specially concurring.
I agree with the result reached by the majority. But I disagree with one aspect of the majority's decision: its refusal to address defendant's argument that the prosecution's failure to notify him before trial that Ann Smith would give expert testimony violated his constitutional right to due process. The majority explains its refusal to consider that issue primarily by citing Martinez v. People, 244 P.3d 185, 189 (Colo.2010), which in turn cites People v. Cagle, 751 P.2d 614 (Colo.1988); People v. McMurtry, 122 P.3d 287 (Colo.2005); and a civil case, for the proposition that we may not consider constitutional arguments raised for the first time on appeal. And yet, the majority addresses another constitutional argument that defendant raises for the first time on appeal, namely, that certain of his convictions violate the constitutional prohibition against double jeopardy. The majority explains this inconsistency by citing People v. Tillery, 281 P.3d 836 (Colo.App.2009) (cert. granted May 24, 2010), in which a division of this court concluded that an appellate court may address an unpre-served double jeopardy claim. Tillery, however, cited no Colorado Supreme Court case holding that a double jeopardy claim is exempt from the general rule the majority applies to defendant's due process claim. Rather, the division merely cited reasons why such an exception would be appropriate. It is not apparent to me, however, that a division of this court is free to carve out an exception to a rule articulated by the supreme court (assuming that such a rule exists). The majority in this case then further confuses the issue, in my view, by stating that it addresses the double jeopardy claim "in the exercise of our discretion under Hi-nojos-Mendoza v. People, 169 P.3d 662, 667-68 (Colo.2007)...." But if such review is discretionary, how does the majority account for the rule barring such review on which it relies to refuse to consider defendant's due process argument?
Notwithstanding the majority's reference to discretion, it apparently believes that there is a general rule barring an appellate court from reviewing unpreserved constitutional contentions for plain error, but that double jeopardy is an exception to the rule. I disagree. Neither Martines Cagle, McMurtry, nor any other opinion from the supreme court establishes a categorical rule that an appellate court cannot review unpre-served constitutional contentions for plain error, subject only to a few limited exceptions. *932To the contrary, several cases, as discussed below, strongly suggest that such contentions are reviewable for plain error, subject to a couple of exceptions. However, given the muddled state of Colorado case law on this question, I understand how the majority might conclude otherwise. This state of the case law has resulted in substantial disagreement among the judges of this court as to (1) whether we may review unpreserved contentions of constitutional error, and, if so, (2) what types of unpreserved contentions we may review. This disagreement, in turn, manifests itself in numerous irreconcilable decisions of divisions of this court.
The problems created by this confusion would be resolved if Colorado appellate courts applied our plain error rule, Crim. P. 52(b), in the same way the federal courts apply Fed.R.Crim.P. 52(b). To fully explain the reasons for my recommendation, I begin by comparing the state and federal plain error tests; then show how Colorado case law has deviated from the text and purpose of Rule 52(b), resulting in erroneous and contradictory applications of the rule; and finally discuss why the federal plain error test is preferable.1
I. Crim. P. 52(b) and the Current Plain Error Test Thereunder
Crim. P. 52 provides:
(a) Harmless Error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
Several things about Crim. P. 52(b) are noteworthy. First, only unpreserved errors that are "plain" and affect "substantial rights" may be reviewed. Second, the rule's text does not exclude any species of any such error from its purview. Third, and most importantly, the appellate court is not required to notice any such error. Rather, the use of the term "may" plainly indicates that the appellate court has discretion to notice-i.e., to remedy-any such claimed error.
As presently articulated and applied, plain error review in Colorado criminal cases entails a three-part inquiry: (1) whether there was an error; (2) whether the error was "plain," meaning the error must have been clear or obvious; and (8) whether the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Miller, 118 P.B8d 748, 750 (Colo. 2005); People v. Cook, 197 P.8d 269, 275-76 (Colo.App.2008). The third part of the test seems to be an exposition of what it means for an error to be "substantial," as it focuses on whether the error was prejudicial. People v. Vigil, 127 P.8d 916, 980 (Colo.2006). But missing from this formulation of the test is any recognition of the discretion to notice error expressly granted by Rule 52(b).
