EvidenceProf Blog

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

Wednesday, December 29, 2021

Eleventh Circuit Opinion Raises Questions Under Rule 704

Federal Rule of Evidence 704 provides that 

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. 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.

In United States v. Duldulao and Santos, 2021 WL 6071511 (11th Cir. 2021), physicians Kendrick Eugene Duldulao and Medardo Queg Santos were charged with (1) one count of conspiracy to distribute and dispense oxycodone, hydromorphone, morphine, methadone, and hydrocodone (Schedule II controlled substances) and alprazolam (Xanax, a Schedule IV controlled substance), not for a legitimate medical purpose and not in the usual course of professional practice; and (2) substantive counts of distributing controlled substances not for a legitimate medical purpose and not in the usual course of professional practice. At trial, a physician testified for the State "that 'most of' the prescriptions that Santos wrote for controlled substances 'were provided for no legitimate medical purpose, [and] they were not issued in the course of one's professional practice.'" Was this proper?

According to the Eleventh Circuit,

A district court may admit expert testimony that “help[s] the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Generally, “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a). But “[i]n 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.” Fed. R. Evid. 704(b). Rule 704 bars a witness from giving legal opinions (e.g., “The defendant broke the law”) and from discussing culpable mental states (e.g., “And he did it knowingly”). An expert witness can give his opinion about an ultimate issue so long as he does not tell the jury what result to reach. See Fed. R. Evid. 704 advisory committee's note. There is a difference between simply opining on an ultimate issue and impermissibly directing the jury to a result, however. See United States v. Grzybowicz, 747 F.3d 1296, 1310 (11th Cir. 2014).

Santos first argues that Dr. Chaitoff violated Federal Rule of Evidence 704(b) by testifying about Santos's subjective mental state. That argument is not supported by the record, though. Dr. Chaitoff testified about Santos's conduct and his professional opinion of that conduct, but he did not speculate about what was going on in Santos's mind. See United States v. Akwuba, 7 F.4th 1299, 1317–18 (11th Cir. 2021) (concluding that medical experts' testimony about the defendant's conduct in issuing prescriptions did not impermissibly give opinions regarding her mental state).

There is a difference between simply opining on an ultimate issue and impermissibly directing the jury to a resultI'm kind of at a loss over why defense counsel focused upon Rule 704(b) and not 704(a). As the Eleventh Circuit noted, "[t]here is a difference between simply opining on an ultimate issue and impermissibly directing the jury to a result." Classic examples of experts impermissibly directing the jury to reach a verdict involve experts who use the language of an element of a charge, claim, or defense. So, an accident reconstructionist at a negligence trial couldn't testify that the defendant was driving negligently. And a doctor in a malpractice action couldn't testify that the defendant-doctor committed malpractice.

Now, consider the charges in this case. They involved the defendant-doctors allegedly conspiring to dispense and dispensing drugs "not for a legitimate medical purpose and not in the usual course of professional practice" Meanwhile, the State's expert testified that Dr. Santos wrote most of his prescriptions "for no legitimate medical purpose, [and] they were not issued in the course of one's professional practice.'" That's pretty much a textbook violation of Rule 704(a).

-CM

https://lawprofessors.typepad.com/evidenceprof/2021/12/federal-rule-of-evidence-704-provides-that-a-in-general-not-automatically-objectionablean-opinion-is-not-objectiona.html

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Comments

I disagree. A lay jury could not (reliably) make this determination without the review and opinion of an expert. To prohibit testimony such as this would make it almost impossible to convict of this crime.

Posted by: Fred Moss | Jan 7, 2022 1:47:37 PM

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