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Colorado (last Shepardized on 1/1/05)

    Colorado state law decisions are monitored for this site by James England, of the Boulder law firm Hutchinson, Black & Cook.  Among other qualifications suited to the task, he is co-author of the Colorado version of Edward J. Imwinkelried's highly regarded Evidentiary Foundations treatise, which supplies a helpful overview of the subject.  The Colorado Rules of Evidence are available online, courtesy of the Boulder County Bar Association.

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Colorado Supreme Court

People v. Dunaway, 88 P.3d 619 (Colo. 2004).  Prosecution expert testifies in child abuse trial that infant's subdural hematoma could only have been caused by violent blow to head.  Jury convicts and defendant appeals.  Reversing on multiple grounds, Court of Appeals holds that expert's testimony should have been excluded.  Colorado Supreme Court grants certiorari.  Admissibility affirmed; judgment reinstated.  Defendant raised broad pretrial objections to all testimony involving "shaken baby syndrome" but did not challenge evidence on subdural hematomas or this specific expert's testimony, and so review is for plain error.  Expert did not claim to know what minimum force would be necessary to cause hematoma, but did testify that only massive force could cause that result, and offered various accident scenarios that she said would involve sufficient force.  That was helpful to trier of fact.  Witness should not have been permitted to imply that her scenarios represented minimum necessary force, but that error does not warrant reversal, because it was substantially cured by her explicit affirmative testimony that she did not know what minimum quantity of force was required, and because prosecution did not argue to jury that expert's scenarios represented minimum threshold of force.

Colorado Court of Appeals

People v. Lehmkuhl, No. 02CA0149 (Colo. App. Dec. 30, 2004).  Criminal defendant is convicted after jury hears testimony from prosecution's DNA expert.  Admissibility affirmed.  Defendant argues that trial court erred in qualifying DNA expert.  But PCR/STR methodology for DNA analysis employed by prosecution's expert was held reliable in People v. Shreck, 22 P.3d 68 (Colo. 2001).  Expert boasts substantial training and experience, and defendant's arguments about alleged shortcomings in expert's qualifications go to weight, not admissibility.  No abuse of discretion.

Meier v. McCoy, No. 02CA1348 (Colo. App. Dec. 30, 2004).  In suit against law enforcement officials, plaintiff offers testimony from certified emergency technician, who also owns company that performs forensic investigations and claims "extensive" law enforcement experience as firearms instructor and bloodhound expert.  Trial court excludes expert as unqualified and jury finds for defendants.  Exclusion affirmed.  Trial court permissibly found that expert lacked training or experience that would qualify him to opine on reasonableness of force from law enforcement perspective.

People v. Hogan, No. 02CA0396 (Colo. App. Nov. 4, 2004).  On trial for kidnapping, robbery, and other offenses, defendant offers expert on eyewitness identification.  Trial court permits expert to testify on effects of stress, weapon focus, and time estimation on witness identifications, but bars testimony regarding study in which expert showed photo lineup from case to 42 students.  Jury convicts and defendant appeals.  Exclusion affirmed.  Expert did not show that she conducted her study in conformity with any standard or procedure that would ensure its reliability.  Moreover, there was no showing that participants in her study constituted statistically representative sample.

People v. Dunlap, No. 01CA1082 (Colo. App. Sept. 9, 2004).  Having exhausted direct appeals from his robbery conviction, defendant seeks post-conviction relief, arguing that trial court erred in excluding his proffered evidence on prosecution witness's failure of polygraph test.  Exclusion upheld.  Polygraph issues were fully litigated on direct appeal.  In any event, polygraph evidence was held inadmissible in People v. Anderson, 637 P.2d 354 (Colo. 1981), because unreliable under Frye.  That holding remains viable notwithstanding subsequent abandonment of Frye in People v. Shreck, 22 P.3d 68 (Colo. 2001).

People v. McAfee, No. 00CA2379 (Colo. App. Mar. 25, 2004), cert. denied (Colo. Dec. 27, 2004).  Convicted of vehicular homicide, defendant appeals, arguing that trial court erred by admitting prosecution's drug testing evidence without first conducting hearing to evaluate defendant's objections that: (1) police used preservative that contaminated defendant's blood sample; and (2) blood testing method at issue is not accepted within scientific community.  Admissibility affirmed.  Trial court appropriately relied on affidavit from prosecution expert attesting that screening and confirmation of cocaine metabolite in defendant's blood were done in accordance with regulations of Colorado Department of Public Health and Environment.  Defendant was also given sample of his blood for independent testing.

People v. Baenziger, 97 P.3d 271 (Colo. App. 2004), cert. denied (Colo. Sept. 13, 2004).  Jury convicts defendant of sexual assault after hearing testimony from prosecution's expert on rape trauma syndrome.  Admissibility affirmed.  Testimony assisted trier of fact in interpreting victim's initial failure to disclose assault to family or police, and previous decisions have upheld reliability of rape trauma syndrome evidence.

Snyder v. Colorado Podiatry Bd., 100 P.3d 496 (Colo. App. 2004), cert. denied (Colo. Nov. 8, 2004).  Board revokes podiatrist's licensed based in part on testimony from vascular surgeon regarding performance and documentation of ambulatory phlebectomy procedures.  Admissibility affirmed.  Another podiatrist testified that standard of care for podiatric surgery required adherence to standards applicable to general surgery, and so ALJ could properly conclude that testimony from non-podiatrist surgeon familiar with relevant standards would be helpful.

People v. Wallace, 97 P.3d 262 (Colo. App. 2004), cert. denied (Colo. Aug. 16, 2004).  Charged with sexually molesting fourteen-year-old child, defendant offers exculpatory polygraph evidence.  Trial court excludes evidence and jury convicts.  Exclusion upheld.  Polygraph evidence remains inadmissible under People v. Anderson, 637 P.2d 354 (Colo. 1981) (fails Frye test), despite subsequent abandonment of Frye in People v. Shreck, 22 P.3d 68 (Colo. 2001).

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