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Expert Witness

Rocky Mountain Division

of the

International Association for Identification


David "Ski" Witzke presented a seminar at the 2002 RMDIAI Fall Conference entitled The Science of Fingerprint Identification or "How to make your point in the courtroom".  Mr. Witzke has made this presentation available to the RMDIAI, and is available as the PowerPoint file or as an Adobe pdf file.

Need to know how to make a good court chart?? A tutorial has also been made available about the process Mr. Witzke uses to make court charts:  Court Chart Techniques.pdf 

Below is information regarding different cases that effect the Rules of Evidence and Expert Testimony, as well as other information we thought you might find useful.

What is The Frye Rule?   Link to Frye Description
What is The Schreck Ruling? State v. Schreck
What is Daubert? Link to Daubert on the Web
Admissibility of Scientific Evidence under Daubert  Link to

What is Rule 701, Opinion Testimony by Lay Witnesses?

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, and (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.

What is Rule 702, Testimony by Experts?

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

What is Rule 703, Bases of Opinion Testimony by Experts?

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.

What is Rule 704, Opinion on Ultimate Issue?

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

What is Rule 705, Disclosure of Facts or Data Underlying Expert Opinion?

The expert may testify in terms of opinion of inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

What is Rule 706, Court Appointed Experts?

(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be take by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross examination by each party, including a party calling the witness.

(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and such time as the court directs, and thereafter charged in like manner as other costs.

(c) Disclosure of Appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(d) Parties' Experts of Own Selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

What is Schreck?  DNA-Scientific Evidence-STR-PCR-Admissibility.

Colorado Supreme Court Schreck ruling link: State v. Schreck:

The Supreme Court made its rule absolute and directed the trial court to vacate its order barring DNA evidence derived from testing kits employing a polymerase chain reaction or PCR-based multiplexing method containing short tandem repeats ("STR"). The defendant was arrested and charged with second-degree kidnapping, two counts of sexual assault in the first degree, two counts of criminal attempt to commit murder in the first degree, assault in the second degree, and as a habitual criminal. At trial, the defendant moved to bar the admission of the DNA evidence. Applying the Frye test for admissibility, the trial court held that while PCR-based STR multiplexing was generally accepted in the scientific community, the specific six-plex and nine-plex system at issue in this case was sufficiently different to warrant a new Frye determination. [Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).] The trial court concluded that the system at issue was not sufficiently peer reviewed and validated to qualify as generally accepted under Frye. Alternatively, the trial court concluded that under the Daubert factors, the system was not sufficiently reliable under CRE 702 to warrant admission of the DNA evidence derived from their use. [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).] Thus, the trial court issued an order barring the evidence. The Supreme Court directed the trial court to vacate its order, and held that the DNA evidence at issue is admissible. In doing so, the Supreme Court expressly adopted CRE 702 as the appropriate standard for determining the admissibility of scientific evidence in Colorado. The Court also held that in applying this standard, a trial court should focus on the reliability and relevance of the proffered evidence, and make 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. The Supreme Court concluded that a trial court should broadly consider the totality of the circumstances of each specific case and may, but need not, consider a wide range of factors under CRE 702, including those articulated in Daubert and other cases. Finally, the Court held that a trial court must issue specific findings under both CRE 702 and CRE 403, to ensure that the probative value of the proffered evidence is not outweighed by unfair prejudice. Applying this standard, the Court found that PCR-based testing, including STR multiplexing, is sufficiently reliable to warrant admission of evidence derived from its use. The court also determined that the specific six-plex and nine-plex system at issue in this case need not be distinguished from multiplexing generally, and that questions as to the reliability of a particular type of multiplex kit go to the weight of the evidence rather than its admissibility. Finally, the Court determined that no unfair prejudice will result from admission of the evidence at issue, and that the trial court should vacate its order barring such evidence.

Links to related web sites:
Colorado Supreme Court Rulings
Colorado Bar Association
US Courts
US House of Representatives
National Assn. of Defense Lawyers
US Supreme Court
Seton Hall Law Review
Criminal Defense Lawyer  

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