Wednesday, September 4, 2024
The Limitations of Federal Rule of Evidence 704(b) & How Prosecutors Frequently Circumvent It
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.
Under this Rule, expert witnesses are not allowed to testify that the defendant had a particular mens rea (e.g., "The defendant possessed the drugs with intent to distribute."). But, as opinions such as the recent one by the Sixth Circuit in United States v. Xu, 2024 WL 4002876 (6th Cir. 2024), make clear, experts come come awfully close to saying this very thing.
In Xu, Yanjun Xu was charged with conspiracy to commit economic espionage and conspiracy to steal trade secrets from multiple aviation companies over a five-year period. After he was convicted, the defendant appealed, claiming that expert testimony by a former intelligence officer violated Federal Rule of Evidence 704(b) because the expert opined on his mental state. The Sixth Circuit disagreed, concluding that:
After examining the dialogue as a whole, the context of Olson's testimony makes it clear that he did not opine on whether Xu possessed the requisite intent to steal trade secrets. Rather, Olson, as a former intelligence officer, explained how Xu's actions toward Zheng were “consistent with,” “typical of,” and “indicative of” a covert intelligence-gathering operation based on common tradecraft principles and techniques....When experts testify, district courts do not require them to preface every answer to avoid a Rule 704(b) violation. Instead, it is the role of the court to ascertain whether an expert's testimony crosses the line of reaching an ultimate issue....Under any applicable standard, the district court did not err in admitting Olson's testimony, and Xu has not produced any evidence to the contrary.
This is pretty standard practice, whether you agree with it or not (and I'm not sure I do). An expert can't testify that a defendant had a particular mental state, but can testify that their actions were "consistent with," "typical of," or "indicative with" a particular mental state.
-CM
https://lawprofessors.typepad.com/evidenceprof/2024/09/federal-rule-of-evidence-704b-provides-that-in-a-criminal-case-an-expert-witness-must-not-state-an-opinion-about-whethe.html
The “President has directed that courts-martial follow the federal rules of evidence. Mil. R. Evid. 704 is the same as the federal rule.
The 6th finds that direct testimony is inadmissible, but the “functional equivalent” is permissible??? First, an analogy. A prosecution witness (including experts) can’t testify that a victim is truthful or an accused is lying—colloquially, we call “Objection—HLD.”
“Human lie detector evidence is elicited when a witness provides 'an opinion as to whether [a] person was truthful in making a specific statement regarding a fact at issue in the case.'" If a witness does not expressly state whether he believes a person is truthful, "we examine the testimony to determine if it is the 'functional equivalent of' human lie detector testimony.'"
Testimony is the functional equivalent of human lie detector (HLD) testimony when it invades the unique province of the court members to determine the credibility of witnesses, and the substance of the testimony leads the members to infer that the witness believes the victim is truthful or deceitful with respect to an issue at trial. Human lie detector evidence and its functional equivalent are inadmissible at a court-martial. "If a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony."
United States v. Burnett, No. ACM 39999, 2022 CCA LEXIS 342, at *32 (A.F. Ct. Crim. App. June 10, 2022) (citations omitted). This unpublished opinion of an intermediate court accurately states the law. The particular phrase I’m interested in is “the functional equivalent.”
To me, the testimony in Xu reads like profiling—or the functional equivalent of profiling testimony. For us,
“Profile evidence is defined as "evidence that presents a 'characteristic profile' of an offender, such as a pedophile or child abuser, and then places the accused's personal characteristics within that profile as proof of guilt." "[G]enerally, use of any characteristic 'profile' as evidence of guilt or innocence in criminal trials is improper." Use of such evidence is proper at a criminal trial in limited circumstances, such as (1) "purely background material to explain sanity issues;" (2) an "investigative tool to establish reasonable suspicion;" or (3) "rebuttal when a party 'opens the door' by introducing potentially misleading testimony."
United States v. Morings, No. ARMY 20020875, 2006 CCA LEXIS 443, at *24-25 (A. Ct. Crim. App. Jan. 31, 2006).
The Court of Appeals for the Armed Forces tends to take a dim view of profile evidence.
“Generally, use of any characteristic "profile" as evidence of guilt or innocence in criminal trials is improper. This Court previously has held that it was error for the Government to permit a counselor in the Navy's Family Advocacy Program to testify about a "profile of the 'usual' sexual child abuser." We have reaffirmed this holding and stated that it is error to admit testimony that an appellant's psychological profile was consistent with that of a person who sexually abused children. The holding of these cases is rooted in Mil.R.Evid. 404(a)(1) that precludes the prosecution from introducing character evidence of an accused who has not put his character at issue. We agree with Judge Cox's analysis in August that explicitly rejected use of a profile "to show that it was more likely than not that appellant sexually abused the victim."
Our holding in August is consistent with the case law in both federal and state courts that has severely criticized attempts to introduce "profile" evidence to establish either guilt or innocence. Our system of justice is a trial on the facts, not a litmuspaper test for conformity with any set of characteristics, factors, or circumstances. In rejecting the use of another type of criminal profile (drug-courier profile) as evidence of guilt in criminal cases, the Eleventh Circuit has perceptively pointed out:
Drug courier profiles are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers. . . . Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officials in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting the investigation. . . . We denounce the use of this type of evidence as substantive evidence of a defendant's innocence or guilt.”
United States v. Banks, 36 M.J. 150, 161-62 (C.A.A.F. 1992).
Posted by: Philip D. Cave | Sep 4, 2024 1:38:25 PM