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    Colorado Criminal Domestic Violence Cases – The Critical Impact of Expert Opinions On The Jury – The Battered Woman’s Syndrome And Other Issues For Expert Testimony

    By Colorado Criminal Defense Lawyer for the Defense of Colorado Domestic Violence Cases

    Introduction – The admission of an expert who testifies in an otherwise weak government case – can be devastating.  This web page addresses the rule and the history behind the admission of this dangerous evidence in Colorado

    The General Rule For The Admission of Expert Testimony- 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.”

    An expert testifies, not because they have first-hand knowledge, but because of alleged special expertise that will assist the trier of fact in interpreting the evidence.

    The trial court has discretion in determining whether to permit expert testimony in a particular case and

    Rule 702 establishes the standards to be applied in determining:

    …… whether expert testimony should be admitted, and whether an individual qualifies as an expert.

    Prior to 1993, the standard for the admissibility of scientific evidence generally, in both federal and state courts was the standard articulate in  Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

    The Frye standard required a showing that the technologies and methods used were generally accepted in the relevant scientific community. However, in 1993, the United States Supreme Court held in that Frye’s general acceptance test had been superseded by the adoption of the  Federal Rules of Evidence 702.

    Under Rule 702, to admit scientific evidence, it must be both relevant and reliable.

    The Daubert Court set forth a list of non-exclusive factors to assist the court in making the reliability determination:

    (1) whether the technique can and has been tested;

    (2) whether the theory or technique has been subject to peer review and publication;

    (3) the scientific techniques known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation; and

    (4)  whether the technique has been generally accepted.

    Daubert applies not only to scientific evidence, but also to testimony based on technical and other specialized knowledge.

    The Court emphasized that a court may, but need not, consider the factors listed in Daubert.

    The Evolution of The Law Admitting Scientific Or Other Specialized Testimony In Colorado

    The Frye standard was adopted in Colorado by People v. Anderson. However, Colorado went on to limit the applicability of Frye, instead applying  Colorado Rule of Evidence 702:

    In People v. Hampton, the Colorado Supreme Court held that C.R.E. 702 applied in determining admissibility of rape trauma syndrome evidence, as it is not based on novel scientific devices or processes involving the evaluation of physical evidence);

    In Campbell v. People, the Court held that C.R.E. 702 applied in determining whether eyewitness identification evidence should be admitted, as it is not based on novel scientific devices or processes involving the evaluation of physical evidence.

    In Lindsey v. People, in determining that admissibility of DNA evidence, the Colorado Supreme Court acknowledged that the United States Supreme Court had abandoned Frye’s general acceptance test in Dauber, but concluded that it was not bound by Daubert’s non-constitutional construction of  F.R.E.702 and applied the Frye standard.

    In Brooks v. People, the Colorado Supreme Court declined to apply either Frye or Daubert to determine whether testimony on the subject of scent tracking evidence was admissible, reasoning that the evidence in question did not involve the type of scientific devices, processes, or theories that are properly subject to Frye scrutiny.

    In People v. Lafferty, the Court applied C.R.E. 702 to determine the admissibility of expert testimony in a domestic violence case to explain why a victim may recant, including the “cycle of violence” and upheld the trial court’s admission of such evidence.

    The Present Colorado Standard:

    Like the federal courts, C.R.E. 702 and C.R.E. 403, rather than Frye, represents the appropriate standard for determining the admissibility of scientific evidence.

    Ruling on admissibility of scientific evidence, a trail court must issue specific findings in the context of C.R.E. 702 and 403, and must focus on the following four part test:

    (1) the reliability of the scientific principles involved;

    (2) the qualifications of the proposed witness;

    (3) the usefulness of the testimony to the jury;


    (4) the totality of the circumstances of the particular case. Essentially, the court is to ask:

    Considering the totality of the circumstances, is the evidence reliable and relevant?

    The Factors:

    The Court recognized the fact-specific nature of admitting scientific evidence and refused to establish set factors for a C.R.E. 702 reliability analysis. However, the Court identified the four factors outlined in Daubert above.

