Diaz v. United States (23-14)

argument 23-14

Diaz v. United States

Supreme Court of the United States 1h 24m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the core issue the Court is addressing in Diaz v. United States?

John G. Roberts 0:00

We'll hear argument first this morning, case 2314, Diaz v. United States. Mr. Fisher.

Eric G. Fisher 0:07

Mr. Chief Justice, and may it please the Court, the Ninth Circuit holds that Rule 704B prohibits only explicit opinions that the, quote, particular defendant had the state of mind required to convict. The government appears unwilling to endorse that full test. It seems to agree, contrary to Ninth Circuit precedent, that Rule 704B forbids an expert from testifying that people in the defendant's position always have the requisite mens rea. Such testimony never explicitly mentions the defendant, of course, but as the government seems to recognize, it is clearly, in the words of Rule 704B, an opinion about whether the defendant had the requisite state of mind. In other words, it establishes a class of individuals, including the defendant, and it assigns a mens rea to that class.

Eric G. Fisher 0:56

Agent Flood's testimony here was no different. He testified that in, quote, most circumstances people like the defendant know they have drugs in the car when they cross the border. The only difference between that testimony and absolute class-wide testimony is that he posited that people like the defendant usually, instead of always, have the requisite mens rea. But any such distinction is immaterial. Imagine an expert took the stand and said, I believe the defendant in this case probably, or maybe there's an 80% likelihood, had the requisite mens rea. Obviously, Rule 704B would prohibit that testimony. And the testimony here is exactly the same. It expresses an opinion, a probabilistic opinion instead of an absolute opinion, but an opinion about whether the defendant had the requisite mens rea.

Eric G. Fisher 1:44

So that leaves the government's final objection that Rule 704B should not be construed to prohibit what the government calls inferentially relevant testimony. And we agree with that proposition. The rule that I'm advocating today has been employed by the Fifth Circuit for over 20 years, and it makes clear that modus operandi evidence, for example, things like drug trafficking organizations use couriers to transport drugs across the border, that drugs are extremely valuable, are perfectly legitimate. The rule in the Fifth Circuit is that testimony from which a jury might infer mens rea is perfectly permissible. But testimony that assigns amends rea to the defendant or people in her class is not okay.

Eric G. Fisher 2:25

And that's what Agent Flood did here. And for that reason, we'd ask the court to reverse.

Clarence Thomas 2:29

Mr. Fisher, you put quite a bit of weight in your argument on the preposition on about. And that was a stylistic change, certainly non-substantive. Do we normally put that much emphasis or that much weight on stylistic changes to statutes?

Eric G. Fisher 2:49

Well, I think what I would say, Justice Thomas, is the Court obviously puts a lot of weight on the text of the statute. And so I start with the current text of the statute.

Clarence Thomas 2:56

Okay, so even with that, it says about defendant. It doesn't say about someone else. So you're saying that even if it's indirect, it's about this defendant.

Eric G. Fisher 3:10

Let me say two things, Justice Thomas. First, to finish my answer about the word about, what we say is that preposition is important, just like the prior preposition, as to, before the stylistic amendment, because it makes clear the Ninth Circuit's clear statement rule requiring an explicit opinion is too narrow. So that's what the preposition about does. Now, you also asked me about the defendant. And our position there is very simple, is that that word covers either a direct statement about the particular defendant or a statement about a class of people, including the defendant. I don't think the government disagrees that the rule covers a statement covering, I'm sorry, that the rule covers a class of people, including the defendant, as long as it's stated in absolute terms.

Eric G. Fisher 3:53

So if I understand the government's position correctly, it agrees you need not mention the explicit defendant. If you talk about a class of people that includes the defendant and say, Those people always have the requisite mens rea.