II. Fed.R.Crim.P. 52(b) and the Federal Plain Error Test
Fed.R.Crim.P. 52(b) is substantially identical to Crim. P. 52(b).2 In United States v. Olamo, 507 U.S. 725, 1183 S.Ct. 1770, 128 LEd.2d 508 (1998), the Supreme Court squarely addressed the test to be applied under the federal rule. It began its analysis by observing that " '[nlo procedural principle is more familiar to this Court than that a constitutional right' or a right of any other sort, 'may be forfeited in eriminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" Id. at 731, 118 S.Ct. 1770 (quoting in part Yakus v. United States, 821 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 884 (1944)). The Court went on to hold that even if there is (1) forfeited error that is both (2) obvious and (8) substantial, an appellate court retains discretion to remedy the error. Indeed, the Court viewed that discretion as a significant brake on the *933power to recognize forfeited claims of error, holding that discretion under the rule should be employed only "in those cireumstances in which a miscarriage of justice would otherwise result," id. at 786, 113 S.Ct. 1770 (internal quotation marks omitted), and opining that absent this limitation, "the discretion afforded by Rule 52(b) would be illusory." Id. at 787, 118 S.Ct. 1770.
The Court explained that although the "miscarriage of justice" part of the test is not limited to cases of actually innocent defendants, it remains limited to cases where the error " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736, 118 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1986); brackets in Olano }.
The Olano Court's insistence that the discretion afforded by the rule is intended to limit, rather than expand, the class of unpre-served errors that should be noticed on appeal was informed by Unmited States v. Young, 470 U.S. 1, 105 S.Ct. 1088, 84 L.Ed.2d 1 (1985), in which the Court had held that the plain error exception to the preservation rule should be used sparingly. The Court in Young explained:
Any unwarranted extension of this exacting definition of plain error would skew the Rule's "careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed." Reviewing courts are not to use the plain-error doctrine to consider trial court errors not meriting appellate review absent timely objection-a practice which we have criticized as "extravagant protection."
Id. at 15-16, 105 S.Ct. 1038 (citations omitted; quoting in part United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), and Namet v. United States, 378 U.S. 179, 190, 88 S.Ct. 1151, 10 L.Ed.2d 278 (1963)).
In Miller, 118 P.8d 748, the Colorado Supreme Court held that unpreserved claims of constitutional error are reviewed for plain error. In the course of analyzing the issue, the court discussed Olano, but only to the extent of noting Olamo's observation that constitutional errors may be forfeited. The court did not, however, adopt the fourth prong of the Olano-Fed. R.Crim. P. 52(b) plain error test-that the error must be one seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Since Miller was decided, our appellate courts have consistently applied the three-prong test. See, eg., Cook, 197 P.3d at 275-76.
Thus, under current case law, Colorado appellate courts deem irrelevant under Crim. P. 52(b) what the Supreme Court views as indispensible under identically-worded Fed. R.Crim.P. 52(b)-the discretionary nature of the remedy allowed by the rule.
III. Cagle and Its Fallout
In Cagle 751 P2d 614, the defendant claimed on appeal that a statute prohibiting possession of certain controlled substances was unconstitutional. The People urged that the defendant had failed to preserve the claim for appellate review. The court held that the issue was preserved. But, virtually in passing, the court stated: "It is axiomatic that this court will not consider constitutional issues raised for the first time on appeal. ..." Id. at 619. This statement, which was clearly dictum, has since taken on a life of its own.
In a number of cases, the supreme court and divisions of this court have invoked this statement from Cagle to decline to review a broad variety of unpreserved claims of constitutional error, not merely those challenging the constitutionality of statutes. Seq, eg., Martinez, 244 P.3d at 189 (court of appeals should not have considered the defendant's argument under the Colorado Constitution that the prosecutor had engaged in misconduct - during closing - argument); McMurtry, 122 P.8d at 241 (a defendant may not raise a claim of denial of constitutional right to a speedy trial for the first time on appeal); People v. Knott, 88 P.8d 1147, 1148-49 (Colo.App.2008) (unpreserved due process and double jeopardy challenges to sentencing procedures); People v. Kitsmiller, 74 P.3d 376, 378 (Colo.App.2002) (due process claim *934that the defendant was entitled to an eviden-tiary hearing); People v. Hall, 59 P.3d 298, 301 (Colo.App.2002) (due process challenge to district court's rejection of a lesser included offense instruction}; People v. Scialabba, 55 P.3d 207, 209-10 (Colo.App.2002) (constitutional right to a speedy trial); People v. Collie, 995 P.2d 765, 775 (Colo.App.1999) (right to an extended proportionality review under the Eighth Amendment).
