CRE 703

History

(Federal Rule Identical.) Source: Entire rule amended and adopted June 20, 2002, effective July 1, 2002. COMMITTEE COMMENT The Committee believes this rule is a sub- stantial deviation from former Colorado law, but there are former cases lending partial sup- port to the rule. See: Hensel Phelps Construc- tion Co. v. U.S., 413 F.2d 701 10th Cir. (1969); Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664 (1969); McNelley v. Smith, 149 Colo. 177, 368 P.2d 555 (1962); Ison v. Stewart, 105 Colo. 55, 94 P.2d 701 (1939); Enyart v. Orr, 78 Colo. 6, 238 P. 29 (1925); Rio Grande W. Ry. Co. v. Rubenstein, 5 Colo. App. 121, 38 P. 76 (1894). See also, Good v. A.B. Chance Co., 39 Colo. App. 70, 565 P.2d 217 (1977). Although not directly in point, we believe the case supports the last sentence of Rule 703. (Amended March 5, 1981, effective July 1, 1981.) ANNOTATION Law reviews. For article, ‘‘Admissibility of Governmental Studies to Prove Causation’’, see 11 Colo. Law. 1822 (1982). For article, ‘‘Hear- say as a Basis for Opinion Testimony’’, see 17 Colo. Law. 2337 (1988). ‘‘Opinion Testimony’’, see 22 Colo. Law. 1185 (1993). For article, ‘‘Tips for Working With Evidence in Domestic Relations Cases’’, see 31 Colo. Law. 87 (June 2002). Fact that expert witness has not examined accused does not necessarily disqualify him from expressing his opinion based upon a hy- pothetical question, but such an opinion must be based on facts in evidence. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974). Neither collegiate degrees nor formal training in an established curriculum is nec- essarily required before one may be consid- ered an expert in a particular field. People v. Genrich, 928 P.2d 799 (Colo. App. 1996). Expert’s opinion may not be predicated on others’ opinions. An expert’s opinion must not be predicated, in whole or in part, on opinions of others, expert or lay. People v. Beasley, 43 Colo. App. 488, 608 P.2d 835 (1979); People v. District Court, 647 P.2d 1206 (Colo. 1982). Nor on facts varying from actual facts. An expert opinion buttressed by assumed facts at variance with the actual facts has no evidential efficacy. High v. Indus. Comm’n, 638 P.2d 818 (Colo. App. 1981). Opinion based on information gained through hypnosis inadmissible. A psychiatrist will not be permitted to testify as to the mental state of the defendant if his opinion is based on information gained through hypnosis. People v. Diaz, 644 P.2d 71 (Colo. App. 1981). Expert witness may be cross-examined. It is fundamental that an expert witness may be cross-examined concerning the basis of his opinion. People v. Alward, 654 P.2d 327 (Colo. App. 1982). By learned treatises. Expert may be cross- examined using learned treatises even though he did not rely upon them in reaching his con- clusions. People v. Beasley, 43 Colo. App. 488, 608 P.2d 835 (1979). Competence to testify as to medical stan- dards. Generally, practitioners of one school of medicine are not competent to testify as experts relative to standards of care required of practi- tioners of another school. Greene v. Thomas, 662 P.2d 491 (Colo. App. 1982). However, a physician from one specialty may testify concerning the standard of care required of a physician with a different specialty, pro- vided that the expert witness has acquired, through experience or study, more than just a casual familiarity with the standards of care of the defendant’s specialty. Greene v. Thomas, 662 P.2d 491 (Colo. App. 1982). Opinion may be based on facts or data not admissible in evidence. Graefe & Graefe v. Beaver Mesa Exploration, 695 P.2d 767 (Colo. App. 1984). But this rule does not permit otherwise inadmissible facts or data contained in a re- port or statement to be admitted merely be- cause the expert relied on them. Leiting v. Mutha, 58 P.3d 1049 (Colo. App. 2002). It is not proper to equate ‘‘weren’t admit- ted’’ with ‘‘otherwise inadmissible’’. The bal- ancing test provided in this rule is not appli- cable to facts or data that are admissible for any other purpose but have not yet been offered for such a purpose at the time the expert testifies. Dorsey & Whitney LLP v. RegScan, Inc., 2018 COA 21, 488 P.3d 324. Expert’s testimony itself is inadmissible when underlying basis for the expert opin- ions and recommendations is not accepted as reliable by the courts. Because of the lack of a scientific basis and reliability, it is inappropriate for an expert witness to rely on polygraph re- sults to form or render an opinion. Trial court should not have listened to, or considered, the opinions of any experts based, in whole or in part, on polygraph examinations. People ex rel. M.M., 215 P.3d 1237 (Colo. App. 2009). Interpretation of blood test results by ex- pert whose qualifications are established in field of blood type testing was admissible evi- dence. K.H.R. by and through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App. 1990). It is permissible for an expert to rely on data which itself may be inadmissible. