Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 19CA2313
2
Attorneys for Petitioner: Megan A. Ring, Public Defender
Meghan M. Morris, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Frank R. Lawson, Senior Assistant Attorney General Denver,
Colorado
3
JUSTICE SAMOUR delivered the Opinion of the Court, in which
JUSTICE HOOD, JUSTICE GABRIEL, and JUSTICE BERKENKOTTER
joined. CHIEF JUSTICE MARQUEZ, joined by JUSTICE BOATRIGHT
and JUSTICE BLANCO, dissented.
4
OPINION
SAMOUR, JUSTICE
5
¶1
"[O]ne who induces a trial court to let down the bars to
a field of inquiry that is not competent or relevant to the
issues cannot complain if his adversary is also allowed to
avail himself of the opening." 1 Kenneth S. Broun et
al., McCormick on Evidence § 57, Westlaw
(Robert P. Mosteller ed., 9th ed. database updated Feb. 2025)
(quoting Warren Live Stock Co. v. Farr, 142 F. 116,
117 (8th Cir. 1905)). The majority of courts seem to heed
this general principle of "fighting fire with
fire," though it is known by different monikers. See
id.; see also Bearint ex rel. Bearint v. Dorel Juv.
Grp., Inc., 389 F.3d 1339, 1349 (11th Cir. 2004)
("This Circuit recognizes the concept of 'curative
admissibility'-also called 'opening the door' or
'fighting fire with fire.'"). In Colorado, the
principle travels under the banner of "opening the
door." See, e.g., People v. Melillo,
25 P.3d 769, 775 (Colo. 2001).
¶2
Courts across the country beat to different drums in their
application of the door-opening principle. 1 Broun et. al,
supra, § 57. In Hemphill v. New York,
595 U.S. 140, 152 (2022), for example, the Supreme Court
observed that New York's version of the principle
requires state courts "to determine whether one
party's evidence and arguments, in the context of the
full record, have created a 'misleading impression'
that requires correction with additional material from the
other side." Colorado largely speaks the same language
as New York when it comes to the opening the door doctrine.
See People v. Murphy, 919 P.2d 191, 195 (Colo.
1996).
6
We have explained that a party may open the door to otherwise
inadmissible evidence by selectively presenting "facts
that, without being elaborated or placed in context, create
an incorrect or misleading impression."[1]Golob v.
People, 180 P.3d 1006, 1012 (Colo. 2008) (citing
Murphy, 919 P.2d at 195). The doctrine aims to
prevent a party "from gaining and maintaining an unfair
advantage" at trial. Id.; see also People v.
Miller, 890 P.2d 84, 98-99 (Colo. 1995) (same).
¶3
In this sexual assault on a child case, the People presented
the testimony of Kim Grimm, who conducted the forensic
interviews with the child victims, N.L. and A.L. After Grimm
described her interviews with N.L. and A.L. and offered
generalized expert opinions on conducting forensic interviews
with children in criminal cases-including the signs of
coaching she is trained to look for-a juror submitted a
question for her. The juror inquired whether the child
victims'
7
behaviors during Grimm's interviews were consistent with
the behaviors of children she'd observed in cases where
she'd discerned that coaching had occurred. Defense
counsel objected, arguing that the question called for Grimm
to offer an expert opinion on the credibility of the
children. But the trial court overruled the objection and
allowed the question. Grimm then testified that she
didn't "feel like [she] saw huge red flags with that
or anything that indicated that." Elaborating, she
stated that each child was able to provide very specific
experience-based details regarding the events in question.
The jury later found the defendant, Gustavo Lopez, guilty of
the charges.
¶4
Lopez appealed, and a split division of the court of appeals
affirmed the judgment of conviction in a published opinion.
People v. Lopez, 2024 COA 26, ¶ 56, 550 P.3d
731, 741. The division agreed with Lopez that Grimm's
response to the juror's question was inadmissible,
reasoning that an expert witness may not testify about the
lack of indicia of coaching during a child victim's
interview. Id. at ¶ 12, 550 P.3d at 734. Such
testimony, explained the division, is analogous to an opinion
about another witness's truthfulness on a particular
occasion, which is improper. Id. But the division
nevertheless upheld the trial court's ruling under the
opening the door doctrine. Id. at ¶ 13, 550
P.3d at 734. It determined that the defense had opened the
door to the otherwise inadmissible testimony by persistently
advancing the theory at trial that the children's
maternal grandmother wanted to
8
keep custody of them and had therefore coached them or
otherwise influenced them "to fabricate the
allegations" or form "false memories of
abuse." Id. at ¶ 23, 550 P.3d at 736.
Lopez then sought our review, and we granted his petition.
¶5
Whether Grimm's answer to the juror's question was
admissible is a sticky wicket, but one on which we do not
need to bat today. The question Lopez has asked us to address
revolves around the opening the door doctrine: Whether the
division erred in holding that he opened the door to the
challenged expert testimony. And in Colorado, that doctrine
stirs to life only when the evidence in question is
inadmissible.
¶6
We now affirm. Assuming, without deciding, that the testimony
at issue was inadmissible, we hold that the defense opened
the door to it by repeatedly suggesting to the jury-through
both the introduction of evidence and the presentation of
argument-that the children had been coached or otherwise
improperly influenced by their maternal grandmother because
she wanted to maintain custody of them. By consistently
attacking the credibility of the children with assertions
that they had been coached, the defense opened the door to
Grimm's testimony that she perceived no indication of
coaching.[2]
9
I.
Facts and Procedural History
¶7
As relevant here, Lopez was charged with sexual assault by
one in a position of trust and aggravated incest against each
of his two young children: N.L. (his son) and A.L. (his
daughter). Two different events gave rise to the charges.
First, on one occasion, Lopez inserted his finger into
N.L.'s anus three times while spanking him. N.L.
experienced bleeding and significant pain in his anus the
following day. Second, Lopez drove A.L. to a parking lot, got
into the backseat of the car with her, pulled down his pants,
and attempted to place her hand on his penis. She refused and
started crying, so he offered her $100. Because she continued
to refuse, he returned to the front seat. He warned her,
however, not to tell anyone about the incident.
¶8
Following the children's outcries, Lopez was arrested.
Upon seizing his cell phone, investigators discovered images
of prepubescent children in various stages
10
of undress. These images depicted some children exposing
their genitalia and others performing sexual acts.
¶9
Contrary to their outcries, N.L. and A.L. didn't allege
any wrongdoing by Lopez during initial interviews conducted
by a social worker. However, each later made sexual abuse
allegations against their father during a forensic interview
conducted by Grimm. The children's testimony at trial was
consistent with their statements to Grimm.
¶10
The theory of the defense at trial was that the
children's maternal grandmother had coached them or
otherwise influenced them to fabricate the allegations or
form false memories of abuse because she wanted to maintain
custody of them. Defense counsel wove this theme throughout
the trial, from the initial ripple to the final
wave-introducing it in voir dire, incorporating it into the
opening-statement roadmap, reinforcing it through witness
examinations and testimony, and hammering it home in closing
arguments.
¶11
In support of the defense's theory, counsel advanced
multiple arguments: during the initial interviews conducted
by a social worker, when the children weren't yet living
with their grandmother, they did not report any wrongdoing by
Lopez; when the children later disclosed the allegations
(during Grimm's forensic interviews), there was turmoil
in the family and the children had been living with their
grandmother for approximately nine months; there were
inconsistencies
11
within each of the children's statements; there was no
physical evidence supporting the allegations; at the time of
Grimm's interviews, the children admittedly wanted to
live with their grandmother rather than with their parents;
not long before Grimm's interviews, the children's
mother told their grandmother that she wanted the children
back; and the children were aware that their grandmother
wanted them to report the allegations to Grimm.
