Tuesday, October 21, 2014

Expert testimony in defending sex assault cases.

     The following comes from a Colorado Court of Appeals case announced 10/9/14, People v. Brown,  permitting a defense expert to testify regarding defendant's likelihood of being the offender.  Prosecutors make frequent - often questionable - use of "experts."  As can be seen here, defense expert testimony can help too: 

“B. Defendant’s Expert Testimony

¶31      Trial courts have broad discretion to exclude expert testimony if it is unreliable or irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). We will not disturb the trial court’s ruling unless it is manifestly erroneous. Id. at 380.

¶32      All relevant evidence is admissible unless the United States or Colorado Constitutions, statutes, or court rules provide otherwise. CRE [Colorado Rule of Evidence] 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401; accord Jones, ¶17 (admissibility of evidence does not depend on a specific theory of relevance).

¶33      Here, defendant sought to admit testimony by a psychologist who performed a sex offense specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal.

¶34      The trial court excluded this evidence because it was irrelevant and an attempt to “back-door” an opinion that defendant was not guilty of the charged offenses.

¶35      Evidence that defendant did not have a statistically significant interest in voyeurism would tend to make it less probable that he videotaped the victims for the purpose of sexual gratification, which is an element of the offense of unlawful sexual contact. The evidence was therefore relevant to that charge.

¶36      Further, at a pretrial hearing, defense counsel and the psychologist made clear that the psychologist would limit his testimony to the results of his evaluation. They added that the psychologist would not express an opinion about defendant’s guilt or innocence of any charge.

¶37      We therefore conclude that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. The trial court should allow defendant to present such evidence on retrial.”

            If you or someone you know is charged with a crime, call Sanderson Law, P.C., or email arl@sandersonlaw.net, to help.  303-444-8846.

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