Rocky Mountain Division
International Association for Identification
FORENSIC EXPERT INFORMATION
David "Ski" Witzke presented a seminar at the 2002
RMDIAI Fall Conference entitled The Science of Fingerprint Identification
or "How to make your point in the courtroom". Mr.
Witzke has made this presentation available to the RMDIAI, and is available as the PowerPoint
file or as an Adobe pdf file.
Need to know how to make a good court chart??
A tutorial has also been made available about the process Mr. Witzke uses to make
court charts: Court Chart Techniques.pdf
Below is information regarding different cases that effect the Rules of Evidence and Expert Testimony,
as well as other information we thought you might find useful.
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.
What is 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, 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.
What is Rule 703, Bases of Opinion Testimony
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
What is Rule 704, Opinion on Ultimate Issue?
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
What is Rule 705, Disclosure of Facts or Data Underlying Expert
The expert may testify in terms of opinion
of inference and give reasons therefore 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
What is Rule 706, Court Appointed Experts?
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.
(b) Compensation. Expert
witnesses so appointed are entitled to reasonable compensation in whatever
sum the court may allow. The compensation thus fixed is payable from funds
which may be provided by law in criminal cases and civil actions and
proceedings involving just compensation under the fifth amendment. In
other civil actions and proceedings the compensation shall be paid by the
parties in such proportion and such time as the court directs, and
thereafter charged in like manner as other costs.
(c) Disclosure of Appointment.
In the exercise of its discretion, the court may authorize disclosure to
the jury of the fact that the court appointed the expert witness.
(d) Parties' Experts of Own Selection.
Nothing in this rule limits the parties in calling expert witnesses of
their own selection.
What is Schreck? DNA-Scientific Evidence-STR-PCR-Admissibility.
Colorado Supreme Court Schreck ruling link: State v. Schreck:
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:
Supreme Court Rulings
Colorado Bar Association
US House of Representatives
Assn. of Defense Lawyers
Seton Hall Law Review
Criminal Defense Lawyer
e-mail to WEBMASTER or SECRETARY
with questions or comments about this website or information about the RMDIAI.