¶12
The People introduced videos of the forensic interviews of
N.L. and A.L. through Grimm. And, in response to
direct-examination questions, Grimm discussed her interviews
with the children.
¶13
Additionally, without objection, the People qualified Grimm
as an expert witness and elicited from her generalized expert
opinions on child forensic interviewing. Grimm educated the
jury about the purpose and general structure of a child
forensic interview, techniques she uses to try to obtain an
accurate and complete account of an incident, the concept of
suggestibility, the degree to which outside forces may
influence a child's storage and retrieval of a memory,
steps to mitigate the risk of inadvertently influencing a
child, and the concept of a child being coached to say
something happened when it didn't actually happen. On the
issue of coaching specifically, Grimm talked about the signs
that forensic interviewers are trained to look for:
[I]f a child is being coached, it is more difficult for them
to describe all the details of what they can hear, what the
room looked like, meaning
12
what the clothing looked like that they were wearing, exactly
what was said or how they felt in that situation. When a
child is coached, it is typically difficult for them to
recall that information because in coaching a lot of times
people aren't telling the child to say all of these
things as well.
¶14
On cross-examination, Grimm acknowledged that her role in
interviewing N.L. and A.L. was not to make credibility
determinations or to investigate whether anyone had coached
them or otherwise improperly influenced them. Further, Grimm
stressed that she was neither opining about the
children's character for truthfulness nor vouching for
their credibility during her interviews. Nor, she explained,
could she testify about whether the children were telling
their stories for the first time or the hundredth time when
they spoke with her. She also agreed with defense counsel
that her questions were not intended to "get a specific
answer." To the contrary, she reiterated that,
consistent with her training, she tried to avoid suggestive
questions. And she recognized that, while she endeavored to
be careful not to influence either child's account of the
allegations, she could not speak about whether people had
previously asked the children suggestive questions.
¶15
When Grimm had finished answering the lawyers' questions,
a juror submitted a written question for the court to ask
her. The juror wanted Grimm to compare N.L.'s and
A.L.'s behaviors during her interviews to those of
alleged child sexual-assault victims she'd interviewed
who had been coached: "In your
13
expert opinion, was either [N.L.'s] or [A.L.'s]
behavior consistent with interviews where coaching was
present?" Defense counsel objected, arguing that the
question called for Grimm to "opine as to [the]
credibility of [other] witness[es]," namely, N.L. and
A.L. The People responded that the question was
"relevant and appropriate" because, without
objection, Grimm had discussed coaching with the jury.
Besides, noted the People, this was not a question about
whether Grimm believed the children were telling the truth
during her interviews; instead, the question was simply
inquiring whether Grimm had observed signs of coaching in
either of the children, an area in which she'd been
properly qualified to opine as an expert.
¶16
The trial court overruled the objection. It concluded that
"[c]oaching is . . . different . . . broader than merely
commenting on credibility, which the appellate court cases
frown upon." The court thus relayed the juror's
question to Grimm, and she answered as follows:
In my opinion I don't feel like I saw huge red flags with
that or anything that indicated that because both children
were able to provide very specific experience-based details
around the events that they did talk with me about.
After
this exchange, at defense counsel's prodding, Grimm
conceded that where, as in this case, child victims offer
varying accounts of the charged incidents, one possible
explanation is that they are not telling the truth.
14
¶17
The jury returned guilty verdicts on all counts. Lopez then
appealed. His primary argument before the division was that
the trial court erred in permitting Grimm to opine that she
saw no indication of coaching. This testimony was
inadmissible, contended Lopez, because it vouched for the
children's truthfulness during their forensic interviews.
¶18
A fractured division affirmed the trial court's ruling on
other grounds in a published opinion. Lopez,
¶¶ 30, 56, 550 P.3d at 737, 741. Relying on the
decisions of two other divisions, People v. Bridges,
2014 COA 65, ¶ 16, 410 P.3d 512, 514-15, and People
v. Heredia-Cobos, 2017 COA 130, ¶ 17, 415 P.3d 860,
864, the division first agreed with Lopez that expert
witnesses "may not opine that a child was not coached in
making allegations" or even that there were no signs of
coaching during a child's interview. Lopez,
¶ 12, 550 P.3d at 734. The division noted that it is now
well settled in Colorado that a witness may not testify that
another witness told the truth on a particular occasion.
Id. And, in the division's view, the challenged
expert testimony crept too close to testimony about another
witness's truthfulness during an interview and was thus
"tantamount to vouching" for that witness's
credibility on a specific occasion. Id. (quoting
Heredia-Cobos, ¶ 14, 415 P.3d at 864).
¶19
But the division then agreed with the People that, to the
extent the expert testimony at issue was inadmissible, Lopez
opened the door to it by continuously
15
maintaining that the children's allegations were the
product of coaching or improper influence by identifiable
individuals. Id. at ¶ 23, 550 P.3d at 736.
Drawing from the analytical map charted in Bridges
and Heredia-Cobos, the division explained that Lopez
opened the door to the testimony in question by persistently
advancing the theory that grandmother had coached the
children or otherwise influenced them to fabricate the
allegations or form false memories of abuse. Id.
¶20
The division hastened to add a caveat, however: Simply
attacking a child victim's credibility doesn't open
the door to otherwise inadmissible coaching testimony.
Id. at ¶ 24, 550 P.3d at 736. Rather, explained
the division, the opening the door doctrine must be narrowly
construed to permit such testimony only when the record
establishes "that the defendant 'clearly intended to
suggest to the jurors' that the child had been coached or
otherwise improperly influenced by certain identifiable
people." Id. (quoting Heredia-Cobos,
¶ 23, 415 P.3d at 866). Because the division concluded
that the record in this case satisfied this condition, it
upheld the trial court's ruling allowing Grimm to answer
the juror's question. Id. at ¶¶ 24,
30, 550 P.3d at 736-37.
¶21
Judge Schutz dissented. He didn't bat an eye at the idea
that a defendant in a criminal case may open the door to
testimony about generic behaviors a coached witness typically
manifests. Id. at ¶ 61, 550 P.3d at 742
(Schutz, J., dissenting). Consequently, he acknowledged that
when a defendant introduces evidence that
16
a child victim has been coached, the People are entitled to
introduce "expert testimony explaining what factors the
jury should consider" in evaluating whether the child
has been coached. Id. at ¶ 71, 550 P.3d at 744.
But Judge Schutz locked horns with his colleagues both in the
division in Heredia-Cobos and in the division here
on their conclusion that, under the opening the door
doctrine, a witness may testify that a particular child
didn't appear to have been coached. Id. In his
view, expert testimony suggesting that a child didn't
appear to have been coached, on the one hand, and expert
testimony that a child told the truth, on the other, are the
same dish on a different plate. Id. at ¶ 72,
550 P.3d at 744-45. And because everyone agreed that the
latter is improper, he asserted that the former must be as
well. Id. Thus, he would not have followed
Heredia-Cobos's holding, which he perceived as
too broad and out of sync with our jurisprudence.
Id. at ¶ 67, 550 P.3d at 743.
II.
Analysis
¶22
We begin with a brief word about the division's
analytical springboard-anchored in Bridges and
Heredia-Cobos-that expert testimony that a child
victim showed no signs of coaching is always inadmissible.
This premise set the stage for the division's application
of the opening the door doctrine-a finding of inadmissibility
is the first rung on that ladder. Because the admissibility
question is not before us, however, we quickly set it aside
and simply assume,
17
without deciding, that Grimm's contested testimony was
inadmissible. We therefore proceed to apply the opening the
door doctrine.
¶23
We ultimately agree with the division that Lopez opened the
door to Grimm's expert testimony that she saw no
indication of coaching during her forensic interviews with
N.L. and A.L. Accordingly, we affirm. Before we turn out the
lights, however, we offer two admonitions. First, as the
division observed, the opening the door doctrine must be
narrowly construed. Second, the width of the opening dictates
how much the opposing party may carry through it.
