More on the Colorado Supreme Court's Ramirez Decision

Yesterday, we posted about the Colorado Supreme Court's decision in People v. Ramirez, focusing on its abandonment of "reasonable medical certainty" as a necessary condition for admissibility. We paid less attention to the opinion's treatment of Daubert's requirements under Colorado law.

James M. England, our Colorado correspondent, now writes and fills that gap:

Back in July of 2005, you carried my summary of a new Daubert opinion from the Colorado Supreme Court, which I speculated might be "far-reaching." Never mind; this week that same court unanimously departed as far as possible from that case, without even mentioning it.

In the 2005 case, People v. Wilkerson, the Court upheld the exclusion of defense expert testimony that a shooting was more likely accidental than not, based on the lack of "empirical or methodological justification in the record" for the expert's supposed "numeric calculation of the possibility that the shooting in this case was accidental." In extreme contrast, its new decision, People v. Ramirez, approves the admission of prosecution expert testimony expressly based only upon "suspicion" and unaccompanied by any indicia of reliability or sound methodology.

Ramirez was tried for sexual assault on a ten-year-old child. A day or two after the last alleged assault, hospital medical examination detected no evidence of sexual assault. Some 40 days later, the child was re-examined by a clinic's nurse practitioner, who testified at a preliminary hearing (but not at trial) that she found signs of a "healing laceration." This nurse was presented at trial as an expert witness "in the area of child sexual assault examinations," for which she was found qualified by having "done" some 91 such examinations. (Aside from two week-long conferences, the nurse testified she had no formal training or education in evaluating children for evidence of sexual assault, and that her knowledge in this area was derived from "a lot of reading" of journal articles which she did not identify, and in assisting an unidentified pediatrician who performed sexual assault examinations.)

On voir dire, the nurse said she had not reached conclusions to a "reasonable degree of medical certainty," but had reached findings which "are suspicious, but not diagnostic." The nurse further described her resort to a four-tier hierarchy of possible examination findings ranging from "normal" to "non-specific" to "suspicious" to "definitive," and said that she found the results of her examination of this child to be "suspicious," which "raises my index of suspicion," and which "may well have been caused by sexual abuse but there could have been another possibility." The trial court overruled defense reliability objections, stating that the nurse's testimony "doesn't really show any sexual penetration, but it just shows that there was something there that was suspicious and I think that is useful." In testifying, the nurse never did describe to the jury what her "suspicious" finding was, nor provide any basis for her belief that it was "suspicious."

The Colorado Court of Appeals reversed the resulting conviction, finding (in an unpublished opinion) that the opinion testimony addressed "only possibilities" and amounted to "no more than conjecture and speculation." In passing, that Court also noted the general requirement in Colorado law that a medical opinion be based on "reasonable medical probability."

On certiorari review, the Colorado Supreme Court first examined the evolution of the standard of "reasonable medical certainty," before (helpfully) concluding that it is not a valid requirement under CRE 702. Implicitly at least, the Court then also rejected the requirement of expert testimony based on "reasonable probability," without mentioning Wilkerson (let alone trying to reconcile with it). (Wilkerson was apparently never cited in the briefs filed with the Supreme Court.) The Supreme Court then went on to consider whether this expert testimony was sufficiently reliable under CRE 702 and sufficiently grounded "in the methods and procedures of science rather than subjective belief or unsupported speculation." Remarkably, the Court concluded that the testimony of a "suspicious" finding was sufficiently reliable because it was the product of a "reliable scientific principle" (the medical examination) and that the "four-point scale" was also based on sufficiently reliable scientific principles, resorting to the following unpersuasive analysis:

One would expect to find "normal" and "definitive" at the polar ends of a scale measuring signs of sexual abuse. Although it is difficult given the record before us to describe in any detail the difference between a "non-specific" finding and a "suspicious" finding, we nonetheless find the scale used by [the nurse] to be reasonably reliable. It logically follows that "suspicious," being closer on the scale to "definitive" than "normal," indicates a finding that is more indicative of sexual abuse than a "non-specific" finding, which is closer to "normal" than "definitive" on the scale. We find that the jury could have reasonably inferred from [the nurse's] testimony that "suspicious," while not being an absolute finding of sexual abuse, was nevertheless a strong indicator of sexual abuse. Thus, the scale was sufficiently reliable under CRE 702 for [the nurse] to use.

In this regard, a startling aspect of the Court's opinion is that it appears to considerably dilute the extent of any foundation required for any expert opinion. The Court of Appeals (not surprisingly) had noted that the prosecution had not established any basis for its witness' conclusion that her examination had resulted in a "suspicious" finding. The Supreme Court, however, justified the absence of such foundation under CRE 705's provision that expert opinion does not first require testimony as to "the underlying facts or data, unless the court requires otherwise." The Court's opinion not only glosses over the discretionary nature of this provision, but also disregards Daubert's reliability gatekeeping requirements. Especially where an expert couches a conclusory opinion in terms of a suspicion which is ranked on an idiosyncratic and objective "scale," a basic Daubert foundation would require display and consideration of the methodology supposedly utilized by that expert in order to determine if sufficient reliability exists, entirely without regard to Rule 705.

Unless this opinion is significantly modified on rehearing, the state of Daubert in Colorado is now substantially confused. An attorney wanting to exclude virtually any expert opinion (at least where the expert is unable to support an opinion of probability with "empirical or methodological justification") need only cite Wilkerson. Conversely, an attorney wanting to admit even the flimsiest and equivocal expert opinion need only cite Ramirez (and can further use it to justify not laying more than a minimal foundation for that opinion). And the conscientious trial judge does what?