UNIVERSITY OF DENVERCRIMINAL LAW REVIEWVOLUME 3 SPRING 2013The Gordian Knot of the Treatmentof Secondhand Facts Under FederalRule of Evidence 703 Governing theAdmissibility of Expert Opinions:Another Conflict Between Logic andLawEdward J. Imwinkelried 1Admissibility Compared: TheReception of Incriminating ExpertEvidence (i.e., Forensic Science) inFour Adversarial JurisdictionsGary Edmond, Simon Cole,Emma Cunliffe, and AndrewRoberts . 31Colorado’s Undemanding NoticeRequirement: Pro Se Defendantsand Forensic Technician TestimonySarah M. Morris andLauren L. Fontana 111The Cost of Colorado’s DeathPenaltyJustin F. Marceau andHollis A. Whitson 145The Death Penalty SpectacleTung Yin 165“They’re Planting Stories in thePress”: The Impact of MediaDistortions on Sex Offender Lawand PolicyHeather Ellis Cucolo andMichael L. Perlin 185

University of Denver Criminal Law ReviewSpring 2013The University of Denver Criminal Law Review is published annually by the University ofDenver Sturm College of Law.University of Denver Criminal Law Review2255 East Evans AvenueDenver, Colorado [email protected] as: 3 U. DENV. CRIM. L. REV (2013)Subscriptions: Subscriptions to the Criminal Law Review are 20.00 per volume (plus 5.00 for mailing addresses outside the United States). All subscriptions will be renewedautomatically unless the subscriber provides timely notice of cancellation.Copyright: All articles copyright 2013 by the University of Denver Criminal LawReview, University of Denver (Colorado Seminary) Sturm College of Law. For all articlesfor which it holds the copyright, the Criminal Law Review permits copies to be made forclassroom use, provided that (1) the user notifies the Criminal Law Review of the use, (2)the author and the University of Denver Criminal Law Review are identified, and (3) theproper notice of copyright is affixed to each copy. For all other articles, contact theCriminal Law Review to request reprint permission.Form: The Criminal Law Review generally conforms to The Bluebook: A Uniform Systemof Citation (Columbia Law Review Ass’n et al. eds., 19th ed. 2010) and to The ChicagoManual of Style (16th ed. 2010). It is the general policy of the Criminal Law Review not tokeep unpublished sources used in articles, notes, or comments beyond their use forverification of citations. Inquiries as to the location of an unpublished source should bedirected to the author of the article, not, or comment in which it is cited.Manuscripts: Please send all manuscripts via email to the Solicitation Editor [email protected] All manuscripts should be provided as Microsoft Worddocuments with all citations in footnotes.Printed by Tattered Cover Press in Denver, Colorado.


University of DenverSturm College of LawADMINISTRATIVE OFFICERSRobert D. Coombe, B.S., M.S., Ph.D., ChancellorGregg Kvistad, B.A., M.A., Ph.D., ProvostCraig W. Woody, B.B.A., M.Acc., Vice Chancellor for Business and Financial AffairsKevin A. Carroll, B.S., M.B.A, Vice Chancellor of Marketing and CommunicationsBarbara J. Wilcots, B.A., M.A., M.A., Ph.D., Associate Provost for Graduate StudiesPaul H. Chan, B.A., J.D., University General CounselMartin J. Katz, B.A., J.D., Dean of the Sturm College of LawFred Cheever, B.A., M.A., J.D., Senior Associate Dean of Academic Affairs and Professor of LawAlan Chen, B.A., J.D., Associate Dean for Faculty Scholarship and Professor of LawPatricia Powell, B.A., J.D., Associate Dean of Student Affairs and LecturerCatherine E. Smith, B.A., M.A., J.D., Associate Dean for Institutional Diversity and Inclusiveness and AssociateProfessor of LawEric Bono, B.A., J.D., Assistant Dean for Career OpportunitiesIain Davis, B.A., M.S., Assistant Dean of Student Financial Management and AdmissionsLaura E. Dean, B.A., Assistant Dean of Alumni RelationsClint Emmerich, B.S., M.B.A., Assistant Dean of Budget and PlanningMeghan S. Howes, B.A., B.F.A., Assistant Dean of the Office of CommunicationsDaniel A. Vigil, B.A., J.D., Assistant Dean of External Relations and Adjunct ProfessorSusan D. Daggett, B.A., J.D., Executive Director of the Rocky Mountain Land Use Institute and LecturerRicki Kelly, B.S.B.A., J.D., Executive Director of DevelopmentMark A. Vogel, B.B.A., J.D., LL.M., Director of the Graduate Program in Taxation and Associate Professor ofTaxationJulie Gordon, B.A., B.S., M.S.L.A., RegistrarMolly Rossi, B.A., Human Resources ManagerLauri Mlinar, Director of EventsFACULTYDavid Akerson, B.A., J.D., LecturerRobert Anderson, B.A., J.D., Lawyering Process ProfessorRachel Arnow-Richman, B.A., J.D., LL.M, Professor of LawDebra Austin, B.M.E., J.D., Ph.D., Lawyering Process ProfessorRebecca Aviel, B.A., J.D., Assistant Professor of LawKatina Banks, B.A., J.D., LecturerTanya Bartholomew, B.A., J.D., Lawyering Process ProfessorArthur Best, A.B., J.D., Professor of LawJerome Borison, B.S., J.D., LL.M., Associate Professor of LawStacey Bowers, B.S., J.D., M.L.I.S., Ph.D., Visiting LecturerKelly Brewer, B.A., J.D., Lawyering Process ProfessorJ. Robert Brown, Jr., B.A., M.A., J.D., Ph.D., Chauncey Wilson Memorial Research Chair, Director of theCorporate/Commercial Law Program, and Professor of LawTeresa M. Bruce, B.S., J.D., Assistant Professor of Legal Writing and Writing Adviser for the DU Bar SuccessProgramPhoenix Cai, B.A, J.D., Director of the Roche International Business LLM Program and Associate Professor of LawKatherine L. Caldwell, B.A., M.A., J.D., Lawyering Process ProfessorJohn Campbell, B.A., J.D., Lawyering Process ProfessorBernard Chao, B.S., J.D., Assistant Professor of LawChristine Cimini, B.A., J.D., Associate Professor of LawRoberto Corrada, B.A., J.D., Sturm College of Law Chair in Modern Learning and Professor of LawPatience Crowder, B.A., J.D., Assistant Professor of LawStephen Daniels, B.A., M.A., Ph.D., LecturerKelly Davis, B.A., J.D., Clinical FellowRosemary Dillon, B.A., M.S.J., J.D., Lawyering Process ProfessorMichael C. Duff, B.A., J.D., Visiting ProfessorK.K. DuVivier, B.A., J.D., Professor of LawNancy Ehrenreich, B.A., J.D., LL.M., William M. Beaney Memorial Research Chair and Professor of LawIan Farrell, B.S., M.A., LL.B, LL.M., Assistant Professor of Law

