Tag Archives: FREV 704

SCOTUS Writes Fed.R.Evid. 704(b) Out of the Books – Update for June 21, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DID EXPERTS JUST GET A LOT MORE USEFUL?

expertB240621It is a fundamental principle of common law that witnesses can only testify about what they saw, heard or felt. They are not allowed to expound any deductions based on the facts. That being the case, expert testimony—testimony given by someone with knowledge or experience in a particular field or discipline that renders an opinion based on the facts—ought to be an abomination.

But it’s a necessary abomination. So necessary that experts, once qualified as such by the presiding judge, can give opinions on just about anything, even the ultimate issues in the case (such as “the defendant was negligent,” “calling some a ‘scumbag’ is not defamatory,” or “the substance the defendant possessed was fentanyl”).

But after John Hinckley, the man who shot President Reagan in order to impress actress Jodie Foster, was found not guilty by reason of insanity after a battle of experts arguing that he was or was not nuts, Federal Rule of Evidence 704(b) was adopted to hold that while experts could issue all other ultimate-issue opinions from the stand, “[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.”

Yesterday, the Supreme Court crafted an end-around to 704(b), a decision that may reverberate to the benefit of criminal defendants as much as it benefitted the government in the case before the Justices.

endrun240621Adriana Diaz was arrested at the United States-Mexico border after the door frames of the car she was driving were found to be packed with illegal drugs hidden in the door frames. At trial, Adriana argued that the car was not hers, that she was driving it as a favor, and that she had no idea of what was under the door panels.

A government expert testified that “most” drug mules knew what they were carrying because drug traffickers do not typically entrust drugs to an unknowing person. The jury, apparently concluding that Adriana was like “most” drug mules, convicted her.

Adriana argued that the government expert had violated 704(b) because he had testified to her mental state. However, in a 6-3 ruling, SCOTUS upheld the expert testimony in a fine case of hair-splitting: “An expert’s conclusion that ‘most people’ in a group have a particular mental state is not an opinion about ‘the defendant’ and thus does not violate Rule 704(b),” Justice Clarence Thomas wrote for the majority.

"100% Expert" Cachet (bleu)Justice Ketanji Brown Jackson, the most experienced Justice on the court in criminal defense work, wrote in a concurring opinion that “the type of mental-state evidence that Rule 704(b) permits can prove essential not only for prosecutors, but for defendants as well.” She could be right, especially where novel defenses–such as diminished capacity arguments (think ‘battered women’ defenses)–are used.

However, in a vigorous dissent, Justice Neil Gorsuch (joined by Justices Sonia Sotomayor and Elana Kagan), complained that the decision let

[t]he government come[] away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

Diaz v. United States, Case No. 23-14, 2024 U.S. LEXIS 2709 (June 20, 2024)

Courthouse New Service, SCOTUS won’t restrict expert testimony in drug trafficking case (June 20, 2024)

Sentencing Law and Policy, Supreme Court, by 6-3 vote, rejects claim that mental state expert testimony violated FRE 704(b) (June 20, 2024)

– Thomas L. Root

“In My Expert Opinion, You’re Guilty” – Update for March 25, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES SPLIT ON GOVERNMENT EVIDENTIARY CAT-SKINNING

catskinning240325The Supreme Court last Tuesday appeared divided over a case arguing that letting a DEA agent testify that most drug mules knew they were carrying drugs across the border violated the Federal Rules of Evidence and led to an unfair conviction.

Delilah Diaz was caught at the Mexican border with over $350,000 in meth hidden in the door panels of the car she was driving. She claimed not to know the drugs had been hidden in the car. A DEA agent expert witness testified, however, that drug mule drivers as a class typically know they are transporting drugs.

Federal Rule of Evidence 704 generally states that an expert in a criminal case may not give an opinion on the defendant’s criminal intent, or mens rea. Yolanda argued that the expert’s “class” testimony was a back-door introduction of evidence not allowed by Rule 704.

While some justices appeared to favor the government’s position of allowing such testimony, others appeared to favor reining it in.

expert160905The problem for the justices during arguments Tuesday was where to draw the line on ambiguous evidentiary rules, as evidence prohibited under one rule might be permissible under another. Circuits are split on whether testimony about a class of defendants is the “functional equivalent” of testimony about the defendant being tried for purposes of Rule 704 or whether “class” testimony is permissible evidence of how drug cartels usually operate. “There’s always a way to skin the evidentiary cat,” said Justice Neil Gorsuch, who appeared firmly on the side advocating for a more limited rule.

Justice Clarence Thomas pressed the government, saying that when you testify about the probabilities that someone knows she is carrying drugs, “you are in effect talking about the defendant, that you could only be concerned about the conduct of the defendant.”

Justice Samuel Alito suggested that other evidentiary rules might knock out such evidence, like Rule 703, which allows a court to exclude otherwise permissible evidence if it is more prejudicial to the defendant than helpful to the jury.

game180103Both sides have “line-drawing problems,” Justice Elena Kagan said. Even if the Court ruled for the petitioner, “all the expert has to do is tweak the way he says something and the exact same testimony can come in”, she said. “It just seems at that point a kind of game.”

Gorsuch observed that if the government is allowed to introduce such “class” testimony, a defendant will, too. “What’s going to be good for the goose here is going to be good for the gander,” he suggested.

Diaz v. United States, Case No 23-14 (Supreme Ct, argued March 19, 2024)

Reuters, US Supreme Court appears split over appeal by convicted border drug ‘mule’ (March 19, 2024)

Sentencing Law and Policy, A little interesting coverage of an interesting SCOTUS argument on drug mule case experts (March 20, 2024)

Bloomberg Law, Justices Search for Sweet Spot on Testimony on Criminal Mind (March 19, 2024)
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– Thomas L. Root