Expert Testimony: CRE 702 and People v. Shreck. Cara Morlan and Jay Williford. Law re: admissibility of Expert Testimony Topic Specific

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1 Expert Testimony: CRE 702 and People v. Shreck Cara Morlan and Jay Williford Law re: admissibility of Expert Testimony Topic Specific Social Science DV Child abuse Sex Assault DUI Prepare for a Shreck Hearing Direct of an Expert Witness Cross Examination of Expert Witness 1

2 Standard: 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. Shreck abandoned the general acceptance in the scientific community standard for the admission of expert testimony set forth in Frye v. United States, 293 F (D.C.Cir. 1923), and adopted the rationale of the U.S. Supreme Court in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), focusing instead on C.R.E. 702 and

3 The focus of a Rule 702 inquiry is whether the scientific evidence proffered is both: (1) reliable and (2) relevant. In determining whether the evidence is reliable, a trial court should consider: (1) whether the scientific principles as to which the witness is testifying are reasonably reliable, and (2) whether the witness is qualified to opine on such matters. (3) In determining whether the evidence is relevant, a trial court should consider whether the testimony would be useful to the jury. A trial court's reliability inquiry under CRE 702 should be broad in nature and consider the totality of the circumstances of each specific case. Given the flexible, fact-specific nature of the inquiry, we decline to mandate that a trial court consider any particular set of factors when making its determination of reliability. Instead, we hold that the CRE 702 inquiry contemplates a wide range of considerations that may be pertinent to the evidence at issue. By way of illustration, however, we recite here the wide range of issues other courts have considered when making a Rule 702 determination. 3

4 For example, in Daubert, the Court articulated the following nonexclusive list of general observations that a trial court might consider: (1) whether the technique can and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the scientific technique's 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 v. Merrell Dow Pharmaceuticals, 509 U.S. 579, (1993). Additional Considerations: (1) the relationship of the proffered technique to more established modes of scientific analysis; (2) the existence of specialized literature dealing with the technique; (3) the non-judicial uses to which the technique are 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 scientific procedure. United States v. Downing, 753 F.2d 1224, 1235 (3 rd Cir. 1985). The standard of admissibility under CRE 702 is reliability and relevance, not certainty. People v Martinez, 51 P. 3d 1046 (Colo. App. 2001) People v. Ramirez, 155 P.3d 371, 379 (Colo. 2007)(citations omitted). Evidence must not only be logically relevant, but must meet the requirements for legal relevance in CRE 403. See Shreck, supra, 22 P.3d at 72-79; Brooks, supra, 975 P.2d at 1109; People v. Miller, 981 P.2d 654, 659 (Colo. App. 1998) 4

5 403 unfair prejudice Unfair prejudice refers to evidence that has an undue tendency to suggest a decision on an improper basis. Unfair prejudice does not mean prejudice that results from the legitimate force of the evidence; rather, it means an unreasonable risk that the jury would base its decision on extraneous considerations. People v. Gibbens, 905 P.2d 604, 608 (Colo. 1995). Evidence should not be excluded as unfairly prejudicial simply because it damages the defendant s case. In fact, all effective evidence is prejudicial in the sense that it is damaging or detrimental to the party against whom it is offered. People v. Braley, 879 P.2d 410 (Colo. App. 1993). In making its determination, the evidence should be accorded its maximum probative weight and its minimum prejudicial effect. People v. Quintana, 882 P.2d 1366, 1374 (Colo. 1994). Preponderance of the evidence standard applies in determining admissibility of evidence. People v. Bowers, 801 P.2d 511 (Colo. 1990). 5

6 CRE 104(c) states, in part, that when the interests of justice require... a pre-trial hearing on the admissibility of evidence shall be conducted. Can proceed via: Offer of Proof When an objection is logged with respect to the proposed expert testimony, a trial court may be sufficiently apprised of the nature and substance of such testimony to exercise its discretion pursuant to our rules of evidence. An offer of proof by the proponent of the evidence is designed to serve that function [and] also serves the important purpose of establishing a basis in the record for appellate review of the trial court s ultimate finding. Lanari v. People, 827 P.2d 495, 503 (Colo. 1992). As a preliminary matter, Rector argues that Shreck requires the trial court to conduct an evidentiary hearing. We disagree. Once a party requests a Shreck analysis, a trial court is vested with the discretion to decide whether an evidentiary hearing would aid the court in its Shreck analysis. A trial court is not required to conduct an evidentiary hearing under Shreck provided it has before it sufficient information to make specific findings under CRE 403 and CRE 702 about the reliability of the scientific principles involved, the expert's qualification to testify to such matters, the helpfulness to the jury, and potential prejudice. People v. Whitman 205, P.2d 371, 383 (Colo.App. 2007); People v. McAfee, 104 P.3d 226, 229 (Colo.App. 2004); see also Shreck, 22 P.3d at 77. 6

