     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 21, 2019

                                2019COA39

No. 17CA0397 People v. Murphy — — Evidence — Opinions and
Expert Testimony — Opinion Testimony by Lay Witnesses

     In this direct appeal of a defendant’s convictions for one count

of distributing methamphetamine to a minor and one count of

contributing to the delinquency of a minor, a division of the court of

appeals considers whether a lay witness may provide testimony

interpreting a witness’s body language.

     The division determines that, pursuant to CRE 701 and

Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875, the trial

court abused its discretion in allowing a police officer testifying as a

lay witness to use his training and experience to interpret a

witness’s body language.

     Accordingly, the division reverses and remands to the district

court for a new trial.
COLORADO COURT OF APPEALS                                      2019COA39


Court of Appeals No. 17CA0397
Mesa County District Court No. 16CR92
Honorable Lance Phillip Timbreza, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Justine Lynn Murphy,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division I
                         Opinion by JUDGE TAUBMAN
                               Tow, J., concurs
                          Berger, J., specially concurs

                          Announced March 21, 2019


Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Justine Lynn Murphy, appeals her judgment of

 conviction entered on a jury verdict finding her guilty of distributing

 methamphetamine and contributing to the delinquency of a minor.

 She contends that the district court erred in permitting unendorsed

 and unqualified expert testimony under the guise of lay opinion,

 and that this testimony improperly commented on the meaning of

 the body language of K.H., a prosecution witness. We reverse and

 remand for a new trial.

                            I. Background

¶2    K.H., then fifteen, attended a concert with his thirty-five-year

 old stepsister, Murphy, in January 2016. The following day, K.H.

 met with his middle school counselor and assistant principal after

 one of his teachers expressed concern because K.H. appeared ill.

 K.H. disclosed to the counselor that he had used methamphetamine

 the night before while partying with Murphy before the concert.

 When the counselor asked K.H. if his sister “was a good person to

 be hanging out with,” he responded, “no[,] because his sister does

 meth and his stepmom uses heroin.” School officials searched

 K.H.’s backpack and discovered drug paraphernalia and a small

 amount of methamphetamine. They contacted K.H.’s father, J.H.,

                                    1
 and asked him to pick K.H. up from school. Thereafter, K.H. was

 admitted to the local hospital for evaluation and recovery.

¶3    School officials also contacted a school resource officer,

 Deputy Chad Searcy, regarding the information K.H. had offered

 about his stepsister. Based on this information, Deputy Searcy

 identified Murphy through law enforcement records and

 investigative techniques.

¶4    After notifying both J.H. and K.H. that K.H. was not under

 arrest and could cease the deputy’s questioning at any time,

 another school resource officer, Deputy Mark Johnson, interviewed

 K.H. from his hospital bed in the presence of J.H. Deputy Johnson

 testified at trial that, when he asked where K.H. obtained the

 methamphetamine, K.H. was not immediately forthcoming. In

 response, Deputy Johnson asked, “Did you get it from [Murphy]?”

 K.H. “did not deny right away. Instead, his body language changed.

 He looked — had been looking at me as I was speaking to him. He

 looked down and away.” Deputy Johnson testified that he

 assumed, based on his training and experience, that K.H. did not

 want to answer him and that the body language suggested an

 affirmative answer. Deputy Johnson then asked K.H. if Murphy

                                   2
 sold it to him or gave it to him. K.H. stated, “She sells it to me.”

 J.H. terminated the interview before Deputy Johnson could inquire

 about the transaction.

¶5    Based on Deputy Searcy’s identification of Murphy, law

 enforcement officers searched Murphy’s home and found drug

 paraphernalia.

¶6    In an interview conducted approximately nine months later, in

 October, K.H. changed his story, telling Deputy Searcy that he had

 procured the methamphetamine from a dealer friend he

 encountered in the bathroom at the concert, and that he had

 injected it before attending school the next morning. At trial, the

 court admitted recorded jail phone calls Murphy made to her

 mother, who said, “[K.H.] swears sometimes that you did [give him

 the methamphetamine], then other times he says no. I almost had

 [K.H.] convinced to just right [sic] the letter saying he was lying

 because he was scared.”

