Avoiding The FRE 704(b) Bar Against Expert Testimony On The Defendant’s Intent

In drug trafficking case, law enforcement expert testimony about “conduct that would be consistent with an intent to distribute” did not violate FRE 704(b) or invade the final determination of the jury, in United States v. Combs, 369 F.3d 925, 940 (6th Cir. 2004)

FRE 704(b) prohibits an expert from testifying about “an opinion or inference as to 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. Such ultimate issues are matters for the trier of fact alone.” See, e.g., United States v. Austin, 981 F.2d 1163, 1166 (10th Cir. 1992) (“The rule prevents a confusing ‘battle of the experts’ and preserves the decision on the ultimate issue of state of mind for the jury, rather than leaving it in the hands of retained experts. The rule promotes reliability by preventing testimony on the legal connotations of a medical diagnosis, a role the American Psychiatric Association admits that psychiatrists are not qualified to fill.”).

FRE 704(b) is an exception to the general rule under FRE 704(a) which allows opinion testimony on an ultimate issue to be decided by the trier of fact. How far can expert testimony go before crossing the FRE 704(b) bar? Several cases address this issue, which frequently arises in drug prosecutions based on expert testimony whether the seized drugs were possessed for personal use or were consistent with distribution. The Sixth Circuit provided one example of resolving this issue in United States v. Combs, 369 F.3d 925, 940 (6th Cir. 2004).

In the case, defendant Combs was prosecuted for drug and firearm counts after an investigation which included a controlled buy by a cooperating witness. At trial, a state narcotics officer testified about whether the defendant’s conduct was consistent with an intent to distribute. Following his jury conviction, the defendant claimed on appeal that the expert violated FRE 704(b).

The Sixth Circuit affirmed this aspect of the case. The circuit observed:

“Decisions applying Rule 704(b) to the expert testimony of law enforcement officials have found it significant whether the expert actually referred to the intent of the defendant or, instead, simply described in general terms the common practices of those who clearly do possess the requisite intent, leaving unstated the inference that the defendant, having been caught engaging in more or less the same practices, also possessed the requisite intent.”
Combs, 369 F.3d at 940 (quoting United States v. Frost, 125 F.3d 346, 383-84 (6th Cir. 1997) (citing United States v. Lipscomb, 14 F.3d 1236, 1239 (7th Cir. 1994)). The officer’s testimony did not cross the line drawn by FRE 704(b). Instead of testifying about “the intent of the defendant to distribute drugs,” instead “he testified regarding conduct that would be consistent with an intent to distribute and left to the jury the final conclusion regarding whether Combs actually possessed the requisite intent.” Combs, 369 F.3d at 940.


Other cases have similarly concluded that testimony that conduct or facts are “consistent with” a proscribed intent does not invade the jury’s province and falls short of the prohibition under FRE 704(b):

  • United States v. Winbush, 580 F.3d 503, 512 (7th Cir. 2009) (No. 08-1602) (Special Agent “testimony focused exclusively on his knowledge of common criminal practices, and he addressed facts presented by the government that helped the jury distinguish a drug distributor from a user. For example, he testified, without reference to Winbush, that possession of 9.5 grams of crack cocaine suggests an intent to distribute the drugs: ‘[I]n my experience, I’ve never come across a user on the street who had almost ten grams of crack cocaine in their possession. That, from my perspective, would be someone who we would want to investigate as a trafficker.’ When asked about possession of 20.2 grams of crack, packaged in fifty two separate bags, he replied, ‘[T]hat is distribution level. That is not user level.’”)
  • United States v. Freeman, 498 F.3d 893, 900-01, 906-07 (9th Cir. 2007) (police officer expert testimony “regarding the meaning of encoded drug jargon” was admissible under Rule 704(b); “Shin offered extensive opinion testimony regarding how he believed that Freeman’s words and actions were consistent with the common practices of drug traffickers. For example, Shin’s opinion on why Freeman wanted to get off the phone, while an interpretation of a seemingly innocuous statement, is not a violation of Rule 704(b). Shin offered no opinion as to whether Freeman possessed the requisite criminal intent to possess and distribute cocaine, but instead described a common practice of those who do have such intent.”).

The Combs, Winbush and Freeman cases demonstrate the application of FRE 704(b). The rule is not violated as long as the expert does not comment directly on the defendant’s intent and assist the jury in understanding the factors that may be consistent with the intent in issue.

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