7 This discretion comports with the trial court's need to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Issue Specific Examples 1. Social Sciences 2. Domestic Violence 3. Child Abuse 4. Sexual Abuse 5. DUI Social Sciences People v Farley, 712 P.2d 1116 (Colo. App. 1985); -- Police Dept. VA employed as counselor People v Fasy, 829 P.2d 1314 (Colo. 1992) -- psychiatrist People v Morrisson, 985 P.2d 1 (Colo. App. 1999) aff'd, 19 P.3d 668 (colo. 2000) -- a licensed marriage and family therapist 7

8 Domestic Violence Courts have repeatedly found experts in domestic violence to be admissible and helpful to a jury. See People v Lafferty, 9 P.3d 1132 (Colo. App. 1999), People v Wallin 167 P3d 183 (Colo App 2007), People v Johnson 74 P.3d 349 Child Abuse Witnesses testifying to non-accidental trauma without finding error. People v. Cauley, 32 P3d 605 (Colo App 2001); People v. Gordon, 738 P2d 405 (Colo App 1987), People v. Kailey, 662 P2d 169 (Colo 1983). Shaken baby People v Rector, 248 P.2d 1196 (Colo. 2011) the trial court denied the request for a Shreck hearing on shaken-baby syndrome determining that the syndrome is recognized in Colorado as a reliable scientific principle, and that based on the evidence, arguments, and People v. Martinez, 74 P.3d 316 (Colo.2003) (in which Court examined the admissibility of shaken-baby syndrome testimony) Sexual Abuse Numerous courts have approved testimony of medical and other experienced witnesses that their examination of a victim was consistent with sexual abuse. People v. Wittrein, 198 P3d 1237, (Colo. App. 2008)(expert could properly testify child victim s statements were consistent with medical diagnoses, because opining as to consistency is not synonymous with expressing view of victim s truth or sincerity); 8

9 Sexual Abuse Numerous courts have approved testimony of medical and other experienced witnesses that their examination of a victim was consistent with sexual abuse. Testimony about children's general characteristics and their behavior is not the same as testimony supporting the veracity of their statements. Such testimony should be permitted where the expert offers appreciable help to the jury. Whitman, 205 P.3d at 383. People v. Rojas, 181 P3d 1216 (Colo. App. 2008) (expert properly testified that victim s statements an physical findings were consistent with findings of children who had been sexually abused); Sexual Abuse People v Provonost, 756 P.2d 387 (Colo. App. 1987) psychiatrist victim's demeanor /account consistent typical People v Koon 724 P.2d 1367, a social worker (research or scientific experience) behavioral patterns which are unique to child incest victims. People v Jenkins, 83 P.3d 1122, psychologist (based upon her training and experience) victim s delay in reporting/ behavior was consistent with victims of physical abuse. Sexual Assault- Rape Trauma The following quotation from Baenziger, supra is dispositive of the reliability of this area of testimony: It has been repeatedly held that rape trauma syndrome evidence is reasonably reliable. See People v. Fasy, 829 P.2d 1314 (Colo.1992); People v. Hampton, supra. In response to this clear precedent, defendant presents no reason why such reliability should now be in doubt. Shreck confirms rape trauma syndrome is not novel scientific evidence to which a hearing was necessary, but rather an application of CRE 702. [W]e reasoned that Frye was only applicable to novel scientific devices and processes involving the manipulation of physical evidence. Thus, we held that CRE 702, rather than Frye, governed the admission of testimony regarding rape trauma syndrome. Shreck, at 74, citing to People v. Hampton, 746 P2d 947, 951 (Colo. 1987). 9