¶7    Murphy’s theory of defense was that law enforcement officials

 had conducted an inadequate investigation by improperly focusing

 their investigation on her. She further contended that Deputy

 Searcy’s questioning in October was the first time a law

                                    3
 enforcement officer had asked K.H. where he had acquired the

 drugs, claiming that K.H. consistently said he had obtained the

 methamphetamine from someone he ran into at the concert. K.H.

 testified at trial that he had not purchased the drug from Murphy

 and had never said otherwise. Deputy Johnson testified that, based

 on his training and experience, 1 he believed that K.H.’s body

 language indicated he was being deceptive when he looked down

 and away in response to a question.

¶8    The jury found Murphy guilty of distributing

 methamphetamine and contributing to the delinquency of a minor.

 She was sentenced to eight years in the custody of the Department

 of Corrections.



 1 The defense filed a pretrial motion objecting to Deputy Johnson’s
 testimony as an expert in the field of “witness interviewing,” stating
 that his testimony about K.H.’s body language was expert testimony
 that “could only be gleaned through official training and not
 through experience alone,” and the evidence did not establish that
 he had expertise in the field. After the People responded, the trial
 court ruled that Deputy Johnson’s testimony about K.H.’s body
 language was “really lay witness testimony” and “the endorsement
 was done in an abundance of caution.” Thus, when the defense
 objected to the testimony at trial, the court overruled the objection,
 declaring that “pursuant to the court’s order . . . this was proper lay
 opinion testimony, so [the defense] [doesn’t] have to establish that
 he’s an expert.”
                                    4
                          II. Standard of Review

¶9     We review a trial court's evidentiary decisions for an abuse of

  discretion. People v. Dunlap, 975 P.2d 723, 741 (Colo.1999). A trial

  court abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, or unfair, or when it misinterprets or misapplies the

  law. Id.; People v. Ortiz, 2016 COA 58, ¶ 14, 381 P.3d 410, 413.

¶ 10   If we determine the trial court abused its discretion, we reverse

  only “if the error affects the substantial rights of the parties.”

  Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. In other

  words, “we reverse if the error ‘substantially influenced the verdict

  or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin

  v. People, 715 P.2d 338, 342 (Colo. 1986)).

                        III. Lay Witness Testimony

¶ 11   Murphy contends that the trial court erred in permitting

  Deputy Johnson to interpret the meaning of K.H.’s body language

  because his testimony was inadmissible under CRE 701. We agree.

                             A. Applicable Law

             [T]he critical factor in distinguishing between
             lay and expert testimony is the basis for the
             witness’s opinion. That is, the proper inquiry
             is not whether a witness draws on her
             personal experiences to inform her testimony;

                                      5
            all witnesses rely on their personal experience
            when testifying. Rather, it is the nature of the
            experiences that could form the opinion’s basis
            that determines whether the testimony is lay
            or expert opinion. . . . To determine whether
            the testimony in question is testimony that an
            ordinary person could give, “courts consider
            whether ordinary citizens can be expected to
            know certain information or to have had
            certain experiences.” Expert testimony, by
            contrast, is that which goes beyond the realm
            of common experience and requires
            experience, skills, or knowledge that the
            ordinary person would not have.

  Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875 (citations

  omitted) (quoting People v. Rincon, 140 P.3d 976, 982 (Colo. App.

  2005)); see CRE 701.

¶ 12   The Venalonzo court held that “in determining whether

  testimony is lay testimony under [CRE] 701 or expert testimony

  under CRE 702, the trial court must look to the basis for the

  opinion.” Id. at ¶ 2, 388 P.3d 868, 870-71. The Venalonzo court

  concluded that, while an interviewer’s testimony describing child

  interview techniques and general child behaviors constituted proper

  lay witness testimony, testimony explaining that children often use

  hand gestures “to demonstrate where on their bodies they were

  touched,” coupled with a statement that the victim had engaged in


                                   6
  this behavior, was improper. Id. at ¶ 29, 388 P.3d at 876. The

  supreme court deemed the latter statements improper because the

  interviewer “attached significance to the victims’ behavior that an

  ordinary person would not recognize.” Id.

¶ 13     In People v. Ramos, a companion case, the supreme court

  determined that a detective’s testimony — based on his training and

  experience — differentiating blood cast-off from blood transfer was

  expert testimony in the guise of lay testimony. 2017 CO 6, ¶ 9, 388

  P.3d 888, 891. The court reasoned that the detective’s testimony

  involved technical areas not within an ordinary person’s experience

  or knowledge and concluded that the People improperly relied on it

  without seeking to qualify the detective as an expert. Id.; see CRE

  702.

