Opinion on Ultimate Issue

(a) General rule; Exceptions. Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that: (1) other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in decid- ing the issue; and (2) a lay witness may give an opinion that embraces an ultimate issue identi- fying any person in video recordings or photo- graphs, if such testimony meets the standards for the admissibility of lay witness opinion testimony in Section 7-1. (b) Mental state or condition of defendant in a criminal case. ‘‘No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or Connecticut Code of Evidence did not have the mental state or condition consti- tuting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsi- ble for the crime charged is a matter for the trier of fact alone.’’ General Statutes § 54-86i. (Amended April 25, 2023, to take effect May 2, 2023.) COMMENTARY (a) General rule; Exceptions. ‘‘[A]n ultimate issue [is] one that cannot reasonably be sepa- rated from the essence of the matter to be decided [by the trier of fact].’’ (Internal quotation marks omitted.) State v. Favoccia, 306 Conn. 770, 786, 51 A.3d 1002 (2012). The common-law rule concerning the admissibility of a witness’ opinion on the ultimate issue is phrased in terms of a general prohibition subject to numerous exceptions. E.g., State v. Spigarolo, 210 Conn. 359, 373, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). The general bar to the admission of nonexpert and expert opinion testimony that embraces an ultimate issue, with certain excep- tions, remains intact, following the decision in State v. Gore, 342 Conn. 129, 269 A.3d 1 (2022). See id., 135 n.7. Subsection (a) (1) recognizes an exception to the general rule for expert witnesses in circumstances in which the jury needs expert assistance in deciding the ultimate issue. A com- mon example is a case involving claims of professional negli- gence. See, e.g., Pisel v. Stamford Hospital, 180 Conn. 314, 328–29, 430 A.2d 1 (1980). When there is particular concern about invading the province of the fact finder, courts may allow the expert to testify regarding common behavioral characteris- tics of certain types of individuals; State v. Vilalastra, supra, 207 Conn. 45 (behavior of drug dealers); but will prohibit the expert from opining as to whether a particular individual exhib- ited that behavior. See, e.g., State v. Taylor G., 315 Conn. 734, 762–63, 110 A.3d 338 (2015) (behavior of child victim of sexual abuse). Expert opinion on the ultimate issue admissible under subsection (a) (1) also must satisfy the admissibility requirements applicable to all expert testimony set forth in Sections 7-2 and 7-4. Subsection (a) (2) recognizes an exception, established in State v. Gore, supra, 342 Conn. 129, to the ‘‘ultimate issue rule’’ in circumstances in which the admission of lay opinion testimony identifying persons in surveillance videos or photo- graphs would be helpful to the jury due to the witness’ familiar- ity with the depicted individuals. The holding is not limited to surveillance video but, rather, applies to any type of video recording or photograph. Id., 132 n.2. Lay opinion testimony in this context is admissible under subsection (a) (2) if the opinion meets the requirements of Section 7-1 because it is ‘‘rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.’’ In considering the admissibility of testimony under subsec- tion (a) (2), courts should evaluate ‘‘the totality of the circum- stances’’ under the four factor test adopted in State v. Gore, supra, 342 Conn. 151, and its progeny. (b) Mental state or condition of defendant in a crimi- nal case. Subsection (b), including its use of the term ‘‘opinion or inference,’’ is taken verbatim from General Statutes § 54-86i. The Code attributes no significance to the difference between the term ‘‘opinion or inference,’’ as used in subsection (b), and 29