Rocky Mountain Division

What is Rule 701, Opinion Testimony by Lay Witnesses?

If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (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.

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

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 expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or Data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative  value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

(a)Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b)No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The expert may testify in terms of opinion of inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be take by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross examination by each party, including a party calling the witness.

Colorado Bureau of Investigation

Laboratory:

Mission:  The CBI provides criminal investigative support to Law Enforcement agencies within the state of Colorado.  The Colorado Revised Statutes (CRS) enables the CBI to prevent, detect and investigate criminal activity throughout the state.

Investigative Support Services is divided into two primary areas, Laboratory Services, with its myriad of highly specialized investigative forensic disciplines, and the Major Crimes Unit.

Laboratory

The laboratory system was created to provide forensic analytic assistance to law enforcement agencies throughout Colorado and includes satellite laboratories in Montrose and Pueblo.  Crime scene support is also provided for certain types of criminal investigations.

The laboratories are an integral and essential part of the State's law enforcement structure.  Their primary purpose is to provide highly specialized analytical support to all law enforcement agencies within Colorado who could not afford to obtain this service within their own agency due to the sporadic need and necessity of expensive instrumentation and specially trained staff.  The regional state laboratories realize a significant demand to maintain competent and qualified scientific staff to serve as analysts and expert witnesses in aid to the criminal justice system.

Colorado Supreme Court

Schreck ruling link:

Schreck Supreme Court Opinion

DNA-Scientific Evidence-STR-PCR-Admissibility.


The Supreme Court made its rule absolute and directed the trial court to vacate its order barring DNA evidence derived from testing kits employing a polymerase chain reaction or PCR-based multiplexing method containing short tandem repeats ("STR"). The defendant was arrested and charged with second-degree kidnapping, two counts of sexual assault in the first degree, two counts of criminal attempt to commit murder in the first degree, assault in the second degree, and as a habitual criminal. At trial, the defendant moved to bar the admission of the DNA evidence. Applying the Frye test for admissibility, the trial court held that while PCR-based STR multiplexing was generally accepted in the scientific community, the specific six-plex and nine-plex system at issue in this case was sufficiently different to warrant a new Frye determination. [Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).] The trial court concluded that the system at issue was not sufficiently peer reviewed and validated to qualify as generally accepted under Frye. Alternatively, the trial court concluded that under the Daubert factors, the system was not sufficiently reliable under CRE 702 to warrant admission of the DNA evidence derived from their use. [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).] Thus, the trial court issued an order barring the evidence. The Supreme Court directed the trial court to vacate its order, and held that the DNA evidence at issue is admissible. In doing so, the Supreme Court expressly adopted CRE 702 as the appropriate standard for determining the admissibility of scientific evidence in Colorado. The Court also held that in applying this standard, a trial court should focus on the reliability and relevance of the proffered evidence, and make a determination as to (1) the reliability of the scientific principles, (2) the qualifications of the witness, and (3) the usefulness of the testimony to the jury. The Supreme Court concluded that a trial court should broadly consider the totality of the circumstances of each specific case and may, but need not, consider a wide range of factors under CRE 702, including those articulated in Daubert and other cases. Finally, the Court held that a trial court must issue specific findings under both CRE 702 and CRE 403, to ensure that the probative value of the proffered evidence is not outweighed by unfair prejudice. Applying this standard, the Court found that PCR-based testing, including STR multiplexing, is sufficiently reliable to warrant admission of evidence derived from its use. The court also determined that the specific six-plex and nine-plex system at issue in this case need not be distinguished from multiplexing generally, and that questions as to the reliability of a particular type of multiplex kit go to the weight of the evidence rather than its admissibility. Finally, the Court determined that no unfair prejudice will result from admission of the evidence at issue, and that the trial court should vacate its order barring such evidence.

Links to related web sites

Colorado Supreme Court Rulings

NIST

Colorado Bar Association

US Courts

US House of Representatives

National Assn. of Defense Lawyers

US Supreme Court

Seton Hall Law Review

Criminal Defense Lawyer