EvidenceProf Blog

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?

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Opinion Shows Supreme Court of New Jersey Has Rejected U.S. Supreme Court's Luce Ruling

Similar to its federal counterpart, New Jersey Rule of Evidence 609 allows for parties to impeach witness, including testifying defendants, with evidence of some of their prior convictions. So, let's say that a defendant is on trial for robbery, the judge makes a pre-trial ruling that the defendant's prior felony larceny conviction would be admissible if he testifies at trial, the defendant therefore chooses not to testify, the defendant is convicted, and the defendant seeks to appeal. Should the defendant be able to appeal the Rule 609 issue? In Luce v. United States, the United States Supreme Court answered this question in the negative. So, how have New Jersey courts ruled on the issue?

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Sixth Circuit Finds No Error With Officer Saying a Drug-Trafficker's Amount of Drugs Was Recovered From Defendant's Vehicle

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, does the State violate Rule 704(b) by having an officer testify that the amount of drugs recovered from a defendant's vehicle constituted a drug-trafficker's amount? That was the question addressed by the Sixth Circuit in its opinion today in United States v. Hall, 2021 WL 5933100 (6th Cir. 2021).

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District of Columbia Court of Appeals Finds Daubert Hearing Didn't Need to be Held in Arson Retrial

Federal Rule of Evidence 702 (like many state counterparts), provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

When a party seeks to introduce expert testimony, a court often holds a Daubert hearing, named after the Supreme Court case that changed the test for the admissibility of expert opinion from the Frye standard that focused on the general acceptance of the expert's technique/technology to a multi-factor test. But does a Daubert hearing always need to be held? That was the question addressed by the District of Columbia Court of Appeals in its recent opinion in Lewis v. United States, 2021 WL 5707009 (D.C.App. 2021).

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