MBE Rules · Evidence
Ultimate Issue
FRE 704
The rule
Opinions are not objectionable merely for embracing an ultimate issue, except an expert in a criminal case may not state whether the defendant had the required mental state.
In plain English
The ultimate issue rule allows witnesses, including experts, to give opinions on the main questions in a case, but there is a special restriction for criminal cases. In those cases, an expert cannot express an opinion on whether the defendant had the necessary mental state for the crime charged.
Worked example
In a murder trial, a psychologist testifies that the defendant was insane at the time of the crime, directly addressing the ultimate issue of the defendant's mental state. However, the court rules that this testimony is inadmissible because it violates the rule against experts stating whether the defendant had the required mental state.
Memory hook
Experts can opine on the ultimate issue, but not on a defendant's mental state in criminal cases.
The trap
Exams may present scenarios where an expert's opinion seems relevant, but students must remember the specific limitation regarding mental state in criminal cases to avoid confusion.
How examiners test it
Questions often involve a fact pattern where an expert's opinion on an ultimate issue is presented, requiring candidates to identify whether the opinion is permissible under the rule.
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