    Other factors may also be considered in the reliability analysis, including:

    (1) The relationship of the preferred technique to more established modes of scientific analysis;

    (2) The existence of specialized literature dealing with the technique;

    (3) The non-judicial use to which the technique is put;

    (4) The frequency and type of error generated by the technique; and

    (5) Whether such evidence has been offered in previous cases to support or dispute the merits of a particular procedure.

    The Balancing Test:

    When determining the relevancy of the proffered expert testimony, the questions are:

    (1) Whether there is a logical relationship between the proffered testimony and the factual issues in the litigation; and

    (2) Whether the probative value of the evidence is outweighed by the danger of unfair prejudice. Considering:

    (1)  The importance of the proposed fact of consequence;

    (2)  The strength and length of the inferences necessary to establish the fact of consequence;

    (3)  Availability of alternative methods of proof;

    (4)  Whether the fact is being disputed; and

    (5)  The effectiveness of the use of a limiting instruction.

    Victim Recantation (and The So Called “Battered Women’s Syndrome” Evidence)

    In cases involving domestic violence, expert testimony concerning the reasons for victims’ recantations is admissible and the reliability of the principles underlying opinion evidence about battered women has been admitted into evidence in Colorado and other states.

    Expert testimony regarding battered woman syndrome was first recognized to establish self-defense.

    Subsequently, the admissibility of such evidence has not been limited to establishing self-defense. The Lafferty Court held that it “would be anomalous to allow a battered woman who is a criminal defendant to offer expert testimony on battered woman’s syndrome to explain her actions, yet deny that same opportunity to a battered woman who is the complaining witness.”

    The Court also rejected the defendant’s argument that the expert was vouching for the victim’s credibility by implying that when a victim is described as recanting, she is not telling the truth.

    The Court noted that the trial court gave the jurors a limiting instruction indicating that the expert’s testimony concerned, not credibility, but rather, why the victim’s version of the event had changed over time.

    Battered Woman Syndrome After The Shreck Decision:

    In People v. Johnson, the prosecution called an expert in the areas of domestic violence and battered woman’s syndrome to explain the cycle of violence and the reasons that domestic violence victims sometimes recant their stories.

    The Court held that C.R.E. 702 governs a trial court’s determination as to whether expert testimony should be admitted – it applied the well worn tests –

    (1) The scientific or specialized principles underlying the testimony must be reasonably reliable;

    (2) The expert must be qualified to opine on such matters;

    (3) The expert testimony must be helpful to the jury; and

    (4) The evidence must satisfy C.R.E. 403, in that the probative value of the evidence must not be substantially outweighed by unfair prejudice.

    The Court affirmed the trial court’s admission of the expert testimony noting that in addition to satisfying the C.R.E. 702 analysis, the expert did not testify concerning the specific facts of this case or indicate that he had any knowledge of the actual relationship between defendant and the victim.  The thrust of the expert’s testimony was that victims of spousal abuse often recant their accusations of abuse and provide a list several factors that can lead to such recantations.

    People v. Wallin held that in cases involving domestic violence, expert testimony concerning the reasons for victims’ recantations is admissible. As in Johnson, the opinion evidence was found by the Court to be relevant to the issue of the victim’s credibility and helpful to the jury, and the expert did not testify regarding the specific relationship between defendant and the victim, and the Court concluded the probative value of the evidence was not substantially outweighed by any unfair prejudicial effect.

    Cases Applying The Four Part Shreck Test – The Child Abuse Case in Colorado

    Usefulness to the jury depends on whether the proffered expert testimony is “relevant to the particular case: whether it ‘fits.’ Fit demands more than simple relevance; it requires that there be a logical relation between the proffered testimony and the factual issues involved in the litigation.”

    The admissibility must be evaluated in light of its offered purpose.  Here, the purpose of offering the proposed expert testimony to support defendant’s assertion of lack of intent to influence a public servant or to defraud does not “fit” absent evidence of defendant’s knowledge of or reliance upon the Montana Rules of Professional Conduct.

