TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 5, 2012
RE: Rule 704, N.D.R.Ev., Opinion on an Ultimate Issue
The committee considered form and style amendments to Rule 704 at the April meeting. In particular, the committee discussed language included in the federal rule that was not made part of the North Dakota Rule. The committee requested that staff do additional research to determine whether adding the federal language would be inconsistent with North Dakota law.
The language at issue, which would bar an expert from testifying about whether a defendant had a mental state constituting an element of a crime or a defense, was added to the federal rule in accordance with the Insanity Defense Reform Act of 1984. The Supreme Court discussed the federal provision briefly in State v. Schmidkunz, 2006 ND 192, stating that its previous opinions and North Dakota statutory law allow expert testimony that may embrace the ultimate "state of mind" issue in criminal cases. A copy of Schmidkunz is attached.
The statutes cited in Schmidkunz are N.D.C.C. §§ 12.1-04.1-03 (Notice of defense of lack of criminal responsibility); 12.1-04.1-04. (Notice regarding expert testimony on lack of state of mind as element of alleged offense); and 12.1-04.1-13 (Notice of expert witnesses). Copies of these statutes are attached. While these statutes do not directly address what evidence is admissible at trial, they all assume that experts may be called to testify on ultimate "state of mind" issues and they require notice when this is planned.
A copy of the proposed amended rule as presented at the April meeting (including the federal restriction on ultimate issue testimony) is attached. Also attached is an alternate draft that is intended to be consistent with the current rule and the statutes and case law cited in Schmidkunz. The alternate draft also includes expanded explanatory note language and a cross-reference to the statutes discussed above.