Court of Appeals of Utah Finds Deputy’s Testimony That Defendant’s Conduct Was “Intentional” Was NOT Improper Testimony on His State of Mind

Similar to its federal counterpart, Utah Rule of Evidence 704 states the following:

(a) In General – Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. 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.

In State v. Jones, 2025 WL 1201701 (Utah App. 2025), the Court of Appeals of Utah found that a deputy’s testimony did not violate Rule 704(b), but in a way that is tough to reconcile with the rule.

In Jones, 

Jordan Robert Jones appeal[ed] his convictions—primarily on three counts of assault against a peace officer—after he drove his car at high speed past the scene of a roadside DUI investigation involving multiple officers. He assert[ed] that his trial counsel (Counsel) rendered ineffective assistance by not objecting when a sheriff’s deputy who was at the scene testified that he “thought” Jones “was trying to run [him] over” and that he and another deputy “felt” that Jones’s conduct “was intentional.” Jones further assert[ed] that Counsel provided ineffective assistance by not putting on evidence that one of the officers who was allegedly standing in the road when Jones drove past was instead standing on a curb some distance away.

Now, the Court of Appeals of Utah did find ineffective assistance of counsel on this last point and reverse Jones’s conviction of assault against the deputy on the curb. But, on the Rule 704(b) issue, the court ruled as follows:

Deputy 4’s other statement—that he and Deputy 1 “felt” that the driver’s conduct “was intentional”—admittedly did use the term “intentional,” which has a legal meaning and constitutes a possible element of the charged offense. But Deputy 4 did not attempt to provide a legal definition of intent. Nor did he mention the law or suggest that the facts satisfied an element of the crime. Instead, he made this statement while explaining a discussion he and Deputy 1 had about whether Deputy 4 could leave the DUI investigation scene to pursue the driver of the Mercedes without compromising the safety of the remaining deputies. And the prosecutor’s follow-up question did not attempt to elicit an explanation of the law but, rather, the factual “factors” Deputy 4 saw “that drew [him] to [the] conclusion” that the driver of the Mercedes acted intentionally. Hence, in context, this statement also did not amount to a legal conclusion. See id. ¶ 41 (holding that an officer’s testimony was not a legal conclusion where it “made no mention of the law, let alone suggested to the jury that the facts…ultimately satisf[ied] the ‘without consent’ elements at issue”).

Because Deputy 4’s testimony did not include a legal conclusion, Counsel did not perform deficiently by not objecting to the testimony under rule 704.

This seems to me to be too narrow of a reading of Rule 704(b). If a crime has an intentional mens rea and a deputy testifies that another deputy and he felt the defendant’s conduct was “intentional,” I think he’s testifying that the defendant had the mental state that constitutes an element of the crime charged, full stop. I don’t see any requirement in the rule that the deputy must provide a legal definition of intent, which, in any event, would be beyond the proper scope of the testimony of any witness other than a lawyer.

-CM