Saturday, March 4, 2023
11th Circuit Finds Asking Expert Whether the Defendant Was Unable to Appreciate the Nature of His Actions Violated Rule 704(b)
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 asserts an insanity defense. Can the prosecution call an expert and ask her whether the defendant was "unable to appreciate the nature of his actions" at the time of the crime? That was the question addressed by the Eleventh Circuit in its recent opinion in United States v. Turner, 2023 WL 2291362 (11th Cir. 2023).
In Turner, the facts were as stated above. Specifically,
The prosecutor elicited Dr. Barnette's opinion concerning the [insanity defense] element on two occasions—in questioning her on direct examination and again on re-direct examination. On direct examination, she asked Dr. Barnette for her opinion as to whether Turner was “unable to appreciate the nature of his actions on November 8, 2018.” Dr. Barnette said that “after his arrest he was able to very clearly explain to officers what had happened, he was able to say that he knew, you know, what had taken place. He did that clearly, yes.” Her answer seemed somewhat unresponsive; yet it did speak to Turner's mental state within the meaning of Rule 704(b). On re-direct examination, the prosecutor asked Dr. Barnette the question she put to her on direct examination except she substituted the word “able” for “unable” and quoted the mental state element of [the insanity defense] verbatim: “was he able to appreciate the nature and quality or the wrongfulness of his acts on November 8th, 2018?” Then, following a defense objection that was overruled, the prosecutor asked Dr. Barnette whether Turner “understood the wrongfulness of his actions.” She said, “He did.”
According to the court,
We need go no further in deciding the issue at hand. The District Court abused its discretion in overruling the defense objections to the prosecutor's questions about Turner's mental state and allowing Dr. Barnette to testify to that element of Turner's insanity defense.
The court, however, held that the error was harmless.