charges and raises an insanity defense. Would it violate Rule 704(b) if a forensic psychiatrist answered the following question: "And a person suffering from Posttraumatic Stress Disorder, can that, in your opinion to a reasonable degree of psychiatric certainty, can that affect an individual's ability to appreciate that his conduct is wrong?"

This was the question addressed by the Second Circuit in its recent opinion in United States v. Jakes-Johnson, 2021 WL 2944574 (2nd Cir. 2021).

In Jakes-Johnson, the district court prevented the psychiatrist from answering the question, and the defendant was convicted. In addressing his appeal, the Second Circuit ruled as follows:

Jakes-Johnson contends that his counsel should have been permitted to ask the precise question whether PTSD “can...affect an individual's ability to appreciate that his conduct is wrong.”...He notes that other circuits have generally approved hypotheticals drawn in this way, in which counsel asks whether the defendant's purported mental illness could affect a hypothetical person's ability to appreciate the wrongfulness of his conduct. See United States v. Dixon, 185 F.3d 393, 401-02 (5th Cir. 1999); United States v. Brown, 32 F.3d 236, 239 (7th Cir. 1994); United States v. Kristiansen, 901 F.2d 1463, 1466 (8th Cir. 1990).

The Government does not respond to the caselaw cited by Jakes-Johnson. Instead, it argues that the question was properly excluded, pointing to an Eleventh Circuit decision, United States v. Manley, 893 F.2d 1221 (11th Cir. 1990), which rejected questions that the Government describes as “almost identically worded.”....Yet, contrary to the Government's argument, the question precluded in Manley tracked the defendant's specific qualities more closely than did the question at issue here....As a result, the Manley formulation more clearly appeared to be asking the expert impermissibly to opine on the ultimate issue: whether the defendant himself appreciated the wrongfulness of his act.

In light of this caselaw, we conclude that the district court abused its discretion in prohibiting defense counsel's question

That said, the court deemed the error harmless and upheld Jakes-Johnson's convictions.



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