In a pair of 4-3 decisions on Monday, the Colorado Supreme Court upheld the expert witness testimony used to convict two men of domestic violence-related offenses, concluding that expert statements do not have to be a “perfect” fit to the facts of a case.

The rulings implicated the admissibility of “blind,” or generalized, expert testimony from people who are knowledgeable about a particular subject, but not familiar with the particular facts of the case. Their testimony may help a jury better understand, for example, the dynamics of domestic abuse and why victims may respond the way they do.

Justice Carlos A. Samour, Jr., writing for the majority, indicated the Court of Appeals was wrong to order new trials for Kerry Lee Cooper and Dylan Thomas Coons, after appellate judges found hardly any connection between the experts’ statements and the cases at hand.

“In our view, the court of appeals adopted a fit standard that is inflexible and overly exacting,” Samour wrote. “While generalized expert testimony must fit the case, the fit need not be perfect.”

But Justices Richard L. Gabriel, William W. Hood III and Melissa Hart dissented, expressing concern that prosecutors would seek to use blind expert testimony about domestic violence even if such evidence barely describes the actual relationship of the defendant and the victim.

“I, however, do not believe that this is proper,” Gabriel wrote for the minority. 

Hood, during oral arguments, laid out the problem with presenting a jury with a laundry list of abusive behaviors, some of which may be directed against children or animals, when asking jurors to find a defendant guilty.

“It does sort of suggest that this is a bad guy. He falls into this category and so all these other things that you’re hearing probably fit him too. And you should probably be inclined, jurors, to think that he’s somebody you need to be worried about. Oh, and by the way, the witness has fancy degrees and you should trust this person more,” Hood described.

An El Paso County jury convicted Cooper of third degree assault and harassment stemming from an early morning altercation with his partner in 2013. Cooper and the victim, identified as L.K., argued about the placement of an electric fan on the floor, after which Cooper reportedly shoved her face into the fan’s blades. L.K. fought back, prompting Cooper to hit her with a tire iron.

Cooper maintained L.K. was the initial aggressor, but admitted that he pushed her in the forehead during the fight. Responding officers documented L.K.’s numerous bruises, as well as Cooper’s bloody finger.

During the trial, prosecutors called Janet Kerr, a Colorado Springs consultant who speaks about issues of domestic and sexual violence. Kerr had not met Cooper or L.K., and the trial court intended for her to educate the jury about aspects of intimate partner violence that may appear counterintuitive.

But District Court Judge Michael McHenry quickly grew concerned about whether it would be appropriate to hear from Kerr.

“The most common trait that’s counterintuitive that we see in the courtroom are victims of domestic violence either recanting their original statement to authorities or minimizing their statement to authorities or failing to obey a subpoena,” he told the parties, “and I think it’s very important for the record to reflect that this case is not one of those.”

The prosecution insisted the jury would still benefit from Kerr explaining the “Power and Control Wheel,” a visual aid of how abusers use threats, isolation, male privilege, economic abuse, children and other factors to exert power and control. The wheel “illustrates that abuse is more than a loss of temper,” explained a document for expert witnesses from the Colorado Advocacy in Action Conference.

Cooper’s attorney pushed back, arguing this first incident of domestic violence did not fit the notion of a broader cycle.

Although McHenry allowed Kerr to use the wheel and speak about factors that were present in Cooper’s case – like L.K.’s refusal to seek medical treatment immediately or telling Cooper she still loved him – the judge warned that the testimony, “if allowed to go too far and just allow [Kerr] to say everything she usually says even when it doesn’t uniquely fit this case, [is] a danger to misuse by the jury.”

But after the jury convicted Cooper, a three-judge panel for the Court of Appeals overturned his conviction in February 2019. In a 2-1 ruling, the majority concluded that “virtually all” of Kerr’s statements were irrelevant and served to call Cooper’s character into question. Kerr used the “Power and Control Wheel” despite the absence of evidence showing Cooper exerted physical, emotional or economic control over L.K.

In determining whether to admit expert testimony, judges must evaluate whether the scientific principles being put forward are valid, whether the expert herself is qualified and whether the testimony would help the jury. The prosecution’s appeal focused on the third factor.

The Colorado Attorney General’s Office accused the appellate judges of trying to “micromanage” the trial when they listed the statements Kerr made on the witness stand and repeatedly noted how very few of those corresponded to any evidence in the case.

Samour, on behalf of the Supreme Court’s majority, agreed the Court of Appeals had narrowed its focus too far. In fact, Kerr’s testimony was appropriate to help jurors understand the social science underlying the connection between an abuser and his victim. There did not need to be prior incidents of violence, he explained, nor did there need to be a connection between everything the expert witness described and the case at hand.

Deciding otherwise “would have required Kerr to recast, on the fly, the Power and Control Wheel into something that social science has neither studied nor approved,” Samour wrote. “And it ultimately would have required Kerr to share with the jury an incomplete (and arguably inaccurate and misleading) version of the Power and Control Wheel.”

But the minority opinion poked holes in the determination that Kerr’s testimony even partially connected to the facts of the case. For example, Kerr testified that victims frequently do not disclose abuse, even though L.K. had done so. She said victims often grow up with abusive behavior, but there was no evidence of that for L.K. Prosecutors also asked her about economic abuse, even though the trial court prohibited such testimony.

“[I]t seems that prosecutors routinely seek to introduce expert testimony regarding the Power and Control Wheel in cases of alleged domestic violence, whether the factors comprising the wheel are relevant or not,” Gabriel wrote. Because the government used Kerr’s testimony to argue that Cooper and L.K. fit the description an abuser and victim, contrary to the actual evidence, the dissenting justices would have upheld the Court of Appeals and granted a new trial.

The second case, involving Coons, encompassed a prolonged and disturbing series of events in which he and his girlfriend, Leanna Rutledge, sexually assaulted and blackmailed a minor. The victim was subject to beatings and shock collar use during sex, and when she went off to college, Coons repeatedly became upset with her, at one point threatening to send illicit photos of the victim to her Reserve Officer Training Corps captain.

An El Paso County jury convicted Coons of sexual assault, extortion and assault in the third degree. As in Cooper’s case, the prosecution brought in a sexual violence counselor and victim advocate to testify as a blind expert witness. The defense objected, but prosecutors argued that domestic violence was present “throughout this entire case” and that Coons had exercised “a substantial amount of manipulation and control.”

Once again, a Court of Appeals panel believed much of the expert’s testimony was irrelevant, and that it could have prompted the jury to reach a guilty verdict out of a desire to prevent Coons from escalating his tactics to other behaviors in the wheel. The Supreme Court’s majority likewise found the opposite: that the expert’s statements as a whole had a logical connection to the case. In particular, the expert educated the jury about how abusers were often kind and willing to reconcile, which accurately described Coons’s behavior.

Gabriel, Hood and Hart believed the expert could have omitted the portions of the “Power and Control Wheel” that were irrelevant to Coons’s case, but nonetheless agreed with the majority in upholding Coons’s convictions because the other evidence of his guilt was overwhelming.

The cases are People v. Cooper and People v. Coons.