Carol Palmer appeals from a district court judgment finding him to be a sexually violent predator subject to civil commitment under Iowa Code chapter 229A (2003). He claims the court erred in admitting opinion testimony and in refusing to instruct the jury that he was presumed not to be a sexually violent predator. We affirm.
I. Background Facts and Proceedings
The appellant, Carol Palmer, is seventy-five years old. He is a pedophile with a long history of molesting young girls. His criminal record dates back to 1958, when he was arrested and served thirty days in jail for asking an eight-or nine-year-old girl to walk home from the movies with him. Since that time, his record has included convictions for lascivious acts with his wife’s great-niece, a neighborhood girl, and two of his wife’s granddaughters. Palmer’s most recent conviction occurred in 2002. He was convicted of indecent contact with a child and indecent exposure for molesting the daughter of his son’s friend and was sentenced to three years in prison. During his time in prison, he began, but did not complete, the sexual offender treatment program.
On June 17, 2003, the,State filed a petition to have Palmer declared a sexually violent predator subject to civil commitment under chapter 229A. Prior to trial, Palmer filed a motion in limine seeking to limit the testimony of Dr. Anna Salter, an expert witness employed by the State to testify at trial. Palmer asserted: '
Dr. Salter may offer her expert opinion that Respondent is at risk to re-offend based on the results of testing on the actuarial instruments and her own clinical observations, but her testimony should be limited to the risk assessment findings, i.e. risk probabilities. Any testimony that goes beyond the results of the Respondent’s risk assessments invades the province of the jury and should be excluded from the jury’s consideration pursuant to Iowa Rule of Evidence 5.702. State v. Dunkins,553 N.W.2d 339 (Iowa 1996) (expert witness is not permitted to express direct opinion on guilt or innocence of defendant, which is exclusive function of finder of fact).
At the pretrial hearing on the motion, counsel for Palmer further articulated his objection to the expected opinion testimony of Dr. Salter. Counsel argued Dr. Salter should be precluded from using the “likely to engage in predatory acts constituting sexually violent offense” language of the governing statute in expressing her opinion. See Iowa Code § 229A.2(9). Instead, counsel asserted, Dr. Salter should be required to frame her opinion in terms of a low, moderate, or high risk to reof-fend. Otherwise, counsel argued, Dr. Salter’s opinion would answer the precise question to be presented to the jury. The district court denied the motion in limine.
A jury trial was held commencing on November 12, 2003. At trial, the State asked Dr. Salter:
[W]ere you able to formulate an opinion as to a reasonable degree of professional certainty about whether the respondent’s pedophilia makes it likely that he will engage in predatory acts of a sexu *416 ally-violent nature if he’s not confined in a secure facility?
Palmer’s counsel objected on the grounds that the question “invades the province of the jury and it touches on an ultimate issue that is for the jury.” The court overruled the objection, and Dr. Salter was allowed to give her opinion. She answered: “It is that he’s likely to engage in predatory acts constituting sexually-violent offenses if he’s not confined.” Palmer’s counsel objected again and moved to strike the answer, but the court denied the motion. Ultimately, the jury found Palmer to be a sexually violent predator, and the district court ordered his commitment.
Palmer appeals and raises two issues. First, he claims the district court erred by allowing Dr. Salter to testify that Palmer was “likely to engage in predatory acts constituting sexually-violent offenses if he’s not confined.” Second, Palmer argues the district court erred by refusing to instruct the jury that he was presumed not to be a sexually violent predator. He claims the failure to give this instruction violated his due process rights.
II. Standard of Review
Generally, we review rulings on the admissibility of evidence for an abuse of discretion.
State v. Dullard,
III. Opinion Testimony
A. Preservation of Error
The State asserts Palmer failed to preserve error on the district court’s ruling admitting Dr. Salter’s opinion testimony. The State contends an objection grounded on invasion of the province of the jury is invalid and insufficient to preserve error. The State cites
Bornn v. Madagan,
in which the court of appeals stated: “Our law refuses to sanction the objection that a qualified expert’s testimony ‘invades the province of the jury.’ Our courts have held such objections to be ‘of no force or effect.’ ”
Palmer contends his objection was sufficient to preserve error “because the nature of his objection was obvious: the objection followed a question and opinion that simply paraphrased the statutory definition of a sexually violent predator.”