In many cases, however, the supreme court and divisions of this court have reviewed unpreserved claims of constitutional error (including due process claims). Seq, e.g., Hincjos-Mendoza, 169 P.3d at 667 (unconstitutionality of a statute, both facially and as applied; Confrontation Clause); Vigil, 127 P.3d at 929-80 & n. 9 (Confrontation Clause); Domingo-Gomes v. People, 125 P.3d 1048 (Colo.2005) (improper closing argument implicating the right to a fair trial before an impartial jury); Miller, 118 P.8d at 748-50 (due process error in instructions pertaining to intoxication); Auman v. People, 109 P.3d 647, 663-66 (Colo.2005) (instructional error of constitutional dimension); People v. Harian, 8 P.3d 448, 489-90 (Colo.2000) (instructional error cognizable under the Eighth Amendment); Harris v. People, 888 P.2d 259, 268-67 (Colo.1995) (prosecutorial misconduct in closing argument); People v. Kruse, 889 P2d 1, 3 (Colo.1992) (Fifth Amendment right against self-incrimination; stating that plain error review is an exception to the rule that a claim of error must first be raised in the trial court); Armstrong v. People, TOL P.2d 17, 21 (Colo.1985) (reviewing a claim of ineffective assistance of counsel because it "concern[ed] a fundamental constitutional right"); People v. Hardin, 199 Colo. 229, 284, 607 P.2d 1291, 1294 (1980) (due process violation of failure to instruct the jury on the mental state element of the offense); Vigil v. People, 196 Colo. 522, 524-25, 587 P.2d 1196, 1197-98 (1978) (restriction on right to cross-examine a witness); People v. Archuleta, 180 Colo. 156, 158-60, 508 P.2d 346, 347 (1972) (instructional error; stating, "Where plain error affecting substantial rights appears, this Court in the interest of justice may and should deal with it, even though it is raised for the first time on appeal."); Hines v. People, 179 Colo. 4, 6, 497 P.2d 1258, 1259-60 (1972) (claim that prosecutor had improperly commented on the defendant's invocation of his right to remain silent); People v. Herron, 251 P.3d 1190, 1192 (Colo.App.2010) (alleged double jeopardy error; multiplicitous convictions); Tillery, 2831 P.3d at 44, 47-48 (prosecutorial misconduct in closing argument and double jeopardy violation in sentencing; discussing split in Colorado Court of Appeals decisions as to whether unpreserved double jeopardy claims are reviewable on appeal); People v. Stevenson, 228 P.3d 161, 170-71 (Colo.App.2009) (claim of improper closing argument; citing Miller for the proposition that "plain error standards apply to constitutional errors challenged for the first time on appeal"); People v. Petschow, 119 P.8d 495, 499 (Colo.App. 2004) (instructional error); People v. Ulle-rich, 680 P.2d 1806, 1307 (Colo.App.1983) (waiver of right to testify).
These cases rarely mention Cagle. In Hi-nojos-Mendoga, the supreme court acknowledged the critical statement from Cagle, but nonetheless chose to address the Confrontation Clause issue, exercising its "discretion to review these constitutional challenges...." Hinojos-Mendoza, 169 P.3d at 667. In Till-ery, the majority acknowledged Cagle's apparent prohibition against reviewing unpre-served claims of constitutional error, but nonetheless concluded that double jeopardy claims constitute an exception to the rule of Cagle. In the course of analyzing the question, the majority observed that divisions of this court have disagreed whether Cagle bars review of unpreserved double jeopardy claims. Tillery, 231 P.3d at 47-48.
The upshot is that although our appellate courts do not consistently apply the broad language in Cagle, they continue to invoke it with some regularity as to various types of claimed constitutional errors. This has led to irreconcilable conflicts in case law that, to me, are intolerable.