¶ 14     A lay witness may express an opinion of another person’s

  behavior “if the witness had sufficient opportunity to observe the

  person and to draw a rational conclusion about the person’s state of

  mind; an opinion that is speculative or not based on personal

  knowledge is not admissible.” People v. Jones, 907 P.2d 667, 669

  (Colo. App. 1995).



                                    7
¶ 15   However, when a witness testifies based on his or her “training

  and experience,” courts generally conclude that the witness

  provided expert testimony. See, e.g., People v. Kubuugu, 2019 CO

  9, ¶ 16, 433 P.3d 1213, 1217-18; Ramos, ¶ 9, 388 P.3d at 891;

  People v. Veren, 140 P.3d 131, 137 (Colo. App. 2005); cf. Venalonzo,

  ¶ 27, 388 P.3d at 875-76 (concluding that an interviewer’s

  statements — based on her training and experience — “describing

  her professional background, including the number of interviews

  she has conducted and the number of times she has testified in

  court, is not expert testimony because any ordinary person is

  capable of describing her own credentials”). But cf. People v.

  Garner, 2015 COA 175, ¶ 31, ___ P.3d ___, ___ (determining that a

  detective’s statements that, based on his training and experience,

  he preferred in-person lineups to photographic lineups was “proper

  [under CRE 701], because the detective, as a lay witness, had

  substantial experience conducting photo lineups”) (cert. granted

  Oct. 17, 2016).

¶ 16   Colorado appellate courts have not specifically addressed

  whether law enforcement officer testimony about conclusions drawn



                                    8
  from a witness’s body language is admissible lay witness testimony.

  Therefore, we turn to case law in other jurisdictions for guidance.

¶ 17   Courts in other jurisdictions have generally found lay

  testimony interpreting the meaning of a witness’s body language

  impermissible. United States v. Williams, 133 F.3d 1048, 1053 (7th

  Cir. 1998); State v. Reimer, 941 P.2d 912, 913-14 (Ariz. Ct. App.

  1997); Edwards v. State, 248 So. 3d 166, 170 (Fla. Dist. Ct. App.

  2018) (citing cases); People v. O’Donnell, 28 N.E.3d 1026, 1033 (Ill.

  App. Ct. 2015); People v. Henderson, 915 N.E.2d 473, 478 (Ill. App.

  Ct. 2009).

¶ 18   In O’Donnell, the Illinois Appellate Court concluded that a

  police officer’s testimony interpreting the meaning of the

  defendant’s body language during interrogation was inadmissible.

  “[The police officer] specifically testified, ‘When I would ask

  [defendant] about certain things . . . he would always look away

  from me, or look down * * *. * * * [I]t’s a sign of deception when

  someone won’t look at you, when they look away to answer you.’”

  28 N.E.3d at 1033.

¶ 19   Likewise, in Edwards, 248 So. 3d at 170, the Florida District

  Court of Appeal held that testimony that body language and

                                      9
mannerisms indicated deception was improper. In Edwards, the

court concluded that the trial court had improperly admitted lay

witness testimony when a detective testified — based on his

training and experience — that a witness’s looking down, avoiding

eye contact, and burying his face in his hands during interrogation

indicated that the witness was being deceptive. Id. at 171. The

defendant exhibited the same body language in his recorded

interrogation shown to the jury directly after the detective’s

testimony. Id. The court ruled the testimony improper because,

“[w]hile the detective did not express an ultimate opinion as to

whether appellant was being truthful during the interrogation, the

detective’s testimony was clearly calculated to imply that appellant’s

body language showed he was being deceptive.” Id. at 170-71. The

court based its opinion, in part, on an earlier opinion in which the

court deemed an officer’s lay testimony improper because he

applied his expertise in evaluating the defendant’s credibility. See

Miller v. State, 782 So. 2d 426, 431 (Fla. Dist. Ct. App. 2001).




                                  10
                              B. Analysis

           1. Case Law Regarding Body Language Testimony

¶ 20   As we read the decisions cited above, the courts in other

  jurisdictions have concluded that testimony interpreting body

  language is inadmissible lay testimony.