See State v. Clay,
In order to decide whether Palmer’s objection was sufficient to preserve error, it is helpful to examine the nature of the evidence to which he objected, as well as the rules employed to exclude it and the problems sought to be avoided by such rules. Initially, Palmer’s objection that Dr. Salter’s opinion would “invade the province of the jury” seems to be an invocation of the so-called ultimate issue rule.
*417 B. The Ultimate Issue Rule
Historically, a witness was precluded from offering an opinion on an “ultimate” issue in a case. 1 McCormick on Evidence § 12, at 51 (John W. Strong ed., 5th ed.1999) [hereinafter McCormick ]; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 704App.l00, at 704App. — 4 (Joseph M. McLaughlin ed., 2d ed.2004) [hereinafter Weinstein ]. “The stated justification was sometimes that such testimony ‘usurps the function’ or ‘invades the province’ of the jury.” 1 McCormick § 12, at 51; accord Weinstein § 704App.l'00, at 704App. — 4. Yet, application of the rule often “led to odd verbal circumlocutions which were said not to violate the rule.” Fed.R.Evid. 704 advisory committee’s note. For example,
a witness could express his estimate of the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standard'. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of “might or could,” rather than “did,” though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible.
Id. Moreover, in practice,- the ultimate issue rule created many problems:
1.The distinction between ultimate and nonultimate facts proved impossible to draw. Although, in theory, ultimate facts are clearly distinguishable from the subsidiary facts introduced to proved them, in most actual cases the distinction may be “scarcely appreciable.”
2. It was at times impossible for a wit- ■ ness to couch his or her testimony in anything but ultimate facts. The ultimate-facts rule here resembled the ■ opinion rule for lay witnesses. If a witness in an automobile accident case testified that the car was speeding, objections could be raised both on the basis if the opinion rule and the ultimate-facts rule. As in the case of the opinion rule, expediency led to exceptions. Courts often allowed the witness to express an opinion on issues like speed, value, or identity if the witness would not otherwise have been able to give any testimony df value to 'the jury.
3. The expressed rationale for the ultimate-facts rule made little sense. Experts cannot invade the province of the jury because jurors are free to draw their own conclusions.
4. To further complicate the situation, a number of courts attempted to draw a distinction between testimony on an ultimate fact and testimony on an issue of law, allowing the former but barring the latter. Unfortunately this- required separating matters of law from matters of fact, an often impossible task in this as well as other contexts.
Weinstein
§ 704App.l00, at 704App.-4 to - 5 (citations omitted);
see also
7 John Henry Wigmore,
Evidence in Trials at Common Law
§ 1920; at 18 (James H. Chadbourn rev. ed. 1978) (“Th[e] ' phrase [“usurping the province of the jury”] is so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric.... [The witness]
could not
usurp it if he would,' because the jury may still reject his opinion
*418
and accept some other view, and no legal power, not even the judge’s order, can compel them to accept the witness’ opinion against their own.”). Thus, around 1942, a trend emerged to abandon the ultimate issue rule. 1
McCormick
§ 12, at 52. Our decision in
Grismore v. Consolidated Products Co.,
C. The Grismore Decision
In
Grismore,
we stated that objections claiming evidence would “invade the province of the jury” or “usurp the function of the jury” “stem from a misconception of the necessity and purpose of opinion testimony.”
Any such objection is not valid or tenable if the opinion called for is about a matter which is a proper subject of expert testimony. No such ... opinion can invade the province of the jury or usurp its functions even though it passes upon a controlling fact or the ultimate fact which the jury must determine. This is necessarily so.
Id.
at 343,
There is no sound basis in law, reason, or common sense for decisions that a witness may state his opinion as to what “may,” “might,” “could,” or “probably did” cause something, but may not give an opinion as to that “did,” “will,” or “would,” cause it. The true rule is, and should be, that the witness may use such expression as voices his true state of mind on the matter, whether it be possibility, probability, or actuality. To insist that a witness confine his testimony to an expression of possibility or probability, when his real judgment or conviction is actuality, or fact, is unfair to the witness and the jury, and unjust to the party offering the testimony.
Id.
at 348,
While we abandoned the ultimate issue rule and the verbal circumlocutions it entailed, we were careful to caution that there were still limits on the admissibility of opinion testimony:
It should be received only as to such matters as are the proper subject of expert testimony. No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, or that a person was negligent or not negligent, or that he had capacity to execute a will or deed, or like instrument, or ... whether [probable cause existed]. But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact. When a standard, or a measure, or a capacity has been fixed by law, no witness whether expert or non-expert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct, in question, measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence.
