People v. Williams

Justice KIRSHBAUM

dissenting.

The plurality and the special concurrence conclude that the trial court properly sustained the prosecution’s objection to the defendant’s request that Lantz be permitted to testify as an expert witness in the field of firearms identification. I respectfully dissent.

I wholeheartedly support the principle that trial courts enjoy broad discretion under CRE 702° to determine whether a prospective witness is qualified to testify in the form of an opinion on a particular issue. However, a trial court’s application of CRE 702 must be reversed if the record reveals a clear abuse of that discretion. King v. People, 785 P.2d 596, 603-04 (Colo.1990); People v. Hampton, 746 P.2d 947 at 952-53; People v. Gomez, 632 P.2d 586 (Colo.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974); see People v. District Court, 647 P.2d 1206, 1209 (Colo.1982).1 In this case the trial court adopted an erroneous test in concluding that Lantz was not an expert in firearms identification and neglected to consider evidence before it that unquestionably established his qualifications as an expert in that field. Furthermore, the narrow test adopted by the trial court dangerously undermines the purposes of CRE 702.

Lantz was offered as an expert in the field of firearms identification. The only definition of this field before the trial court was the following definition supplied by Lantz: “[Fjirearms identification ... includes whether or not the firearm could be used with a particular sort of cartridge.... It also includes particularly the area of forensic ballistics. That is identification of whether or not a particular bullet came from a particular weapon.” No other definition of this field of expertise was offered at trial, and it is supported by treatises discussing the field. See J.E. Davis, An Introduction to Tool Marks, Firearms and the Striagraph, 68 (1958); N. Morland, An Outline of Scientific Criminology, 85 (1950).

The plurality suggests that the record does not establish that Lantz’ research work in firearms identification involved comparisons of bullets with weapons. I believe the record compels a contrary conclusion. Lantz stated that a “great deal” of his research work at the University of Michigan involved using an electron microscope to determine whether a particular bullet came from a particular gun. Lantz also testified that his work as a technical expert with the National Rifle Association Range Development Committee consisted of determining whether particular bullets came from particular weapons. At Michigan State University he analyzed techniques of identifying bullets and conducted over 1,000 examinations to identify particular characteristics of bullets. His participation in judicial proceedings, including the initial trial in this case, was participation as a firearms identification expert. This testimony established that over a period of some twenty years Lantz had acquired experience, training, and knowledge in the field of firearms identification, including particularly the comparison of fired bullets to weapons.

The plurality discusses several factors about which Lantz did not testify, such as what percentage of his research work at Michigan State University concerned firearms identification, in what contexts his bullet comparisons were performed, and particular data respecting those jurisdictions in which he had testified as an expert witness. He was not asked about these matters, and the question of whether his *803experience, knowledge and training was sufficient to enable him to appreciably help the jury must be answered primarily on the basis of the evidence that was before the trial court.

Rule 702, CRE, is expressly designed to encourage the introduction of evidence that would assist the trier of fact in rendering a decision in a particular case. This purpose parallels the general goal of the rules of evidence to encourage the admission of relevant evidence to facilitate the truth-seeking function of the trial process unless the prejudicial effect of so doing outweighs the probative value of the evidence. CRE 102, 402, 703; see People v. Ortega, 672 P.2d 215 (Colo.App.1983); see also 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[01] at 702-07 to -09 (1988); 7 Wigmore, Evidence § 1923 (Chadbourn rev. 1978); Cleary, McCormick on Evidence 33 (3d ed. 1984). In determining whether to permit a witness to testify in the form of an opinion, the primary concern is whether the witness’ knowledge of the subject matter is such that his or her opinion will more likely than not assist the trier of fact in arriving at the truth. See United States v. Barker, 553 F.2d 1013 (6th Cir.1977); Holmgren v. Massey-Ferguson Inc., 516 F.2d 856 (8th Cir.1975).

