Last week I mentioned U.S. v. Gladish because of the substantial step analysis in the opinion. EvidenceProf focused on a different portion of the opinion:
The Seventh Circuit's recent opinion in United States v. Gladish , 2008 WL 2927127 (7th Cir. 2008), contains an interesting discussion of Federal Rule of Evidence 704(b). In Gladish, Brian E. Gladish was convicted of violating two federal statutes: 18 U.S.C. Section 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. Section 2422(b), which, as was relevant to Gladish's case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense....
The trial court, however, circumscribed this avenue of defense, finding that the psychologist's proposed testimony was inadmissible under Federal Rule of Evidence 704(b), which states that "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The Seventh Circuit rejected this conclusion, finding that Rule 704(b) itself (implicitly) states that experts can testify "with respect to the mental state or condition" of the defendant. Thus, while Rule 704(b) precluded the psychologist from testifying that Gladish did not intend to have sex with "Abagail," he could have testified that it was unlikely, given Gladish's psychology, that he would act on his intent. As the Seventh Circuit analogized, "You can sincerely intend to stop smoking, yet a psychologist might conclude that you had such poor impulse control that it was exceedingly unlikely that you would stop."
While it seems as if the Seventh Circuit was making a fine line distinction, I agree with its conclusion. The point of Rule 704(b) is to preclude expert witnesses from force feeding the jurors the disposition in a case. In other words, if a particular verdict is compelled if the jury accepts an expert's testimony, that testimony is improper. So, if the psychologist testified that Gladish did not intend to have sex with "Abigail," jurors would be forced to find Gladish "not guilty" if they accepted his testimony because he could not be guilty of "attempt." But if the psychologist merely testified that Gladish was unlikely to act upon his intent/desire, jurors could accept that such action was "unlikely" but still believe that Gladish planned to act upon his intent/desire in this case. Thus, the Seventh Circuit properly found that the psychologist should have been allowed to testify.
Very interesting stuff. I suggest checking out the whole post (of which I included a long excerpt).
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