Opinion and Expert Testimony Under the Proposed Colorado Rules of Evidence
| Publication year | 1979 |
| Pages | 982 |
| Citation | Vol. 8 No. 6 Pg. 982 |
1979, June, Pg. 982. Opinion and Expert Testimony Under the Proposed Colorado Rules of Evidence
Dean R, Vanatta, Denver, is a member of the firm of Wagner, Wyers, Vanatta and Spelts, P.C.
On August 29, 1979, the Supreme Court of Colorado announed its intention to promulgate rules of evidence which will be applicable state-wide.(fn1) The state legislature now has before it a resolution that, if successful, would submit a constitutional amendment to the voters placing the power to enact rules of evidence with the General Assembly rather than the Supreme Court (see Appendix). Despite the current uncertain status of the proposed rules, the author feels that the rules will be promulgated by one or the other in substantially their present form.
Article VII of the proposed rules is entitled "Opinions and Expert Testimony." Article VII contains Rules 701 through 706, which are identical to their counterparts in the Federal Rules of Evidence.(fn2)
The general theme of the Colorado Rules of Evidence is one of inclusion rather than exclusion of evidence.(fn3) The rules contemplate that if evidence has some aura of trustworthiness and some probative value in determining issues, the matter should be admitted into evidence to be weighed by the trier of fact. To the extent that the trial judges understand and believe in this philosophy, the trial lawyer can expect a general liberalization of the rules of evidence on opinions and expert testimony.
This article will review the proposed rules on opinion and expert testimony and compare the proposed rules with existing law.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (A) rationally based upon the perception of the witness (B) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Under traditional concepts of the law of evidence, witnesses could testify only to facts perceived by that witness as distinguished from the witness' opinions, conclusions, inferences or impressions.
Inferences and conclusions were to be drawn by the judge or jury, not the witness. Practical application of the rule was difficult since the rule failed to recognize the common, everyday method of expression in the form of opinions, conclusions, inferences, and impressions.(fn4) The courts, therefore, created certain exceptions to the general exclusionary rule. If the lay opinion was within the realm of
common knowledge and experience, or involved everyday, ordinary matters, the witness was allowed to testify. For example, lay opinions were held proper on questions of sanity,(fn5) value of land,(fn6) intoxication,(fn7) handwriting,(fn8) speed,(fn9) and other matters within the common ordinary knowledge of the average layman.(fn10) It was, of course, necessary to lay a foundation by showing that the witness had a sufficient opportunity to observe or perceive.(fn11)
The justification for the exceptions was that if a lay witness testifies as to opinions that are within the realm of common knowledge and experience of other laymen, the fact finder can understand the testimony and is capable of weighing its credibility, the same as if the witness had testified as to a matter of fact.
Rule 701 should not change the substance of existing Colorado law. Instead of listing the various subject areas in which a lay witness may testify in the form of an opinion, the rule establishes a more sensible guide. Two requirements must be met:
1. The opinion or inference must be rationally based on the witness' perceptions. That is, the witness must have observed or personally experienced by the use of his own senses, the matters upon which he bases his opinion or draws his inference. This is the traditional foundation requirement. Rule 602, requiring that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter, should be read in conjunction with Rule 701(A).
2. The opinion or inference must be helpful to the trier of fact in resolving issues. The second requirement of the rule will allow courts to exercise broad discretion in excluding testimony which is beyond the realm of common knowledge, cumulative, irrelevant, confusing or misleading, prejudicial, or for some other reason not helpful in understanding the testimony or in the determination of a fact or issue.
The rules specifically allow lay opinion testimony in three instances, Rules 404 and 405 allow a witness to testify in the form of an opinion of the character of an accused or victim in a criminal case where the character of the accused or the character of a victim has been put in issue by the defendant. Rule 608 allows impeachment of a witness by opinion evidence of the witness' veracity and allows rehabilitation of a witness by opinion testimony as to the witness' truthfulness. Rule 901(b)(2) allows non-expert opinions on the genuineness of handwriting if based on familiarity not acquired for the purpose of litigation.
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Litigation often involves issues which require technical and specialized knowledge in order to be understood properly. Resolution or evaluation of these issues cannot be intelligently made from the knowledge, conclusions, deductions or inferences of the untrained and unassisted layman. For this reason, the courts have allowed those who possess specialized skill or knowledge of the subject matter in issue to state their opinions, inferences and conclusions where such testimony will assist the trier of fact.(fn12)
Rule 702 codifies existing Colorado law on the admission of testimony by experts. The rule sets forth two requirements:
1. The "scientific, technical or other specialized knowledge" must "assist the
trier of fact to understand the evidence or to determine a fact in issue."
The rule recognizes that an expert may give a dissertation or exposition of scientific or other specialized principles relevant to the case, leaving the trier of fact to apply them to the facts.(fn13)
The determination as to whether or not the testimony will "assist the trier of fact" will necessarily require the exercise of broad discretion of the trial court, similar to the determination as to whether or not lay opinion testimony will be "helpful" to the jury under Rule 701. This broad discretion will allow trial courts to exclude evidence that is not beyond the common knowledge of ordinary people, cumulative, time-consuming, or otherwise would not assist the trier of fact.
2. The witness must be qualified as an expert.
The rule provides that an expert may be qualified by knowledge, skill, experience, training, or education. This broad source of expertise provides a fertile area for the exercise of the trial lawyer's imagination and may result in the liberalization of some trial court's views on the admissibility of "expert" testimony. The rule itself certainly views the expert in the broad sense. Within the scope of the rule are not only experts in the strictest sense of the words such as physicians, physicists, and architects, but also the large group sometimes called "skilled witnesses."(fn14)
An example of this approach exists in Gardner v. General Motors Corp.(fn15) where the trial court, over the defendant's objections, allowed a mechanical engineer and a chemical engineer to express opinions relating to the question of a defect in the design of a truck's exhaust system. In upholding the trial court's ruling, the court stated:
In its ruling, the trial court noted specifically that "where an expert has the education or background to permit him to analyze a set of circumstances, he can through reading, calculations, and reasoning process from known scientific principles make himself very much expert in a particular product even though he has not had actual practical experience in its manufacture."
Significantly, we believe this rationale for the trial court's ruling is consistent with Rule 702 of the proposed Rules of Evidence for the United States Courts and Magistrates. That rule and the committee's note thereto indicate clearly that one may qualify as an expert by "knowledge, skill, experience, training or education" and that the "expert" as such should...
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