## Facts

- Kolby Kristiansen, a federal inmate, was transferred from prison to a halfway house as part of his transition toward release.
- He left the halfway house and failed to return as required.
- Kristiansen called the facility and reported that he was sick and could not return that night; over the next two days he again called in sick.
- Halfway house staff instructed him to return and indicated assistance would be provided for medical treatment, but he did not return.
- Several days later, he was arrested outside his wife’s home and charged with escape under 18 U.S.C. § 751(a).
- At trial, Kristiansen argued he lacked the willful intent to escape due to cocaine addiction and psychosis.
- The defense presented an expert who diagnosed Kristiansen as a cocaine addict suffering from psychosis at the time of the non-return.
- The district court excluded certain defense questions to the expert under Federal Rule of Evidence 704(b) and allowed a prosecution question asking whether Kristiansen was “legally accountable.”
- A jury convicted Kristiansen of escape, and he appealed.

## Issues

1. Whether Rule 704(b) permitted defense expert testimony on whether Kristiansen was able to “appreciate the nature and quality of his actions” at the time of the charged escape.
2. Whether Rule 704(b) permitted a more general defense question asking whether a mental disease or defect would affect “one’s ability” to appreciate his actions.
3. Whether it was reversible error to allow the prosecution to ask the defense expert whether Kristiansen was “legally accountable,” particularly where no contemporaneous objection was made.

## Decision

- The Eighth Circuit affirmed the conviction.
- The court held the district court properly excluded the defense question asking whether Kristiansen himself could appreciate the nature and quality of his actions because it called for an expert opinion on the ultimate mental-state element barred by Rule 704(b).
- The court held the district court erred by excluding the defense question framed generally in terms of how the disorder affects “one’s ability,” because it sought permissible testimony about the condition’s general effects rather than Kristiansen’s legal mental state.
- The court found the error harmless because substantially similar testimony was admitted, including testimony about psychosis impairing appreciation of the wrongfulness of conduct.
- The court stated it was improper to ask whether Kristiansen was “legally accountable,” but found no basis for reversal given the lack of an objection and the absence of prejudice warranting relief.

## Legal Principles

- Under Federal Rule of Evidence 704(b), in a criminal case an expert may not state an opinion on whether the defendant did or did not have the mental state or condition constituting an element of the crime or a defense.
- Rule 704(b) does not bar expert testimony describing a diagnosis and explaining the general qualities, symptoms, and typical effects of a mental disorder on perception, judgment, or ability to appreciate wrongfulness, so long as the expert does not opine on the defendant’s specific mens rea at the time of the offense.
- Improper ultimate-issue questioning may be deemed harmless where the substance of the excluded testimony is otherwise presented to the jury.
- Absent a timely objection, admission of improper questioning generally will not warrant reversal unless it rises to a level of error affecting the fairness of the proceedings.

## Conclusion

The Eighth Circuit upheld Kristiansen’s escape conviction, ruling that Rule 704(b) barred expert testimony directly addressing whether Kristiansen possessed the required mental state, while allowing general testimony about how psychosis can affect a person’s ability to appreciate the wrongfulness of conduct; any erroneous exclusion of a permissible general question was harmless, and the unobjected-to “legally accountable” question did not justify reversal.


United States v. Kristiansen, 901 F.2d 1463 (8th Cir. 1990)