Lay Versus Expert Testimony: Does Venalonzo v. People Clarify the Law?
| Publication year | 2017 |
| Pages | 46 |
| Citation | Vol. 46 No. 8 Pg. 46 |
August, 2017
EVIDENCE
By JOHN T. LEE AND KEVIN E. MCREYNOLDS.
In Venalonzo v. People, the Colorado Supreme Court revised the test for distinguishing lay testimony under CRE 701 from expert testimony under CRE 702. This article examines Venalonzo and discusses potential issues arising from its revised “ordinary person” inquiry.
In 2002, the Colorado Supreme Court noted in People v. Stewart that the divide between expert and lay testimony created by CRE 701 had “generated equal measures of confusion and controversy.”[1] In an attempt to clarify that uncertainty, the Court followed the reasoning from three federal circuit courts and held that when a witness’s opinion or inference testimony was based not only on her perceptions and observations, “but also on her specialized training or education, she must be properly qualified as an expert under CRE 702 before offering testimony that amounts to expert testimony.”[2]
In the ensuing years, the Colorado Court of Appeals grappled with applying the standard announced in Stewart in 18 published opinions.[3] Like Stewart, those cases focused on how witnesses reached their opinions. But recently, in Venalonzo v. People, the Colorado Supreme Court revised the controlling test for separating lay testimony under CRE 701 from expert testimony under CRE 702.[4] In particular, the Court has directed that lay witness testimony under CRE 701 only encompasses opinion or inference testimony that “could be expected to be based on an ordinary person’s experiences or knowledge.”[5] On the other hand, testimony that goes beyond the realm of common experience such that it could not be offered without specialized experiences, knowledge, or training is only appropriate from an “expert” witness under CRE 702.
Although at first glance the ordinary person test appears to simplify that distinction, Venalonzo and the accompanying case of People v. Ramos[6] demonstrate that the ordinary person inquiry may create more questions than answers. This article examines the holdings in Venalonzo and Ramos and discusses potential issues and implications arising from the revised ordinary person inquiry.
The Law Before Venalonzo
CRE 701 limits a lay witness’s “opinions or inferences” to those that are “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” CRE 701 tracks changes made in 2000 to Federal Rule of Evidence (FRE) 701. According to the Federal Advisory Committee notes, the limitation in FRE 701(c) regarding “scientific, technical, or other specialized knowledge” was added as part of an effort to prevent parties from evading the heightened requirements of FRE 702 “through the simple expedient of proffering an expert in lay witness clothing.” CRE 702 provides “[i]f 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.”[7] In essence, the amendment clarifies that CRE 701 and 702 are mutually exclusive—opinion or inference testimony based on scientific, technical, or other specialized knowledge is excluded under CRE 701, and permitted only under CRE 702.
The Colorado Supreme Court addressed the difference between CRE 701 and CRE 702 in Stewart.[8] The case arose out of an incident in which Wayne Stewart, after leaving a bar, veered toward three pedestrians and hit one of them with his car.[9] At trial, the parties disputed exactly how Stewart’s vehicle hit the pedestrian.[10] The People called the investigating officer, who testified as a lay witness about his investigation, including his reconstruction of the incident based on his analysis of a “squiggle mark.”[11] While the Court found that the officer ’s testimony about his observations and his investigation were admissible as lay testimony, it determined that his “deductions about . . . the vehicle’s direction, position, and speed” during the accident were outside the scope of CRE 701 because the officer’s opinion required specialized training and knowledge.[12]
Venalonzo Emphasizes the “Ordinary Person” Inquiry
In Venalonzo, the defendant was convicted of sexual assault on a child, attempted sexual assault on a child, possession of drug paraphernalia, and resisting arrest.[13] The charges stemmed from a report that, in an apartment hallway, the defendant called over to two children and touched one of them sexually.[14] At trial, the prosecution called, as a lay witness, the forensic interviewer who had interviewed the victims.[15] Over the defendant’s objections, the forensic interviewer testified about her prior experience; whether children typically say different things to the interviewer than they do to responding offers or Department of Human Services workers, or when testifying at trial; the difference between core or peripheral details and why it mattered to the victims’ variances in their reports over time; that the term “reproduction” meant that child victims generally demonstrate inappropriate touching on their own bodies; and how one of the victim’s “reproduced” the event in question.[16]
The Court found that parts of the forensic interviewer’s testimony exceeded the scope of permissible lay testimony, explaining that whether a witness’s testimony is lay or expert depends on the facts and surrounding circumstances and “requires a case-by-case analysis of both the witness and the witness’s opinion” with the “critical factor” being the basis for the witness’s opinion.[17] The inquiry is not whether the witness is drawing on personal experience but the “nature of the experiences that could form the opinion’s basis.”[18] In determining whether testimony could be given by an “ordinary” (i.e., non-expert) witness, courts consider “whether ordinary citizens can be expected to know certain information or to have had certain experiences . . . . Expert testimony, by contrast, is that which goes beyond the realm of common experience and requires experience, skills, or knowledge that the ordinary person would not h a v e .” [19] The Court summed up its holding as follows: “If the witness provides testimony that could be expected to be based on an ordinary person’s experiences or knowledge, then the witness is offering lay testimony” and, on the other hand, if “the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering...
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