A.
A Brief Word on the Division's Admissibility
Analysis
¶24
As noted, the division grounded its admissibility analysis in
its sister divisions' decisions in Bridges and
Heredia-Cobos. The division in Bridges
determined, in short order, that the forensic
interviewer's expert testimony that the two child victims
had not been coached was just as improper and inadmissible
under CRE 608(a) as expert testimony that a child victim told
the truth on a specific occasion. Bridges, ¶
16, 410 P.3d at 514. A few years later, the division in
Heredia-Cobos followed suit; it similarly ruled,
again with only a light analytical touch, that a forensic
interviewer's expert testimony about a child victim not
showing any signs of having been coached is just as improper
and inadmissible under CRE 608(a) as testimony that a child
victim told the truth during an interview.
Heredia-Cobos, ¶ 16, 415 P.3d at 864. Like its
predecessors, the division here seemingly
18
proceeded on the understanding that our case law had resolved
the admissibility question under review. But the issue is
more nuanced than the three divisions appear to have
appreciated.
¶25
Although it is clear that an expert witness may not
directly vouch for the credibility of a child victim
by opining that the child told the truth on a particular
occasion, "the scope . . . of that proposition . . .
ha[s] always been somewhat unclear." Venalonzo v.
People, 2017 CO 9, ¶ 67, 388 P.3d 868, 885-86
(Coats, J, concurring in the judgment). And our case law
doesn't squarely resolve whether the ambit of the
proposition stretches far enough to sweep in expert testimony
either that a child victim has not been coached or that no
signs of coaching were detected during a child victim's
interview.[3]
19
¶26
This is a thorny issue to be sure. But it's one we have
no occasion to prune today.
¶27
The division agreed with Lopez that the disputed expert
testimony was inadmissible, and the People didn't file a
cross-petition to challenge that ruling. Only Lopez sought
review, and the sole question he raised deals with the
division's application of the opening the door doctrine.
Of course, had the division deemed Grimm's challenged
testimony admissible, there would have been no need to summon
the opening the door doctrine, and any concerns Lopez and
others may have about the application of the doctrine in this
case would have been
20
rendered obsolete. Given the current posture of the case, we
assume, without deciding, that the expert testimony in the
spotlight was inadmissible and we accordingly turn our focus
to the opening the door doctrine.
B.
Lopez Opened the Door to the Contested Expert
Testimony
¶28
We construe the contours of the opening the door doctrine
de novo. See People v. Johnson, 2021 CO 35, ¶
15, 486 P.3d 1154, 1158. However, a lower court's
determination that a party opened the door to otherwise
inadmissible evidence is subject to review for an abuse of
discretion. Id. at ¶ 16, 486 P.3d at 1158. We
likewise review a trial court's decision to admit expert
testimony for an abuse of discretion. People v.
Coons, 2021 CO 70, ¶ 41, 495 P.3d 961, 969.
¶29
The opening the door doctrine may permit a party to present
otherwise inadmissible evidence after the opposing party has
introduced incomplete evidence that may lead the factfinder
astray. See Golob, 180 P.3d at 1012. This judicially crafted
rule serves to prevent a party from getting the upper hand at
trial by selectively presenting facts that create an
incorrect or misleading impression. Id.; see
also Miller, 890 P.2d at 98-99 (same). Through the
opening the door doctrine, a party may correct or otherwise
place in context any such misimpression by bringing in
evidence that would otherwise be barred. Golob, 180
P.3d at 1012.
¶30
In Golob, a whodunit case, the parties' experts
examined partial shoeprints collected at the crime scene and
compared them to the soles of Golob's boots.
21
180 P.3d at 1009. In response to questions on direct
examination, the People's expert testified that he
interpreted the conclusion in the defense expert's report
to be consistent with his finding that it was highly probable
that Golob's right boot made one of the prints collected
at the crime scene. Id. In support of this
testimony, the People's expert pointed to the defense
expert's determination that the identifying marks on the
soles of Golob's boots did not "conclusively
match" the collected prints. Id. According to
the People's expert, that determination meant that the
defense expert's comparison fell within" the
probable range." Id. (emphasis added)).
Although the defense expert took issue with this
interpretation of his report, he was unable to convey his
disagreement to the jury because, based on the People's
objection, the trial court limited his testimony to the
"specific characteristics of Golob's boots" and
precluded him from testifying about his comparison of the
prints recovered to the soles of Golob's boots.
Id. at 1009, 1012.
¶31
We agreed with the trial court's decision to exclude the
defense expert's testimony comparing the recovered
shoeprints to the known footwear, as he lacked direct
training and experience in that field. Id. at 1012.
But we nevertheless held that the trial court "should
have permitted [him] to offer his comparison testimony
because the prosecution opened the door" to it:
By limiting [the defense expert's] testimony, the trial
court permitted the jury to hear only one side of this issue.
[The defense expert] was
22
unable to explain the means by which he reached his opinion
or how it differed from [the] opinion [offered by the
People's expert]. Once the trial court permitted [the
People's expert] to comment on [the defense expert's]
opinion, it should have allowed [the defense expert] to
testify on this subject to provide the full context of the
print evidence to the jury.
Id. at 1012-13. We added that the trial court's
ruling allowed the testimony of the People's expert
regarding the defense expert's report "to stand
unchallenged and resulted in an unfair advantage . . .
through the selective presentation of expert opinion to the
jury on . . . important evidence." Id. at 1013.
¶32
Taking our cues from Golob, we conclude that the
division in this case correctly ruled that Lopez opened the
door to the challenged expert testimony. As the division
discerned, by repeatedly suggesting to the jury-through both
the introduction of evidence and the presentation of
argument-that the grandmother had coached the children or
otherwise influenced them to fabricate the allegations or
form false memories of sexual abuse, the defense opened the
door to Grimm's expert opinion that she did not perceive
any indication of coaching.
¶33
In voir dire, defense counsel questioned prospective jurors
about the topic of suggestibility: whether people can sway or
influence family members; whether anyone had had experiences
with people taking advantage of others or with people
suggesting to others that something that isn't real is
actually real; whether children are suggestible, prone to
being taken advantage of, or susceptible to being manipulated
into believing that something that's not real is actually
real; whether
23
someone who is close to a child can convince the child to
believe that something that's not real is actually real;
and the possible motives someone may have for attempting to
influence a child's perception of reality.
¶34
Defense counsel went so far as to discuss a
"hypothetical" to determine whether a prospective
juror thought that an adult could suggest to a child that
something happened even though it didn't happen. The
hypothetical involved a five-year-old child whose grandmother
was living with the child and wanted the child to stay with
her. Before counsel could continue, the court sustained the
People's objection, finding that defense counsel was
asking "an improper staking out question" that
included "the facts of the case or the purported
facts" of the case and seeking to ascertain how the
prospective juror "would judge" that scenario.
¶35
The defense kept the same threads running during its opening
statement. Defense counsel told the jurors that the versions
of events they were about to hear would "differ based on
who ha[d] control over the children" at any given time.
Thus, counsel encouraged the jury to pay close attention to
the timing of the children's statements, where the
children were "when things [were] happening," and
who the children were with "when they [were] making
these various allegations."
24
¶36
Counsel further interlaced the defense theme into the fabric
of the cross-examinations of the People's witnesses. For
example, the defense introduced evidence in support of its
coaching theory through its questions of A.L. Defense counsel
asked A.L. about her denial of any wrongdoing by Lopez during
the social worker's interview, which occurred before A.L.
moved in with her grandmother. Counsel then juxtaposed that
interview with the interview by Grimm, which occurred after
A.L. moved in with her grandmother. Through further
questioning, A.L. conceded the following: that she discussed
with her grandmother why she was going to be interviewed by
Grimm and what she planned to say during the interview; that
her grandmother wanted to make sure A.L. would say exactly
what she ended up saying during Grimm's interview; that
she spoke to her brother before Grimm interviewed him, and
that she was aware that her brother was also going to say
"some stuff" during that interview; that she wanted
to live with her grandmother; that her grandmother was aware
this was her wish; and that her grandmother likewise wanted
to live with her.
