Whatever the merits of these proposals, Rule 704 does not stand in the way of implementing the recommended approach to reporting and testifying. First, the identity of the source of a trace is not necessarily an ultimate issue. To use the example of latent-print identification given in the webinar, the traditional opinion that a named individual is the source of a print is not an opinion on an ultimate issue. Courts have long allowed examiners to testify that the print lifted from a gun comes from a specific finger. But this conclusion is not an opinion on whether the murder defendant is the one who pulled the trigger. The examiner’s source attribution bears on the ultimate issue of causing the death of a human being, but the examiner who reports that the prints were defendant's is not opining that the defendant not only touched the gun (or had prints planted on it) but also pulled the trigger. Indeed, the latent print examiner would have no scientific basis for such an opinion on an element of the crime of murder.
Furthermore, even when an expert does want to express an opinion on an ultimate issue, Rule 704 does not counsel in favor of admitting it into evidence. Rule 704(a) consists of a single sentence: “An opinion is not objectionable just because it embraces an ultimate issue.” The sole function of these words is to repeal an outmoded, common-law rule categorically excluding these opinions. The advisory committee that drafted this repealing rule explained that “to allay any doubt on the subject, the so-called ‘ultimate issue’ rule is specifically abolished by the instant rule.” The committee expressed no positive preference for such opinions over evidence-centric expert testimony. It emphasized that Rules 701, 702, and 403 protect against unsuitable opinions on ultimate issues. Modern courts continue to exclude ultimate-opinion testimony when it is not sufficiently helpful to jurors. For example, conclusions of law remain highly objectionable.
Consequently, any suggestion that Rule 704 is an affirmative reason to admit one kind of testimony over another is misguided. “The effect of Rule 704 is merely to remove the proscription against opinions on ‘ultimate issues' and to shift the focus to whether the testimony is ‘otherwise admissible.’” 2/ If conclusion-centric testimony is admissible, then so is the evidence-centric evaluation that lies behind it--with or without the conclusion.
In sum, there is no tension between Rule 704(a) and the recommendation to follow the evidence-centric approach. Repealing a speed limit on a road does not imply that drivers should put the pedal to the floor.
NOTES
- This is the impression I received. The recording of the webinar should be available at the website of the Forensic Technology Center of Excellence in a week or two.
- Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir.1985).
LATER POSTING ON THE SUBJECT:
https://for-sci-law.blogspot.com/2019/11/more-on-rule-704-and-source-attribution.html
Professor Kaye,
ReplyDeleteMy comments about FRE 704 were directed to the claim of ‘role assignment’ by the authors of the cited sources. The documents I cited (ENFSI, Evett, NIFS, AFSP, NCFS, ASA) make statements such as ‘the role of the expert is to comment on the probability of their findings, given these propositions and not on the propositions themselves.’ (NIFS).
I simply noted that this purported assignment of ‘roles’ is more limited than that which is permitted by the Federal Rules of Evidence. None of these documents concede (or even acknowledge) that the Federal Rules (and most state rules of evidence) affirmatively allow an expert to offer an opinion about a proposition, rather than limiting that opinion to the relative strength of the evidence in support of competing propositions.
Omitting this information may mislead some to believe that the ‘role’ assigned by these documents to an expert is instead assigned by legal rules, rather than a ‘best practices’ world view. I never said or implied that Rule 704 ‘stands in the way’ of an expert’s provision of a more limited opinion about the strength of the evidence relative to competing propositions.
In addition, your blog states that ‘the identity of the source of a trace is not necessarily an ultimate issue.’ As evidence for that assertion, you used my latent print example, claiming that ‘the traditional opinion that a named individual is the source of a print is not an opinion on an ultimate issue.’
Your claim is directly contrary to the contents of the judicial opinion I cited in the questioned slide, which states in full: ‘[Defendant] . . . contends that the district court erred in allowing the expert to specifically testify that he had no doubt that the prints on the parking stub were [Defendant’s] because the expert was testifying to the "ultimate issue’ of whether it was Sherwood's print. This argument fails in light of Fed. R. Evid. 704, which permits expert testimony on the ultimate issue in a case.” United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996).
In Sherwood, the ultimate issue was not described as a connection between the latent print and activity-level behavior; rather, it was the expert’s testimony about the source of that print. Your description of an ultimate issue as limited to one in which (using your example), ‘the murder defendant is the one who pulled the trigger’ is a narrower description of the types of factual assertions entailed by Rule 704 than those described throughout case law. As such, your explanation of the Rule is not entirely correct.
For other examples of courts describing identification testimony as ‘ultimate’ in nature, see U.S. v. Rose, 731 F.2d 1337, 1346-47 (print match to shoe) United States v. Bice-Bey, 701 F.2d 1086 (4th Cir. 1883) (voice identification); United States v. Sellers, 566 F.2d 884 (4th Cir. 1977) (identification of suspect in a picture); United States v. Couser, 15 Fed. R. Evid. Serv. (CBC) 837 (4th Cir. Apr. 5, 1984) (comparison of suspect’s features to photograph). These cases clearly demonstrate that source identification testimony constitutes an opinion that embraces an ‘ultimate’ fact.
I don’t disagree that Rule 704 ‘does not counsel in favor’ of admitting expert opinion on an ultimate issue. I never said or implied anything or the sort.
In conclusion, to the extent there is any ‘tension’ or ‘inconsistency’ between Rule 704 and the noted references, it was created by the referenced documents’ omission of a discipline-specific basis for their claim that ‘the role of the expert is to comment on the probability of their findings, given these propositions and not on the propositions themselves.’ Each of the cited sources fail to make it clear that this limited ‘role’ is self-imposed, not legal in nature. That was the point of my observation.
Thanks for your participation in the webinar series and for your interest in my talk.
Ted R. Hunt
Senior Advisor on Forensic Science
U.S. Department of Justice
I am grateful to Mr. Hunt for taking the time to clarify his remarks in the webinar. The small part of his lecture discussed above is reproduced in full at https://for-sci-law.blogspot.com/2019/11/more-on-rule-704-and-source-attribution.html. That posting (11/11/19) explains in more detail why it would be a mistake to believe that Rule 704 "affirmatively allows" source attribution. In a few words, Rule 704(a) is agnostic as to admissibility. Sherwood and other cases are not to the contrary. The new posting also shows that the discussions of the role of experts in the documents produced by scientists and statisticians in countries across the world cannot be considered misleading because they do not discuss the US Federal Rule of Evidence 704(a) or the defunct common-law rule limiting "ultimate issue" testimony.
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