Rule 704 Opinion on Ultimate Issue

D.R.E. 704 tracks F.R.E. 704(a) except for the addition of the word “merely.” The 1980 Committee added the word “merely” to make it clear that this rule must be read in connection with D.R.E. 701. Thus, testimony on the ultimate issue is not allowed unless admissible under D.R.E. 701. In 2001, the Permanent Advisory Committee on the Delaware Uniform Rules of Evidence considered adopting F.R.E. 704(b) in effect on December 31, 2000. That provision prohibits an expert from stating an opinion about whether a defendant possessed the requisite state of mind or condition constituting an element of the crime charged or of a defense thereto. The Committee found F.R.E. 704(b) inconsistent with D.R.E. 704 and, therefore, recommended against adopting a similar provision. This rule may be inconsistent with Wagner v. Shanks, Del. Supr., 194 A.2d 701 (1963) and Matthews v. State, Del. Supr., 276 A.2d 265 (1971). It is consistent, however, with Szewczyk v. Doubet, Del. Supr., 354 A.2d 426

(1976) and Itek Corp. v. Chicago Aerial Indus., Inc., Del. Super., 274 A.2d 141 (1971). D.R.E. 704 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. There is no intent to change any result in ruling on evidence admissibility.