Id.
at 361,
*419 D. Iowa Rules of Evidence
Iowa Rule of Evidence 5.704, which is identical to its federal counterpart and consistent with our approach in Grismore, provides: “Testimony in the form or an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Iowa R. Evid. 5.704 (emphasis added). That is, opinion testimony is not inadmissible because it embraces the ultimate issue in the case, but it must still be admissible under the other rules of evidence. Importantly, the opinion must be helpful to the trier of fact under rules 5.701 and 5.702. Thus, a witness cannot opine on a legal conclusion or whether the facts of the case meet a given legal standard. Iowa R. Evid. 5.704 advisory committee comment. Such an opinion would be of no value to the jury. In most cases, the jurors are fully capable of applying the facts of the case to the law provided to them by the trial judge. But see Weinstein § 704.04[2][a], at 704 — 13 to —14 (stating that such an opinion may be admissible in a case involving a specialized industry or complex area of law).
The most troubling problem with questions and opinions couched in terms of legal standards and conclusions, and the primary underlying reason they are often inadmissible, is that-they “may be misunderstood by' the witness and the jury if they do not know-the law’s definition of’ the- legal standards used. 1
McCormick
§ 12, at 55;
accord Weinstein
§ 704.04[2][b], at 704 — 14 (“Another reason for excluding opinion testimony in the form of a legal conclusion is the danger of confusion that arises because legal terminology generally has a different meaning to lay persons than lawyers.”);
see also Torres v. County of Oakland,
Whether an opinion couched in legal terms is excludable on this basis depends on “whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular. If they do, exclusion is appropriate.”
Torres,
Generally, the best resolution for this problem is for the questioner to break down the legal terms into its factual elements. For example, “the question ‘Did T have the capacity to make a will?’ would be excludable” because “capacity” is a legal term with a more precise, specialized legal meaning than the lay understanding of that term. Id. However, if the questioner simply asks, “ ‘Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?,’ ” the danger of confusion is- avoided. Id. That is, “the proponent of opinion testimony may enhance the likelihood of its admissibility by carefully exploring the bases for the opinion and by phasing his [or her] examination in factual terms.” Adams & Weeg § 5.704.2, at 579.
E. Dr. Salter’s Opinion
As previously noted, the question posed to Dr. Salter in this case was: “[W]ere you able to formulate an opinion as to a reasonable degree of professional certainty about whether the respondent’s pedophilia makes it likely that he will engage in predatory acts of a sexually-violent nature if he’s not confined in a secure facility?” This question essentially asked whether Palmer met one of the elements of the statutory definition of “sexually violent predator.”
The Sexually Violent Predator Act (SVPA) defines “sexually violent predator” as
a person who has been convicted of or charged with a sexually violent offense and who suffers from an mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.
Iowa Code § 229A.2(11). The definition can be broken down into three main elements: (1) commission of a “sexually violent offense,” (2) “mental abnormality,” and (3) “makes the person likely to engage in predatory acts constituting sexually vio *421 lent offenses if not confined in a secure facility.” Id. In this ease, there was no dispute that Palmer had committed a “sexually violent offense” and that he had:a “mental abnormality” as defined by the statute. The third element of the definition was the fighting issue at trial.
The third element of the definition contains within it three statutorily defined phrases: (1) “likely to engage in predatory acts of violence,” see id. § 229A.2(4) (defining the phrase as “the person more likely than not will engage in acts of a sexually violent nature”), (2) “predatory,” see id. § 229A.2(6) (defining the term as “acts directed toward a person with whom a relationship has been established or promoted for the .primary purpose of victimization”), and (3) “sexually violent offense,” see id. § 229A.2(10) (defining the phrase as any violation of chapter 709 or various other sexually motivated offenses). Under rule 5.704, the question propounded to Dr. Salter was not objectionable solely because it embraced an ultimate issue in the case. Thus, to the extent that the objection by Palmer raised this point, it was properly overruled by the district court. Yet, upon close examination of the complete record, Palmer’s objection was that the witness was being asked to render an opinion by utilizing the statutory standard of “likely to engage in predatory acts constituting sexually violent offenses.” We must therefore consider whether this specific ground makes the testimony sought by the question “otherwise” inadmissible.
