This post examines an opinion from the Colorado Court of Appeals: People v. Froehler, 2015 WL 4571431 (2015). The court begins the opinion by explaining
that “Kenneth Froehler appeals the judgment of conviction entered on a jury
verdict finding him guilty of sexual exploitation of a child.” People
v. Froehler, supra.
It goes on to outline the events that led to his being
charged and, ultimately, convicted:
Froehler checked into the Renaissance
Hotel in Denver in the early afternoon of March 17, 2009. That evening, two men
who appeared to be hotel guests found a flash drive plugged into one of the
hotel's business center computers. The men opened some of the files on the
flash drive and discovered child pornography. They immediately turned the flash
drive over to hotel security. The men did not identify themselves and asked not
to be involved further. The security guard contacted the police and gave them
the flash drive.
The next morning, Froehler called the
front desk and asked if anyone had turned in a flash drive. He described the
missing flash drive as black with the words `DataTraveler’ on it. Because that
description matched the flash drive turned in the night before, the clerk
contacted the police.
Responding officers approached Froehler
in the hotel parking lot and asked him about the flash drive. Froehler
described its appearance and told them it contained personal pictures, pictures
of Christmas lights, pictures of his dog, and business invoices from his
company. Later investigation revealed that the flash drive contained those
items, as well as 155 images and 4 videos of child pornography. Police later
searched five laptops found in Froehler's home but discovered no child
pornography on any of them.
The prosecution charged Froehler with
one count of sexual exploitation of a child, a class four felony. At trial, the
defense argued that someone else put child pornography on the flash drive after
Froehler had accidently left it in the hotel computer. A jury convicted
Froehler, and the trial court sentenced him to two years in the custody of the
Department of Corrections and three years mandatory parole.
People v. Froehler,
supra.
In his appeal, Froehler argued that the trial court judge
abused its discretion by allowing the
detective who investigated the case to give improper lay testimony about (1)
the dates associated with the images on the flash drive and (2) ImageScan, the
software program used to search Froehler's laptops. Froehler contends that this
evidence constituted expert testimony that should have been excluded because
the detective was not disclosed or qualified as an expert.
People v. Froehler,
supra.
The Court of Appeals began its analysis of his arguments by
explaining that
[w]e review the trial court's
evidentiary rulings for an abuse of discretion. People v. Stewart, 55
P.3d 107 (Colorado Supreme Court 2002); People v. Veren, 140
P.3d 131 (Colorado Court of Appeals 2005). A trial court abuses its discretion
if its ruling is manifestly arbitrary, unreasonable, or unfair, or based on an
erroneous view or application of the law. People v. Stewart, supra; People
v. Bondurant, 296 P.3d 200 (Colorado Court of Appeals 20120; People
v. Esparza–Treto, 282 P.3d 471 (Colorado Court of Appeals 2011).
People v. Froehler,
supra.
It went on to point out that Froehler
timely objected to the detective's
testimony. Accordingly, we apply the harmless error standard for
reversal. See People v. Stewart, supra; People v. Ramos, 2012 WL
5457354 (Colorado Court of Appeals 2012). Under this standard, we may not
reverse a conviction if we `can say with fair assurance that, in light of the
entire record of the trial, the error did not substantially influence the
verdict or impair the fairness of the trial.’ People v. Stewart, supra (internal quotation marks omitted).
We reject Froehler's contention that
the constitutional harmless error standard applies here. Colorado appellate
courts have uniformly applied the ordinary harmless error standard where, as
here, the defendant contends that expert testimony was improperly admitted as
lay testimony and the objection was preserved. See, e.g., People
v. Stewart, supra; People v. Ramos, supra.
People v. Froehler,
supra.
The court then took up the law that governed its decision in
the case, noting, first, that
[w]hether the trial court abused its
discretion here turns on whether admission of the detective's testimony was
proper under Colorado Rules of Evidence 701 (CRE 701). People v.
