706.4Ultimate Issue [Rule 704]

The Basic Rule

Rule 704 – Opinion on Ultimate Issue

G.S. 8C-704.

Legal Overview

Although opinion testimony from a lay or expert witness might be objectionable for any number of reasons (e.g., relevance, prejudice, or lack of personal knowledge), Rule 704 clarifies that opinion testimony is not objectionable simply because it addresses an “ultimate issue” that the trier of fact has to decide, such as whether an element of the offense has been proved. See G.S. 8C-704. Compare State v. Riddick, 315 N.C. 749 (1986) (arson expert’s opinion in a homicide case that a flammable liquid was burning on the floor and “trailing” towards the kitchen was not objectionable on the grounds that it embraced an ultimate issue about causation to be decided by the jury) with State v. Elkins, 210 N.C. App. 110 (2011) (officer’s lay opinion testimony in the form of an assertion that defendant “was, indeed, the offender in this case” was error, because it was not helpful to the jury – the statement was “solely and simply an opinion of the ultimate issue of Defendant’s guilt”).

Opinion on Ultimate Issue Allowed

Cases interpreting Rule 704 have permitted both lay and expert opinion testimony about a wide range of “ultimate issues” to be decided in the case (such as impairment, intent, causation, nature of injuries, and self-defense) as long as the opinion is based on a proper foundation and helpful to the trier of fact. See, e.g., State v. Speight, 166 N.C. App. 106 (2004), aff’d in part and modified in part on other grounds, 359 N.C. 602 (2005) (officer properly permitted to give lay opinion that defendant was “impaired,” based on officer’s perceptions and observations of defendant at the accident scene, interviews with witnesses, and odor of alcohol); State v. Parker, 354 N.C. 268 (2001) (expert witness properly allowed to opine that victim’s death was a “homicide”); State v. Teague, 134 N.C. App. 702 (1999) (expert witness properly allowed to opine that gunshot wound to the head demonstrated “an intent to cause death”); State v. Boyd, 343 N.C. 699 (1996) (“expert opinion testimony is not rendered inadmissible on the basis that it embraces ultimate issues to be determined by the jury”) State v. Najewicz, 112 N.C. App. 280 (1993) (“a lay witness may testify in the form of an opinion which embraces an ultimate issue to be decided by the jury” if the opinion is both “(1) rationally based upon the witness' perception and (2) helpful to a clear understanding of the witness' testimony”); State v. Jennings, 333 N.C. 579 (1993) (expert properly permitted to testify that victim was “tortured” in first degree murder case); State v. Saunders, 317 N.C. 308 (1986) (expert properly allowed to testify that wounds were “inconsistent with self-defense,” even though claim of self-defense was an issue in the case).

Opinion on Ultimate Issue Not Allowed 

   a. Guilt or Credibility

Opinion testimony regarding the ultimate issue of the defendant’s guilt or the credibility of another witness is impermissible, not because of Rule 704, but rather because such testimony is not considered helpful to the jurors who can just as easily draw their own conclusions based on the evidence presented. See, e.g., State v. Houser, 239 N.C. App. 410 (2015) (officer testifying as lay witness could not invade province of jury by commenting on credibility of the defendant); State v. Elkins, 210 N.C. App. 110 (2011) (“[M]eaningless assertions which amount to little more than choosing up sides are properly excludable as lacking helpfulness under the Rules.”) (internal quotation omitted); State v. Turnage, 190 N.C. App. 123 (2008), rev’d in part on other grounds, 362 N.C. 491 (2008) (officer’s lay opinion that screwdriver and metal rod in defendant’s pocket showed that “he was just probably in the process of breaking into a residence” invaded province of jury by making an inference as to defendant’s guilt). But see State v. Daye, 83 N.C. App. 444 (1986) (no error to allow lay witness in trial on charge of willfully concealing merchandise to testify that defendant was “concealing” merchandise in the store – witness was not offering an opinion on ultimate issue of guilt, but merely describing what she saw in shorthand form).

   b. Legal Standards or Conclusions

Opinion testimony is not permitted regarding the ultimate issue of “whether a legal standard or conclusion has been met, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness;” however (assuming it is relevant and otherwise admissible), the witness may testify as to the “underlying factual premise” that would support such an opinion. State v. Parker, 354 N.C. 268 (2001). See, e.g., State v. Hart, 179 N.C. App. 30 (2006), aff’d in part and rev’d in part, 361 N.C. 309 (2007) (no error for officer to testify about defendant being “next to” drugs for purpose of establishing constructive possession, where officer never directly testified about the legal standard for “constructive possession”); State v. Brown, 335 N.C. 477 (1994) (proper to exclude opinion testimony that defendant lacked the capacity to “conspire,” because “conspiracy” involves a specific legal definition); State v. Silvers, 323 N.C. 646 (1989) (lay witness may not testify that a defendant has the “capacity to stand trial,” since that is a legal conclusion, but upon laying a proper foundation the witness may testify about whether the defendant is “able to understand the nature and object of the proceedings, or comprehend his or her own situation in reference to the proceedings, or assist in his or her defense in a rational and reasonable way”); State v. Shank, 322 N.C. 243 (1988) (expert witness could not offer an opinion that defendant did or did not exercise “premeditation and deliberation,” because those are legal terms of art, but should have been allowed to testify that defendant lacked the ability “make or carry out plans” or “form a specific intent to kill,” because those are relevant opinions drawn from the underlying facts); State v. Ledford, 315 N.C. 599 (1986) (error to allow expert to testify that victim’s injuries were the “proximate cause” of death, because that expressed an opinion that a legal standard of causation had been met).