Colorado State Flag

Colorado Supreme Court Rejects Expert Testimony Given by Lay Witnesses

Written on Wednesday, March 15th, 2017 by T.C. Kelly
Filed under: ExpertWitness

Two recent decisions of the Colorado Supreme Court addressed whether a witness should be allowed to testify about issues that require specialized knowledge when the witness has not been qualified as an expert. The cases discuss the difference between a lay opinion, which people with no special training or experience can reliably provide, and an expert opinion, which requires greater knowledge than a lay person will ordinarily have.

Venalonzo v. People

Venalonzo was charged with inappropriately touching two children in the hallway of the apartment building where they lived. The children were interviewed by a child forensic interviewer.

Both children initially gave consistent accounts of the alleged assaults, but their accounts were inconsistent with each other. Their stories varied as to what the man said to them, what he was wearing, how and from where he entered the building, and whether the children were in each other’s presence when the man touched them. Over time, one of the children changed her description of the man’s actions, including whether she was touched over or under her clothing.

Before trial, the prosecutor advised the defense that it would not be calling any expert witnesses. It therefore produced no expert reports and the court did not decide whether the interviewer was qualified to give reliable expert testimony.

At trial, the forensic interviewer testified about the techniques she uses to interview children. The defense objected that the interviewer was posturing herself as an expert in eliciting truthful accounts from children.

The court ruled that the interviewer would be allowed to testify as a lay witness. The court would not allow the witness to say whether she thought the children were telling the truth, but did allow her to testify whether the behavior she observed during the interview was common or uncommon as compared to other child victims of sexual abuse.

The defense objected to several other questions, including: whether children commonly tell other children about abuse before telling adults; whether children typically tell different stories to forensic interviewers than they tell to social workers or while testifying at trial; whether the details that differed in the children’s accounts were core or peripheral; and how children who have actually been sexually assaulted will “reproduce” the assault by demonstrating the touches on their own bodies.

The court permitted the interviewer to answer all those questions, although it did not allow her to explain why interviewers look for “reproduction,” because it felt that question called for expert testimony. Venalonzo was convicted.

The Venalonzo Ruling

On appeal, the Colorado Supreme Court decided that the forensic interviewer was testifying as an expert, not as a lay witness, at least in some respects. The court ruled that lay testimony is based on ordinary knowledge or experience. On the other hand, a witness who offers testimony that could not be offered without specialized knowledge, training, or experience is giving expert testimony.

As in this case, a forensic interviewer is often called upon to explain to juries why a sexually abused child might give inconsistent stories, might delay reporting the abuse, or might recant the allegation. Prosecutors elicit that testimony because they fear that juries might otherwise find it counterintuitive to believe that a child sexual assault victim would engage in those behaviors.

However, it is precisely because juries do not have that information that a witness who educates them is testifying as an expert. The Colorado Supreme Court ruled that forensic investigators are testifying as experts when they give jurors information that ordinary people do not usually have about the behavior of child sexual assault victims. Whether it is helpful for a jury to hear lay testimony about facts that it already knows is a separate question.

The court decided that the forensic interviewer did not testify as an expert when she described her training and experience. The court did not decide whether evidence about the interviewer’s training was relevant, given the prosecution’s contention that the interviewer was not testifying as an expert.

The court also decided that some of the forensic interviewer’s testimony about child behavior was common knowledge. According to the court, her testimony that children generalize, are not good with measurements, and tell secrets to other children before telling them to adults are all within the common knowledge of a lay person. Whether it is helpful for a jury to hear lay testimony about facts that it already knows is a separate question.

On the other hand, the court decided that the forensic interviewer gave expert testimony when she testified about the significance of using gestures to “reproduce” an assault. She was also testifying as an expert when she claimed that children are more likely to be accurate when describing core details than peripheral details.

Because the trial court allowed the forensic interviewer to give expert testimony without determining whether she was qualified to do so, the Supreme Court decided that the trial court erred.

On a related issue, the Court held that the interviewer should not have been allowed to bolster the credibility of the child witnesses by comparing their behavior to that of other child sexual abuse victims. Since any or all of the inadmissible testimony may have influenced the jury, the court decided that Venalonzo was entitled to a new trial.

The Ramos Ruling

The issue in People v. Ramos was “whether an ordinary person would be able to differentiate reliably between blood cast-off (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact).”

Ramos was accused of assaulting a backseat passenger in a car that his girlfriend was driving. The passenger claimed that Ramos, who was sitting in the front, reached into the back seat and punched her.

Ramos’ hand was bleeding from an unrelated injury. His blood was found on the passenger’s jacket and cap. Ramos denied hitting the passenger and contended that his blood was flying through the car when he waved his hand.

A police detective, testifying as a lay witness, opined that blood on the cap and jacket must have been transferred when Ramos touched those objects and could not have been “cast-off” blood that was splattered when he waved his hand around.

Applying the Venalonzo rule, the Colorado Supreme Court decided that an ordinary person would not be able to determine whether blood on an object was directly transferred to the object by touching it or was cast-off blood. Whether or not the police officer was qualified to give expert testimony about blood transfers based on nineteen years of experience investigating crimes, his testimony was of a technical nature that goes beyond lay knowledge.

The Colorado rule may help solve the problem of police officers giving slanted testimony that favors the prosecution when they have no basis for that testimony beyond their self-proclaimed “training and experience.” Since testimony that depends on training and experience will generally be expert testimony, police officers in Colorado will need to satisfy the state’s standard for expert opinion admissibility before they are allowed to provide those opinions.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.