¶ 21   Here, Deputy Johnson relied on his training and experience to

  interpret K.H.’s body language to indicate that he was being

  deceptive. His testimony exceeded the bounds of CRE 701 because

  it provided more than an opinion or inference rationally based on

  his perception; instead, it interpreted K.H.’s body language based

  on his training and experience. 2 This was improper under

  Venalonzo, ¶ 22, 388 P.3d at 875.

¶ 22   The present case is unlike People v. Acosta, where a majority

  of a division of our court concluded that witness testimony

  describing the defendant as “very guilty-looking” after the

  commission of a crime was proper under CRE 701 because the

  witness was the defendant’s friend and had no training or




  2We do not decide whether this would have been admissible as
  expert testimony.
                                   11
  experience in criminal investigations. 3 2014 COA 82, ¶ 49, 338

  P.3d 472, 481. The Acosta division reasoned that “[the witness’s]

  statement was her summary characterization of how she perceived

  defendant looked and acted immediately following the incident and

  did not consist of a statement that she personally believed the crime

  had occurred or that she thought defendant was guilty.” Id. at

  ¶ 46, 338 P.3d at 481. The present case is distinguishable. The lay

  witness in Acosta, a friend of the defendant, possessed a baseline

  familiarity with the defendant’s facial features. Deputy Johnson,

  unlike the lay witness in Acosta, was not a friend who was familiar

  with K.H.’s body language or expressions. Thus, he was applying

  his training and experience to interpret K.H.’s body language.

¶ 23   The prosecutor asked Deputy Johnson to opine on the

  meaning of K.H.’s body language. Deputy Johnson responded that,

  when initially asked where he got the methamphetamine, K.H.

  “didn’t seem like he wanted to answer.” Deputy Johnson followed

  up by asking whether he got it from Murphy, and K.H.



  3We do not address whether we agree with the majority in People v.
  Acosta, 2014 COA 82, 338 P.3d 472, because the facts in the
  present case are distinguishable.
                                   12
            didn’t snap his head and shake his head and
            say no right away. . . . Instead, his body
            language changed. He looked — had been
            looking at me as I was speaking to him. He
            looked down and away.

            I took that, based on my training and
            experience, to be that he just really didn’t want
            to answer me, because — and that was an
            affirmative.

¶ 24   During his closing argument, the prosecutor relied on K.H.’s

  silence to state that K.H. affirmatively “answered [Deputy Johnson’s

  question] with his body language.” Thus, Deputy Johnson’s

  interpretation of this body language, based on his training and

  experience, “assist[ed] the trier of fact to understand the evidence or

  to determine a fact in issue,” which constitutes improper lay

  witness opinion testimony. CRE 702; see CRE 701 (stating lay

  witness testimony may “not [be] based on scientific, technical, or

  other specialized knowledge within the scope of Rule 702”).

¶ 25   Accordingly, we agree with other jurisdictions addressing the

  issue and conclude that Deputy Johnson’s lay testimony improperly

  interpreted K.H.’s body language and exceeded the scope of

  permissible lay testimony under CRE 701. See, e.g., Williams, 133

  F.3d at 1053; O’Donnell, 28 N.E.3d at 1033. However, we note the


                                    13
  distinction between the circumstances underlying Deputy

  Johnson’s testimony and those in situations where a witness’s

  expressive conduct conveys a commonly understood proposition,

  such as a nod to denote an affirmative answer or shaking of the

  head to denote a negative answer.4 Thus, we emphasize the

  fact-specific analysis inherent in determining whether a witness is

  testifying as an expert under the guise of lay witness testimony.

                         2. Harmlessness of Error

¶ 26     We conclude the admission of this testimony did not

  constitute harmless error. K.H.’s credibility was a significant issue

  at trial. Through his testimony, the court permitted Deputy



  4   Testimony regarding body language offers little relevance without

               a commonly accepted definition of the matrix
               of human expressions, body language, and
               actions that demonstrate [the emotion
               purportedly conveyed]. This definition, or
               understanding, may be supplied by the law, by
               common experience, or perhaps by social
               science. Without such a common
               understanding, the opinion by the witness that
               defendant [was portraying a certain emotion]
               has no probative value whatsoever.