10 Sexual Assault- Rape Trauma Rape Trauma Syndrome, has consistently been found to be scientifically reliable and helpful to juries in Colorado. People v. Baenziger, 97 P.3d 271 (Colo.App2004); People v. Dill, 904 P.2d 1367 (Colo.App.1995) aff d Dill v. People 927 P.2d 797 (Colo.1996); People v. Fasy, 829 P.2d 1314 (Colo.1992); People v. Hampton, 746 P.2d 947 (Colo.1987); People v. Whitman, 205 P.3d 371 (Colo.App.2007) Roadsides HGN DRE 10

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12 People v. Mollaun, 194 P.3d 411 (Colo.App. 2008) 701 vs. 702 distinction Here, the officer testified that defendant s eyes at trial were not dilated and that defendant s pupils appeared significantly smaller than they were when [the officer] was shining [his] light on them on [the date of the arrest]. 12

13 People v. Mollaun, 194 P.3d 411 (Colo.App. 2008) Holding: Contrary to defendant s assertion, a witness does not need to be a drug recognition expert to comment on whether an individual s eyes appear dilated. Because an ordinary person reasonably could come to have such an opinion based on a process of reasoning familiar in everyday life, we conclude the trial court did not abuse its discretion in admitting the officer s testimony as lay opinion testimony. 13

14 Procedure Disclosures Preparation File Motions Hearing 14

15 Procedure People Expert- Disclosure to Defense Get CV Get list of cases previously testified With case numbers, can get transcripts If don t keep a list, get general idea of number of cases where previously testified/ been qualified as expert Prepare a general summary of what expect to testify to for disclosure to Defense By disclosing these documents, likely to be able to avoid a hearing Discretionary Disclosures - Rule 16 Pursuant to Crim. P. 16(II)(b)(2), the court may order the defendant, subject to constitutional limitations and where the interest of justice will be served, to: Disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness opinions and the bases and reasons therefor, including results of physical or mental examinations and of scientific tests, experiments, or comparisons. The intent of Crim.P. 16(II)(b)(2) is to allow the prosecution sufficient meaningful information to conduct effective cross-examination [of the defense expert.] (emphasis added). Preparation (Trial Prep) Prosecution Expert If fact expert Get general feel Are they going to present well or not Go over report them with Have them clarify terms that not familiar with Address possible problems/ CX topics they may face If general expert Discuss prior testimony What has worked/ what hasn t If blind expert, present hypotheticals that may involve some of your facts to see what opinions will be Ask them about any areas that uncomfortable to testify 15

16 Preparation Defense Expert Witness Do background work Read articles- make sure they say what they claim Pull old police reports Example: former State Trooper who becomes DUI expert; SAOC detective who becomes expert If expert is going to claim a right way to do things, they better have always behaved that way Preparation (Trial Prep) Call / MEET with This is not cross examination- this is information gathering They should leave this interview thinking you are their buddy! Ask to Record interview- explain that easier for everyone that way Another reason to be very nice- you are being recorded Have them break down their process and conclusions into smaller pieces What did they review? How did they form their opinion? Ask about particular facts that if different, may effect their opinion LATER- compare their process/ conclusions to your expert To Shreck or Not to Shreck Attack of qualifications Schrek or voir dire? If can realistically prevent expert from testifying- then do Shreck motions But, if going to come in save your ammo for voir dire Voir Dire is your opportunity to point out how ridiculous expert is before they say one word about the actual case 16

17 SHRECK HEARINGS Shreck Hearing- Words of Wisdom Do s Submit resume/ summary of testimony in advance to court/ judge A prepared judge is more likely to rule in your favor Use a systematic approach Like Cross examination, this is a targeted approach Don t attack all factors if not an issue Example Person endorsed may be imminently qualified but issue is whether their opinion is supported by the research Remember, this show is for the judge, not the jury Use opportunity to get answers to any questions/ aspects of opinion you don t understand Other Shreck Hearing- Words of Wisdom Don t Concede where no concession warranted Back down on requests/ documentation you are entitled to from defense Go into every detail you would at trial Remember factors 17

18 Direct Examination of Experts Components: I. General Introduction II. General Training 1. What training did you undergo in order to become a Trooper with the Colorado State Patrol? 2. Did that training involve training on DUI related investigations? 3. In total, how many DUI s, of all types, have you investigated? 18