We have previously noted the problem presented by questions that convey a witness’s undefined legal standard. Yet, the statutory definition of “likely” is “more likely than not.” Iowa Code § 229A.2(4). This definition is essentially the same as the common usage of the term.
See Hearst,
However, the same rationale does not apply to the two remaining statutory terms used in the question posed to Dr. Salter, “predatory” and “sexual violent offense.” These statutorily defined terms have “a separate, distinct and specialized meaning in the law different from that present in the vernacular.”
Torres,
Nevertheless, we have previously explained:
Because the function of an objection is to invoke a rule of evidence to regulate admission of proof at trial, it is sufficient if it alerts the trial court to the principle sought to be invoked. ‘In determining the formal sufficiency of an objection, it is enough if the substance of the defec *422 tive feature of the evidence offered is made clear by any choice of language. Care must be taken that the objection strike at the very heart of the infirmity.’
State v. Nimmo,
Palmer’s objection did not address the State’s use of these two distinct legal terms in its question as ground for error and did not “alert[] the trial court to the principle sought to be invoked.”
Id.
“ ‘Care must be taken that the objection strike at the very heart of the infirmity.’ ”
Id.
(citation omitted). The proper objection would have been that the question called for a legal conclusion, for an opinion that was not the proper subject of expert testimony,
Schlichte v. Franklin Troy Trucks,
Moreover, even assuming that error was preserved, the result would be the same because no prejudice resulted from Dr. Salter’s opinion. “The existence of error at trial does not itself warrant corrective action on appeal. Rather, under the ‘harmless error’ rule, the determinative factor in ascertaining whether remedial measures are warranted is the prejudicial impact of the error.” Adams & Weeg § 5.103.14, at 54. No prejudice results from erroneous admission of evidence on an issue that is undisputed.
Id.
at 59 (citing
Oakes v. Peter Pan Bakers, Inc.,
IV. Jury Instruction
Palmer’s second claim is that the district court erred in refusing to instruct the jury that he was presumed not to be a sexually violent predator. Even in criminal cases, “the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.”
Kentucky v. Whorton,
V. Conclusion
We conclude the district court did not abuse its discretion in admitting Dr! Salter’s opinion testimony and refusing to give Palmer’s requested instruction. Therefore, we affirm the judgment of the district court.
AFFIRMED.
Notes
. In State v. Moses, we summarized:
The Grismore rule has since been applied in a variety of cases under widely differing *419 circumstances. E.g., Kooyman v. Farm Bureau Mutual Insurance Co.,315 N.W.2d 30 , 37 (Iowa 1982) (witness not permitted to say defendant's conduct amounted to bad faith); State v. Nimmo,247 N.W.2d 228 , 230 (Iowa 1976) (witness not permitted to say that marijuana found on defendant “would be quite a bit more than a person would have on hand for personal use"); State v. Swartz,244 N.W.2d 553 , 555 (Iowa 1976) (witness not permitted to say that "marijuana was in the [defendant's] home to be sold or delivered by defendant and his wife” because it conveys conclusion of legal guilt); State v. Ogg,243 N.W.2d 620 , 621 (Iowa 1976) (witness not permitted to say “forty-six tablets of LSD far exceeds what one might possess for personal use” because statement expressed opinion of guilt); Speed v. State,240 N.W.2d 901 , 911 (Iowa 1976) (witness could testify that physician failed to use ordinary skill, but could not testify that doctor was negligent); State v. Johnson,224 N.W.2d 617 , 622 (1974) (expert on "tilltapping” not allowed to say crime of tilltapping had occurred); State v. Galloway,167 N.W.2d 89 , 94 (Iowa 1969) (polygraph expert could testify to defendant’s lack of veracity but was not permitted to say that defendant was involved in the shooting); M. Capp Mfg. Co. v. Hartman,260 Iowa 24 , 28-29,148 N.W.2d 465 , 468 (1967) (building inspector prohibited from testifying that the building's structure violated zoning ordinance); In re Ransom's Estate,244 Iowa 343 , 371-72,57 N.W.2d 89 , 104-05 (1953) (witness not permitted to say whether testator was competent to make, will because the inquiry involved a mixed question of law and fact and was a direct inquiry as to the testator’s testamentary capacity).