Federal Rule of Evidence 704: Understanding Expert Testimony in Litigation

Overview of Federal Rule of Evidence 704

Federal Rule of Evidence 704 governs the admissibility of expert testimony in federal court. The rule provides that an expert may provide an opinion or otherwise provide testimony about an opinion or conclusion even though it embraces an ultimate issue to be decided by the trier of fact. The language of FRE 704 was amended in December 2011. Whereas the old version of FRE 704 precluded opinion testimony about an ultimate issue (e.g., a statement like "The defendant acted with intent, so he committed murder"), the current version permits it: "In a civil case, an opinion is not objectionable just because it embraces an ultimate issue . " The purpose of FRE 704(a) is to prohibit experts from giving a legal conclusion but to permit them to provide an opinion as to an ultimate issue. "Prohibitions on ultimate legal conclusions are common to many rules of evidence because such conclusions would instruct a jury about the application of the law to the facts . . . [A] legal conclusion is unhelpful to the factfinder because it tells the jury what result to reach." McCormick on Evidence, § 12, at 61 (6th ed. 2006). Thus, an expert may properly testify as to the ultimate issue in a case, but may not express an opinion as to an ultimate legal conclusion or legal standard.

History of Rule 704

As with many rules of evidence, Federal Rule of Evidence 704 underwent historical changes that continue to impact it today. Rule 704 underwent notable modifications prior to the promulgation of the Federal Rules of Evidence in 1975. The original version of Rule 704, as adopted in the English Drafter’s "specification of rules of evidence" in 1822 provided: "In general, it shall not be competent for a witness in giving his testimony in chief, to express or deliver opinions, or conclusions upon matter of fact." Pub L. No. 41, sec. 5, 3 Stat. 376 (1822). "In the time of Christ, our Saviour, the opinions of witnesses, and the directions of Judges, in several suits, have been admitted in court; but, then, the whole affairs of civil judgment and causes belonged to the Sanhedrim, or bench of judges, to whom they wholly appertained; and if they erred, no man might examine or censure them, or offer any remedy against them." THE JEWISH LAW OF EVIDENCE, §§ 1-22, 96-100 (Joseph Perles, trans. 1876). In 1851, the governing witness opinion rule provided that "[e]very one may become a witness and declare what he knows; and he may state his own opinion and belief on those points which he deems proper, although such opinion or belief may be founded on hearsay evidence." Vail v. Hastings, 117 Mass. 500, 505 (Mass. 1875). Codifications of witness opinion rules also began taking effect in the United States at the state level: "A witness may testify as to his opinion of any matter in regard to which he is supposed to have acquired special knowledge in law or fact, by study or observation; and such opinion must be directly upon the point to which his special knowledge applies." Revised Laws of New Hampshire, 1955, Vol 3, p. 1111 (3d ed. 1880). Federal decisions also illustrate the evolving opinion rules in the U.S. "In Illinois, as early as 1804, it was held that an obstacle to a party when offering evidence, is that it appears from the witnesses’ testimony that he has given no opinion whatever on the matter about which he is examined . . . . If he gives his opinion, it may be impeached." Trull v. Dunlap, 3 Ill. (1 Breese) 287, 290 (Ill. 1839). In 1904, the Committee of Twelve on Uniformity in Legal Procedure drafted a model code for consideration by the states, which included specific language addressing expert opinions. Model Code of Practice and Procedure § 577 (Mar. 14, 1904). The Federal Rules of Evidence evolved from that effort. Shortly after the 1975 adoption of Fed. R. Evid. 704, the United States Supreme Court held that the rule abrogated the common law rule that "ultimate issues" were inadmissible at trial. In Beech Aircraft Corporation, the Court determined that to rule otherwise would prevent the trier of fact from having all relevant information at its disposal to make its determination. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988).

