I thought it might be worth considering the standards for opinion testimony as we continue to evaluate Judge L's decisions. Colo. R. Evid. 701 governs opinion testimony by non-experts:
Rule 701 - Opinion Testimony by Lay Witnesses, Colo. R. Evid. 701
"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, (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."
Colo. R. Evid. 702 and 703 govern opinion testimony by experts:
Rule 702 - Testimony by Experts, Colo. R. Evid. 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."
Rule 703 - Bases of Opinion Testimony by Experts, Colo. R. Evid. 703
"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."
In
People v. Schreck, the Colorado Supreme Court abandoned a long-established rule that an expert's methodology must be generally accepted in the scientific community in fav0r of a more flexible and liberal judicial inquiry:
"[The trial court's] inquiry should focus on the reliability and relevance of the proffered evidence and requires 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. We also hold that when a trial court applies CRE 702 to determine the reliability of scientific evidence, its inquiry should be broad in nature and consider the totality of the circumstances of each specific case.
...
In light of this liberal inquiry, a trial court should also apply its discretionary authority under CRE 403 to ensure that the probative value of the evidence is not substantially outweighed by unfair prejudice."
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In
Schreck, the prosecution appealed directly to the Supreme Court the trial court's rejection of DNA evidence under the old rule. So, in answer to a question previously raised on this thread, the District Attorney could appeal Judge L's decision to exclude the DV expert the prosecution identified, or any other expert that is essential to the prosecution.
What I see in this case is a prosecution that aggressively has attempted to designate witnesses as experts who are not commonly so endorsed, to bolster the weight of their testimony by adding that status. I truly doubt that the prosecution is counting on gaining expert status for most of these witnesses.
The defense has pushed back just as aggressively, and is now seeking to limit the opinion testimony of these same witnesses who will be allowed to testify as non-experts. Whether this tactic succeeds is, of course, problematic.
I disagreed with Judge L's decision to exclude evidence of BM's previous abuse of his wife and the related decision to exclude the DV expert to explain some of SM's behavior the jury may not have the background to understand (e.g. the "Why did she stay with him if she felt unsafe?" question). I firmly believe the judge is operating on a stereotypical understanding of women that is all too common, especially in rural communities. But the calls were within his discretion, and the Supreme Court could only overturn them if they were "clearly erroneous" or "arbitrary". I did not take these decisions to be evidence of defense bias on Judge L's part, and I doubt they will be appealed by the DA.
The upcoming Schreck hearing may be more hotly contested, if the witnesses at issue are the ones who will present and explain the truck and phone data to the jury. If the prosecution loses any of these, the case against BM will be in trouble.