Chapter 13 - § 13.5 • BALLISTICS

• Jurisdiction: Colorado

§ 13.5 • BALLISTICS

§ 13.5.1—Introduction

An expert ballistician's evidence based on tests, studies, and examinations of bullets and weapons can be persuasive testimony in the prosecution's case.

The admissibility of expert ballistics testimony in a criminal case lies within the discretion of the trial judge. See People v. Hogan, 114 P.3d 42, 50 (Colo. App. 2004). The jury determines the weight to be given to the expert testimony. See People v. Fasy, 829 P.2d 1314, 1318 (Colo. 1992). However, the judge should charge the jury that expert testimony is merely evidence to be weighed with all other evidence and that it is in no way binding upon them. Id. (judge properly instructed jury that they were not bound by expert opinions and it was the jury's decision to determine the weight); Hampton v. People, 465 P.2d 394, 400 (Colo. 1970).

§ 13.5.2—Foundation Requirements

Laying a foundation for expert ballistics testimony usually requires the following:

• The chain of custody for the "questioned item" (such as the bullet, cartridge casing, or gun) must be established and the item must be marked as a trial exhibit;
• The chain of custody for the evidence linking the defendant to the crime (such as the bullet, cartridge casing, or gun) must be established (the "known item") and the item must be marked as a trial exhibit;
• The ballistician is properly qualified as an expert witness; and
• The ballistician must give his or her opinion linking the questioned item with the known item.

§ 13.5.3—Sample Examinations

In a murder trial, in order to lay a foundation for expert ballistics testimony, the bullet that was removed from the decedent's body must be authenticated. Only then can the expert render an opinion regarding it. Accordingly, such testimony must occur in two stages.

Investigating Detective (Witness No. 1)

Detective Lieutenant John Michaels, who is attached to the District Attorney's Office of Mesa County, has been testifying on direct examination to his investigation of the murder of Henry Masters.

PROSECUTOR: Lt. Michaels, during the course of your investigation, did you attend a medical inquiry at some time that related to the decedent, Henry Masters?

WITNESS: Yes, I did. On October 11, 2006, I was present and observed the entire autopsy of the decedent, Henry Masters.

PROSECUTOR: Where was the autopsy performed?

WITNESS: In the coroner's room at the Grand Junction Free Hospital in Grand Junction, Colorado.

PROSECUTOR: Who performed the autopsy?

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