19 4. Are you familiar with the Drug Evaluation and Classification (DEC) program? 5. How? 6. How/When did you begin working as a Drug Recognition Expert? 7. How is one chosen to undergo training to become a DRE? 8. What kind of training does one have to undergo in order to become a DRE? 4. Three Phases 9. Please tell us about the first phase? 10. Second? 11. Third? 12. And you went through all these phases in order to become a DRE? 13. Are you required to take a formal examination? 14. At the end of the seven day examination are you certified? 15. Who were these people that you evaluated? 16. Where were the evaluations conducted? 17. Did you pass these evaluations? 18. When exactly did you become certified as a DRE? 19. Who exactly certified you? 20. Were you certified on November 8, 2008? 21. You mentioned earlier that you have investigated about X DUI s. How many DRE evaluations have you done? 22. Are you required to take a formal examination? 23. At the end of the seven day examination are you certified? 24. Who were these people that you evaluated? 25. Where were the evaluations conducted? 26. Did you pass these evaluations? 27. When exactly did you become certified as a DRE? 28. Who exactly certified you? 29. Were you certified on November 8, 2008? 30. You mentioned earlier that you have investigated about X DUI s. How many DRE evaluations have you done? ADMIT CV 31. Trooper Carr, did you employ the skills and training you have as a certified Drug Recognition Expert in your evaluation of Mr. David Valdez on November 8 of 2008? 19

20 Cross Examination of Experts CX of Experts If Voir Dire Go through qualifications Point out lack of qualifications Issue: payment I think this is dumb- but others disagree Jurors expect experts to be paid. Issue is if payment is reasonable. State rate dollars. If expert is charging $1000 per hour, may have an issue Issue: who routinely testifies for Bad example: And you almost always testify for the Defense? Consider- can your expert be attacked on the same basis? Good example: DNA expert in Sex Assault Case In cases where there is no DNA, Defense will routinely higher you to explain the importance of DNA to proving a case But, where DNA is found, you routinely testify that the presence of DNA means nothing and can easily be explained by innocent activities Lack of Qualifications: Application Step by Step approach Example: People. v. Davey LCSW testify regarding a forensic interview Resume What she isn t Psychiatrist, Forensic Psychiatrist, Psychologist, Forensic Psychologist, MD, PhD, Board Certified in any field, Forensic Interviewer (contrasted with training of forensic interviewer) Work experience focus on Forensic Interviews Published: Journal / Text Books / Articles: forensic interviews Never conducted forensic interview, served on peer group, worked at advocacy center Not Probation officer, on SOMB Never qualified as an expert in area of Forensic Interviews 20

21 CX- Experts Get concessions first Expert will be forced to agree with much of what your expert says- MAKE THEM Emphasizes yoru experts testimonypoints out what the key differences are How to attack the expert Attack expert s technique or theory Attack the way the expert applied the theory or technique Attack expert s ultimate conclusion *** consider if best done during cross or during direct of your expert Focus of Cross Emphasize relevant facts/ theories the expert did not consider Determine source/ basis for opinion Determine if there are any facts that would change the experts opinion? Defense often doesn t give their expert all of the facts Experts- Examples Concessions- Examples DV Expert Domestic Violence exists? Domestic Violence is underreported? Studies show the most dangerous time for a victim is when a victim attempts to leave an abuser? Victims will sometimes recant reports of abuse? Sometimes this recantation may be true they may have made it up? But sometimes, recant even when truly abused? (If say no chosoe the opposite Victims have NEVER recanted?) One possible motivation can be love of the abuser? One possible motivation is financial? Experts- Examples DUI Alcohol can effect different people differently Some people will show signs of intoxication having consumed very little alcohol? Other people show very little signs of intoxication despite being over the legal limit? Some of the factors that effect how people are effected are Body size/ weight? Food consumption? Tolerance or frequency of drinking 21

