4. FRE 704(b): Expert Opinion on Ultimate Issues

Jennifer Hoult
Vol. 26 ♦ No. 1 ♦ Spring 2006
Children’s Legal Rights Journal
Evidentiary Admissibility of Parental Alienation Syndrome
http://209.198.129.131/images/EvidentiaryAmissibilityofPAW_Hoult_CLRJ_2006.pdf 

Page 17 bottom to 18

4. FRE 704(b): Expert Opinion on
Ultimate Issues
FRE 704(b) prohibits expert testimony about an
ultimate issue of fact relating to an element of the
crime or an applicable defense, because this
invades the province of the fact-finder.
319
 The 18  Jennifer Hoult
Children’s Legal Rights Journal
Advisory Committee Notes on this rule note that
scientific experts have an aura of inviolability, and
their testimony thus creates a unique risk of
usurping the role of the fact-finder by “merely
[telling] the jury what result to reach.”
320
 When
experts use psychological syndromes to diagnose
fault or an underlying legal claim, such as child
abuse or spousal battering, such testimony may be
particularly likely to have undue influence because
the expert’s assessment of credibility is presented
as a scientific finding rather than a personal
opinion and, thus, may appear inviolable to the
judge or jury.
321
 Claiming to diagnose false abuse
allegations, PAS clearly bears this risk.
 Rule 704(b) limits psychiatric experts to
“presenting and explaining their diagnoses,” and
bars their opinions on “ultimate issues” such as
whether a criminal defendant is legally insane.
322
Gardner stated that PAS is a form of child
abuse.
323
 The DDC diagnose legal fault and
mandate legal responses. While Loomis was a state
court decision setting no precedent on admissibility under Rule 704(b) of the FRE, that court
held PAS inadmissible, observing that New York
practice does not permit an expert to testify to an
ultimate issue of fact, and noting that Gardner
“[purported] to make such a determination by
determining if a particular accusation has the
criteria of a truthful accusation or a false
accusation.”
324