Chapter 7 - § 7.2 FOUNDATION FOR ADMISSIBILITY

• Jurisdiction: Colorado

§ 7.2 FOUNDATION FOR ADMISSIBILITY

§ 7.2.1—Generally

Colorado

➢ Court as Gatekeeper. The trial court is the gatekeeper charged with keeping junk science or unreliable expert testimony from tainting the jury. In that regard, it is permissible for the court to ask questions of a witness during the Shreck hearing to satisfy that obligation, so long as the judge does not ask questions advocating a certain position. People v. Medrano-Bustamante, 2013 COA 139, cert. granted on other grounds (2014).
➢ Reliability and Relevance; Speculation. For expert testimony to be admissible under CRE 702, it must be both reliable and relevant. Speculative testimony that would be unreliable and therefore inadmissible under CRE 702 is opinion testimony that has no analytically sound basis. Expert testimony is not speculative simply because it is in the form of an opinion or stated with less than certainty, such as "I think" or "it is possible." People v. Ramirez, 155 P.3d 371 (Colo. 2007).

➢ Helpfulness to the Jury; Fit. Whether expert testimony is helpful to the jury hinges on whether the proffered testimony is relevant and fits the case at bar. Fit demands more than simple relevance; it requires a logical relation between the proffered testimony and the factual issues in the case. People v. Martinez, 74 P.3d 316 (Colo. 2003); People v. Weeks, 2015 COA 77.

➢ Reliability and Relevancy. The focus of a CRE 702 inquiry is whether the scientific evidence proffered is both reliable and relevant. In determining whether the evidence is reliable, a trial court should consider (1) whether the scientific principles as to which the witness is testifying are reasonably reliable, and (2) whether the witness is qualified to opine on such matters. In determining whether the evidence is relevant, a trial court should consider whether the testimony would be useful to the jury. People v. Shreck, 22 P.3d 68, 77 (Colo. 2001); Brooks v. People, 975 P.2d 1105, 1114 (Colo. 1999).

➢ Factors for Reliability. The trial court is not mandated to consider any particular set of factors when making its determination of reliability. A trial court's reliability inquiry under CRE 702 should be broad in nature and consider the totality of the circumstances of each specific case. People v. Shreck, 22 P.3d 68, 77 (Colo. 2001).

➢ Specific Factors to Consider. Reliability is determined based upon a nonexhaustive list of factors, which are to be applied on a case-by-case basis. Estate of Ford v. Eicher, 250 P.3d 262, 267-68 (Colo. 2011). These include: "(1) Whether the technique can and has been tested; (2) Whether the theory or technique has been subjected to peer review and publication; (3) The scientific technique's known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; (4) Whether the technique has been generally accepted; (5) The relationship of the proffered technique to more established modes of scientific analysis; (6) The existence of specialized literature dealing with the technique; (7) The non-judicial uses to which the techniques are put; (8) The frequency and type of error generated by the technique; and (9) Whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure. Id. (citing Shreck, 22 P.3d at 77-78; Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579, 596, (1993)).
➢ Evidentiary Hearing Not Required. Shreck does not require a trial court to conduct an evidentiary hearing, even when a party requests one. Once a party requests a Shreck analysis, a trial court is vested with discretion to decide whether an evidentiary hearing would aid the court in its Shreck analysis. People v. Rector, 248 P.3d 1196 (Colo. 2011).

In determining whether a hearing is necessary, a trial court may properly take for granted the reliability of certain types of well-established expert testimony. E.g., People v. Wilson, 318 P.3d 538 (Colo. App. 2013) (trial court acted within discretion in refusing Shreck hearing where the reliability of fingerprint analysis was challenged). However, where a case involves expert opinions that are "less usual or more complex," a hearing should be held. In Wilson, the court of appeals suggested that where the court sits as the trier of fact, the need for a Shreck hearing is diminished. Id. at 543.

➢ Trial Court's Discretion is Broad. Trial courts are vested with broad discretion to determine the admissibility of expert testimony because they have a superior opportunity to determine the competence of the expert as well as the superior opportunity of the trial judge to gauge both the competence of the expert and the extent to which his or her opinion would be helpful. Masters v. People, 58 P.3d 979, 988 (Colo. 2002).