Stewart, supra. That rule, which governs lay opinion testimony, applies
because the prosecution did not seek to qualify the detective as an expert
witness under Colorado Rules of Evidence 702 (CRE 702).
Under CRE 701 a witness who is not
testifying as an expert may give testimony in the form of opinions or
inferences only if those opinions or inferences are (a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of CRE
702.
Froehler's argument focuses on the
third requirement, which prohibits opinions based on `scientific, technical, or
other specialized knowledge’ from being admitted as lay testimony.
People v. Froehler,
supra.
The Court of Appeals then took up the issue Froehler raised
on appeal, explaining that
[w]hether the trial court abused its
discretion here turns on whether admission of the detective's testimony was
proper under CRE 701. People v. Stewart, supra. That rule, which governs lay opinion
testimony, applies because the prosecution did not seek to qualify the
detective as an expert witness under CRE 702. People v. Stewart, supra.
Under CRE 701, a witness who is
not testifying as an expert may give testimony in the form of opinions or
inferences only if those opinions or inferences are (a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of CRE
702. Froehler's argument focuses on the
third requirement, which prohibits opinions based on “scientific, technical, or
other specialized knowledge” from being admitted as lay testimony. People v.
Stewart, supra.
People v. Froehler,
supra.
It went on to explain that
[i]n determining whether testimony is
lay or expert, the critical inquiry is whether a witness' testimony is based
upon `specialized knowledge.’ People
v. Veren, supra. Lay witness opinion testimony is proper only if the
opinions or inferences `do not require any specialized knowledge and could be reached
by any ordinary person.’ People v. Veren, supra. In deciding
whether an opinion is one that could be reached by any ordinary person, courts
consider whether ordinary citizens can be expected to know certain information
or to have had certain experiences. People v. Veren, supra. Courts
also consider `whether the opinion results from ‘a process of reasoning
familiar in everyday life,’ or ‘a process of reasoning which can be mastered
only by specialists in the field.’ People v. Veren, supra (quoting People
v. Rincon, 140 P.3d 976 (Colorado Court of Appeals 2005)).
People v. Froehler,
supra.
The court then went on to explain how courts in Colorado,
and elsewhere, have analyzed, and resolved, these issues:
In People v. Stewart, supra, the supreme court recognized the
difficulty in classifying a police officer's testimony as expert or lay opinion
testimony. . . . Police officers
regularly, and appropriately, offer testimony under CRE 701 based on
their perceptions and experiences. People v. Stewart, supra. However,
`[o]fficer testimony becomes objectionable when what is essentially expert
testimony is improperly admitted under the guise of lay opinions.’ People v.
Stewart, supra The court held that where an officer's testimony is based
not only on his or her perceptions, observations, and experiences, but also on
the officer's specialized training or education, the officer must be properly
qualified as an expert before offering such testimony. People v. Stewart,
supra.
The parties have not cited, and we have
not found, any published Colorado appellate case that has addressed the
distinction between lay and expert testimony in the context of computer-related
testimony. Because CRE 701 mirrors Rule 701 of the Federal Rules of Evidence, we look to federal cases construing that rule for guidance. See
People v. Stewart, supra.
People v. Froehler,
supra.
The Court of Appeals then noted that in U.S. v. Ganier, 468
F.3d 920 (2006),
the [U.S. Court of Appeals for the] Sixth Circuit considered testimony by a forensic computer specialist who used forensic
software to determine what searches were run on a computer. The court rejected
the Government's argument that this was `simply lay testimony available by
running commercially-available software, obtaining results, and reciting them.’
U.S. v. Ganier, supra. The court
reasoned that interpreting the reports generated by the software would require
the specialist to `apply knowledge and familiarity with computers and the
particular forensic software well beyond that of the average layperson.’ U.S. v. Ganier, supra.
It distinguished this type of knowledge
from the average lay person's familiarity with commonly used software programs:
`Software programs such as Microsoft
Word and Outlook may be as commonly used as home medical thermometers, but the
forensic tests [the specialist] ran are more akin to specialized medical tests
run by physicians. The average layperson today may be able to interpret the
outputs of popular software programs as easily as he or she interprets everyday
vernacular, but the interpretation [the specialist] needed to apply to make
sense of the software reports is more similar to the specialized knowledge
police officers use to interpret slang and code words used by drug dealers.’
