As I promised, I was going to give you an update to the story below about entrapment and how it was affecting a trial I was just involved in. And that event is still to come. However, equally as important is to give you a little taste of my trial and how I wanted desperately to convince the judge in this trial to keep out a police officer’s opinion that my client was involved in a drug deal. To give you a little bit of a background (please note that the names have been changed to protect the legally challenged), the Investigator asserted in his report that
“At approximately 8:30 p.m., [the] Investigator drove past [my client] in the parking lot. This male looked towards the Investigator and nodded his head several times. [The] Investigator has participated in undercover narcotic operations in this area for a year and half, and has completed nearly thirty (30) crack cocaine transactions. [The] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers.”
Yes, I know what you are thinking. You need to turn yourself in for narcotics dealing, and you didn’t even know it. To quote Patrick from Spongebob Squarepants “I didn’t even know I was an alien.” And these are the officials we have entrusted to our streets. Careful as to who might be watching the next time you try to get someone’s attention.
Obviously, I saw an opportunity to pounce on this investigator (figuratively of course) and file a motion to keep his speculative and unsupported (lame man’s) opinion to himself at trial. I never got the opportunity but, here’s what I was ready to argue (please note that because this was a Colorado case, I was applying Colorado law. Please don’t think for a moment that this analysis applies in every state, or even in federal court, or that it would even fly again here in Colorado. Hire a good lawyer first) :
Under Colorado law, opinion evidence is expert testimony and is now determined by Colorado Rule of Evidence 702 and its applicable case law. The Colorado Supreme Court has determined that C.R.E. 702 and 403 represented a better standard for determining the admissibility of scientific evidence than the general acceptance test set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923). People v. Shreck, 22 P.3d 68 (Colo. 2001). The Shreck Court noted that this is due to the fact that the flexible approach represented by the Rules considers a wide range of issues. The Shreck Court noted that the approach set forth in the Rules was to be applied to all scientific evidence and not limited to the novel scientific evidence previously governed by the standards set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923.) Pursuant to 702 and 403, the focus of a court’s inquiry should be to determine: (1) the reliability of the scientific principles as to which the witness is testifying; (2) the qualifications of the witness to opine on such matters; and (3) the usefulness of the testimony to the jury in understanding the evidence or to determine a fact in issue. Id.
As further modified under Masters v. People, 58 P.3d 979 (Colo. 2002), the Shreck four step analysis requires 1.) the opinion and the knowledge on which the opinion is based be reasonably reliable; 2.) the expert is qualified to give the opinion; 3.) the testimony will assist the jury, and 4.) the probative value is not outweighed by the danger of unfair prejudice or other trail concerns of Rule 403. The Colorado Supreme Court also recognized that factors mentioned by other courts may be pertinent, including: (1) the relationship of the proffered technique to more established modes of scientific analysis; (2) the existence of specialized literature dealing with the technique; (3) the non-judicial uses to which the technique are put; (4) the frequency and type of error generated by the technique; and (5) whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure. See Shreck, 22 P.3d 68.
Furthermore, in applying C.R.E. 702 to determine the reliability of the evidence, the court should consider a wide range of factors, including those set forth in Daubert v. Merrell Dow Pharaceuticals, Inc., 509 U.S. 579, 593-94 (1993). Under Daubert, the Supreme Court enumerated a non-exclusive list of “scientific validation factors” a court might consider to wit: (1) whether the technique 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 the existence and maintenance of standards controlling the technique’s operation; and (4) whether the technique has been generally accepted. Daubert, 509 U.S. 579.
In the present case, the scientific determination that “[the] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers” is not evidence or testimony that the finder of fact should be allowed to consider as testified to by the Investigator due to the lack of scientific reliability under Daubert, Shreck, and the subsequent cases. This expert statement is not backed by any proof, peer review, publication or otherwise scientific research and application. Moreover, the Investigator is not qualified to make this statement as fact or present it as evidence within any degree of scientific certainty. The Investigator’s opinion as to this fact is not sufficiently reliable to be used by the finder of fact to determine the underlying issue in this case.
And what I really wanted to tell the judge:
Not to mention, it’s just damn silly as hell.