Much of my career has involved proving or disproving whether someone knew, believed, or intended something. Nearly all crimes require a certain mens rea, or "guilty mind." The same is true for civil claims, like RICO, that are based on allegations of crime. So too for many other civil cases, from whistleblower retaliation (requiring retaliatory intent), to certain kinds of defamation (requiring "actual malice"), to patents (requiring "willful" infringement for enhanced damages). Fraud cases, both civil and criminal, almost always turn on intent.
So when the Supreme Court blesses a new way to show a jury what someone was thinking, I pay attention. In the case of Thursday's decision in Diaz v. United States, I read every word of every separate opinion. And for my world of competitive psychoanalysis, it qualifies as a doozy.
What the Court Said
In Diaz, the titular defendant was stopped entering the U.S. from Mexico with 54 pounds of methamphetamine hidden in her car's door panels and the trunk. Her defense was that her boyfriend had asked her to drive the car, and she didn't know the dope was there. As part of its case, the government called an expert witness on Mexican cartels, who testified that "in most circumstances" involving such car-based smuggling, "the driver knows they are hired . . . to take the drugs from Point A to Point B." The woman was convicted and sentenced to seven years in prison.
Federal Rule of Evidence 704(b) states that "[i]n 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." The idea is that it is up to the jury to decide what the defendant's state of mind was, and a witness should not be able to serve up a pre-packaged conclusion with the imprimatur of a court-approved expert. Diaz argued that this meant the government's expert should not have been allowed to give the above testimony, as it essentially equaled an opinion about whether she knew the drugs were in the car.
The Supreme Court, or at least most of it, disagreed with her. The majority took a narrow view of Rule 704(b), and said that it only barred an expert from explicitly opining on what the specific defendant knew, or on what all defendants in those circumstances would know. As long as the expert only testified that most people in the defendant's situation had the required knowledge, there was no problem. The jury could still decide whether the defendant was in the supposed minority of persons who were ignorant and innocent.
The dissent, penned by Justice Gorsuch, was incredulous. How, he wondered, could the government be allowed to circumvent the rule and introduce testimony that people in the defendant's situation would have guilty knowledge, simply by inserting the word "most"? Of course, he said, the opinion was "about" whether the defendant had the required state of mind (and thus violated the plain language of 704(b)); otherwise, why would it be relevant?
But in her concurrence, Justice Jackson--a former public defender--was almost gleeful. As she pointed out, what goes around, comes around: defendants, just as easily as the government, could introduce experts to opine that most people in the defendant's situation did not have the required knowledge, or intent, or willfulness. While Justice Gorsuch worried that the government now had a "powerful new tool" to prove mens rea, Justice Jackson recognized that the same tool could be equally powerful in creating reasonable doubt.
Back to the Good(?) Old Days
As the justices on both sides recalled, Rule 704(b) had been enacted after the trial of John Hinckley, Jr., who was charged with shooting President Reagan in 1981. At trial, multiple psychiatrists testified for the prosecution and the defense about whether Hinckley's mental disorders made it impossible for him appreciate the wrongfulness of his conduct. The jury found him not guilty by reason of insanity. In the ensuing public outcry, Rule 704(b) was introduced to prevent such battles of the experts in the future.
From personal experience, I can attest that prosecutors are not keen to let cases turn on expert battles. Not only does it take much of the probative power away from the prosecutors and law enforcement agents, but the complex and technical nature of the testimony often leads to jury confusion, which is an invitation to reasonable doubt.
But if Justices Jackson and Gorsuch are right, we may be looking at a return to the Hinckley days, with competing experts allowed to explain what "most" people in certain scenarios think. Insider trading case? An experienced stock trader or finance professor could say that most traders in the defendant's position would not intend to use the material nonpublic information they held for improper trading, but rather would trade based on legitimate factors. Health care fraud? A doctor could say that "most" of their peers would think that a certain billing arrangement was permissible. And so on.
For the expert witness industry, good times may be on the way.
Unless
Or maybe not so fast? Rule 704(b) is only one obstacle to expert testimony. Another important one is Rule 702, which allows only qualified experts to opine, and only if their specialized knowledge will help the jury; the testimony is based on sufficient facts or data; and the testimony derives from reliable principles and methods, and their reliable application in the case.
My first reaction to reading the facts of Diaz was: how did this testimony make it past Rule 702? How could the government's expert, a law enforcement officer but presumably never a drug mule or cartel member, have any basis to say what such people typically "know"? There was no indication that the expert had conducted any broad-based survey of drug smugglers, nor that he would have any idea how to do so. As Justice Gorsuch put it, the basis of the testimony appeared to be the agent's "convenient ability to read minds," even though "perhaps no 'science' is more junky than mental telepathy."
He went on, perhaps reading my own mind:
"I struggle to see how a witness claiming to offer an opinion about another person’s (or class of persons’) thoughts at a particular moment in the past can meet any of those standards. No one, at least outside the fortuneteller’s den, can yet claim the power to conjure reliably another’s past thoughts. . . . [In] assessing whether a defendant's story about her state of mind is credible . . . [j]urors are more than up to performing that task, and they hardly need the help of some clairvoyant."
I once prosecuted a tax fraud case in which the defendant planned to call an expert to testify about cognitive bias--the idea that people tend to believe what they want to believe; in that case, that a particular tax refund theory was legitimate. I opposed, citing Rule 702, and may or may not have cited such legal luminaries as Paul Simon,* Francis Bacon, Upton Sinclair, and Voltaire to underscore that the jury did not need help with this particular scientific concept. The witness was excluded.
As it turns out, in Diaz, the defendant did not object under Rule 702, at least not in her motions in limine. (Yes, I looked them up.) Not a criticism of defense counsel--there were objections under other rules, and perhaps there were good reasons to skip 702. In any case, it did not come up at any stage of the trial or appellate processes.
My Own Crystal Ball
I suspect that Rule 702, and the related Daubert doctrine, will play a role in keeping out some amount of expert opinion on mental state, at least when it comes to testimony as facile as that at issue in Diaz. (Seriously: how can a law enforcement agent have a reliable scientific method for determining what most suspects know?)
Then again, the six-justice Diaz majority seemed entirely untroubled by the notion of widespread expert testimony regarding knowledge and other mental states. It did not mention Rule 702 even once. Justice Jackson, meanwhile, all but sent engraved invitations to defense counsel to make use of the practice. Perhaps 702 will not hold the line after all.
If not, the impact goes well beyond the criminal world. Rule 704(b) explicitly applies only to criminal cases; there is no such restriction in civil cases. And some may find it hard to see how expert testimony on mental states can be a fine basis for sending someone to prison, but unacceptably unreliable in business litigation and other disputes where life and liberty are not at stake. Hinckley-esque expert battles could perhaps find their way into a wide range of civil disputes as well.
Upshot: Kids, if you're having second thoughts about law school, you may want to stick with that psychology major a bit longer. There could be a few openings on the way.
* "… a man hears what he wants to hear, and disregards the rest."
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