¶37
In similar fashion, the defense introduced evidence in
support of its coaching theory during the cross-examination
of N.L. For example, defense counsel conveyed to the jury
that, after moving in with his grandmother, N.L. recounted a
different narrative to Grimm than the one he'd shared
with the social worker. N.L. acknowledged that when he
initially spoke to the social worker, he
25
didn't mention any inappropriate touching by Lopez. He
further admitted that it was after he moved in with his
grandmother that he told Grimm that Lopez had inappropriately
touched him. Moreover, N.L. agreed with defense counsel that:
he talked to his grandmother about Grimm's interview
beforehand; his grandmother wanted to make sure he would tell
Grimm what happened; and he told Grimm that he wanted to live
with his grandmother rather than with his mother or father.
¶38
Along the same lines, while the children's grandmother
was on the stand, defense counsel suggested that the
grandmother threw Lopez under the bus to keep custody of the
children. Specifically, the defense elicited testimony from
the grandmother that she delayed reporting the allegations of
abuse for almost a year. She further agreed with defense
counsel that she reported these allegations after the
children's mother announced that she wanted to regain
custody of the children.
¶39
Next, during the cross-examination of Grimm, the defense
presented evidence that the fact that there were multiple
interviews conducted with each child gave rise to
suggestibility concerns. Defense counsel also prompted Grimm
to acknowledge that the children might have discussed the
sexual abuse allegations with many people before their
forensic interviews.
26
¶40
At the end of the trial, in closing argument, the defense
drummed into the jurors the theme sowed in voir dire and
nurtured throughout the trial. Counsel argued that the
grandmother coached the children or otherwise influenced them
to fabricate the allegations or form false memories.
¶41
In sum, Lopez defended against the charges in this case by
persistently presenting evidence and argument that the
grandmother egged the children on to fabricate allegations or
form false memories. The defense's theory of the case was
that the children changed their initial stories and made
unfounded allegations against Lopez during Grimm's
forensic interviews because their grandmother had coached
them or otherwise improperly influenced them. But that was
only part of the story: the defense's telling. The rest
of the story was filled in by Grimm, who opined, in response
to a juror's question, that based on both her
observations of N.L.'s and A.L.'s behaviors during
her forensic interviews and her comparison of those behaviors
to the behaviors of children she'd observed in cases
where coaching appeared to be present, she detected no
indication of coaching here.
¶42
Given the defense's persistent theme and Grimm's
unopposed generalized expert testimony about coaching, it is
hardly surprising that a juror posed the question at issue:
"In your expert opinion, was either [N.L.'s] or
[A.L.'s] behavior consistent with interviews where
coaching was present?" The jurors were almost invited to
ask it. In essence, the juror's question sought to have
Grimm apply her
27
generalized expert opinions-none of which the defense
disputed-to the facts of the case, which is something expert
witnesses are routinely permitted to do at trial. And
precluding Grimm from addressing the juror's question
would have given Lopez an unfair advantage by creating a
misleading impression.
¶43
There were, after all, two sides to the coaching coin. The
defense's contention that the children were coached or
otherwise improperly influenced by their grandmother was one
side. The other was Grimm's answer to the juror's
question: During her interview of each child, she saw no
indication of coaching. Grimm's response supplied the
context necessary to complete the picture the defense had
painted. True, that evidence was prejudicial to Lopez, but
our rules don't prohibit prejudicial evidence. What they
prohibit is unfairly prejudicial evidence. And, in the
context of the evidence introduced and arguments presented by
Lopez, there was nothing unfairly prejudicial about
Grimm's challenged expert testimony. Accordingly, we
conclude that Lopez opened the door to it.
C.
Two Admonitions
¶44
As we come down the home stretch, we feel compelled to part
with two admonitions. First, we wholeheartedly agree with the
division that the opening the door doctrine must be narrowly
applied. Lopez, ¶ 24, 550 P.3d at 736. Lopez
could not have opened the door to the expert testimony at
issue simply by
28
challenging the child victims' credibility. The door was
opened in this case because defense counsel repeatedly
suggested-through the introduction of evidence and the
presentation of argument-that the children had been coached
or otherwise improperly influenced by their grandmother.
¶45
Second, "[m]erely because a defense attorney opens the
door does not mean that a prosecutor can come storming
through it in a pair of hobnailed boots." United
States v. Sepulveda, 15 F.3d 1161, 1189 n.24 (1st Cir.
1993). People v. Cohen, 2019 COA 38, ¶ 23, 440
P.3d 1256, 1262-63. As Lopez urges, any evidence admitted
under the opening the door doctrine must be limited to that
necessary to remove any unfair prejudice that may have ensued
from the original evidence. See People v. Cohen,
2019 COA 38, ¶ 23, 440 P.3d 1256, 1262 (stating that the
opening the door concept "isn't unlimited"). In
other words, the opening's width must dictate how much
the opposing party may pass through it.
¶46
Here, the record reflects that the People didn't
weaponize the door kicked open by the defense: The defense
relentlessly pressed throughout the trial its claim that the
children had been coached or otherwise improperly influenced
by their grandmother, and the People responded through
Grimm's opinion that she perceived no indicia of coaching
during her interviews with the children.[4] More
29
importantly, the record bears out that the district court
didn't abuse its discretion in permitting Grimm's
challenged expert testimony, which was tightly confined in
scope and did nothing to widen the door opened by the
defense. See Coons, ¶ 41, 495 P.3d at 98
(noting that we review a trial court's admission of
expert testimony for an abuse of discretion). Appellate
courts reviewing for an abuse of discretion reverse only when
the disputed decision "is manifestly erroneous."
Id. (quoting People v. Rector, 248 P.3d
1196, 1200 (Colo. 2011)). This highly deferential standard
keeps an appellate court from second-guessing the trial
court's on-the-ground judgment. Cooper, ¶
93, 496 P.3d at 447. With no manifest error in sight in this
case, we have no basis to climb down from the appellate perch
and intrude upon the district court's domain. Instead,
our review ends where the district court's exercise of
sound discretion began.
III.
Conclusion
¶47
For the foregoing reasons, we affirm the division's
judgment. We remand the case to the division with
instructions to return it to the district court.
30
CHIEF
JUSTICE MARQUEZ, joined by JUSTICE BOATRIGHT and JUSTICE
BLANCO, dissenting.
¶48
Today the majority relies on the "opening the door"
doctrine to justify the admission of otherwise inadmissible
expert opinion testimony on the credibility of child
witnesses. It does so in a child sexual assault case, the
very kind of case that frequently hinges on credibility. In
so doing, it holds for the first time that a defendant
"opens the door" to such inadmissible (and unfairly
prejudicial) evidence merely by pursuing a garden-variety
"coaching" theory of defense that challenges the
credibility of the allegations against the defendant. Here,
the majority does not identify specific testimony introduced
by the defense that would require additional context to
correct an objectively misleading impression. Instead, it
holds for the first time that a defendant "opens the
door" to the introduction of otherwise inadmissible
expert vouching testimony simply by pursuing a theory of
defense-through voir dire and opening statements (neither of
which are evidence), and even closing arguments (which are
not only not evidence, but which somehow contribute to
"opening the door" after the close of evidence). In
short, the majority takes an already confusing and amorphous
doctrine and stretches it beyond recognition.
¶49
The majority assumes, without deciding, that the expert's
testimony was inadmissible. Maj. op. ¶ 6. But this issue
should be decided outright. As Judge
31
Schutz explained, the testimony at issue here was
inadmissible because there is no principled distinction
between testimony that a child "was not coached"
and testimony that a child "was being truthful."