Clarifying the Function of Expert Testimony

An expert may be qualified by the Court to testify as to his opinion, which opinion may be an ultimate issue of fact in the case-i.e., an opinion that a particular element the dictating the outcome of the case has or has not occurred/could or could not occur. Federal Rule of Evidence 704(a) provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." The Advisory Committee Note to the Rule indicates that Rule 704 "eliminates the common law rule . . . that a witness may not testify directly as to an opinion about an ultimate issue." Nevertheless, the Rule provides that "expert testimony concerning an ultimate issue is not objectionable merely because it embraces an ultimate issue," and "does not dispense with the requirement that the expert’s testimony must also be ‘helpful’ to the jury." See, e.g., City of New York v. A-1 Jewelry & Pawn, Inc. (E.D.N.Y. 2012) (striking testimony regarding first intrusion by police, conclusion that no forcible entry by a burglar had occurred, and opinion regarding arson as ultimate issues); United States v. Locascio (2d Cir. 2000) (stating issue was whether defendant participated in the racketeering conspiracy); United States v. Ponticelli (10th Cir. 1994) (expert’s testimony that mailings constituted extortion wire fraud were admissible, but her opinions about whether defendant knew they were threats were not).
Nevertheless, in United States v. Rea, 617 F.3d 591, 600-01 (2d Cir. 2010), the Second Circuit recently held that there is no prohibition on excluding an expert’s ultimate opinion on the ultimate issues of guilt or law. The limitation of an expert’s testimony, however, is not a blanket prohibition. Rather, the exclusion of that testimony is a case-by-case determination. This is particularly true where the subject matter is "a legal question that the jury should decide" In contrast, an investigative expert’s opinion on the application of a statute, is admissible.

Exceptions to Rule 704

Although Federal Rule of Evidence 704 generally permits experts to render opinions on all ultimate issues, there are several exceptions. The primary exception relates to mental state or intent in criminal cases. The Advisory Committee Notes to the 2011 amendments make clear that, consistent with existing law, an expert may not state an opinion or inference about "whether the defendant did or did not have a mental state or cognitive state that constitutes an element of the crime charged or a defense thereto." Fed. R. Evid. 704(b). As explained in the Committee Note, this bar is a narrow one, and the dynamics of a given criminal trial may result in an expert’s unartful rendering of an opinion regarding the ultimate issue.
Some courts have gone further than the Advisory Committee Notes suggest and barred testimony regarding the ultimate issue of intent in criminal cases altogether. See, e.g., United States v. Cazares, 118 F.3d 663, 670 (10th Cir. 1997); United States v. Wilson, 493 F.2d 1078, 1082 (5th Cir. 1974); United States v. Harris, 495 F.2d 575, 576-77 (8th Cir. 1974). Other courts have hesitated to bar such testimony entirely, and reject it only if "it purports to be dispositive of the question of guilt, or emphasizes the defendant’s intent in a way that could unduly influence a jury." United States v. Scarlett, 2009 WL 7477847, at *3 (E.D. Ark. 2009); see also, e.g., United States v. McGlory, 502 F.3d 135, 144-45, 146 n.9 (3d Cir. 2007); United States v. James, 55 F.3d 150, 153 (4th Cir. 1995). Additionally, courts have held that silence or other actions by the defendant do not constitute opinions on the ultimate issue. See, e.g., United States v. Robinson, 70 F.3d 36, 40 (5th Cir. 1995); United States v. Johnson, 26 Fed. App’x 254, 255 (5th Cir. 2001); United States v. DeLaRose, 105 F. Supp. 3d 1344, 1355 (M.D. Fla. 2015). Furthermore, in criminal cases, Rule 704 generally does not bar an expert’s "opinion that the defendant had the capacity to form the requisite mental state." United States v. Duran, 59 F.3d 113, 117 (5th Cir. 1995) (emphasis in original).
In addition, Rule 704(a) does not permit experts to state legal conclusions. Such a statement would not assist the trier of fact because it is the trier of fact who must ultimately decide all issues of the law from which an expert’s opinion is derived. See, e.g., United States v. Bogdanovich, 302 F.3d 1153, 1160 (9th Cir. 2002); Cocroft v. Owens-Brockway Plastic Prod., Inc., 250 F.3d 1295, 1307 (10th Cir. 2001); Brown v. Illinois Cent. R.R. Co., 496 F.2d 899, 902 (7th Cir. 1974).
Some circuits have also treated witness credibility determinations as improper ultimate opinions under Rule 704. See, e.g., United States v. Lawrence, 749 F.2d 428, 434-35 (8th Cir. 1984); United States v. Freizinger, 900 F.2d 548, 552 (8th Cir. 1990).

