Please Understand,

the Defendant Misunderstood

 By Monte E. Hester; Sept 1999

     Federal financial crimes require that the government prove that the defendant’s state of mind was one of acting willfully. 

     In U.S. v. Morales, 108 F.3d 1031 (C.A.9 (Cal.) 1997), the court defined the element of willfulness as requiring proof that an act was done “knowingly and intentionally, not through ignorance, mistake, or accident.”

     In that case the Ninth Circuit reversed the defendant’s conviction.  The defendant at trial had proffered the testimony of a C.P.A. expert who was prepared to opine that the defendant had a weak understanding of bookkeeping concepts.  This testimony was being offered to rebut the government’s case, which included witness testimony that the defendant had been trained and understood bookkeeping practices relevant to the charge of making false entries in a union ledger. 

     The court, in addressing the government’s objection based on Evidence Rule 704(b) (which by its terms prohibits expert testimony as to whether a defendant did or didn’t have a particular mental state), recognized that a defendant would hope for such a conclusion if expert testimony is permitted on a level of understanding of accounting matters or tax returns.  It nevertheless felt that such evidence was necessary to preserve the defendant’s right to rebut the government’s case and to assist the jury in coming to a conclusion as to the defendant’s state of mind.  

     The opinions that were proffered were a product of the expert’s experience in doing audits; therefore qualifying him under Evidence Rule 702 to render reasonable opinions about bookkeepers’ competence based on reviews of the bookkeeper’s work and interviews.  The court not only found the C.P.A. to be qualified, but also concluded that such testimony would have aided the jury in assessing whether the defendant willfully made false entries.

     The court also found that Evidence Rule 704(b) is not limited to psychiatrists and other mental health experts.  It stated that said rule applies to any “expert witness testifying with respect to the mental state or condition of a defendant in a criminal case” who is asked to “state an opinion or inference as to whether the defendant did or did not prove the mental state or condition constituting an element of the crime charged or of a defense thereto.”

     While the rule excludes opinions that the defendant did or did not have the requisite mental state, it does not exclude testimony from which a jury might infer that a criminal defendant did or did not possess the requisite mens rea.