Eric Franklin, B.A., J.D., LecturerBrittany Glidden, B.A., J.D., LecturerRashmi Goel, B.A., LL.B., J.S.M., J.S.D candidate, Associate Professor of LawLisa Graybill, B.A., J.D., Visiting LecturerRobert M. Hardaway, B.A., J.D., Professor of LawMichael Harris, B.A., M.S.L., J.D., Director of the Environmental Law Clinic and Assistant Professor of LawJeffrey H. Hartje, B.A., J.D., Associate Professor of LawMark Hughes, A.B., J.D., Visiting ProfessorTimothy Hurley, B.A., J.D., Director of the Upper Level Writing Program, Writing Adviser for the DU Bar SuccessProgram, and Assistant Professor of Legal WritingSheila K. Hyatt, B.A., J.D., Professor of LawScott Johns, B.A., J.D., Director of the DU Bar Success Program and LecturerJosé R. (Beto) Juárez, Jr., A.B., J.D., Professor of LawSam Kamin, B.A., J.D., Ph.D., Director of the Constitutional Rights & Remedies Program and Professor of LawHope Kentnor, B.A., M.S.L.A., Ph.D. candidate, Director of the Master of Science in Legal Administration Programand LecturerTamara L. Kuennen, B.A., J.D., LL.M., Associate Professor of LawJan G. Laitos, B.A., J.D., S.J.D., John A. Carver, Jr. Professor of LawChristopher Lasch, B.A., J.D., Assistant Professor of LawNancy Leong, B.A., B.Mus., J.D., Assistant Professor of LawMatthew Lister, B.A., M.A., J.D., Ph.D., LecturerKevin Lynch, B.A., J.D., Assistant Professor of LawJustin Marceau, B.A., J.D., Associate Professor of LawLucy A. Marsh, B.A., J.D., Professor of LawMichael G. Massey, B.A., J.D., Director of the Professional Mentoring Program and LecturerG. Kristian Miccio, B.A., M.A.P.A., J.D., LL.M., J.S.D., Professor of LawViva Moffat, A.B., M.A., J.D., Associate Professor of LawSuzanna K. Moran, B.A., M.S., J.D., Lawyering Process ProfessorVed P. Nanda, B.A., M.A., LL.B., LL.M., Evans University Professor and Thompson G. Marsh Professor of LawStephen L. Pepper, A.B., J.D., Professor of LawJustin Pidot, B.A., J.D., Assistant Professor of LawNicole Porter, B.A., J.D., Visiting ProfessorRock W. Pring, B.A., J.D., Professor of LawRaja Raghunath, B.A., J.D., Assistant Professor of LawPaula Rhodes, B.A., J.D., Associate Professor of LawEdward J. Roche, B.B.A., J.D., Professor of LawTom I. Romero, II, B.A., M.A., J.D., Ph.D., Hughes–Hudd Research Professor and Associate Professor of LawHoward I. Rosenberg, B.A., LL.B., Professor of LawLaura Rovner, B.A., J.D., LL.M., Ronald V. Yegge Clinical Director and Associate Professor of LawNantiya Ruan, B.A., M.S.W., J.D., Director of the Workplace Law Program, Writing Adviser for the DU Bar SuccessProgram, and Lawyering Process ProfessorThomas D. Russell, B.A., M.A., J.D., Ph.D., Professor of LawAnn C. Scales (1952–2012), B.A., J.D., Professor of LawDavid C. Schott, B.A., J.D., Director of the Advocacy Program and LecturerMark Sidel, B.A., M.A., J.D., Visiting ProfessorMichael R. Siebecker, B.A., J.D., LL.M., M.Phil., Ph.D., Professor of LawDon C. Smith, B.S., J.D., LL.M., Director of the Environmental & Natural Resources Law & Policy GraduateProgram and LecturerJohn T. Soma, B.A., M.A., J.D., Ph.D., Professor of LawMichael D. Sousa, B.A., J.D., LL.M., M.A. candidate, Assistant Director of the Corporate/Commercial Law Programand Assistant Professor of LawMary A. Steefel, B.A., J.D., LL.M., Director of the Academic Achievement Program, Writing Adviser for the DU BarSuccess Program, and LecturerJoyce Sterling, B.A., M.A., Ph.D., Professor of LawRobin Walker Sterling, B.A., J.D., LL.M., Assistant Professor of LawKate Stoker, B.A., J.D., Legal Writing Specialist for the Academic Achievement Program, Writing Adviser for the DUBar Success Program, and LecturerCelia Taylor, B.A., J.D., LL.M., Professor of LawDavid Thomson, B.A., J.D., Director of the Lawyering Process Program and Lawyering Process ProfessorKyle C. Velte, B.A., J.D., LL.M., LecturerAnn S. Vessels, B.A., J.D., Director of the Legal Externship Program and LecturerEli Wald, B.A., LL.B., LL.M., S.J.D., Charles W. Delaney, Jr. Professor of LawLindsey D. Webb, B.A., J.D., LL.M., Director of Public Interest and LecturerAnnecoos Wiersema, B.A., LL.B., S.J.D., Associate Professor of LawEdward Ziegler, B.A., J.D., LL.M., Robert B. Yegge Memorial Research Chair and Professor of Law