People v. Lopez, 2024 COA 26, ¶ 60, 550 P.3d
731, 741 (Schutz, J., dissenting). In other words, the
expert's testimony in this case was impermissible
vouching. See People v. Eppens, 979 P.2d 14, 17-19
(Colo. 1999).
¶50
Equally importantly, the opening the door doctrine is
inapplicable here. As I explain below, the doctrine comes
into play only when one party (1) introduces testimony that
(absent correction or additional context) creates an
objectively misleading inference for the jury and (2)
prevents the opposing party from explaining or rebutting that
objectively misleading inference. Because Gustavo Lopez did
neither in this case simply by pursuing his theory of
defense, the doctrine does not apply. In any event,
permitting expert opinion testimony regarding the child
victims' truthfulness on specific occasions is a
disproportionate response that injects unfair prejudice,
particularly in a case such as this that hinges on
credibility. The majority distorts the doctrine by applying
it here, and in so doing, it effectively deters future
defendants from pursuing a defense that a victim was coached
into making false allegations.
¶51
For the foregoing reasons, I respectfully dissent.
32
I.
The Expert's Testimony Was Inadmissible Because It
Concerned Specific Instances of the Children's
Truthfulness
¶52
"In Colorado, neither lay nor expert witnesses may give
opinion testimony that another witness was telling the truth
on a specific occasion." People v. Wittrein,
221 P.3d 1076, 1081 (Colo. 2009). Testimony that another
witness told the truth amounts to a credibility
determination, which is a matter "solely within the
jury's province." People v. Baker, 2021 CO
29, ¶ 2, 485 P.3d 1100, 1102; see also Venalonzo v.
People, 2017 CO 9, ¶ 32, 388 P.3d 868, 877
("The danger in admitting such testimony lies in the
possibility that it will improperly invade the province of
the factfinder.").
¶53
"Testimony that another witness is credible is
especially problematic where the outcome of the case turns on
that witness's credibility," a situation that often
arises in child sexual assault cases. Venalonzo,
¶ 33, 388 P.3d at 877 (emphasis added). A child's
testimony as to abuse has an outsized importance because
children may delay reporting sexual abuse, so collecting
physical evidence becomes difficult or impossible.
Id., 388 P.3d at 878. This means that the
child's testimony becomes the most significant evidence
in the case. Id.
¶54
Here, the majority acknowledges that "it is clear that
an expert witness may not directly vouch for the
credibility of a child victim by opining that the child told
the truth on a particular occasion." Maj. op. ¶ 25.
Yet that is exactly what
33
happened here: By testifying that the children were not
coached in a case that turned on their credibility, the
expert directly vouched for their credibility. That is, the
expert's testimony was inadmissible because it concerned
specific instances of the children's truthfulness.
See Eppens, 979 P.2d at 17 ("It is well
established that CRE 608(a)(1) does not permit a witness to
offer an opinion that a child was telling the truth on the
specific occasion that the child reported a particular sexual
assault by a defendant.").
¶55
Our precedent on direct vouching leads to this inescapable
conclusion. Four decades ago, in Tevlin v. People,
715 P.2d 338, 339 (Colo. 1986), we considered the testimony
of an expert in child abuse investigation. The expert formed
an opinion as to whether "the victim gave truthful
information based on the interviews [the expert] conducted
with the victim and his stepbrother" and then
"testified that he believed the victim was telling the
truth about the fact that he was beaten by the petitioner
with the belt." Id. at 340. We held that the
expert's testimony ran afoul of CRE 608 because it went
to the victim's truthfulness on a specific
occasion-directly vouching for the child's credibility.
Id. at 341; see also People v. Oliver, 745
P.2d 222, 225 & n.2 (Colo. 1987) (holding that expert
witness and lay witness testimony that "they personally
believed each of the three victims, based upon their
experience and interviews of the victims" violated CRE
608(a)).
34
¶56
We subsequently held that testimony analogous to saying a
witness told the "truth" can likewise run afoul of
CRE 608(a). Eppens, 979 P.2d at 18. In
Eppens, for example, we held that a social
worker's lay testimony that she "felt [the victim]
was sincere" was "tantamount to a statement that
she found [the victim] to be truthful." Id. at
17-18. We found it particularly instructive that
"sincerity" was "virtually synonymous
with," and contained within, the definition of
"truth." Id. at 18 (citing Truth,
Webster's Third New International Dictionary, Unabridged
(1986), which defined "truth" as "sincerity in
character, action, and speech").
¶57
Here, the expert testified about coaching, a concept
inextricably linked with truthfulness. She explained to the
jury that coaching is "when someone is telling the child
to say that didn't happen when it really did or they may
be telling the child to say something happened that actually
did not." In other words, the expert explained to the
jury that "coaching" occurs when a child is told to
share an untruthful version of events-i.e., to lie. The
expert here also testified that she was trained to look for
signs of coaching. Critically, she then testified that, in
her expert opinion, she did not feel like she saw "huge
red flags" or "anything that indicated" the
children were coached because both were "able to provide
very specific experience-based details around the
events" they described to her.
¶58
The expert's own explanation of "coaching" made
clear to the jury that signs of coaching indicate
untruthfulness. By testifying that she did not see anything
35
that indicated coaching, the expert effectively testified
that the children were not lying when they accused Lopez of
sexual assault. Put simply, the expert directly vouched for
the children's credibility. As the division correctly
explained,
[A]n expert witness may not opine that a child was not
coached in making allegations, or-because it amounts to the
same thing-that the expert did not see signs of coaching.
Coaching testimony is impermissible because it
"constitute[s] conclusions about [the children's]
truthfulness in their respective interviews," and is
"tantamount to vouching for the child[ren]'s
credibility."
Lopez, ¶ 12, 550 P.3d at 734 (alterations in
original) (citations omitted) (first quoting People v.
Bridges, 2014 COA 65, ¶ 16, 410 P.3d 512, 514; and
then quoting People v. Heredia-Cobos, 2017 COA 130,
¶ 14, 415 P.3d 860, 864).
¶59
Where, as in this case, an expert who is qualified in child
forensic interviewing and trained to detect coaching in
children testifies that a child was not coached to make
accusations, "the jury's only conceivable use of
such testimony would be as support for the complainant's
truthful character." People v. Snook, 745 P.2d
647, 649 (Colo. 1987). Because the expert directly vouched
for the children's credibility, her testimony was
inadmissible under CRE 608(a).
II.
The Defense Did Not "Open the Door"
¶60
Having concluded that the expert's testimony is
inadmissible, I now turn to the question of whether the
defense nevertheless "opened the door" to the
testimony by pursuing a theory of defense that the children
were coached into making false allegations. Precisely because
the theory of defense did not create an
36
objectively misleading impression or give the defense an
unfair advantage, the doctrine is inapplicable here. In any
event, permitting the prosecution to introduce an expert
opinion on credibility invaded the province of the jury and
injected unfair prejudice into the case. The majority's
holding to the contrary distorts the doctrine beyond
recognition and effectively deters future defendants from
pursuing such a defense.
A.
The Theory of Defense Did Not Create an Objectively
Misleading Impression or Give the Defense an Unfair
Advantage
¶61
"The concept of 'opening the door,' not codified
in our rules of evidence, is a court-promulgated curative
measure that is not easily defined." People v.
Melillo, 25 P.3d 769, 775 (Colo. 2001). We have
conceptualized it as "an effort by courts to prevent one
party from gaining an unfair advantage by presenting evidence
that, without being placed in context, creates an incorrect
or misleading impression." Id.
¶62
The purpose of the doctrine in Colorado is to prevent one
side from raising an objectively misleading adverse inference
while simultaneously preventing the other side from
explaining or rebutting that inference. See People v.
