How does one prove or disprove the existence of the required intentional violation of a known legal duty? Unless the defendant admits his or her intent, the Government makes its case on circumstantial evidence that permits a jury to infer beyond a reasonable doubt the existence of the intent. The defendant must either then testify as to his or her lack of such intent or introduce rebuttal evidence that will permit and hopefully convince the jury to conclude that the Government's circumstantial evidence is insufficient.
In a prior blog, I discussed the issue related issues of the role of good faith. Good faith, if present, proves that the defendant did not have the required intent -- the required intent to violate a known legal duty. See my prior blogs on this issue here. Readers will recall that defendants will usually want a specific good faith instruction in addition to the general willfulness instruction which subsumes the good faith defense.
In a recent nonprecedential opinion, United States v. Abramson-Schmeiler, 2011 U.S. App. LEXIS 23789 (10th Cir. 2011), here, the Court addressed variations on this theme. The defendant attempt to introduce lay opinion testimony from the defendant's tax accountant. The defendant sought to have the accountant testify that "if the payments were underreported that he didn't believe that she did it on purpose." The trial court summarily refused to permit the testimony.
The evidentiary background is that, generally, opinion testimony is permitted (Rule 701, FRE, here):
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inference is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.Rule 704(b), FRE, here, does preclude expert opinion testimony as to the ultimate fact, but the accountant was not an expert in mental conditions or intent and hence would have testified as a lay person in a position to reach a law opinion as to the ultimate fact -- the defendant's mental state.
The Court opined that the district court had erred in rejecting the testimony without going through the drill required by Rule 701. The Tenth Circuit notes that, in a prior opinion, it had reversed a district court, explaining:
"The Federal Rules of Evidence do not . . . categorically prohibit lay witnesses from offering opinion testimony regarding the defendant's mental state." United States v. Goodman, 633 F.3d 963, 968 (10th Cir. 2011).The Court nevertheless affirmed the opinion finding that the error was not reversible because it was harmless. The old harmless error gambit to avoid a reversal and retrial where, in the appellate court's view of the universe, the defendant was guilty anyway. (That's a bit of hyperbole, but not much.)
At any rate, this a good reminder -- nothing new but a good reminder -- that defense counsel must explore this opportunity to get a credible third party witness to assist the jury with this type opinion testimony as to the required willfulness stringent mens rea.
In addition, the court also rejected the defendant's claim that the district court had erred in granting the specific good faith instruction, finding that the concept was adequately presented to the jury in the willfulness instruction. Nothing particularly new but, I think, a good reminder.
A good case on this opportunity for lay opinion testimony on the ultimate intent issue is United States v. Rea, 958 F.2d 1206 (2d Cir. 1992), here. The defendants in an excise tax scheme were convicted for conspiracy and tax evasion. The Second Circuit noted that both crimes required mental intent – conspiracy requires intent to form the agreement and tax evasion requires Cheek willfulness. A Government witness at trial testified that Rea “had to know” of the tax evasion nature of the scheme. Defendants complained on appeal that “Rea's knowledge should have been excluded from evidence as a matter of principle, on the ground that the state of Rea's knowledge was an ultimate issue in the case.” The Second Circuit held that FRE Rules 701 and Rule 704(a) made the argument “untenable.” The Court concluded (pp. 1214-5):
Since neither Rule 701 nor Rule 704(a) limits the subject matter of lay opinion testimony, there is no theoretical prohibition against allowing lay witnesses to give their opinions as to the mental states of others. See generally 3 J. Weinstein & M. Berger, Weinstein's Evidence P701, at 701-19 to 701-21 (1991). Accordingly, these Rules do not, in principle, bar a lay witness from testifying as to whether a defendant in a criminal prosecution had the requisite knowledge.Rea establishes that this opportunity for opinion testimony is a two way street. But, it is critical for the proponent of such evidence to anticipate and satisfy the predicate requirements for introducing such opinion testimony. Indeed, at least where the opinion testimony is proffered by a government agent based on his or her investigation, courts are careful to insure that the predicate FRE 701 conditions are met and that the sole function is not to instruct the jury as to what it should do on the ultimate issue(s): See United States v. Garcia, 413 F.3d 201 (2d Cir. 2005). Thus, for instance, a government agent participating in a sting may give lay opinion testimony as to his eyewitness observation of the actions of the targets participating but would not be allowed to give lay opinion testimony as to the overall conclusions of his or her investigation. These uses of investigating agent opinion testimony also implicate the other predicates as well.