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Federal Rules of Evidence – Rule 704 

(through July 14, 2022)

Crushed Rule

Generally, experts can opine about ultimate issues, like whether a defendant shot the sheriff. But experts can never opine about a criminal defendant’s mental state if that mental state is a relevant element or defense, like malice or insanity in a murder case.

Actual Rule

(a) In General — Not Automatically Objectionable. 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.

Selected Committee Notes 

The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called “ultimate issue” rule is specifically abolished by the instant rule.

The older cases often contained strictures against allowing witnesses to express opinions upon ultimate issues, as a particular aspect of the rule against opinions. The rule was unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. 7 Wigmore §§1920, 1921; McCormick §12. The basis usually assigned for the rule, to prevent the witness from “usurping the province of the jury,” is aptly characterized as “empty rhetoric.” 7 Wigmore §1920, p. 17. Efforts to meet the felt needs of particular situations led to odd verbal circumlocutions which were said not to violate the rule. Thus a witness could express his estimate of the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standard. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of “might or could,” rather than “did,” though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible.

Many modern decisions illustrate the trend to abandon the rule completely. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720 (1944), whether abortion necessary to save life of patient; Clifford-Jacobs Forging Co. v. Industrial Comm., 19 Ill.2d 236, 166 N.E.2d 582 (1960), medical causation; Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529 (1941), proper method of shoring ditch; Schweiger v. Solbeck, 191 Or. 454, 230 P.2d 195 (1951), cause of landslide. In each instance the opinion was allowed.

The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed. McCormick §12.

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Key Rules (MBE/MEE)

• FRE 103 – Evidence Rulings
• FRE 104 – Preliminary Questions
• FRE 105 – Limiting How Evidence may be Used
• FRE 106 – Completeness Rule
• FRE 201 – Judicial Notice
• FRE 301 – Presumptions
• FRE 401 – Relevance
• FRE 402 – Irrelevant = Inadmissible
• FRE 403 – Excluding the Prejudicial, Confusing, etc.
• FRE 404 – Character Evidence
• FRE 405 – Proving Character
• FRE 406 – Habit, Routine
• FRE 407 – Subsequent Remedial Measures
• FRE 408 – Compromise Negotiations
• FRE 409 – Offers to Pay Expenses
• FRE 410 – Pleas, Related Statements
• FRE 411 – Liability Insurance
• FRE 412 – Victim’s Sexual Predisposition
• FRE 413, 414, 415 – Other Sex-Related Rules
• FRE 501 – Privilege in General
• FRE 502 – Attorney-Client Privilege, Work-Product Doctrine
• FRE 601 – Witness Competency
• FRE 602 – Personal Knowledge
• FRE 605 – Judge as Witness
• FRE 606 – Juror as Witness
• FRE 607 – Impeachment
• FRE 608 – Honest, Dishonest Character
• FRE 609 – Evidence of Criminal Conviction
• FRE 610 – Religious Beliefs
• FRE 611 – Mode, Order of Evidence
• FRE 612 – Recollection Refreshed
• FRE 613 – Prior Statements
• FRE 614 – Court Witness Examination
• FRE 615 – Excluding Witnesses
• FRE 701 – Non-Expert Opinion
• FRE 702 – Expert Opinion
• FRE 703 – Bases of Expert Opinion
• FRE 704 – Ultimate Issue
• FRE 705 – Disclosing Underlying Data
• FRE 801 – Hearsay Defined
• FRE 802 – Rule Against Hearsay
• FRE 803 – Strong Hearsay Exceptions
• FRE 804 – Weak Hearsay Exceptions
• FRE 805 – Double Hearsay
• FRE 806 – Impeaching Hearsay Declarants
• FRE 807 – Residual Hearsay Exception
• FRE 901 – Authentication, Identification
• FRE 902 – Self-Authenticating Evidence
• FRE 1001 – Original Defined
• FRE 1002 – Original Sometimes Required
• FRE 1003 – When Copies Generally Admissible
• FRE 1004 – Other Times Admissible
• FRE 1005 – Public Record Copies Often Admissible
• FRE 1006 – Summaries
• FRE 1007 – Acknowledged Content
• FRE 1008 – Functions of Court, Jury
• FRE 1101 – Rules’ Applicability