Police can interpret body language on the stand, Colorado Supreme Court rules

The Colorado Supreme Court on Monday ruled in a split decision that police officers can testify about how they interpret body language without first being classified as expert witnesses in a case that will have practical implications across the state court system.

The decision reverses a 2019 Colorado Court of Appeals ruling and reinstates a woman’s conviction and eight-year prison sentence for selling methamphetamine to her 15-year-old stepbrother.

“This opinion is very common-sensical, it’s very much based on the real world,” former Boulder County district attorney Stan Garnett said. “…It’s an opinion that will be helpful to trial lawyers on both sides because it makes clear what the rules are.”

Five justices joined the majority opinion, which was written by the court’s newest justice, Maria Berkenkotter. Chief Justice Brian Boatright concurred in the judgment only, and Justice Richard Gabriel dissented.

The case springs from a 2016 incident in which a 15-year-old middle school student in Mesa County was hospitalized after using methamphetamine. A school resource officer interviewed the student from his hospital bed, and asked the boy if he’d received the drugs from his adult stepsister. The teen “looked down and away,” which the officer interpreted as an affirmative answer.

The officer then asked whether the stepsister had given the teenager the drugs or sold them to him, and the boy said she’d sold them to him. The boy’s father then ended the interview.

The criminal case against the stepsister turned on the teenager’s statements because police had no physical evidence tying her to the drug deal.

During the court process, the student testified that he’d gotten the drugs from a friend, not his stepsister, and that he’d shaken his head to indicate “No” when the officer asked about her during the hospital interview. The officer then testified about how he considered the boy’s body language to be a “Yes.”

Defense attorneys argued that the officer should not have been allowed to testify about how he interpreted the teenager’s body language without first being qualified as an expert witness — a process in which witnesses must establish their expertise, training and education on a subject before testifying.

The state Supreme Court rejected that argument Monday, finding that any lay person could have drawn the same conclusions as the officer.

“Anyone who has interacted with children, for example, could infer that a child who looks away or avoids eye contact when confronted about their misbehavior (‘Did you take the cookie?’ ‘Did you hit your brother?’) may be tacitly acknowledging that misbehavior,” Berkenkotter wrote.

Gabriel dissented from the majority on the grounds that the police officer’s opinion was an expert opinion and was offered to comment on the teenager’s credibility.

“In my view, this was not the kind of testimony that could be expected based on an ordinary person’s experience or knowledge,” he wrote in the dissent, finding that the officer viewed the teenager’s body language through the lens of police interrogation.

Doug Woody, a professor of psychological sciences at the University of Northern Colorado, who last year co-published a book on police interrogation techniques, said Monday there’s a common misconception that most people can accurately discern whether someone is telling the truth or lying by examining body language.

“It’s a common belief that humans can read others’ behaviors and separate liars from truth-tellers, and the science suggests that we are not good at that,” he said.

Research has shown that people in general — including police officers — are accurate about 54% of the time when they rely solely on non-verbal behavior to discern truthfulness, he said, which is not much better than a coin flip.

On the procedural side, Garnett said the court’s ruling clarifies one bit of the constantly evolving question of expert versus layperson testimony, and said allowing officers to testify in this manner will help keep the court system from being bogged down.

“The Supreme Court from time to time will come in and say this particular piece of evidence is expert testimony and you have to endorse an expert,” he said. “There are a lot more procedural hurdles to go through to endorse an expert witness, so when the court changes those rules it can create some challenges for prosecutors and lawyers on both sides.”

In 2017, the state Supreme Court ruled that officers who interpret blood evidence must be qualified as experts in a pair of rulings that broadened the standards for expert testimony.

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