Form of the Opinion

  1. militarydefenselawyers386The foundation consists of no more than determining that the witness has formed an opinion, and of what that opinion consists.
  2. Rule 704.
    Rule 704. Opinion on Ultimate Issue Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

    1. The current standard is whether the testimony assists the trier of fact, not whether it embraces an “ultimate issue” so as to usurp the panel’s function. At the same time, ultimate-issue opinion testimony is not automatically admissible. Opinion must be relevant and helpful as determined through Rules 401-403 and 702.
    2. In United States v. Diaz, 59 M.J. 79 (2003), the CAAF held that it was
      improper for an expert to testify that the death of appellant’s child was a
      homicide and that the appellant was the perpetrator, when the cause of
      death and identity of the perpetrator were the primary issues at trial.
    3. One recurring problem is that an expert should not opine that a certain
      witness’s rendition of events is believable or not. See, e.g., United States
      v. Petersen, 24 M.J. 283, 284 (C.M.A. 1987) (“We are skeptical about
      whether any witness could be qualified to opine as to the credibility of
      another.”) The expert may not become a “human lie detector.” United
      States v. Palmer, 33 M.J. 7, 12 (C.M.A. 1991); see also United States v.
      Brooks, 64 M.J. 325 (2007) (discussing that in a child sexual abuse case,
      where the government expert’s testimony suggested that there was better
      than a ninety-eight percent probability that the victim was telling the
      truth, such testimony was the functional equivalent of vouching for the
      credibility or truthfulness of the victim, and implicates the very concerns
      underlying the prohibition against human lie detector testimony.
    1. Questions such as whether the expert believes the victim was
      raped, or whether the victim is telling the truth when she claimed
      to have been raped (i.e. was the witness truthful?) are
      impermissible.
    2. However, the expert may opine that a victim’s testimony or
      history is consistent with what the expert’s examination found,
      and whether the behavior at issue is typical of victims of such
      crimes. Focus on symptoms, not conclusions concerning
      veracity. See United States v. Birdsall, 47 M.J. 404 (1998)
      (expert’s focus should be on whether children exhibit behavior
      and symptoms consistent with abuse; reversible error to allow
      social worker and doctor to testify that the child-victims were
      telling the truth and were the victims of sexual abuse). Example:
      An expert may testify as to what symptoms are found among
      children who have suffered sexual abuse and whether the childwitness
      has exhibited these symptoms. United States v.
      Harrison, 31 M.J. 330, 332 (C.M.A. 1990).

Rule 704

In United States v. Diaz