18. Is the expert's testimony admissible?

While on trial for murdering her husband, a defendant testified that she acted in self-defense. The defendant calls an expert, a psychologist, to testify that under hypnosis the defendant had described the killing, and that in the expert's opinion the defendant had been in fear for her life at the time of the killing.

Yes, because the expert was able to ascertain that the defendant was speaking truthfully
Yes, because it reports a prior consistent statement by a witness (the defendant) subject to examination concerning it
No, because reliance on information tainted by hypnosis is unconstitutional
No, because it expresses an opinion concerning the defendant's mental state at the time of the killing

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Although Federal Rule of Evidence (FRE) 704(a) repudiates the traditional prohibition on opinions embracing the ultimate issue in the case, «An opinion is not objectionable just because it embraces an ultimate issue.» However, the FRE prohibit ultimate issue testimony in one situation: In a criminal case in which the defendant's mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state at issue. Fed. R. Evid. 704(b).

D is correct. No expert witness testifying with respect to the mental state of a defendant in a criminal case may state an opinion as to whether the defendant did or did not have the mental state constituting an element of the crime charged or of a defense. Such ultimate issues are matters for the trier of fact alone. The expert's testimony is inadmissible because, by opining that the defendant had been in fear for her life at the time of the killing, it expresses an opinion concerning the defendant's mental state. See Fed. R. Evid. 704(b).

A is incorrect. An expert witness cannot testify that another witness's statements are truthful. The statement is inadmissible because the expert gave an opinion as to the defendant's ultimate state of mind, which is an issue for the jury to decide.

B is incorrect. Even if the prior consistent statement exemption to the hearsay rule were to apply here, the testimony would still be inadmissible because it is an improper expert opinion regarding the defendant's state of mind, which is an issue for the jury to decide.

C is incorrect. This answer reaches the correct answer with the wrong reasoning. The testimony is inadmissible not because it is based on hypnosis, but because it is expressing an improper opinion regarding the defendant's state of mind, as explained above. Further, it is not unconstitutional to allow testimony obtained under hypnosis.

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18. Is the expert's testimony admissible?

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