The Rules of Evidence In Expert Witness Testimony in Colorado Divorce and Child Custody and Family Support Cases

It is often necessary to have expert witness testimony in Colorado Divorce, child custody and family support cases. In general, an expert witness may give an opinion while a lay witness can not give an opinion as to anything outside of his or her firsthand knowledge.

The Colorado Rules of Evidence (CRE) 702 and 703 govern expert testimony admissibility.

CRE 702, covering the expert opinion, provides that "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." A trial court may admit expert testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue. Inherent in this determination, a court must examine whether the expert’s proposed testimony is relevant or unfairly prejudicial under CREs 402 and 403. To determine the admissibility of expert witness testimony, a court must decide whether:

1. the testimony will assist the court to make an informed determination of the issue, and
2. the expert witness is qualified to present such evidence.

CRE 703, covering the basis of the expert's opinion, provides that an expert can base an opinion on facts known to the expert at or before the hearing. The facts do not have to be admissible in evidence in order for the opinion to be admissible if the facts are of the type reasonably relied upon by experts in the relevant field to form opinions. CRE 703.

Thus an expert witness may testify about matters learned during the trial if the expert attends the trial before his or her testimony is required. In practice, witnesses are generally sequestered and called in to testify only when they are being called as a witness. Whether the expert should attend the hearing or be sequestered is a consideration for the calling party and a decision for the court. Generally, per CRE 703, there are three methods by which an expert may obtain knowledge of the facts supporting his or her opinion:

1. First-hand observation;
2. Reliance upon facts presented at trial; and
3. Facts not in the court record that are not personally observed, however are the type of facts reasonably relied upon by experts in the field.

The rules of evidence govern expert opinion and what may be considered in opinion formation. An party may object to expert witness testimony if it is based on improper legal and factual assumptions. CRE 702. An expert witness may rely upon the opinions of others in areas outside his or her area of expertise when forming an opinion. The reason for this is that an expert is not considered to have expertise in all fields and can reasonably rely on the opinions of experts in other fields as background information. An expert witness may also testify about similar hypothetical situations, however the hypothetical situations must be sufficiently similar to the situation at issue. Also, an expert may base an opinion on treatises or other credible and authoritative sources accepted within that professional community.

There is a flexible standard for the trial court to determine the admissibility of expert testimony. The court must consider generally whether:

• the scientific principles underlying the testimony are reasonably reliable;
• the expert is qualified to opine on the subject testimony matters;
• the expert testimony is helpful to the trier of fact and/or jury; and
• the evidence satisfies CRE 403. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003).

Some scientific evaluation techniques are novel and others are well established. If an expert evaluation technique is novel, it may or may not be considered by the court to be a valid evaluation technique. For example, although polygraphs are frequently utilized for non-judicial purposes in the criminal justice field, polygraphs are not admissible as evidence unless the polygraph taker agrees to admissibility. The limited admissibility is because the accuracy rate of polygraph exams is not generally considered to be high enough for evidentiary admissibility, and it is possible for skilled exam takers to manipulate the results of the exam. In general, further factors for the court to consider regarding the admissibility of scientific techniques generally are:

1. whether the technique utilized 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 standards controlling the techniques operation;
4. whether the technique is generally accepted in the relevant community;
5. the relationship of the technique to any more established modes of analysis;
6. the existence of specialized literature;
7. any non-judicial uses of the technique;
8. the error rate; and
9. [whether the type of evidence has been offered in previous cases. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).
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