U.S.
v. Ganier, supra. The court concluded that the testimony at issue involved
`scientific, technical, or other specialized knowledge and constituted expert
testimony. U.S. v. Ganier, supra.
In U.S. v. Wilson, 408
Fed.Appx. 798 (U.S. Court of Appeals for the 5th Circuit 2010), the Fifth
Circuit considered testimony by an investigator who reviewed the defendant's
e-mail account and, based on the empty sent-box, determined that the defendant
had deleted all sent e-mails. U.S. v. Wilson, supra. The
investigator did not use forensic software, and his computer experience was
limited to using Microsoft Office products. U.S. v. Wilson, supra. The
court concluded that his examination of the e-mail account fell `within the
realm of knowledge of the average lay person’ and was `based on reasoning
familiar in everyday life.’ U.S. v. Wilson, supra. (internal
quotation marks omitted). Accordingly, it was properly admitted as lay opinion
testimony. U.S. v. Wilson, supra. . . .
With
these cases in mind, we now turn to the detective's testimony in this case.
People v. Froehler,
supra.
The court prefaced that analysis with some introductory
comments:
Froehler first contends that the trial
court abused its discretion in allowing the detective to testify that the `date
created’ and `date modified’ associated with the pornographic images on the
flash drive preceded the date of Froehler's hotel stay. Froehler argues that
this constituted expert testimony that was improperly admitted as lay
testimony. We disagree.
People v. Froehler,
supra.
It went on to explain that during her investigation, the
detective sent the flash drive to
The Rocky Mountain Computer Forensic
Lab. The lab used forensic software to extract information about the images,
including dates they were created, modified, and accessed. The lab placed the
contents of the flash drive on a CD and provided a report listing the dates
associated with the images.
The defense requested disclosure of
expert testimony before trial. The prosecution represented that it would not
introduce any expert testimony but would have the detective testify as a lay
witness about the dates in the lab report. On the morning of trial, the defense
moved to exclude the report and related testimony, arguing, among other
grounds, that its admission through a lay witness would be improper.
After hearing arguments from counsel,
the trial court ruled that the detective would not be permitted to testify
about information obtained from the lab's forensic analysis. However, the court
ruled that the detective could give lay testimony about any information she
herself observed by looking on the flash drive.
People v. Froehler,
supra.
The court then pointed out that,
[f]ollowing the court's ruling, the
detective plugged the flash drive into her computer and examined the images
herself without the assistance of the lab's forensic software. She was
then permitted to testify at trial based on her own personal observations.
On direct examination, the detective
testified that she personally observed the created, modified, and accessed
dates when she clicked on the images on the flash drive. She explained that she
right-clicked each image file and hit `properties,’ and the computer then
showed the created, modified, and accessed dates associated with the file. She
was unable to view prior access dates because when she clicked on the file, the
accessed date changed to the date she looked at it. However, she did observe
the created and modified dates. She testified that those dates were prior to
March 17, 2009, the date Froehler checked into the hotel.
People v. Froehler,
supra.
The Court of Appeals then outlined its analysis of, and
ruling on, this issue:
We conclude that the detective's
testimony about the dates associated with the image files was properly admitted
as lay witness testimony. The detective testified about the dates she
personally viewed during her examination of the flash drive, which was separate
from the lab's forensic analysis. She did not use forensic software to extract
the dates, nor did she rely on information generated by the lab's forensic analysis.
. . .
Rather, she accessed the dates simply
by plugging the flash drive into her computer and right-clicking on the image
files. In our view, the method she used to view the dates did not require any
specialized knowledge or familiarity with computers beyond that of the average
lay person. Right-clicking on a file to view its properties requires some basic
computer competency, but it is within the realm of knowledge of ordinary people
who use computers in everyday life. See also U.S. v. Wilson, supra viewing
e-mail sent-box was `within the realm of knowledge of the average lay person’); U.S.
v. Lee, 339 Fed. Appx. 153 (U.S. Court of Appeals for the 3rd Circuit 2009) (using GPS map ‘require[d] no specialized training or knowledge’).