The determination of whether a person is sufficiently qualified to testify as an expert witness must by necessity be based on the particular circumstances of a particular ease. The nature of the issue in question, the familiarity of the trier of fact with the subject matter and the availability of other non-opinion evidence are factors which, in addition to the background of the potential witness, may influence the decision. While the quality of the processes by which a person has obtained specialized information may also be considered, a witness need not possess a formal college degree to be recognized as a person having sufficient knowledge to testify in the form of an opinion, White v. People, 175 Colo. 119, 486 P.2d 4 (1971), and the proposed expert need not satisfy an overly narrow test of his or her own qualifications. See Gardner v. General Motors Corp., 507 F.2d 525 (10th Cir.1974).

In concluding that Lantz was not qualified to testify as an expert witness, the trial court stated as follows:

[The evidence fails] to indicate cross-reference or checking mechanism[s] to see whether or not Dr. Lantz is skilled in performing these comparisons. It may well be that he does them perfectly well or perfectly right, but it may be also that he does them wrong. We don’t know the answer to that question.

Noting that Lantz was not a member of any national organization that sets standards for firearms identification, the trial court concluded its ruling with the following statement:

So it really leaves me [in] a vacuum in terms of how I should analyze whether he’s good at what he does, whether he’s bad at what he does.

These statements indicate that the trial court based its ultimate ruling solely on its concern about Lantz’ competence. However, a trial court must consider the scope of a person’s knowledge and experience as well as the person’s skill in determining whether the person is qualified to testify as an expert witness. See Holmgren v. Massey-Ferguson Inc., 516 F.2d 856 (8th Cir. 1975). While objective verification of the accuracy of a person’s testing methodology may be desired, CRE 702 authorizes expert testimony on the basis of experience and knowledge as well as on the basis of formal training. Whether Lantz performed tests accurately is no doubt a factor for consideration in weighing the strength of his testimony; it is not a factor that bears on whether he has sufficient experience to testify in the form of an opinion. Furthermore, contrary to the trial court’s comments, the evidence in this case that in almost all instances Lantz’ test results had been confirmed by identical test results obtained by other firearms identification experts does indicate that Lantz’ testing procedures were accurate.

In this case the trial court failed to consider the numerous evidentiary facts that confirmed Lantz’ substantial knowledge about and experience with a subject con-*804cededly unfamiliar to the jury. The trial court also failed to consider the fact that in the absence of Lantz’ testimony the defendant in this case could produce no witness to contradict the revised opinion of the prosecution’s expert witness. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[04], at 702-47 to -48 (1988). By focusing solely on the erroneous assumption that Lantz had not demonstrated the accuracy of his tests, the trial court failed to apply the appropriate standard required by CRE 702.

I also believe the result reached by the plurality and the special concurrence contravenes the primary purpose of CRE 702. Rule 702, CRE, like its identical federal counterpart, is designed to encourage the admission of relevant evidence that will prove helpful to the trier of fact. See, e.g., Gardner v. General Motors Corp., 507 F.2d 525 (10th Cir.1974); Mannino v. International Mfg. Co., 650 F.2d 846 (6th Cir.1981). The trial court’s overly restrictive application of the rule deprived the jury of information concerning the only evidence in the case linking the defendant to the crime.

The rule is designed to encourage the admission of such evidence. Application of the multi-factored standard appropriate for questions arising under CRE 702 requires the conclusion that Lantz had sufficient knowledge of and experience in the field of •firearms identification to assist the jury in evaluating the testimony of the prosecution’s critical testimony. In my view, the trial court’s contrary ruling constituted a gross abuse of discretion.2

ERICKSON and MULLARKEY, JJ., join in this dissent.

. I do not read the plurality's reference to a "manifest error" standard of review as announcing a different appellate standard. Plurality op. at 6.

. As indicated, I believe the trial court’s erroneous ruling was critical in this case, and therefore do not consider the error to be harmless under C.R.Cr.P. 52(a).