The man who killed 12 and injured 70 people in a July 2012 mass shooting in a Colorado movie theater returns to court for a hearing to decide whether crime scene reconstruction experts will be allowed to testify. Prosecutors are seeking the death penalty for James Holmes, 26, who is pleading not guilty by reason of insanity.
Prosecutors are seeking to call FBI investigators as crime scene reconstruction expert witnesses.
Arapahoe County District Court Judge Carlos Samour will decide whether their analysis is “credible enough to be admitted at trial as expert testimony. ”. The defense is seeking to bar such evidence, arguing that it is “unreliable. ”
Colorado Rule of Evidence 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
The Denver Post reports that the crime scene reconstruction experts created a “three-dimensional scan of the theater…to track the flight of every bullet fired during one of the worst mass shootings in American history.”
One of the proposed experts, Brett Mills, is a FBI crime scene expert with more than 25 years of experience. He testified in the trial of Maj. Nidal Hasan , a U.S. Army psychiatrist and Medical Corps officer sentenced to death for a mass shooting in Fort Hood in November 2009.
Mills testified that of the 238 bullet holes or impact marks he uncovered in the Aurora movie theater, the majority was “indicative of high-velocity rounds…coming from the front of the theater, near the exit door that detectives say Holmes entered through.”
Attempting to discredit the testimony, Holmes’s defense attorneys questioned his analysis, “noting the trajectory of two bullet holes pointed to the ceiling .”. Mills responded by explaining that the bullets would have changed course after striking “intervening objects,”. Which the prosecutor further clarified as the victims of the shooting.
It’s likely that Judge Samour will find that the prosecutor’s crime scene reconstruction expert witness testimony meets the standard defined by Rule 702. However, the defense may argue that it’s inadmissible under Federal Rule of Evidence 403.
FRE 403 states that relevant evidence may be excluded. This is valid, “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
It should be noted, however, that in U.S. v. Nevels 490 F.3d 800 (10th Cir. 2007), the court found that the probative value of the testimony provided by a crime scene reconstruction expert witness was not substantially outweighed by danger of unfair prejudice. In the case, the defendant was charged with possession of a firearm by a felon and possession of a firearm with an altered serial number. The defense argued that the prosecutor’s expert, who opined that the defendant fatally shot a victim seven times at close range, elicited an emotional response from the jury. Nevertheless, the court ultimately found that the probative value of the expert’s testimony was not substantially outweighed by danger of unfair prejudice. They noted that “Rule 403 does not protect a party from all prejudice, only ‘unfair prejudice.’”
Judge Samour has not yet ruled on the admissibility of the crime scene reconstruction expert testimony.