People v. Froehler,
supra. The court also noted that the
detective did not testify about
the meaning or significance of the
dates on the flash drive. For example, she did not explain whether `date
created’ referred to the date that the file was originally created or the date
the file was loaded onto the flash drive. Nor did she testify to conclusions or
inferences based on the dates. She simply reported the dates she observed,
without interpreting them. Any ordinary person could make the same observation
simply by clicking on the file.
Under these circumstances, we conclude
that the detective's testimony about the image dates was not based on `scientific,
technical, or other specialized knowledge within the scope of CRE 702.
Accordingly, it was properly admitted as lay testimony under CRE 701.
People v. Froehler,
supra.
The court then took up the issue of the testimony about
ImageScan Software, noting that Froehler claimed the trial court “abused its
discretion in allowing the detective to give lay testimony about the ImageScan
software program used to search Froehler's home computers, arguing that it also
constituted expert testimony.” People v.
Froehler, supra. It also explained
that the parties to this case
stipulated to certain facts regarding
the search of Froehler's home computers. During cross-examination of the
detective, the court read this stipulation to the jury:
The parties have agreed upon the
following facts which you may accept as true:
1) Pursuant to a legal request from the
Denver Police Department, the McHenry County Illinois Sheriff's Department
seized computers from the home of Kenneth Froehler . . . on November 11,
2009.
2) The Sheriff's [sic] did not call Mr.
Froehler prior to appearing at his home to conduct the search.
3) They collected two Toshiba Satellite
notebook computers, a Panasonic notebook computer, and two Sony notebook
computers.
4) Utilizing a program called Image
Scan, the McHenry County Illinois Sheriff's Department scanned all files and
media in Mr. Froehler's computers.
5) Image Scan is a software tool which
was created for law enforcement by the FBI's Computer Analysis Response Team.
6) No images of child pornography were
found on any of the computers seized from Mr. Froehler's home.
People v. Froehler,
supra. The opinion goes on to explain
that on
redirect examination, the prosecutor
asked the detective what ImageScan was. Defense counsel objected on the basis
that the detective had not been qualified as an expert. The court overruled the
objection and allowed the detective to testify as follows:
`ImageScan was developed by the FBI for
law enforcement to do on-site search of a computer, . . . it just runs through
the computer and pulls out any pictures. . . . It
doesn't do like a full forensic search
or anything, literally just pulling the pictures. And once it does that, then
it puts it in a format where you can click through thumbnails of pictures and
see if any of them are related to your case, but it doesn't go beyond just the
images.’
The detective also confirmed that she
had personally used ImageScan.
People v. Froehler,
supra. According to the opinion, the
prosecutor then asked the
detective what types of things
ImageScan would not find. Defense counsel again objected, and the court again
overruled her objection. The detective then testified about the limitations of
ImageScan:
`It's not going to give you a history
of what's been going on with the computer. It literally just pulls up the
images that are on the computer. If somebody's used a wipe program on a
computer, or if they have a file sharing program and then they clear it out
afterwards, ImageScan is not going to give you the history of that. It's only
going to give you the images that are on there.’
`[I]f it had been deleted but not
cleared out yet, then it would pull up the deleted image, but it's not going to
do a search for anything really beyond that.’
`[I]f it's an image and you just
deleted it, ImageScan might still have it, but as time goes on, that area gets
written over, so if that's a file there or an image and it's deleted and then
it's written over, I believe ImageScan is not going to find it.’
Finally, the prosecutor asked the
detective whether ImageScan would be able to find pictures that had been saved
on a flash drive. The detective responded: `If somebody's using a computer and
moving it—directly downloaded through the computer to an external drive, it's
not going to—the images won't be on the computer for ImageScan to pull up.’
