Rule 702 TESTIMONY BY EXPERTS

• Jurisdiction: Colorado

Rule 702. Testimony by Experts

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.

RECENT ANNOTATIONS

Though expert testimony on blood patterns and tool markings was improperly admitted, the error was harmless because the testimony did not relate to a material disputed issue, therefore any error in admitting this testimony could not have affected the outcome of the trial. People v. Bobian, 2019 COA 183, 461 P.3d 643.

ANNOTATION

Law reviews. For article, "Selecting an Expert Witness", see 12 Colo. Law. 1464 (1983). For review, "Admissibility of Thermography: Objective Evidence or a Mystical Procedure", see 65 Den. U. L. Rev. 295 (1988). For article, "Hearsay as a Basis for Opinion Testimony", see 17 Colo. Law. 2337 (1988). For article, "DNA: The Eyewitness of the Future", see 18 Colo. Law. 1333 (1989). For article, "Rule 702: Admissibility of Expert Testimony Regarding Eyewitness Identification", see 21 Colo. Law. 927 (1992). For article, "Introduction of Scientific Evidence in Criminal Cases", see 22 Colo. Law. 273 (1993). For article, "Opinion Testimony", see 22 Colo. Law. 1185 (1993). For article, "The Misuse and Abuse of Psychological Experts in Court", see 23 Colo. Law. 2757 (1994). For article, "Evaluating Recovered Memories of Trauma as Evidence", see 25 Colo. Law. 1 (Jan. 1996). For article, "Rule 702: Admissibility of Expert Testimony", see 30 Colo. Law. 55 (Nov. 2001). For article, "Limits on Attorney-Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704", see 31 Colo. Law. 53 (March 2002). For article, "Tips for Working With Evidence in Domestic Relations Cases", see 31 Colo. Law. 87 (June 2002). For article, "Polygraph Examinations: Admissibility and Privilege Issues", see 31 Colo. Law. 69 (Nov. 2002). For article, "Challenging the Unreliable Damages Expert—Part I", see 32 Colo. Law. 119 (Oct. 2003). For article, "Challenging the Unreliable Damages Expert—Part II", see 32 Colo. Law. 103 (Nov. 2003). For article, "Colorado's Certificate of Review Statute: Considerations in Professional Negligence Cases", see 33 Colo. Law. 11 (Feb. 2004). For article, "The Admissibility of Expert 'Profile Evidence'", see 33 Colo. Law. 53 (March 2004). For article, "Rules 701 and 702: Boundary Between Lay and Expert Opinion Testimony", see 34 Colo. Law. 53 (July 2005). For article, "Using Experts to Aid Jurors in Assessing Child Witness Credibility", see 35 Colo. Law. 65 (Aug. 2006). For article, "Lay Versus Expert Testimony: Does Venalonzo v. People Clarify the Law?", see 46 Colo. Law. 46 (Aug.-Sept. 2017).

This rule governs a trial court's determination regarding the admissibility of expert testimony. When proposed expert testimony involves experience-based specialized knowledge, the court must consider whether the testimony will be helpful to the jury and whether the witness is qualified to render an expert opinion on the subject in question. Meier v. McCoy, 119 P.3d 519 (Colo. App. 2004).

In determining whether testimony is lay testimony or expert testimony, the trial court must look to the basis for the opinion. 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. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Venalonzo v. People, 2017 CO 9, 388 P.3d 868; People v. Howard-Walker, 2017 COA 81M, 446 P.3d 843; Campbell v. People, 2019 CO 66, 443 P.3d 72.

Determination of expert within court's discretion. The trial court has wide discretion in determining whether the requirements to qualify a witness as an expert are met. Connell v. Sun Exploration & Prod. Co., 655 P.2d 426 (Colo. App. 1982).

Matter of the qualification of expert witness is discretionary with the trial court. White v. People, 175 Colo. 119, 486 P.2d 4 (1971); People v. Tidwell, 706 P.2d 438 (Colo. App. 1985); People v. Koon, 724 P.2d 1367 (Colo. App. 1986); People v. Williams, 790 P.2d 796 (Colo. 1990).

The court should consider the expert's experience of the time of trial, not on the date of the alleged malpractice. Durkee v. Oliver, 714 P.2d 1330 (Colo. App. 1986); People v. Braley, 879 P.2d 410 (Colo. App. 1993).

The trial court determines the qualification of witnesses and has discretion to admit expert witness testimony. Eggert v. Mosler Safe Co., 730 P.2d 895 (Colo. App. 1986).