➢ Qualifications of Expert. The basis for admissibility under CRE 702 is not that the witness possesses skill in a particular field, but that the witness can offer assistance on a matter not within the knowledge or common experience of people of ordinary intelligence. An expert need not have worked in the industry in question to provide an expert opinion so long as he or she is familiar with industry standards. Farmland Mut. Ins. Cos. v. Chief Indus, Inc., 170 P.3d 832 (Colo. App. 2007); People v. Conyac, 2014 COA 8M; Schuessler v. Wolter, 310 P.3d 151 (Colo. App. 2012) (fact that insurance adjuster had not worked in the field for 15 years, and had little familiarity with the particulars of insurance practices in Colorado, was not a per se bar to his being qualified as an expert).

➢ Qualifications of Expert. Where a case involved a jury determination as to whether the defendant/physician conducted a genuine examination of a person seeking a medical marijuana license, it was not necessary for an expert witness/physician to have special training in the area of medical marijuana to be qualified as an expert; a general knowledge of medical assessments was sufficient. People v. Montante, 351 P.3d 530 (Colo. App. 2015).
➢ Test for Admissibility: Useful to the Jury — Causation. In order to be useful to the jury, there must be some causative link between the proffered testimony and the case in which the testimony is offered. Counsel does not, however, have to prove causation in order for particular expert testimony to be admissible. It is enough if the expert testimony would permit the jury to infer the proposition for which it is offered. Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 300 P.3d 963 (Colo. App. 2012) (expert testimony is sufficient if it permits the jury to infer the proposition for which it is offered).

➢ Test for Admissibility of Expert Evidence. Expert evidence is admissible when (1) the scientific principles at issue are reasonably reliable, (2) the witness is qualified to opine on such principles, and (3) the testimony will be useful to the jury. People v. McAfee, 104 P.3d 226 (Colo. App. 2004).

➢ In Limine Hearing. To determine the admissibility of expert scientific or technical testimony under CRE 702 and CRE 403, the trial court must hold an in limine hearing to balance (1) the reliability of the scientific principles on which the testimony rests and (2) the likelihood that the introduction of the evidence may overwhelm or mislead the jury. Colwell v. Mentzer Invs., Inc., 973 P.2d 631 (Colo. App. 1998).

➢ Qualification of Expert Witness. Before a witness can express his or her opinion as an expert, the witness must be properly qualified and a foundation must be laid to establish a basis to conclude that he or she has the means and ability to form an intelligent opinion. Denver Urban Renewal Auth. v. Berglund-Cherne Co., 568 P.2d 478, 483 (Colo. 1977); People v. Montante, 2015 COA 40 (qualification of physician to opine on sufficiency of medical assessment for medical marijuana).

➢ Standard for Admissibility. The proffered expert testimony is admissible if it will help the fact finder to either understand other evidence or to determine a fact in issue. People v. Fasy, 829 P.2d 1314, 1316 (Colo. 1992).

➢ Standard for Admissibility in Malpractice Action. "[T]he general standard for admission of expert testimony in any type of malpractice action is whether it will provide assistance on matters not within the knowledge or common experience of people of ordinary intelligence." Zick v. Krob, 872 P.2d 1290, 1294 (Colo. App. 1993).

§ 7.2.2—Standard for Admissibility

Colorado

➢ Standard for Admissibility of Medical Testimony. The proper standard for determining the admissibility of expert medical testimony is through analysis of the testimony under the rule for admission of expert testimony, rather than through the "reasonable medical probability" standard. Estate of Ford v. Eicher, 250 P.3d 262 (Colo. 2011).

➢ Broad Discretion. Trial courts are vested with broad discretion to determine the admissibility of expert testimony because of the superior opportunity of the trial judge to gauge both the competence of the expert and the extent to which his or her opinion would be helpful to the jury. Masters v. People, 58 P.3d 979 (Colo. 2002).

➢ Broad Discretion. The trial court has broad discretion concerning the admission or exclusion of expert testimony. People v. Williams, 790 P.2d 796, 798 (Colo. 1990).

➢ Broad Discretion. The trial court retains broad discretion to evaluate whether expert testimony on the reliability of eyewitness identification would assist the trier of fact to understand evidence or to determine a fact in issue. Campbell v. People, 814 P.2d 1, 7 (Colo. 1991).

➢ Broad Discretion. "The trial court has broad discretion in determining whether the requirements governing expert opinions have been satisfied and whether the expert's testimony is admissible." Gold Rush Investments, Inc. v. G.E. Johnson Constr. Co., Inc., 807 P.2d 1169, 1173 (Colo. App. 1990).

Federal

➢ Standards for Admission of Expert Testimony. In a trilogy of expert evidence cases, the U.S.

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