Chapter 7 - § 7.1 • GENERAL OVERVIEW

• Jurisdiction: Colorado

§ 7.1 • GENERAL OVERVIEW

Colorado

➢ Expert Testimony. "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." CRE 702.

In the last several years, there have been numerous cases discussing the distinction between expert testimony and lay testimony, and attempting to delineate a better test for distinguishing the two. The controlling question as articulated by these cases is: whether the basis for the opinion goes beyond that which an ordinary person can be expected to know. The following are cases addressing this issue:

Venalonzo v. People, 388 P.3d 868 (Colo. 2017) (Forensic interviewer in sexual assault on a child case must be qualified as an expert in order to give opinions. The opinions given in this case as lay opinions went beyond the realm of common experience and required experience, skills, or knowledge that the ordinary person would not have.).

People v. Romero, 393 P.3d 973 (Colo. 2017) (Testimony by police officer regarding "grooming" of a victim as it relates to sexual predators cannot be offered as lay testimony. Citing Venalonzo, the supreme court reiterates that the test is whether an ordinary witness could be expected to possess the experience, skills, or knowledge required to understand the concept of "grooming" as it relates to sexual predators.).

People v. Garrison, 411 P.3d 270 (Colo. App. 2017) (Testimony from law enforcement explaining how an email address was traced and connected to the defendant was expert testimony as it is not knowledge that an ordinary lay person has, despite the ubiquitous nature of email communications.).

People v. Howard-Walker, 2017 COA 81M (Detective's opinion identifying suspect in surveillance video was not expert testimony as no specialized knowledge was needed to make the identification.).

People v. Douglas, 412 P.3d 785 (Colo. App. 2015) (Error to permit police officer to give lay testimony regarding the part of a marijuana plant that is used to make edible marijuana as such opinion was based on specialized knowledge that could not be expected to be known by ordinary citizens.).

➢ Basis of Opinion Testimony by Experts. "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the

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