Key Case Law Relevant to Rule 704

The use of expert witnesses in court cases cannot be underestimated, since they often make or break a case. Additionally, the admissibility of expert testimony has a profound impact on the course of justice. Lawyers must understand the parameters of when and how they are able to have expert witnesses or opinions admitted in their cases, and federal lawyers must be particularly familiar with Federal Rule of Evidence 704. Specifically, Rule 704 states in part: "
This rule is broad, and tends to lean in favor of allowing such evidence. Even more particularly, if you are using a hired expert, Rule 702 is going to apply, which states, in part: "(a) TESTIMONY BASED ON EXPERT KNOWLEDGE. 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: This is very helpful to attorneys who are trying to get beforehand approval of their expert right off the bat. Going back to Rule 704, this rule can get a little tricky, and is also the reason that many people continue to use the term "forbidden" in their legal writing, even though it is not strictly forbidden to have experts testify about opinions at trial. The entire rule states: "(a) In General. Subject to subsection (b), 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." As you probably already gathered from the two subsections of Rule 704, the rule is not strictly forbidden. While it prevent an expert witness from stating that a defendant committed a particular crime, it does allow for testimony that goes to "ultimate issues." That said, it "does not authorize an expert to define the legal parameters within which the jury should make its function." There are also a number of important court cases involving the application of Rule 704. For example, just this year the Supreme Court of the United States issued a decision in Hall v. Florida, No_ 12-10882, which stated, "A State [cannot] insist that mental retardation, as a factual matter, is established conclusively where the [defendant] has established mental functioning in the borderline range." This case cited both Rule 704(a) and Kentucky v. Whorton, 441 U,.S. 635, 659 (1979), which stated that expert medical evidence must be left to the jury to decide. It is therefore important to know the cases and know where the parameters of Rule 704 stand before you start going to trial.

Importance for Practicing Attorneys

Practical Implications for Legal Practitioners
Given the specific provisions involved in Rule 704, it is important to be deliberate about presentation of and examination of expert testimony. The rule allows for opinions even on the ultimate issues, but that does not mean that an expert should be examined in a way that invites speculation or inflammatory arguments from counsel. Further, it’s possible in a given trial to come into conflict with Rule 704, especially since it involves experts who often work with evidence that is not necessarily admissible at trial and are allowed to form opinions based upon information not necessarily admissible at trial. In such instances, an objection is necessary, and an expert may not have all the leeway that they are afforded to form an opinion. An attorney may be able to establish that an expert is actually going beyond the scope of their expertise and/or stepping outside of the boundary of proper testimony. However, a more appropriate strategy might include the use of 705, which discusses how an expert may base their opinion on inadmissible evidence. If the evidence is only at the core objectionable – in other words, not necessarily completely inadmissible – it might work better to try 705 rather than clashing with an expert over whether they can perform their work.

