U.S. Supreme Court Justice Neil Gorsuch lamented the “powerful new tool” handed to prosecutors by the high court in his dissenting opinion in a drug trafficking case.
In the 6-3 opinion in the Diaz v. United States case, Gorsuch was joined by Supreme Court Justices Elana Kagan and Sonia Sotomayor in his dissent, criticizing the decision that ruled against the defendant.
“Delilah Guadalupe Diaz appealed to the justices after a jury found her guilty of importing methamphetamine across the U.S. southern border, a charge that requires the government to prove that Diaz was knowingly transporting drugs,” The Hill reported. “Diaz, who asserts she was a blind mule and was unaware of the drugs in her car, contended that federal evidence rules did not permit prosecutors to have their expert witness testify to the jurors that most couriers know they are carrying illegal drugs.”
But her appeal was rejected by the high court, with the majority opinion by Justice Clarence Thomas who was joined by Justice Ketanji Brown Jackson as well as Chief Justice John Roberts, Justice Samuel Alito, Justice Brett Kavanaugh, and Justice Amy Coney Barrett.
Majority: No error here because the govt’s drug-mule expert didn’t testify what was *actually* in John Doe’s mind at the relevant time—instead, he testified as to what would most likely have been in the mind of the average *John Doe-like person* at that time.
Gorsuch: Yeah, No. pic.twitter.com/Sapc0CfezD
— Clark Neily (@ConLawWarrior) June 20, 2024
The federal evidence rule argued in the case holds that expert witnesses “must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged.”
As such, the testimony of a Department of Homeland Security agent in the Diaz case was admissible because it was not about Diaz herself, but about drug traffickers in general, according to Thomas.
“An expert’s conclusion that ‘most people’ in a group have a particular mental state is not an opinion about ‘the defendant,’” the conservative justice wrote.
But Gorsuch disagreed, writing in his dissent, “What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.”
“Federal Rule of Evidence 704(b) prohibits an expert witness from offering an opinion ‘about whether the defendant did or did not have [the] mental state’ needed to convict her of a crime,” Gorsuch wrote. “There’s no Rule 704(b) problem, the Court holds, as long as the government’s expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction.”
“The upshot? The government comes away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand—someone who apparently has the convenient ability to read minds—and let him hold forth on what ‘most’ people like the defendant think when they commit a legally proscribed act,” wrote the justice appointed by then-President Donald Trump.
“Then, the government need do no more than urge the jury to find that the defendant is like ‘most’ people and convict,” he added.
“Persuaded that today’s decision is mistaken, but hopeful that it will ultimately prove immaterial in practice, I respectfully dissent,” Gorsuch concluded.
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Author: Frieda Powers
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