Friday, September 18, 2009
Recently, in People ex rel. M.M., Jr. v. M.M., 2009 WL 2917036 (Colo. 2009), the Colrado Supreme Court denied a petition for writ of certiorari from People ex rel. M.M., Jr., 2009 WL 1012910(Colo.App. 2009), but a dissenting justice would have granted cert on, inter alia, the following issue:
Whether the court of appeals incorrectly applied Colorado Rule of Evidence 703 in holding that expert testimony about opinions based in part upon the results of polygraph examinations should not be admitted.
This seemed interestingto me, so I went back to the opinion of the Colorado Court of Appeals, Division III, and I'm think that I disagree with the Court of Appeals' reasoning.
In M.M., Jr., M.M. appealed from the judgment terminating the parent-child legal relationship between him and his son, M.M., Jr., and daughter, A.M. That judgment came after, inter alia, expert witnesses such as a therapist and a case worker testified that efforts to reunite the family should be terminated in part because M.M. failed polygraph questions asking whether he had abused his children. The Colorado Court of Appeals, Division III found that polygraph test results are generally inadmissible and that the issue of whether the experts' testimony made in reliance upon those results was admissible was governed by Colorado Rule of Evidence 703, which states that
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 him 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 expert¹s opinion substantially outweighs their prejudicial effect.
The court then cautioned, however, that
expert testimony must be grounded in the methods and procedures of science, not on a subjective belief or unsupported speculation....Expert testimony must be reliable, which requires that the scientific principles used by the expert be reasonably reliable and that the expert is qualified to opine on the matters....Testimony lacking an analytically sound basis is speculative opinion testimony which is unreliable and inadmissible....A court determines the reliability of a scientific method by considering the totality of the circumstances....However, when, as here, the underlying basis for the expert opinions and recommendations is not accepted as reliable by the courts, the expert's testimony itself is inadmissible.
I don't think that I agree with this reasoning. Under Rule 703, the facts or data underlying an expert merely need to be of a type reasonably relied upon by experts in their particular field, not those reasonably relied upon by the courts. After all, if the facts or data underlying an expert's testimony needed to be of a type reasonably relied upon by the courts, how could Rule 703 allow for experts to rely upon inadmissible facts and data?
Moreover, therapists as well as the government and private investigators frequently use polygraph tests. Now, is this enough to establish reasonable reliance? I'm not sure, but it is a question that I would have liked to have seen the Colorado Supremes address.