Miller, 890 P.2d 84, 98-99 (Colo. 1995). Accordingly,
the doctrine does not apply unless both of those conditions
are present. Because pursuing a defense theory that a victim
was coached does not, in and of itself, raise an objectively
misleading adverse
37
inference, and because the prosecution in this case was not
prevented from explaining or rebutting the defense's
theory, the opening the door doctrine is inapplicable here.
¶63
The origin of the doctrine in Colorado is difficult to
pinpoint, but several early cases outline its foundation. It
began as a form of impeachment. For example, in Medina v.
People, 291 P.2d 1061, 1062 (Colo. 1956), we held that a
defendant "opened the door" to the question of
whether he had ever owned a pistol by testifying that he had
not. To contradict the defendant's (objectively
misleading) testimony, the prosecution introduced rebuttal
testimony that the defendant had been arrested with a pistol
some years earlier. Id. We held that the defendant
"opened the door" to the question of gun ownership,
and that a party may always "present evidence to
challenge the credibility of an adverse witness by proof of
independent facts and circumstances inconsistent with his or
her testimony." Id.; see also
People v. Cole, 654 P.2d 830, 834 (Colo. 1982)
(holding that the defendant's testimony about not using a
knife in a prior fight "opened the door to the issue of
the prior fight" and that "the prosecution was
entitled to introduce competent evidence to explain, refute,
or disprove the statement, since the defendant's
credibility was in issue").
¶64
We later relied on the doctrine to permit the use of
otherwise restricted (and therefore inadmissible) testimony
to contradict an objectively misleading
38
inference raised by an opponent. In People v.
Tenorio, 590 P.2d 952, 957 (Colo. 1979), for example,
officers were permitted to testify on direct examination that
they received a call involving a man of the defendant's
description, but not that he was reported to be drunk and
brandishing a weapon. On cross-examination, however, defense
counsel elicited testimony from an officer that he had his
gun drawn and pointed at the defendant as he first
approached. Id. at 958. On re-direct examination,
the prosecution asked the officer why his gun was drawn, and
the officer explained that the defendant was reported to have
a weapon. Id. We held that the defense's
cross-examination "opened the door" to the
restricted testimony because "[t]he district attorney
had a right to explain or rebut any adverse inferences which
might have resulted from that cross-examination
question." Id. In other words, the otherwise
restricted testimony was admissible because it tended to
explain the objectively misleading adverse inference raised
by the defense's cross-examination.
¶65
Similarly, in People v. Sams, 685 P.2d 157, 164
(Colo. 1984), we reiterated that a defendant may not raise an
objectively misleading adverse inference while simultaneously
preventing the prosecution from explaining or rebutting that
inference. See id. at 158, 164 (explaining that the
proper remedy for the prosecution's loss of exculpatory
identification evidence was suppression of all identification
evidence, and allowing the defense to inquire into suppressed
39
identifications on cross-examination but warning that doing
so would "open[] the door" for the prosecution to
elicit additional testimony about the same).
¶66
Over a decade later, we applied the doctrine to allow the
introduction of other crimes evidence otherwise barred by CRE
404(a). Miller, 890 P.2d at 96, 99. In
Miller, the defendant was charged with possession
and distribution of cocaine; a prosecution witness testified
that he made two substantial purchases of cocaine from the
defendant on the charged date. Id. at 87-88, 99. On
cross-examination, the defense adduced testimony that
suggested the prosecution witness's relationship with the
defendant was entirely casual and lawful before the charged
date, and that the two men knew each other only informally.
Id. at 88, 97-99. On re-direct examination, the
prosecution elicited testimony clarifying that the
prosecution witness had bought cocaine from the defendant
"quite a few" times even before the charged date.
Id. at 88-90, 97. We held that the defense
"open[ed] the door" to evidence of the
defendant's other crimes by seeking "to exclude the
inadmissible evidence that would place that relationship in
its proper context, revealing the true nature and scope of
the friendship." Id. at 99. We thereby
reiterated that the defendant could not selectively present
facts that created a factually incorrect or misleading
impression while simultaneously preventing the prosecution
from explaining or providing context to correct the
misimpression created by the defense.
40
¶67
Thus, in Miller, we articulated for the first time the rule
for "opening the door" as we use it today:
"This concept of 'opening the door' represents
an effort by courts to prevent one party in a criminal trial
from gaining and maintaining an unfair advantage by the
selective presentation of facts that, without being
elaborated or placed in context, create an incorrect or
misleading impression." Id. at 98-99 (emphases
added) (first citing Sams, 685 P.2d at 164; and then
citing Tenorio, 590 P.2d at 958).
¶68
In concluding that the defense "opened the door" in
this case, the majority relies on Golob v. People,
180 P.3d 1006 (Colo. 2008). Maj. op. ¶ 32. But
Golob rested on the same principles advanced in
Tenorio, Sams, and Miller.[5] In
Golob, the prosecution elicited testimony from its
expert witness that characterized the defense expert's
findings as consistent with his own findings. 180 P.3d at
1012. When the defense expert attempted to disagree, the
prosecution objected, and the trial court excluded the
defense expert's testimony. Id. at 1009, 1012.
We held that
41
the prosecution "opened the door" to the defense
expert's testimony because, otherwise, the prosecution
expert's testimony stood unchallenged and "resulted
in an unfair advantage to the prosecution through the
selective presentation of expert opinion to the jury on this
important evidence." Id. at 1012-13.
¶69
The principle we followed in Golob, though applied
in a new context, was nothing new: A party may not mislead
the jury into believing objectively untrue facts. In
Tenorio, for example, the concern was that the jury
might have believed that the police officer drew and pointed
his gun at the defendant for no reason, when in fact, the
defendant reportedly had a weapon. See Tenorio, 590
P.2d at 958. In Miller, the concern was that the jury might
have found it unlikely that the defendant would suddenly sell
substantial quantities of cocaine to a person he knew only
casually, when in fact, the defendant had sold cocaine to him
several times before. See Miller, 890 P.2d at 99. And in
Golob, the concern was that the jury might have
believed that the defense expert's report aligned with
the prosecution expert's report, when in fact, the
defense expert disagreed with that characterization. See
Golob, 180 P.3d at 1012-13.
¶70
Here, however, nothing about the theory of defense misled the
jury to believe objectively untrue facts. It is the
jury's role as factfinder to assess the credibility of
witnesses at trial. As is often the situation in child sexual
assault cases, the defense theory challenged the allegations
against Lopez by focusing on
42
the children's credibility. The majority admits as much.
Maj. op. ¶ 6 ("By consistently attacking the
credibility of the children with assertions that they had
been coached, the defense opened the door ...."
(emphasis added)). Unlike the objectively misleading
testimony animating this court's concerns in
Tenorio, Miller, and Golob, the
children's credibility in this case was a core issue for
the jury to decide. In exercising its crucial role as
factfinder, the jury might have believed the children's
allegations, or it might have believed that the grandmother
coached or otherwise improperly influenced the children
because she wanted to maintain custody of them. Indeed,
several aspects of the case arguably undermined the
children's credibility: They initially denied the
allegations, their forensic interviews were delayed, their
testimony contained inconsistencies, there was no physical
evidence of either incident, and they had an incentive to
make up allegations against Lopez because they wanted to live
with their grandmother. I also find it especially troubling
that the majority treats the theory of defense in this case
as presenting a "misleading impression."
Id. at ¶ 42. I do not see how a garden-variety
theory of defense centered on challenging the credibility of
the allegations against the defendant constitutes
"getting the upper hand at trial by selectively
presenting facts." Id. at ¶ 29.