  Id. at ¶ 104, 338 P.3d at 489 (Berger, J., concurring in part and
  dissenting in part).
                                     14
  Johnson to tell the jury that through K.H.’s body language, K.H.

  had told the deputy who had given him the methamphetamine —

  Murphy. That is, the court essentially allowed Deputy Johnson to

  tell the jury that, even though K.H. was telling a different story at

  trial, his training and experience enabled him to determine which

  version was correct because he was able to see and interpret K.H.’s

  body language during the initial interview. Thus, if the jurors were

  in a situation where they could not determine which version of

  K.H.’s story to believe, they could have turned to the deputy’s

  improper statements that the victim’s body language said it all:

  Murphy sold him the drugs.

¶ 27   We recognize that some properly admitted evidence suggested

  that Murphy used methamphetamine, including K.H.’s description

  of the circumstances under which he consumed methamphetamine,

  the fact that he was with Murphy, and that he knew she used

  methamphetamine. However, other evidence suggested that

  Murphy did not give K.H. the drugs. When later interviewed by

  other law enforcement officers and investigators, K.H. repeatedly

  stated that he bought it from someone else. In fact, the only

  statement that suggested that Murphy supplied him the

                                    15
  methamphetamine was given to Deputy Johnson, during the

  interview that is central to this case, when K.H. was hospitalized

  and still under the influence of the drugs. Another investigator

  testified that the brand of syringes found in Murphy’s home was

  different from that found in K.H.’s backpack.

¶ 28   Further, the jury may have unduly weighed Deputy Johnson’s

  interpretation of K.H.’s body language because it — coupled with

  K.H.’s response that she sold him the methamphetamine — was the

  only evidence that connected Murphy directly to K.H.’s possession

  of the drugs. Without his testimony interpreting the body language,

  it is reasonably probable that the outcome would have been

  different, and thus the improper testimony substantially influenced

  the verdict. See Krutsinger v. People, 219 P.3d 1054, 1063 (Colo.

  2009).

¶ 29   Therefore, we conclude that the error in admitting the

  prejudicial testimony affected Murphy’s substantial rights and

  constituted reversible error. See Kubuugu, ¶ 16, ___ P.3d at ___

  (concluding that police officer’s inadmissible testimony regarding

  metabolized alcohol odors influenced the verdict; the error was not



                                   16
  harmless even though some evidence supported prosecution’s case

  and other evidence supported defendant’s case).

            IV. Improper Testimony on Credibility of Witness

¶ 30   Murphy contends that Deputy Johnson improperly opined as

  to the veracity of K.H.’s testimony by stating, “[K.H.] told me he

  didn’t remember [who had given him the methamphetamine]. Well,

  I believed that he did remember, he just didn’t want to tell me . . . .”

  Since we reverse the trial court’s judgement based on improper

  admission of lay witness testimony under CRE 701, we need not

  address this issue because we cannot say whether or in what

  context it is likely to arise on remand.

                              V. Conclusion

¶ 31   Accordingly, the judgment is reversed, and the case is

  remanded for a new trial.

       JUDGE TOW concurs.

       JUDGE BERGER specially concurs.




                                     17
       JUDGE BERGER, specially concurring.

¶ 32   I agree with the majority that “Deputy Johnson’s lay testimony

  . . . exceeded the scope of permissible lay testimony under CRE

  701.” Supra ¶ 25. The deputy testified that his interpretation of

  K.H.’s body language was based on his “training and experience.”

  That training and experience went “beyond the realm of common

  experience and require[d] experience, skills, or knowledge that the

  ordinary person would not have” and therefore constituted

  specialized knowledge that was inadmissible as lay testimony.

  Venalonzo v. People, 2017 CO 9, ¶ 22.

¶ 33   The majority could have, and should have, stopped there. But

  the majority then waded into the enormously complicated subject of

  the admissibility of an observer’s opinion regarding the meaning of

  another person’s body language.

¶ 34   This was unnecessary to the CRE 701 analysis. It was also

  unnecessary because the challenged testimony by the police officer

  was, in this context, an improper commentary on the credibility of a

  material witness in this case.

¶ 35   The officer who interviewed K.H testified that when he initially

  asked K.H. if he obtained methamphetamine from his sister, he was

                                    18
not forthcoming. The officer further testified that, based on his

training and experience, he construed K.H.’s body language as

conveying that the answer to the question was affirmative, even

though K.H. did not expressly then communicate an affirmative

answer. If this were the end of the colloquy, or the officer’s

testimony at trial, it would be unfair to characterize the officer’s

testimony as a commentary on K.H.’s credibility. However,

immediately after the officer observed K.H.’s body language, he

directly asked K.H. whether Murphy gave or sold the

methamphetamine to him. K.H. responded: “She sells it to me.”