    At the time of the pretrial hearing, defendant did not tender evidence of his knowledge and reliance, nor did he advise the court as to whether such evidence would be offered as a foundation at trial. Therefore the proposed expert opinion did not “fit” and was properly excluded by the pretrial ruling);

    The Court concluded that the trial court abused its discretion in:

    (1) not adequately inquiring and in not making specific findings whether doctor’s conclusion that child victim’s injuries resulted from child abuse was based on reliable scientific principles, and

    (2) admitting this evidence without making findings under CRE 403 and not instructing the jury on the different definitions of medical and legal child abuse;

    Due to the lack of a scientific basis and reliability, it is inappropriate for an expert witness to rely on polygraph results to form or render any opinions. If the underlying basis for the expert opinions and recommendations is not accepted as reliable by the courts, the expert’s testimony itself is inadmissible;

    The Court concluded that the trial court did not abuse its discretion in finding that the DNA evidence regarding the scrapings from under the victim’s fingernails was sufficiently reliable to be admissible;

    The Defendant argued that the methods used by the expert are not sufficiently reliable because the expert did not follow a “written analytical method.” The Court found that defendant failed to provide any authority supporting his argument that a forensic chemistry expert is required to follow a “written analytical method” before the expert’s testimony can be admitted under CRE 702;

    When the entirety of the footwear expert testimony on the issue of identifying marks was considered, the Court determined that the trial court should have permitted the defense footwear expert to offer his comparison testimony because the prosecution opened the door to allowing this testimony by asking its own expert about the defense expert’s report. The prosecution expert testified that he interpreted the defense expert’s conclusion to be consistent with his finding;

    The court allowed caseworkers to testify as experts in the area of social work with an emphasis on child protection, based on their training and experience;

    At trial, an agent who worked in the CBI’s crime laboratory was qualified without objection as an expert in the fields of forensic serology and DNA analysis. Defendant contended on appeal that, because the victim could not definitely be identified as a contributor of the DNA in the mixture, the testimony could not be “useful” to the jury, as required under Shreck. and it should have been excluded under CRE 403 because of its limited probative value and danger of unfair prejudice.

    The Court found the testimony was relevant, in that it showed it was more probable than not that the victim contributed to the DNA. That fact was useful to the jury in deciding whether defendant had had sexual contact with the victim and it was within the trial court’s discretion to conclude that the probative value of the evidence was not significantly outweighed by the danger of any of the countervailing considerations set forth in CRE 403;

    Expert testimony about the general behavior of sexual assault victims has been found to be admissible.

    A Dangerous Conclusion

    “Background data providing a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children, and particularly of [young] children.”

    The Court concluded that the trial court did not abuse its discretion by finding that an expert’s explanation of possible child behaviors and reactions would be helpful to the trier of fact and was admissible here;

    The Court concluded that the trial court did not abuse its discretion by finding that an expert’s explanation of possible child behaviors and reactions would be helpful to the trier of fact and was admissible here;

    Expert Testimony and Colorado Sexual Assault Cases

    In a sexual assault on a child case, an expert witness cannot give an opinion as to whether a victim is being truthful or untruthful on a specific occasion.  An expert IS allowed to  testify as to the typical demeanor and behavioral traits displayed by a sexually abused child;

    In Another Case – Involving Fiber Examination

    The court found no error in admitting a fiber expert’s testimony as while fiber examination may be considered subjective because the expert examined the fibers through the filter of her own eye, the expert was trained in fiber analysis at the FBI, fiber analysis is subject to CBI standard operating procedures, the standard operating procedures used are accepted within the forensic community, and her test was subject to peer review. Although this expert was not going to render a conclusive opinion, her findings of consistency among the fibers might be helpful to the jury and would be relevant;

    But In A Case Involving Eyewitness Testimony – Where The Defense Offered Testimony On The Unreliability of Expert Testimony

    The trial court allowed defense expert to testify concerning the effect of stress, weapon focus, and time estimation on a witness’s identification. It excluded the proposed testimony as to one study the expert had conducted that involved showing the lineup in this case to forty-two students in a class she was teaching. The court found that the particular study lacked reliability as the study had not been conducted in conformance with any standard or procedure that would ensure it was reliable.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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