Rule 704: Criticism and Controversies

Despite its straightforward language, Rule 704 has not been without controversy. Some in the legal community have argued that the absence of a more stringent standard for expert opinions on ultimate issues has resulted in the admission of unreliable or unnecessary testimony that does not assist the trier of fact in making its decision. In addition, some of the Rule’s critics contend that the broad scope of Rule 704(a) and (b) creates a tension with the language of Federal Rule 702, which restricts expert testimony to opinions that will "assist" the trier of fact in assessing the issues before it.
For example, in Morris J. Cohen, Expert Testimony and the Use of Polygraphs, 43 Or. L. Rev. 433, 448 (1964), law professor Morris J. Cohen criticized the Supreme Court’s resolution of the debate over whether expert witnesses can testify directly about an issue within the jury’s province. If the question decided by the Court "is merely the admissibility of testimony regarding the `ultimate’ issue, this is a commendably simple and just solution," he wrote. But if the Court was "also deciding whether that kind of testimony is relevant to the jury’s determination," the rule "would seem to be contrary to both the spirit and the words of the rules . . . ." Cohen further cautioned that allowing experts to testify as to the ultimate issue was "at the same time" a recognition that jurors are unsophisticated enough not to be able to reach a conclusion on all matters within their province without expert guidance, which is the "very reason" trial judges should ordinarily exclude the testimony of experts altogether. Id. at 448-49.
Professor Kenneth Roth argued that the "ultimate issue" language of Rule 704, as interpreted by the Supreme Court, "confuses the issues of relevancy and admissibility. . . . [I]t seems self-evident that the jury should determine what judgment to make, and that the expert may not testify directly and unequivocally to a fact for which the jury is responsible." See Roth, Expert and Scientific Testimony: The Battle for the Legitimacy of Limited Knowledge, 56 Cornell L. Rev. 213, 265 (1971). Professor Roth views Rule 704 as a "linguistically ingenious way to tailor the rules of evidence to the needs of a sophisticated factfinder," but he questions the validity of basing the shift to the more permissive rule on a "facially tantalizing linguistic play." Id. at 275. Another noted legal scholar has referred to the Supreme Court’s interpretation of Rule 704(a) as a "purely semantic-based decision" that "cannot be justified on evidentiary grounds." See Oliver, Federal Rule of Evidence 704: The Abuse of Semantics in the Law, 31 Vand. L. Rev. 975, 997-98 (1978). Professor David E. Watson, however, understands the benefit of allowing expert testimony on ultimate issues where "a determination of the facts will almost certainly result from a confession or some kind of corroboration," and recognizes that such a thorough examination of the evidence is not always possible. Watson, The Role of Experts and the Use of Their Opinions Under Federal Rules of Evidence 703 and 704, 70 Va. L. Rev. 365, 368 (1984). Prof. Watson has stated that "[t]he terms of Rule 704 logically resolve the conflict between the need for expert assistance and the desirability of not usurping the function of the jury." Id. at 366.
The debate over the scope of rebuttal expert testimony under Rule 704 continues to this day. While the rule prevents an expert from testifying that the defendant applied "electricity" when using a stun gun to subdue a charter school teacher even though he would otherwise be permitted to testify that the defendant "used a stun gun," see United States v. Cowan, 674 F.3d 947, 952-53, 960-61 (9th Cir. 2012), cert. denied, 133 S. Ct. 1465 (2013); Frederick S. v. Dep’t of Pub. Welfare, 896 A.2d 600, 613-15 (Pa. Commw. 2006), other courts, applying the more literal view of Rule 704, have allowed an expert to testify directly to an ultimate issue of fact. See, e.g., United States v. White, 492 F.3d 272, 287 (4th Cir. 2007) (permitting the admission of expert testimony that the defendant had violated the federal arson statute because he had intentionally burned buildings); F.D.I.C. v. HIH Life Ins., 222 F. Supp. 2d 1000, 1009 (N.D. Cal. 2002) (permitting expert testimony that defendant had breached its fiduciary duty).

Conclusion: The Evolution of Rule 704

The potential future of Rule 704 also presents some intriguing possibilities. For instance, in his seminal treatise on the law of Evidence, Professor Edward J. Imwinkelried has suggested that Congress should adopt since 1975 Article 704 of the Uniform Rules of Evidence (Article 704) as a legislative response to the shortcomings of Rule 704. The Proposed Rule reads: "Rule 704. Opinion On Ultimate Issue (a) Opinion. Generally. Subject to Rule 702, if the witness is otherwise qualified, his otherwise relevant opinion may embrace the ultimate issue. (Emphasis added.) Rule 704 has two major advantages over its Rule 704 counterpart. First, Rule 704 provides a more carefully structured statement. Given the controversy surrounding Rule 704, any subsequent legislative response to it must be more carefully reasoned if it is to achieve a similar level of acceptance . Second, Rule 704’s use of the phrase "opinion" rather than "legal conclusion" is less likely to result in the conflicts seen under Rule 704. Further, Rule 704 has rejected the negative approach of Rule 704 by providing a general standard governing all cases. Finally, Rule 704 traverses the narrow limits of Rule 704. It allows experts to answer issues of both law and fact, thus eliminating the needless burden of semantics which has plagued Federal Rule 704. Professor Imwinkelried, however, correctly notes that it will be difficult to draw a broad conclusion as the constitutional authority of Federal Rule 704 is still being tested. In addition, if a trend toward more liberal admission rules prevails where courts are seeking to liberalize the evidence admitted, then Rule 704 may remain intact and serve its original purpose.