Because K.H. admitted to the officer that Murphy sold him the drug

(immediately after “not being forthcoming”), the relevance of the

officer’s opinion regarding K.H.’s body language is questionable. As

the majority reasons in its analysis of whether the improper

admission of the body language evidence required reversal, the real

effect (and I submit the only real probative value) of the officer’s

body language opinion goes to K.H.’s credibility. This is so because

later in the case, K.H. testified that he did not get the

methamphetamine from his sister (and denied telling the officer the

contrary).

                                   19
¶ 36   Under longstanding Colorado Supreme Court precedent, it is

  improper and inadmissible for any witness, lay or expert, to express

  an opinion as to whether another witness has told the truth or lied

  on a particular occasion. Liggett v. People, 135 P.3d 725, 731 (Colo.

  2006). Application of this settled principle of law compels the

  conclusion that the admission of that evidence constituted error

  without regard to any analysis of body language.

¶ 37   The majority’s body language analysis is problematic for

  several reasons.

¶ 38   First, the law does not support the majority’s analysis to the

  extent it claims. Because of the paucity of published opinions in

  Colorado on this subject (with one glaring exception), the majority

  purports to rely on a number of out-of-state cases to reach the

  conclusion that the admission of interpretative body language

  evidence was error in this case. The problem, though, is that with

  one possible exception (United States v. Williams, 133 F.3d 1048

  (7th Cir. 1988)), the cases relied on by the majority are cases that

  were decided by application of the familiar principle that one

  witness cannot express an opinion of the credibility of another

  witness.

                                    20
¶ 39   Then, after relying on these out-of-state cases (most of which

  add little or nothing to the inquiry), the majority chooses to duck

  any analysis of the one Colorado case that directly addresses the

  admissibility of opinions regarding the body language of another ––

  People v. Acosta, 2014 COA 82. Though I believe Acosta was

  wrongly decided, any meaningful consideration of the admissibility

  of testimony interpreting body language should squarely address

  Acosta.

¶ 40   In Acosta, a witness testified that the defendant was “very

  guilty-looking” when she saw the defendant immediately after the

  alleged sexual assault. Id. at ¶ 1. The majority differentiates

  Acosta on the ground that, unlike the deputy here, the witness in

  Acosta was a friend with a “baseline familiarity with the defendant’s

  facial features.” Supra ¶ 22. But while the Acosta majority stated

  that the defendant and the witness worked together and that the

  defendant had described the witness as a friend, it never discussed

  the witness’s baseline familiarity with the defendant’s facial features

  –– only that the witness saw the defendant after the alleged incident

  and that she had a rational basis for her opinion.



                                    21
¶ 41   By drawing this distinction between the witness’s testimony in

  Acosta and the deputy’s testimony here, is the majority stating that

  body language interpretation is permissible if the witness is familiar

  with the person described, but impermissible if they’ve only just

  met? How familiar do they need to be? Neither Acosta nor other

  Colorado cases answer these questions.

¶ 42   Second, to the extent the majority concludes that lay opinions

  regarding the meaning of the body language of another sometimes

  are admissible but sometimes are not, the majority gives the reader

  and, more importantly, trial judges no guidance.

¶ 43   Third, if, in the alternative, the majority is saying that an

  opinion on the body language of another never is admissible

  because it is not reliable or helpful to the fact finder, that

  conclusion is directly contradictory to the majority opinion in

  Acosta. In addition, such a rule strikes me as the type of

  categorical prohibition that will inevitably run up against facts and

  circumstances that render the broad rule unworkable. Moreover, to

  the extent that such a prohibition is premised on the inherent

  unreliability of body language interpretation, I note that courts

  invite, indeed require, jurors to engage in that exact process in

                                     22
  every case. COLJI-Crim. B:01 (2018) (“Consider each witness’s

  knowledge, motive, state of mind, demeanor, and manner while on

  the stand.”); COLJI-Civ. 3:16 (2018) (same).

¶ 44   In conclusion, while I agree with the majority’s analysis under

  CRE 701, I do not agree with the majority’s analysis of the

  admissibility of opinions regarding the body language of others.

  While I have serious concerns about the majority’s harmlessness

  analysis and, in the end, think that is a very close question, I

  concur in the court’s judgment.




                                    23
