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Rule 704. Opinion on Ultimate Issue.
The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called "ultimate issue" rule is specifically abolished by the instant rule. This provision is identical to Federal Rule 704 which followed the lead of Uniform Rule 56(4).
The older cases in other jurisdictions often contained strictures against allowing witnesses to express opinions upon ultimate issues, as a particular aspect of the rule against opinions. The basis usually assigned for the rule, to prevent the witness from "usurping the province of the jury," is aptly characterized as "empty rhetoric." 7 Wigmore § 1920 at 17. Efforts to meet the felt needs of particular situations led to odd verbal circumlocutions which were said not to violate the rule. Thus a witness could express his estimate of the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standards. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of "might or could," rather than "did," though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible.
The modern trend, reflected both in judicial decisions and in codifications of evidence law, has been toward complete abandonment of the rule prohibiting opinions embracing ultimate issues. According to McCormick the change has resulted from
the fact that the rule excluding opinion on ultimate facts in issue is unduly restrictive, pregnant with close questions of application and the possibility of misapplication, and often unfairly obstructive to the presentation of a party's case, to say nothing of the illogic of the idea that these opinions usurp the function of the jury.
McCormick (2d ed.) § 12, at 27-28. See also Bachner v. Rich, 554 P.2d 430 (Alaska 1976).
The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact. Rule 703 requires an opinion based on facts or data reasonably relied upon, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oathhelpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed. McCormick (2d ed.) § 12.
For similar provisions see California Evidence Code § 805; New Jersey Rule 56(3); Maine Rule 704; Nevada Rule 50.295; Nebraska Rule 27-704; Kansas Rule 60-456 (d).
Under this rule an opinion of any person that a criminal defendant is guilty or innocent would not be admissible.
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Copyright 1995-1999 by Touch N' Go Systems, Inc. All rights reserved. No copyright claim is made to the text of the rules.
Last Modified 7/14/1999