The qualification of an expert is a matter within the sound discretion of the trial judge. People v. Chavez, 182 Colo. 216, 511 P.2d 883 (1973); People v. Lomanaco, 802 P.2d 1143 (Colo. App. 1990).

The qualification of expert witness to competently testify on a matter of opinion is one of judicial discretion. People v. DeLuna, 183 Colo. 163, 515 P.2d 459 (1973).

The qualification of an expert witness to testify is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. Meier v. McCoy, 119 P.3d 519 (Colo. App. 2004).

The competency of an expert is for the trial court to determine. People v. Anderson, 184 Colo. 32, 518 P.2d 828 (1974).

Whether opinion testimony is within a witness's expertise generally is a matter addressed to the sound discretion of the court. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L. Ed. 2d 655 (1982).

Trial court has broad discretion to determine the admissibility of expert testimony pursuant to this section. People v. Fasy, 820 P.2d 1314 (Colo. 1992).

Trial court has discretion in determining the qualifications of an expert and the admissibility of expert evidence, and the court's ruling will not be disturbed absent an abuse of discretion. Baird v. Power Rental Equip., Inc., 191 Colo. 319, 552 P.2d 494 (1976); Klein v. State Farm Mut. Auto. Ins. Co., 948 P.2d 43 (Colo. App. 1997).

Trial judge did not assume the role of advocate by asking questions of a potential expert witness. The court's questions served to aid the court in determining whether the expert testimony was admissible. The nature of the questions reflect that the court was not advocating a position but rather was seeking to satisfy itself—in its gatekeeper role—that the proffered scientific evidence was reliable. After the court questioned the proposed expert, the court invited the prosecutor and defense counsel to ask additional questions. Both sides accepted the invitation and further questioned the witness. Based on the record, the court's questions were not of such a nature as to transform the court from neutral gatekeeper to advocate for the prosecution. People v. Medrano-Bustamante, 2013 COA 139, 412 P.3d 581, aff'd in part and rev'd in part on other grounds sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.

Court did not abuse its discretion in determining that expert witness's opinions were based on reasonably reliable scientific principles and that the witness was qualified to render them. People v. Medrano-Bustamante, 2013 COA 139, 412 P.3d 581, aff'd in part and rev'd in part on other grounds sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.

Court did not abuse its discretion in denying defendant's motion for a pretrial hearing on the admissibility of GPS data. GPS technology is prevalent in modern society and widely regarded as reliable. People v. Campbell, 2018 COA 5, 425 P.3d 1163.

Court's decision not disturbed absent abuse. A court's decision to allow a witness to testify as an expert will not be disturbed without a clear showing of an abuse of discretion. White v. People, 175 Colo. 119, 486 P.2d 4 (1971); People v. Hankin, 179 Colo. 70, 498 P.2d 1116 (1972); McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972); People v. Drumright, 181 Colo. 137, 507 P.2d 1097 (1973); People v. Anderson, 184 Colo. 32, 518 P.2d 828 (1974); Bd. of Comm'rs v. Fixed Base Operators, 939 P.2d 464 (Colo. App. 1997); People v. Bornman, 953 P.2d 952 (Colo. App. 1997).

The sufficiency of foundation evidence to establish qualifications and knowledge of a witness to entitle him to express an opinion is a question for the trial court's determination, and in the absence of a showing of abuse of discretion this determination will not be overturned. People v. Jiminez, 187 Colo. 97, 528 P.2d 913 (1974).

The discretion of the trial judge over the scope of expert testimony will not be disturbed on review absent a clear showing of abuse. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974); People v. Jensen, 747 P.2d 1247 (Colo. 1987).

The determination of whether a witness is qualified to render an expert opinion is committed to the discretion of the trial court, and will not be disturbed on review unless that discretion is abused. People v. District Court, 647 P.2d 1206 (Colo. 1982).

The trial court has discretion to rule upon the qualifications of expert witnesses and unless that discretion is abused its decision will not be disturbed on appeal. Stone v. Caroselli, 653 P.2d 754 (Colo. App. 1982).

Trial court not required to make specific finding that witness is qualified as an expert. People v. Lomanaco, 802 P.2d 1143 (Colo. App. 1990).

Disqualification of experts based on a conflict of interest is governed by a two-part test. First, whether it was objectively reasonable for the party to conclude that a confidential relationship existed with an expert consultant. Second, whether any confidential or privileged information was disclosed by that party to the expert consultant. In re Page, 70 P.3d 579 (Colo. App. 2003).

A confidential relationship may arise if: (1) One party has taken steps to induce another to believe that it can safely rely on the first party's judgment or advice; (2) one party has gained the...