TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 704, N.D.R.Ev., Opinion on Ultimate Issue
Bismarck attorney Thomas Dickson has requested that the Committee consider incorporation of language drawn from Fed.R.Ev. 704(b) into N.D.R.Ev. 704. The language prohibits experts testifying in criminal cases from offering an opinion on the issue of whether the defendant did or did not have the mental state necessary to satisfy the elements of the offense charged.
The language in Fed.R.Ev. 704(b) was added to the rule in accordance with the Insanity Defense Reform Act of 1984. The Committee considered adding the proposed language to N.D.R.Ev. 704 in 1985-1986. An excerpt from the minutes of the Committee's discussion of this language is attached. The minutes show the Committee rejected inclusion of the proposed language but they do not show the Committee's rationale for rejecting the language.
Because the 704(b) language was added by Congress rather than the rules committee, there are no advisory committee notes on 704(b) in the federal rule book. For this reason, staff has attached an excerpt from the Federal Rules of Evidence Manual to the meeting materials. The Manual explains that "[t]he final sentence of subdivision (b) captures the spirit of the amendment: the Judge or jury is to decide the mental state question, not the expert." The Manual further suggests that the subdivision is problematic because it creates "difficult problems in drawing lines." The majority of the excerpt from the Manual discusses these line drawing problems.
Proposed amendments to Rule 704 are attached.