FRE 704(b) And Distinguishing Opinion On Guilt Vs. Fact Relevant To Guilt

In criminal tax trial, defense expert's opinion that defendant suffered from narcissistic personality disorder and “did not intend to violate the law” was not barred by FRE 704(b), since the expert provided testimony on a predicate matter (“whether the defendant suffered from a Narcissistic Personality Disorder”), and not on the defendant’s criminal intent (“what impact, if any, that condition might have on the defendant’s ability to form the requisite mens rea — the intent to evade the tax laws”), in United States v. Cohen,510 F.3d 1114 (9th Cir. Dec. 26, 2007) (Nos. 06-10145, 06-10199, 06-10201)

The line dividing an expert's opinion testimony about a defendant's intent, which is not admissible under FRE 704(b) is often fairly indistinct from opinion testimony that may provide relevant information necessary for a jury to determine the defendant's intent. A few years ago, the Ninth Circuit wrestled with a case concerning this FRE 704(b) dividing line. The case is illustrative of what separates opinion testimony from facts relevant to reaching an opinion.

In the case, defendant Cohen and two other co-defendants were prosecuted for violating the tax laws. Among other things, they sold promotional and instructional materials describing how to “legally stop paying income taxes.” Before trial, defendant Cohen’s counsel filed a notice of his intent to assert a mental defect defense. Fed. R. Crim. P. 12.2

In order to do this the defense provided the government with a copy of a report by a psychiatrist, Dr. Roitman. The psychiatrist provided his expert opinion that:

Because [Cohen's] beliefs are fixed and have led him to significant adverse consequences, he is irrational to the point of dysfunction, demonstrated by his stubborn adherence in the face of overwhelming contradictions and knowledge of substantial penalty. ... Despite evidence to the contrary, his psychological needs dominated his mentation.... This is the nature of the narcissistic personality in which the sufferer could essentially pass a lie detector test when asked commonsensical questions while giving improbable answers.e>
Cohen, 510 F.3d at 1123.

The expert opined that the defendant suffered from a "narcissistic personality disorder" and therefore “did not intend to violate the law, as would be the case with a criminal who acted out of a desire for personal gain.” but rather “[h]is behavior is driven by a mental disorder as opposed to criminal motivation . . . Although it is true Mr. Cohen was not delusional or psychotic and was in possession of basic mental faculties, his will was in the service of irrational beliefs as a result of narcissistic personality disorder.” Cohen, 510 F.3d at 1122-23. According to the doctor, the defendant’s fixed belief concerning the taxes was “irrational to the point of dysfunction, demonstrated by his stubborn adherence in the face of overwhelming contradictions and knowledge of substantial penalty…." Cohen, 510 F.3d at 1122-23. The trial judge decided to exclude this expert testimony, agreeing with the prosecution that the expert failed to demonstrate “how the alleged mental disorders negate mens rea. Rather, [his] opinion[ ] merely explain[s] or justif[ies] [Cohen’s] conduct.” Cohen, 510 F.3d at 1123. The defendants were convicted. On appeal, defendant Cohen challenged the exclusion of his expert psychiatric evidence.

The Ninth Circuit reversed, concluding that exclusion of the defense psychology expert testimony was improper. The expert testimony was certainly relevant as it could have supported the defendant’s claim that he held a good faith belief which negated the criminal intent required for the tax conviction. Specifically, the defendant did not willfully violate the federal tax law since he did not “know that the tax returns he assisted in filing were false.” Cohen, 510 F.3d at 1123-24 n.6.

The Ninth Circuit found the exclusion of the expert testimony deprived the defendant of a means to "counter the government’s suggestion that Cohen knew the zero returns were false.” Cohen, 510 F.3d at 1124 (citing United States v. Finley, 301 F.3d 1000, 1006-07, 1013 (9th Cir. 2002) (in false claim prosecution involving the payment of debt with bogus instruments, trial court erred in excluding mental defect expert that defendant suffered from a delusional disorder “in which . . . information from the real world . . . is so grossly distorted that the person ends up with” irrational beliefs based on statements of another who convinced the defendant the instruments were not bogus)). The circuit concluded that the defense expert testimony would have assisted the jury in evaluating the defendant's mental state.

Not only was the expert's opinion clearly relevant, but it was not barred by FRE 704(b), which prohibits expert testimony concerning “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 . . . .” The expert proposed to provide testimony on a predicate matter (“whether Cohen suffered from a Narcissistic Personality Disorder”), not the defendant’s intent (“what impact, if any, that condition might have on Cohen’s ability to form the requisite mens rea — the intent to evade the tax laws”). The inquiries were distinct. cite>Cohen, 510 F.3d at 1126 (citing United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997) (en banc) (in prosecution for willfully making false entries in a union ledger, error in excluding expert certified public accountant testimony which would have shown the defendant’s poor understanding of bookkeeping principles; FRE 704(b) was not violated since the expert “was not going to state an opinion or draw an inference that Morales did not intend to make false entries. Rather, she was going to state her opinion as to a predicate matter — that Morales had a weak grasp of bookkeeping principles…. Even if the jury believed . . . [the expert], the jury would still have had to draw its own inference from that predicate testimony to answer the ultimate factual question.”)).

The circuit concluded on this issue that:

We have little doubt that if Dr. Roitman had been permitted to testify as to all of the conclusions contained in his report, some of that proffered testimony as contained in his report would have invaded the province of the jury and violated Rule 704(b). However, the best way for the district court to have insured the exclusion of the potentially inadmissible aspects of Dr. Roitman's testimony was not to bar him from testifying altogether, but to sustain the government's objections to particular questions likely to elicit inadmissible evidence under the rule. The district court also could have discussed with the parties before he testified the limits that would be imposed on the scope of Dr. Roitman's testimony.

If the district court had followed that course of action, then Dr. Roitman's testimony, like the expert testimony at issue in Morales and Finley, would have gone to a predicate matter-whether Cohen suffered from a Narcissistic Personality Disorder. Even if the jury had accepted this diagnosis, the jury would still have been required to determine what impact, if any, that condition might have on Cohen's ability to form the requisite mens rea-the intent to evade the tax laws. As in Finley, the jury could have accepted the Roitman diagnosis but determined nonetheless that Cohen knew the zero returns were false.
Cohen, 510 F.3d at 1126 (citation omitted) (emphasis added).

In considering whether the error was harmless, the circuit explained that it was not, as the expert testimony was “essential to the defense.” Cohen, 510 F.3d at 1126 (quoting Finley, 301 F.3d at 1018)] In sum, “the exclusion of Dr. Roitman’s testimony left Cohen without any way to explain the effect that his mental disorder may have had on his ability to form the requisite mens rea.” Cohen, 510 F.3d at 1126 On this record, the circuit reversed defendant Cohen’s conviction and remanded for a new trial.

Federal Rules of Evidence
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