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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series - RULE 704

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

Do you know what rule is most misunderstood and quoted by lawyers? Its Rule 704.

Objection Judge! That question goes to the ultimate issue. It invades the province of the jury to decide the question at trial. He can't just ask him if he thinks the defendant is not guilty of intoxication manslaughter because he didn't alcohol didn't cause the result!

What should the judge say? OVERRULED!

Its simple, Texas Rule of Evidence 704 is one sentence long. "An opinion is not objectionable just because it embraces an ultimate issue."

That's it. That's the whole rule. So why all the confusion? Well that is because the common law had a different rule. It was said under the common law that a lay or expert witness was not allowed to testify to the ultimate issue in the trial because that was the whole purpose of having the trial. The province of the jury was to draw the logical inferences from pieces of evidence admitted by the parties and to make its own conclusion. Therefore under the common law questions like, "Is the county liable?" would not be allowed.

The Texas Supreme Court knew this was a problem as far back as Carr v. Radkey, 393 S.W.2d 806 (Tex. 1965). But that still hasn't stopped people from continuing the tradition of objecting to questions which go to the ultimate issue or invade the province of the jury.

The Texas Rules of evidence previously adopted rule 704 in this form, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." That was apparently too complicated for lawyers and the rule was shortened to its current form after years of litigation about what the phrase "otherwise admissible" means.

This doesn't mean that you can just ask anything you want though. In Mowbray v. State, 788 S.W.2d 658 (Tex. App. --Corpus Christi 1990 pet. ref'd) the defense asked the defendant's friend if he was capable of committing murder and the court excluded the statements because they were not "helpful" to the jury in making a determination under the 701 (Lay opinions which have to be helpful to a clear understanding of the testimony) and 702 (which applies to experts only.). If you ask a lay witness with no specific or personal knowledge an ultimate issue question it is probably going to be excluded with the good old, "Objection Speculation!" But technically it is not objectionable just because it embraces the ultimate issue.

But Lay witnesses who have known a defendant for their whole lives can testify about future dangerousness. Cass v. State, 676 S.W.2d 589 (Tex. Crim. App. 1984). And be on the look out for questions that aren't helpful because they merely tell the jury who or what to believe and for no particularized reason. For example and accident reconstruction expert could probably say that someone acted negligently based on an investigation. But in Lum v. State, 903 S.W.2d 365 (Tex. App. -- Texarkana 1995, pet. ref'd) a lay witness was not allowed to simply state that the defendant acted negligently with no real basis for the testimony.


Rule 704. Opinion on an Ultimate Issue An opinion is not objectionable just because it embraces an ultimate issue


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