¶71
Importantly, the defense did not prevent the prosecution from
explaining or rebutting the coaching theory. After the
defense engaged in lines of questioning
43
on cross-examination to suggest that the children were
coached, the prosecution could, and did, rebut those
suggestions on re-direct examination. As just one example,
the defense elicited testimony from the grandmother on
cross-examination that she did not report the incidents to
Social Services until after the children's mother tried
to regain custody-suggesting that the grandmother fabricated
the allegations to maintain custody of the children. But on
re-direct examination, the prosecution (appropriately)
elicited testimony that the grandmother did not report the
incidents because she thought Social Services already knew.
Because the theory of defense in this case did not create an
objectively misleading adverse inference that could be
corrected only by the introduction of otherwise inadmissible
vouching testimony, the opening the door doctrine does not
apply.
B.
Permitting the Expert's Testimony Injected Unfair
Prejudice
¶72
Even if a party "opens the door" to inadmissible
evidence, not all inadmissible evidence may come in. As the
majority acknowledges, id. at ¶¶ 44-45,
the doctrine allows inadmissible evidence only to the extent
necessary to remove any unfair prejudice, i.e., by correcting
an objectively misleading impression. Permitting the
prosecution to present an expert opinion on a child
witness's credibility exceeds these limits and instead
injects unfair prejudice into the case.
44
¶73
Experts are, and should be, permitted to educate jurors about
typical behaviors of children who have been sexually
assaulted. People v. Fasy, 829 P.2d 1314, 1317
(Colo. 1992) (holding that expert testimony was admissible
where the expert testified that child sexual assault victims
can suffer posttraumatic stress disorder and that the child
victim suffered posttraumatic stress disorder). However,
experts are not permitted to testify that a child was telling
the truth about having been sexually assaulted. People v.
Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (holding that
expert testimony was inadmissible where the expert testified
that the child's description of the events was "very
believable"); see also Snook, 745 P.2d at 648-49
(holding that expert testimony was inadmissible where the
expert testified that children tend not to fabricate erotic
experiences).
¶74
To the extent the expert's testimony in this case helped
the jury to understand the concept of coaching and described
the signs of coaching, it was proper. For example, the expert
testified,
[I]f a child is being coached, it is more difficult for them
to describe all the details of what they can hear, what the
room looked like, meaning what the clothing looked like that
they were wearing, exactly what was said or how they felt in
that situation. When a child is coached, it is typically
difficult for them to recall that information because in
coaching a lot of times people aren't telling the child
to say all of these things as well.
45
It
would have been entirely proper for the jury to take that
expert's explanation and apply it to the evidence in the
case, such as the children's video recorded interviews.
But it was entirely improper for the expert to do the
jury's work for it.
¶75
As Judge Schutz explained, jurors often feel saddled with the
heavy responsibility of determining witnesses'
credibility. Lopez, ¶ 60, 550 P.3d at 741 (Schutz, J.,
dissenting). This responsibility can feel particularly heavy
in child sexual assault cases, "which are emotionally
charged and present serious consequences for both the
defendant and the alleged victims." Id.
"Facing such pressures, there is a real risk that jurors
may displace their burden to assess credibility by deferring
to the opinion of a purported expert." Id.
Those dangers are precisely why expert testimony about a
witness's credibility is prohibited.
¶76
Notably, the prosecution specifically requested in a motion
in limine that all witnesses be precluded from commenting on
other witnesses' veracity, and it avoided asking the
expert to opine directly on the children's truthfulness.
Instead, the expert's testimony vouching for the
children's credibility was elicited by a question from a
juror after the prosecution completed its re-direct
examination.
¶77
Permitting the expert to answer the juror's question was
manifestly improper because it was inadmissible vouching
testimony that was wholly unnecessary: The expert's
testimony (and other evidence) in the case did not create
46
an objectively misleading impression that required
correction. As such, allowing the expert to answer the
juror's question was a clear abuse of discretion.
¶78
The majority asserts that the expert's testimony merely
"supplied the context necessary to complete the picture
the defense had painted." Maj. op. ¶ 43. But the
expert in this case did more than supply "context":
She directly vouched for the children's credibility by
effectively testifying that they told the truth when they
accused the defendant of sexual assault. Such testimony was
tantamount to an expert opinion on the children's
credibility.
¶79
Vouching testimony is uniquely harmful because it directly
usurps the role of the jury. Baker, ¶¶ 2,
45, 485 P.3d at 1102, 1109. As we have explained,
"[t]estimony that another witness is credible is
especially problematic where the outcome of the case turns on
that witness's credibility," and "[t]his often
occurs in child sex assault cases." Venalonzo,
¶ 33, 388 P.3d at 877. When a child delays reporting
sexual abuse, collecting physical evidence may be difficult
or impossible, and the child's testimony will likely be
the most significant evidence in the case. Id., 388
P.3d at 878. Because the case will turn on whether the jury
finds the child credible, "courts must be particularly
mindful of testimony that a child victim is telling the truth
when that child's testimony is 'the focal issue in
the case.'" Id. (quoting Snook,
745 P.2d at 649).
47
¶80
The opening the door doctrine "'can be used only to
prevent prejudice; it can't be used as an excuse to
inject prejudice into the case.'" People v.
Ray, 2025 CO 42M, ¶ 86, 575 P.3d 400, 427-28
(emphases added) (quoting People v. Cohen, 2019 COA
38, ¶ 23, 440 P.3d 1256, 1262-63). The doctrine
"isn't unlimited and 'inadmissible rebuttal
evidence "is permitted 'only to the extent necessary
to remove any unfair prejudice which might otherwise have
ensued from the original evidence.'"'"
Id., 575 P.3d at 427 (quoting Cohen, ¶ 23, 440
P.3d at 1262).
¶81
In this case, there was no physical evidence, and the
children's forensic interviews were delayed. The
children's testimony was therefore the most significant
evidence, and the case turned on whether the jury found the
children credible. Permitting an expert to vouch for the
children's credibility was thus inherently unfairly
prejudicial because it usurped the jury's role in
determining a key disputed issue in the case. See People
v. Kembel, 2023 CO 5, ¶ 53, 524 P.3d 18, 29
(explaining that unfairly prejudicial evidence has an
"adverse effect upon a defendant beyond tending to prove
the fact or issue that justified its admission into
evidence" (quoting United States v. Gilliam,
994 F.2d 97, 100 (2d Cir. 1993))); People v. Dist.
Ct., 785 P.2d 141, 147 (Colo. 1990) (defining unfairly
prejudicial evidence as having "an undue tendency to
suggest a decision on an improper basis").
48
C.
The Majority Significantly Expands the Boundaries of the
Doctrine
¶82
Importantly, the majority's holding today significantly
expands the use of the opening the door doctrine by applying
it for the first time to a theory of defense.
¶83
The majority reasons that Lopez's theory of defense at
trial "opened the door" by "repeatedly
suggesting to the jury" that the children were coached
and weaving "this theme throughout the trial, from the
initial ripple to the final wave-introducing it in voir dire,
incorporating it into the opening-statement roadmap,
reinforcing it through witness examinations and testimony,
and hammering it home in closing arguments." Maj. op.
¶¶ 10, 32.
¶84
We have never considered counsel's comments made during
voir dire, opening statements, and closing
arguments[6]-none of which are evidence-to "open
the door" to the introduction of otherwise inadmissible
evidence, and we should decline to do so here. Pernell v.
People, 2018 CO 13, ¶¶ 4, 24, 411 P.3d 669,
670, 673 (declining to address whether an opening statement
"opened the door" to inadmissible evidence);
see also Davis v. People, 2013 CO 57, ¶¶
2, 12, 310 P.3d 58, 59, 61.
49
¶85
In Medina, we held that the prosecution could contradict the
defendant's testimony with lay testimony on rebuttal. 291
P.2d at 1062. In Tenorio, Sams, and Miller,
we held that the prosecution could contradict the
defense's cross-examination with further questioning on
re-direct.[7] Tenorio, 590 P.2d at 957-58;
Sams, 685 P.2d at 164; Miller, 890 P.2d at 99. And
in Golob, we held that the defense could contradict
the prosecution's expert testimony with its own expert
testimony. 180 P.3d at 1012-13.