People v. Froehler,
supra. Froehler’s lawyer “briefly
cross-examined the detective and confirmed that no child pornography had been
found on [his] home computers.” People v. Froehler, supra.
The Court of Appeals then took up the question of law at
issue here, i.e., whether the detective’s testimony about ImageScan was lay or
expert testimony, noting that it
is a close question. On the one hand,
the testimony was based, at least in part, on the detective's personal
experience with using the program. See People v. Stewart,
supra. She did not claim to have expertise in forensic computer analysis,
nor did she describe any specialized training related to ImageScan as a basis
for her testimony. . .
On the other hand, her testimony
concerned a particular software program that was developed specifically for law
enforcement. The general public could not be expected to have experience with,
or even access to, that software. . . . Moreover, the detective's testimony
went beyond explaining the search that was conducted in this case. She gave a
technical description of the program's capabilities and limitations, and she
offered assessments about whether it could retrieve images under various
hypothetical scenarios. In our view, this testimony required specialized
knowledge beyond that of the average layperson, including at least some technical
understanding of how the program operated. . . .
On balance, based on `specialized
knowledge’ within the scope of CRE 702 and, therefore, constituted
expert testimony. Accordingly, the trial court erred in admitting it as lay
testimony under CRE 701.
People v. Froehler,
supra.
The court applied “a harmless error analysis” to decide
whether the error warranted reversal, noting that since the “improperly
admitted testimony” about ImageScan related
“to the search of Froehler's home computers, not the flash
drive which was the basis for the charged offense”, it was
only tangentially relevant to the
central disputed issue in this case—whether Froehler `knowingly possessed’ the
child pornography on the flash drive. . . .
Froehler argues that the absence of
child pornography on his computers `tended to make it less likely’ that he put
the child pornography on the flash drive, because one could `infer that someone
who has child pornography on a flash drive probably has child pornography on
other electronic devices.’ Thus, he claims that the detective's testimony about
ImageScan's limitations undermined the exculpatory value of that evidence. Even
according to this argument, the link between the ImageScan testimony and the
flash drive is attenuated. Evidence about the software used to search
Froehler's home computers had no direct bearing on whether Froehler `knowingly
possessed’ the child pornography on the flash drive.
Moreover, the detective's testimony
about ImageScan was not the only evidence of `knowing possession.’ In his
closing argument, the prosecutor relied on other evidence admitted without
objection to show that the flash drive contained child pornography before
Froehler left it in the hotel's business center. Specifically, the
prosecutor highlighted: testimony that the business center was busy during
Froehler's stay; photographs showing that the screen of the computer where
Froehler's flash drive was found faced the hallway; and testimony that the
child pornography on the flash drive was organized into folders.
The prosecutor argued that it was
unlikely someone could have downloaded 155 images and 4 videos of child
pornography on the business center computer, put them on the flash drive, and
organized them into folders without being seen. He also relied on the
detective's testimony that the dates on the image files preceded the date of
Froehler's stay, which, as we have concluded above, was properly admitted.
People v. Froehler,
supra.
The Court of Appeals therefore found that,
[g]iven the other evidence of `knowing
possession,’ as well as the attenuated link between that disputed issue and the
ImageScan testimony, we conclude that the improperly admitted testimony did not
`substantially influence the verdict or impair the fairness of the trial.’ People v. Stewart, supra. . . .
Froehler contends that the failure to
disclose the detective's expert testimony before trial prevented defense
counsel from adequately preparing for cross-examination or hiring an expert to
rebut the detective's opinions. However, Froehler did not ask for a continuance
at trial. . . . Nor does Froehler explain how defense counsel's
cross-examination would have been different had the detective's testimony been
disclosed prior to trial. Likewise, he does not explain how, if at all, a
defense expert would have rebutted the detective's testimony about ImageScan's
limitations.
Under these circumstances, we conclude
that any error in admitting the detective's testimony about ImageScan was
harmless and does not warrant reversal.
People v. Froehler,
supra.
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