District of Delaware Deems Doctor’s Testimony Under Rule 704(b)
Federal Rule of Evidence 704(b) provides that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
So, under Rule 704(b), should a defendant doctor be able to call an expert doctor to testify that the defendant doctor “believed he was practicing medicine correctly” and was “acting in good faith”? That was the question addressed by the United States District Court for the District of Delaware in its recent opinion in United States v. Titus, 2021 WL 2779002 (D. Del. 2021).
In Titus, Dr. Patrick Titus wass charged with (1) fourteen counts of knowingly and intentionally distributing controlled substances outside the usual course of professional practice and not for a legitimate medical purpose; and (2) maintaining a drug-involved premises. Dr. Titus then noticed his intent to introduce the testimony of Dr. Mack, who would have testified, inter alia, “that Dr. Titus ‘believed he was practicing medicine correctly’ and was ‘acting in good faith.'”
The court, however, granted the government’s motion to exclude this testimony, concluding that
Rule 704(b) states, “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.”…The Third Circuit has explained, “Expert testimony is admissible if it merely ‘support [s] an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.’”…Experts may cross into Rule 704(b) territory if they “directly refer[ ] to the defendant’s intent, mental state, or mens rea.” Id.
The Mister case helps illustrate the distinction between admissible and prohibited expert testimony in this context. As the Court stated, testimony concerning “the intelligence, perception and processing evidence are relevant to a fact at issue in the case, whether Defendant knew, at the time of the offense conduct, whether the payments were bribes.”….However, requiring the expert to testify as to whether the Defendant knew the payments were bribes would violate Rule 704(b)….
I agree with the Government that opining as to whether Dr. Titus believed he was practicing medicine correctly and/or in good faith strays into Rule 704(b) territory. Dr. Mack would, in effect, be drawing the ultimate inference regarding Dr. Titus’ mental state, which is strictly within the purview of the jury. Thus, I will exclude such testimony.
-CM