Plaintiff, by and through his counsel of record, DJ Banovitz, Esq., and files this Motion in Limine regarding police officer expert and causation opinion and states as follows:
C.R.C.P. Rule 121 Certification
Pursuant to C.R.C.P. Rule 121, Plaintiff’s counsel has discussed this motion with Defendant which objects to the relief requested.
- The Plaintiff’s collision with the hit and run vehicle that occurred on October 12, 2007 was investigated by Officer Chad Kendall of the Denver police department. Officer Kendall has been listed as a lay witness for both parties in this case.
- Officer Kendall was not listed as an expert witness by either party. Defendant’s expert disclosure deadline passed on or about October 6, 2009.
- In a phone conversation with Plaintiff some time after the accident, Officer Kendall may have expressed an opinion on causation to the accident. Regardless, of whether he had a causation and/or fault opinion at the time of the collision or developed one later, this opinion would amount to an expert opinion on the ultimate issue in the case.
- Police officers regularly, and appropriately, offer testimony under the rule regarding admission of lay opinion testimony (C.R.E. 701) based on their perceptions and experiences. However, police officers may not offer expert opinions under the guise of lay opinion testimony. People v. Stewart, 55 P.3d 107 (Colo.2002).
- “We hold that where, as here, an officer’s testimony is based not only on her perceptions and observations of the crime scene, but also on her specialized training or education, she must be properly qualified as an expert before offering testimony that amounts to expert testimony. Stewart at 124.”
- When a police officer testifies as to his or her reconstruction of an accident, including matters such as the vehicle’s direction, position, and speed, the officer must be qualified as an expert witness. “The trial court abused its discretion in admitting the officer’s testimony about the accident reconstruction and the inferences he drew therefrom without requiring that he be qualified as an expert. While his testimony about his observations of the crime scene and his investigation of the incident were proper, it was inappropriate for the court to permit him to testify as a lay person about his reconstruction of the crime scene and his deductions about such matters as the vehicle’s direction, position, and speed. Id.
- Any attempt to elicit any opinion Officer Kendall may have on who caused the accident, Plaintiff or hit and run driver, through examination of Plaintiff or through Officer Kendall directly would be undisclosed expert opinion.
- Defendant’s trial witness list, lists Office Kendall as a lay witness. Accordingly, he should only be permitted to testify as such.
- Any testimony from the police officer regarding the position, direction, and speed involves of the vehicles involves an accident reconstruction and would be impermissible expert testimony from a witness who has only been disclosed as a lay witness.
- Officer Kendall’s testimony should properly be limited to his factual recollections and observations of the accident scene and its aftermath.
- Defendant should not be allowed to ask questions to elicit expert opinions from Officer Kendall or through Plaintiff or make suggestions or implications to the jury.
WHEREFORE, Plaintiff respectfully requests this Court grant the relief requested.