¶86
But "[o]pening statements are not evidence, and they do
not constrain later argument or introduction of
evidence." Davis, ¶ 33, 310 P.3d at 65-66
(Bender, C.J., concurring in the judgment) ("What is
inappropriate, however, is permitting opposing counsel to
present irrelevant or otherwise inadmissible evidence on the
basis that an opening statement, which carries no evidentiary
weight, opened the door to its admission."). The
majority's holding in this case stands not only for the
remarkable proposition that a defendant may "open the
door" to expert testimony that a victim was truthful but
also that a defendant may "open the door" to such
otherwise inadmissible evidence merely by pursuing a theory
of defense "that the [victim] had been coached or
otherwise improperly influenced." Maj. op. ¶ 44.
50
¶87
I am deeply concerned about the implications of the
majority's holding on future, similarly situated
defendants. Coaching is a common defense to allegations of
sexual assault on a child, and the majority's decision
today undercuts any such defense. A defendant who seeks to
defend against allegations of sexual assault on a child by
explaining that a third party improperly induced the
child's outcry may now anticipate the introduction of
expert testimony vouching for the child's truthfulness.
Indeed, going forward, defendants must be careful not to even
suggest that a child victim might be told what to say-not in
voir dire, opening statement, or closing argument-lest they
"open the door" to expert testimony that the child
told the truth. I cannot support this result.
III.
Conclusion
¶88
By applying the opening the door doctrine to this case, the
majority distorts it beyond recognition. Nothing about
Lopez's theory of defense created an objectively
misleading impression or gave the defense an unfair
advantage. And in any event, permitting an expert to directly
vouch for the victims' credibility was a disproportionate
response that injected unfair prejudice into a case that
hinged on credibility.
¶89
For the foregoing reasons, I respectfully dissent.
---------
Notes:
[1] We are aware that in common parlance
lawyers and judges often use "opening the door"
imprecisely, including to permit admissible evidence to
refute or rebut an argument or other evidence. See
generally People v. Miller, 890 P.2d 84, 99 (Colo. 1995)
(citing 21 Wright & Miller's Federal Practice &
Procedure § 5039 (1977)), for the proposition that trial
courts and appellate courts alike often create confusion by
using terms like "opening the door," "fighting
fire with fire," and "curative admissibility"
in situations requiring analysis pursuant to the rules of
evidence). In this opinion, when we refer to opening the
door, we mean the doctrine that allows a party to present
otherwise inadmissible evidence because the opposing party
has selectively introduced information that leaves the
factfinder with an inaccurate or misleading
impression.
[2] The question raised by Lopez reads as
follows:
Whether a criminal defendant can open the door to
expert witness testimony that another witness told the truth
on a particular occasion. This framing notwithstanding, as in
Liggett v. People, 135 P.3d 725, 732 n.2 (Colo.
2006), we abstain from addressing whether the opening the
door doctrine may ever permit a witness to testify that
another witness told the truth on a particular occasion. That
issue is simply not implicated here. Indeed, the division
refrained from tackling it. As the division aptly pointed
out, Grimm did not testify that the children told the truth
during their forensic interviews. Instead, she said that she
didn't see any indication of coaching. "This court
is not empowered to give advisory opinions based on
hypothetical fact[ual] situations" posed by counsel.
Tippett v. Johnson, 742 P.2d 314, 315 (Colo.
1987).
[3] Compare People v. Snook, 745
P.2d 647, 648 (Colo. 1987) (analyzing the admissibility of
the challenged expert testimony under CRE 608(a), not CRE
702, and disagreeing with the People that (1) expert
"opinion evidence that merely corroborates a particular
person's version of the offense" without directly
vouching for the person's character for truthfulness
falls outside the scope of CRE 608(a)'s prohibition, and
(2) no abuse of discretion occurred because the expert
testimony did not "explicitly" corroborate the
child victim's credibility); People v. Wittrein,
221 P.3d 1076, 1081-82 (Colo. 2009) (following Snook and
applying CRE 608(a) without mentioning CRE 702); and
Venalonzo, ¶¶ 32, 33, 388 P.3d at 877-78
(adhering to Snook's CRE 608(a) analysis-without
determining whether the testimony was expert opinion evidence
subject to CRE 702-in rejecting the division's conclusion
that the testimony that child victims commonly give
conflicting details was proper rebuttal evidence in light of
the defense's contention that the conflicting details
were indicia of fabrication; and declaring that testimony
with "direct and indirect implications [about] a
child's truthfulness" wanders outside the
evidentiary fence line) (emphasis added)); with People v.
Gaffney, 769 P.2d 1081, 1086 (Colo. 1989) (explaining
that CRE 608(a) doesn't preclude "all statements
that may tend to support the credibility of a
child-victim's out-of-court statements or in-trial
testimony concerning a sexual crime," and acknowledging
that CRE 702 permits expert testimony establishing that
traits, characteristics, and/or behaviors exhibited by a
child victim matched those found in other child victims of
sexual abuse); People v. Fasy, 829 P.2d 1314,
1317-19 (Colo. 1992) (upholding the admission of expert
testimony that (1) the child victim's behaviors after the
sexual assault aligned with those of children suffering from
posttraumatic stress disorder, (2) the child victim suffered
from that disorder, and (3) a sexual assault could have
triggered the disorder; rejecting the defendant's
reliance on CRE 608(a); and holding that the challenged
expert testimony was admissible under CRE 702, in part
because it helped the jury understand post-incident behaviors
exhibited by the child victim, including the yearslong delay
in reporting the sexual abuse, notwithstanding the fact that
such testimony indirectly and incidentally bolstered the
child victim's credibility); and People v.
Cooper, 2021 CO 69, ¶ 97, 496 P.3d 430, 448
(cautioning that generalized expert testimony isn't
rendered inadmissible merely because it has an
"incidental" bolstering effect on a domestic
violence victim's credibility; and citing People v.
Relaford, 2016 COA 99, ¶ 30, 409 P.3d 490, 496, for
the proposition that "expert testimony generally tends
to bolster or attack the credibility of another witness"
(quoting People v. Koon, 724 P.2d 1367, 1370
(Colo.App. 1986)).
[4] Nothing in our opening the door
jurisprudence fenced the People into a nonevidentiary
response. Nor is there support in Colorado law for the notion
that Lopez, as the party who swung the gate open, was
entitled to stand in the doorway and dictate the form of the
evidence the People properly carried across the
threshold.
[5] Golob did not directly cite
to Tenorio, Sams, or Miller; it instead
cited People v. Murphy, 919 P.2d 191, 195 (Colo.
1996), which in turn cited Tenorio, Sams,
and Miller. Golob, 180 P.3d at 1012. But
Golob uses the same language as Miller to describe
the opening the door doctrine. Compare Golob, 180
P.3d at 1012 ("'[O]pening the door' represents
an effort by courts to prevent one party in a criminal trial
from gaining and maintaining an unfair advantage by the
selective presentation of facts that, without being
elaborated or placed in context, create an incorrect or
misleading impression."), with Miller, 890 P.2d
at 98-99 (same). Therefore, Golob rested on the same
principles as those advanced in Tenorio, Sams, and
Miller.
[6] The majority does not explain how the
defense's closing arguments, which obviously occurred
after the close of evidence, contributed to "opening the
door" to the expert's testimony here.
[7] Even in Venalonzo, a more
recent case applying the opening the door doctrine, we held
that the prosecution could contradict the defense's
cross-examination of a non-expert investigating
officer with further questioning on re-direct examination.
¶ 44, 388 P.3d at 880.
---------