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989). Expert’s opinion may be based upon other reliable expert opinions due to the adoption of this rule. Gold Rush Inv. v. G.E. Johnson Const., 807 P.2d 1169 (Colo. App. 1990). Court did not err in admitting expert tes- timony of licensed physician whose opinion was based in part upon information received from psychiatrist in residency together with the physician’s own examination of hospital re- cords, charts, hospital admission data, and his own observations of respondent. People in In- terest of Martinez, 841 P.2d 383 (Colo. App. 1992). Admission of expert testimony was not abuse of trial court’s discretion, where expert based his opinion on data contained in micro- scope slides and reports prepared by two other doctors since that opinion was based upon an opinion of a type reasonably relied upon by experts in the particular field in forming opin- ions or inferences upon the subject. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991). Trial court did not abuse its discretion in allowing pediatrician to testify that rib frac- tures were a basis for the pediatrician’s conclu- sion that child died as a result of shaken baby syndrome. People v. Cauley, 32 P.3d 602 (Colo. App. 2001). An expert may express an opinion based upon assumptions that have a reasonable basis in the evidence so long as the information is of the type reasonably relied upon by experts in the field of expertise. V ento v. Colo. Nat’l Bank-Pueblo, 907 P.2d 642 (Colo. App. 1995). Reliance upon facts not personally ob- served but which have been reasonably re- lied upon by experts in the same field is an acceptable basis of expert opinion and the trial court has broad discretion in determining whether the requirements governing expert opinions have been satisfied and whether the expert’s testimony is admissible. Gold Rush In- vestments, Inc. v. Johnson, 807 P.2d 1169 (Colo. App. 1990); Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991). An expert is not required on direct exami- nation to disclose the underlying facts that form the basis for his or her opinion, how- ever, nothing prevents an expert from doing so, and it was proper for expert in case at hand to give his opinion on how defendant’s drawings and narratives related to a sexual homicide. People v. Masters, 33 P.3d 1191 (Colo. App. 2001), aff’d on other grounds, 59 P.3d 979 (Colo. 2002). The weight to be accorded to the property valuation techniques of an expert in a mar- riage dissolution is for the trial court’s deter- mination, depending upon the court’s assess- ment of the reliability of the data in a particular case. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993). The weight to be accorded to the valuation techniques of an expert is for the trial court to determine depending upon the court’s assess- ment of the reliability of the data in a particular case. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993). Certainty goes to weight, not admissibility. Once a witness is qualified as an expert, the fact that the examination reveals that he or she can- not support the opinion with certainty goes only to the weight to be given the opinion and not its admissibility. V ento v. Colo. Nat’l Bank-Pueblo, 907 P.2d 642 (Colo. App. 1995). A doctor may testify to the fact that he or she believed a child suffered injuries consis- tent with medical child abuse; the doctor may not opine as to whether the injuries constituted the legal definition of child abuse. Testimony that the injuries suffered were the result of nonaccidental trauma are admissible opinions of medical child abuse. People v. Weeks, 2015 COA 77, 369 P.3d 699. Expert testimony comparing the force that caused the victim’s injuries to that of various common accidents is logically related to the issue of whether the injuries suffered were the result of a low-impact injury or high- impact trauma. People v. Weeks, 2015 COA 77, 369 P.3d 699. Applied in Stone v. Caroselli, 653 P.2d 754 (Colo. App. 1982); People v. Williams, 654 P.2d 319 (Colo. App. 1982); Jimerson v. Prendergast, 697 P.2d 804 (Colo. App. 1985).