22 Experts- Examples Do what I say/ not what I do Prior officers will come in and say how investigations should be conducted- but that rarely coincides with what they did in practice DUI Testimony: Officer should always fill in all the boxes on the road side form and should perform 4 separate roadside tests CX: Officer, do you know how many cases you handled from while with the state trooper? If a request to your former officer provided 38 reports, any reason to disagree with that number? In the 38 cases you handled in those 4 years, do you know how many cases in which every box was filled in? Would it surprise you to learn that the number is 0? I am happy to let you see the reports to review yourself You also mentioned that there are numerous roadside tests available, and that best practices are to perform at least 4 separate tests Of your cases, do you remember how many you performed at least 4 roadside tests? Would it surprise you to learn that, according to your reports, it was again, 0? You also testified that you should always note the weather, clothing, etc? If your reports indicate that you only indicated the weather in 4 of the 38 cases, any reason to disagree with that number? And the clothing the Defendant was wearing in just 2, any reason to disagree with that? Experts- Examples Do what I say/ not what I do Expert Investigator: Testifies that officer should collect clothing victim was wearing, ask about a diary, interview teachers/ soccer coaches/ friends, and have victim re-inact the crime Ms. Smith- you originally testified that you handled more than 400 cases in your 10 years as a Detective. When you are assigned a case, you are supposed to fill out a report? That report documents each of the steps you took in any particular case? Those reports are maintained with your prior policy agency? You don t keep a copy? Any explanation for why, when we requested the reports from your agency, they only provided reports for 187 cases? In those 187 cases, how many times did you collect the clothing the victim was wearing? A: I don t know, a couple dozen Q: Which ones? I have reviewed all of the cases, and I can t find a single case where you collected the clothing How about requested a diary? How many times did you request the victim s diary? Would it surprise you to learn that not a single report ever mentions a diary? In how many of your cases, did you have the victim re-inact the crime? Finally, you testified that you would always take pictures? If, of your 187 reports, only two case reports indicate that photos were taken- any reason to believe that number is incorrect? Experts- Examples Expert doesn t have all the facts Example: Child abuse Expert testimony: Child bones could be broken due to brittle bone disease Would agree that tests that can be performed to determine if a child has a vitamin D deficiency? And tests for Ricketts? And a test to determine if a child has osteogenesis imperfecta? If all those tests were performed and came back negative, that would appear to rule out brittle bone disease as an explanation of the injury? Additionally, a vitamin D deficiency can be treated? But Ricketts and O.I. are lifelong diseases that do not spontaneously and magically disappear over the course of 24 hours, correct? If a child had additional scans performed 3 days weeks and 4 weeks after the original injuries were observed, that showed no new injuriesthat would be a further indication that the child was not suffering from either of these incurable diseases, correct? 22

23 Background: SAOC case LCSW wrote a report that victim actions/disclosure not consistent with victim of sexual abuse Voir Dire: Admitted her CV What she wasn t Medical Doctor, Psychologist, Forensic Psychologist, Psychiatrist, Forensic Psychiatrist, No Ph.D, Forensic Interviewer, Officer Statement: I have extensive experience in interviewing victims about their abuse and observing their reactions. Work experience Family Tree/ Women in Crisis - responsible for assisting women/child domestic violence situations - did not conduct forensic interviews - did not include research regarding forensic interviews Aurora Mental Health Center - responsible counseling foster children - did not conduct forensic interviews - did not include research regarding forensic interviews 23

24 Statement: I have extensive experience in interviewing victims about their abuse and observing their reactions. Work experience Catholic Charities - responsible for foster parents / children - did not conduct forensic interviews - did not include research regarding forensic interviews Private Practice - responsible for counseling families and children ages did not conduct forensic interviews - did not include research regarding forensic interviews Do Not research field of forensic interviews Not forensic interviewer Not received training from Cornerhouse on Child Sexual Abuse Forensic Interview Training Not received training from NDAA regarding Finding Words / addressing Forensic interviewing Never conducted a forensic interview Never worked for Sungate Kids Never worked for a similar child advocacy center similar to Sungate Kids Professional affiliation with American Professional Society on the Abuse of Children Arapahoe County Multidisciplinary Team Member Peer review group for forensic interviews Done a peer review of forensic interview Not Published in journal/article regarding forensic interviews Never contributed to textbook regarding forensic interviews Not Published in journal/article regarding victims of sexual abuse Never contributed to textbook regarding victims of sexual abuse According to your resume: never published in this area Never been qualified as an expert in forensic interviews 24

25 Questions? Contact Information Cara Morlan Deputy District Attorney Jay Williford Chief Deputy District Attorney