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Miss. R. Evid. 704

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Rule 704 Opinion on an Ultimate Issue

Article VII: Opinions and Expert Testimony

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Rule Text

An opinion is not objectionable just because it embraces an ultimate issue.

[Restyled effective July 1, 2016.]

Plain-English Summary (for reference only — not a substitute for the rule text above)

This summary is not the rule. The rule text controls.

Witnesses, including expert witnesses, are allowed to give opinions that speak directly to the key question the judge or jury has to decide. In the past, some courts blocked testimony if it seemed to answer the exact issue the case was about. This rule does away with that restriction.

So if a witness has an opinion that touches on the main point of the case, like whether someone acted carelessly or whether a contract was broken, that opinion can still be allowed as evidence. The judge or jury still gets to decide how much weight to give that opinion. The witness answering the ultimate question does not automatically decide the case. It just means their testimony cannot be thrown out for that reason alone.

This rule helps make sure useful testimony does not get blocked on a technicality. It still has to meet other rules for evidence, like being relevant and coming from someone qualified to give that opinion. But the fact that it touches the core issue in the case is not, by itself, a reason to keep it out.

Committee Notes

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.”

Advisory Committee Note

The language of Rule 704 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

All reference to an “inference” has been deleted, on the grounds that the deletion made the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.

Rule 704 abolishes the “ultimate issue rule” which existed in pre-rule Mississippi practice. The ultimate issue rule was often unnecessarily restrictive and generally difficult to apply. More often than not the invocation of the rule served to deprive the trier of fact of useful information. Rule 704 clarifies much of the confusion over the ultimate issue rule. An opinion is no longer objectionable solely on grounds that it “invades the province of the jury.”

The abolition of the ultimate issue rule does not result in the admission of all opinions. It is an absolute requirement under Rules 701 and 702 that opinions must be helpful to a determination of the case before they are admissible. Furthermore, under Rule 403 evidence is excluded which wastes time. A question may not be asked which is based on inadequately explored legal criteria since the answer would not be helpful. As the FRE Advisory Committee Note to FRE 705 indicates, the question in a will contest, “Did the testator have the capacity to make a will” is still not permitted, whereas the question, “Did the testator have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution” would be. The former question is not helpful; the latter is.

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.]

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