THE GORDIAN KNOT OF THE TREATMENT OF SECONDHANDFACTS UNDER FEDERAL RULE OF EVIDENCE 703 GOVERNINGTHE ADMISSIBILITY OF EXPERT OPINIONS: ANOTHERCONFLICT BETWEEN LOGIC AND LAWEdward J. Imwinkelried*“The life of the law has not been logic . . . .”–Oliver Wendell Holmes, Jr., The Common Law 1 (1881)Some commentators have suggested that the American judicial hearing isbecoming trial by expert.1 In the early 1990s, the Rand Corporation released a study of theuse of experts in trials in California courts of general jurisdiction.2 Expert witnessesappeared in 86% of the trials studied, and on average there were 3.3 experts per trial.3 It isundeniable that in the United States the role of expert witnesses is growing.Although commentators sometimes refer to the role of the expert at trial, in truthwitnesses who qualify as experts can play at least four different roles. Suppose, forexample, that an eminent toxicologist is driving to work and observes a traffic accident.Like any witness who has personal knowledge of a fact, the toxicologist could testify atthe trial against the driver that she observed the defendant’s car run a red light.4 Next, ifthe toxicologist had attempted to help the drivers and smelt a strong odor of alcohol on thedefendant’s breath, the toxicologist would be competent to give the lay opinion that thedefendant was intoxicated.5 Thirdly, suppose that the defendant were prosecuted for drunkdriving, and the arresting officer testified that on an intoxilyzer test the defendantregistered 0.13, exceeding the statutory limit of 0.08.6 At the same trial, the prosecutorcould call the toxicologist to provide expert testimony about the general reliability of*Edward L. Barrett, Jr. Professor of Law, University of California, Davis; former chair, Evidence Section,American Association of Law Schools; coauthor, PAUL C. GIANNELLI, EDWARD J. IMWINKELRIED, ANDREAROTH & JANE CAMPBELL MORIARTY, SCIENTIFIC EVIDENCE (5th ed. 2012).1William T. Pizzi, Expert Testimony in the U.S., 145 NEW L.J. 82 (1995).2Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1120 n. 19 (1991).3Id. at 1119.4FED. R. EVID. 602.5Id. at FED. R. EVID. 701; 1 MCCORMICK, EVIDENCE § 11, at 55 n.23 (6th ed. 2006).62 PAUL C. GIANNELLI, EDWARD J. IMWINKELRIED, ANDREA ROTH & JANE CAMPBELL MORIARTY, SCIENTIFICEVIDENCE § 22.01 at 474, 476 (5th ed. 2012).

2UNIVERSITY OF DENVER CRIMINAL LAW REVIEW[Vol. 3intoxilyzers as a method of determining blood alcohol concentrations.7Although an expert witness can play any of the above roles, in most instances theattorney calling the witness wants him or her to perfor