Even More on Ramirez

To our post of 4/1/07, James England has written in response:

Although I agree with much of your analysis, I remain troubled by the following aspects of Ramirez.

You have come up with an elegant way to attempt reconciliation of Ramirez and Wilkerson, but I find it significant that the Colorado Supreme Court never itself hints at such a reconciliation. Having decided Wilkerson less than two years ago, I would have thought it necessary for that Court to have at least mentioned that decision in Wilkerson, and to provide some scraps of rationale (especially to this state’s trial judges) as to how the two cases do not conflict. Without any such attempt, I fear future readers will reach the same conclusion you do as to a de facto way to harmonize the decisions: prosecutors win, and criminal defendants don’t. (One of the more interesting aspects of both holdings is that I would be surprised to see eiither one reached in a civil case.) As to your suggestion that Wilkerson would or should be restricted to advocates who expressly present their expert opinions couched in “quantitative, statistical meaning,” the opinion rejected by the Wilkerson court was merely a conclusion characterized by the expert as “more probable than not,” a formulation which rolls off the tongues of Colorado litigators as many trial judges will in fact require every expert opinion to carry such a characterization. This is what leads to my concern that if the Wilkerson court really meant what it seemed to say, then almost every expert opinion offered in this state could be attacked for lacking empirical or methodological support for that claimed probability.

As to your discussion of the differences between Rule 705’s provisions concerning data underlying expert opinions which need not (always) be laid before the jury and the Rule 104 necessity for establishing a sufficient evidentiary foundation for the judge, I am again very troubled by the fact that such a distinction is not hinted at in Ramirez. This is especially troubling because there was no pretrial (or other out-of-the-jury’s-presence) Daubert hearing in Ramirez: the presentation of the expert’s testimony to the jury was the only evidentiary foundation presented to or considered by the trial court. Given that the issue before the Supreme Court was the reliability of that evidence for admission, it seems to me the Court here relies on Rule 705, not to justify not disclosing underlying data to the jury, but to excuse the lack of a decent evidentiary foundation before the trial judge. That appears to me to abandon Rule 104 and Daubert gatekeeping requirements, or at least to carry a high risk that later trial courts will see this reliance on Rule 705 to excuse meaningful Daubert foundations (at least, as you suggest, by prosecutors).

Finally, as to the somewhat run-of-the-mill nature of the nurse’s testimony here, I would be less bothered if this had been a run-of-the-mill decision by our intermediate state appellate court. Here, however, that intermediate court had issued a fairly innocuous, unpublished decision which seems to me to soberly and analytically apply familiar Daubert principles to the very shaky evidentiary foundation laid before the trial court. What makes this case more significant is that the Colorado Supreme Court then exercised its discretionary certiorari review (my impression is that it grants less than 5 percent of the certiorari petitions it receives) to reach out and reverse that innocuous opinion. And it can’t be (can it?) that it did so in order to clarify the “medical certainty” issue, as that was not the decisional basis for either the trial court nor the Court of Appeals. Given that, it is distressing that the Court seized upon this case in one of its relatively infrequent revisitations of Daubert, only to blur the standards for opinion admissibility generally, confusingly resort to Rule 705, and put its stamp of approval on non-objective, “suspiciously” reliable and poorly supported “expert” opinion.