Defense psychologist expert “could have testified that it was unlikely, given the defendant’s psychology, that he would act on his intent,” in United States v. Gladish, 536 F.3d 646 (7th Cir. July 31, 2008) (No. 07-2718)
FRE 704, concerning expert opinions on ultimate issues, can present some challenges in application. Misapplication can result in reversal. There are two parts to the rule. The first part, under FRE 704(a), clarifies that an expert opinion can “embrace[] an ultimate issue to be decided by the trier of fact.” The second part of the rule contains an exception to the first part, and applies in criminal cases concerning the defendant’s mental state or condition. Under FRE 704(b), an expert is barred from testifying “whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” These issues are reserved for the fact finder.
The Seventh Circuit, in an opinion written by Circuit Judge Richard Posner, recently reversed a conviction for attempting to entice a minor to engage in sexual activity for a defendant who solicited sex in a chat room with someone he thought was “Abigail,” a 14-year old girl, but who was actually a government agent. The trial court excluded a defense psychologist expert who was to testify that “the defendant seeks sexual gratification in Internet chat rooms and in watching pornographic films because he has a ‘character pathology’ that has produced ‘a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him’” and “could have testified that it was unlikely, given the defendant’s psychology, that he would act on his intent.” Gladish, 536 F.3d at 650 (citation omitted). The essence of the defense expert testimony was that the defendant’s offers to engage in sex were nothing more than “hot air.” The defendant was convicted and sentenced to serve 13 years in prison.
In reversing the conviction, the circuit explained the application of FRE 704(b) by referring to a compulsive smoking analogy:
“[T]he expert is permitted to ‘testify . . . with respect to the mental state or condition’ of the defendant. The psychologist could not have been permitted to testify that the defendant did not intend to have sex with ‘Abagail,’ but he could have testified that it was unlikely, given the defendant’s psychology, that he would act on his intent. You can sincerely intend to stop smoking, yet a psychologist might conclude that you had such poor impulse control that it was exceedingly unlikely that you would stop. That evidence would not be barred by Rule 704(b). In fairness to the district judge, we note that the defendant’s lawyer did not make as clear as he should have what the intended focus of the expert’s testimony would be. He said that the expert would testify that the defendant did not have a ‘real intent’ to have sex with ‘Abagail.’ But it is reasonably clear that what the lawyer meant was that the expert would testify that the defendant was unlikely to have acted on his expressed intent.”
Gladish, 536 F.3d at 650-51 (other citations omitted).
The Gladish case shows how close to the line the expert testimony may be permitted. The expert psychologist can testify about the defendant’s mental state or condition but not opine that the defendant possessed or lacked the mental state for the crime.
Comments
Post new comment