To you, Shrek may be a big green monster with giraffe horns for ears. Not so much for me. To me, Shreck means something different all together. OK, the spelling is just a mite off; I slipped an extra “c” in there. But that little “c” makes all the difference.
Back to your Shrek ...
Your Shrek is an animated fantasy-comedy character created by PDI/DreamWorks. In the eponymous film, Mike Myers, channeling his inner ogre, has a thing for Princess Fiona, played in green face by the lovely Cameron Diaz.
The lawyer in me sees the tale as one of territorial imperatives, adverse possession and the divine rights of kings. You, of course, may see it differently.
In my world, though, Shreck has little to do with ogres; the fetching, chartreuse Princess Fiona or jolly asses. Although, admittedly, there can be elements of ogres and asses in my Shreck world, too.
Let me hold you in a moment’s suspense and indulge you in a little detour ...
You see, in law, depending upon how you parse things, there are essentially two kinds of witnesses; “fact” witnesses and experts. Fact witnesses are limited to testifying as to what they experienced with their senses; what they saw, heard, smelled and so on. Experts are different. An expert, once qualified as having sufficient education and/or training in a particular field or endeavor, can offer his or her opinion. And that’s the key distinction. A fact witness may only report. An expert may expostulate, ruminate, theorize and conclude.
An example may be helpful.
Let’s say a green ogre — for the sake of simplicity, let’s call him Shrek — is astride his ass. Let’s imagine further that along a peaceful trail on the way to confront the evil Lord Farquaad, said donkey loses purchase, pitching Shrek through the pane glass of his neighbor’s abode. The neighbor, of course, sues. Monsieur Hood had been happening by and is called to offer his account. As a non-expert in the grip of donkey hooves on clayey soils, Hood is limited to recounting what he saw.
Let’s say the Shrek defense team wants more oomph than simply who saw what. They want an expert in the field of forensic engineering. They find their man who will opine that the fault lies not with Shrek or Donkey but is, in fact, the fault of Farquaad’s roadway engineers. But, alas, the expert has a novel theory. Once qualified to offer his opinion, the forensic scientist will crook a boney finger at the king’s men and lay fault at their feet, thus absolving Shrek of culpability.
Now, note that I used the work “qualify.” The defense team can’t trot just any Manny, Moe or Jack into the courtroom to offer his opinion. No, instead they must first qualify him as an expert in the particular field in which he his chafing to offer his opinion. And since the theory he intends to offer in this case is a bit off-kilter, that is where we shift from your Shrek to my Shreck.
Colorado’s People v. Shreck
In People v. Shreck, a 2001 Colorado Supreme Court case, the court adopted a flexible approach to fulfill the need for preliminary inquiry into the relevance and reliability of expert testimony. Let’s call this “vetting,” if you will, the testimony the expert wishes to introduce.
The Shreck case involved an alleged sexual assault. There, the prosecution sought to admit a particular type of DNA evidence indicating the defendant had, in fact, committed the alleged crimes. The defense moved to bar use of the DNA evidence because the specific tests and methods of collection were not generally accepted by the relevant scientific community. The trial court agreed and held that the DNA evidence was inadmissible.
When the matter worked its way up the Colorado Supreme Court, however, the court overturned the trial court’s ruling, stating that the focus of such inquiry must be whether the proposed scientific evidence is both reliable and relevant. When determining relevance, courts should consider whether the proffered testimony will be useful to the fact-finder. When determining reliability, courts should look to: One, whether the scientific principles on which the witness relies are reasonably reliable; and, two, whether the particular witness is qualified to testify on such matters.
Although the court declined to mandate any particular set of factors, it identified a number of “general observations” that trial courts could consider when determining the reliability of scientific evidence. These include: One, whether the technique can and has been tested; two, whether the theory or technique has been subjected to peer review and publication; three, the technique’s known or potential rate of error and the existence and maintenance of standards controlling its operation; and, four, whether the technique has been generally accepted.
The court went on to list several additional potential considerations including: One, the relationship of the proffered technique to more established modes of analysis; two, the existence of specialized literature dealing with the technique; three, the non-judicial uses to which the technique is put; four, the frequency and type of error generated by the technique; and, five, whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure.
In the Shreck case, the court applied such analysis and found that the proposed DNA evidence was sufficiently reliable to pass muster and held that the DNA evidence was admissible.
“Shreck” analysis may be applied similarly to other facts and other cases. Even if a particular scientific methodology is new and may not yet be “generally accepted,” if the scientific process has been properly endorsed, is used professionally and, particularly, if other courts have admitted the same evidence in similar cases, then it may be considered sufficiently reliable to warrant admission and thus considered by the judge or jury.
So your Shrek or my Shreck? Frankly, both of them are ogres.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.