Whenever possible, our rules of decision should be sufficiently clear to enable the parties to know whether an appellate court will address an issue and, if so, what standard of review it will apply. But the law in this area lacks clarity with respect to wheth*935er the appellate court will consider an unpre-served claim of constitutional error. Indeed, the lack of clarity is so pronounced that for many years the judges of this court have been utterly unable to reach a consensus, or anything remotely approaching a consensus, on the issue. Because the members of this court are presented routinely with unpre-served claims of constitutional error, this confusion and disagreement cannot but cast the judiciary in an unflattering light.
It is one thing to identify a problem. It is another to come up with a solution to the problem. Because I believe that doing the latter ordinarily should follow the former, I first discuss below why I believe the broad statement from Cagle is wrong and then why I believe we should apply plain error review to unpreserved claims of constitutional error using the federal four-part test.
IV. The Solution
A. The Broad Language from Cagle Should Be Disavowed
As noted, Cagle involved a challenge to the constitutionality of a statute, one that the court determined was preserved for appellate review. The court went further than it needed to decide the case by opining broadly that "lilt is axiomatic that this court will not consider constitutional issues raised for the first time on appeal...." Cagle, 751 P.2d at 619. In my view, continuing to lend credence to this statement is unwise for several reasons.
First, Cagle does not mention Crim. P. 52(b), which, as previously discussed, governs appellate review of unpreserved claims of error in criminal cases, provides for plain error review of such claims, and makes no exception for constitutional claims.
Second, Cagle fails to acknowledge the long line of prior cases, some of which are cited above, in which the supreme court and divisions of this court considered unpre-served claims of constitutional error for plain error. Some of those cases expressly recognize that plain error review of such claims is appropriate, going so far as to say a court "should" review such claims if necessary to vindicate substantial rights. See Archuleta, 180 Colo. at 158-60, 508 P.2d at 347.
Third, Cagle cited two civil cases, Colgan v. State, 628 P.2d 871 (Colo.1981), and Man-ko v. Martin, 200 Colo. 260, 614 P.2d 875 (1980), in support of the broad pronouncement at issue. Reliance on such cases is questionable, however, because the Colorado Rules of Civil Procedure do not contain a counterpart to Crim. P. 52(b). See Wycoff v. Grace Community Church, 251 P.3d 1260, 1269 (Colo.App.2010). And because liberty and sometimes life are at stake in criminal cases, courts should be somewhat more solicitous, though not overly so, of unpreserved claims of error in criminal cases than they should be in civil cases. See Olano, 507 U.S. at 735-86, 118 S.Ct. 1770 ("[In eriminal cases, where the life, or as in this case the liberty, of the defendant is at stake, the courts of the United States, in the exercise of a sound discretion, may notice [forfeited error]'" (quoting Sykes v. Umited States, 204 F. 909, 913-14 (8th Cir.1918); brackets in Olano )).3
Fourth, as another division of this court has noted, reconciling a broad reading of the critical language in Cagle with subsequent case law seems impossible. See Tillery, 281 P.3d at 47. In Miller, for example, the court answered the question whether unpre-served claims of constitutional error are reviewed for harmless error or plain error. The court concluded that unpreserved claims of constitutional error are reviewed for plain error, a position consistent with many Colorado decisions and Supreme Court cases applying Fed.R.Crim.P. 52(b). Miller, 113 P.3d at 748-50; see also Johnson v. United States, 520 U.S. 461, 468-70, 117 S.Ct., 1544, 137 LEd.2d 718 (1997) (even alleged strue-tural error is subject to plain error review); Griego v. People, 19 P.3d 1, 7-8 (Colo.2001) (constitutional trial errors are subject to harmless or plain error review); People v. Dunlap, 975 P.2d 728, 786-37 (Colo.1999) (same). Not only is the holding in Miller at odds with the broad language from Cagle at issue, Miller's entire discussion would have been unnecessary if, as Cagle said in dictum, *936unpreserved claims of constitutional error are not reviewable at all.
Cagle's language could be read as limited to its context-that is, to constitutional challenges to statutes. Both Colgan and Manka, to which Cagle cited, involved such challenges. But so reading Cagle is problematic because, as noted, the supreme court occasionally has applied the broad language of Cagle in other contexts, most recently in Martinez, 244 P.8d at 189 (prosecutorial misconduct claim under the Colorado Constitution).
In any event, I perceive no principled basis for a rule categorically shielding challenges to the constitutionality of statutes from plain error review.4 To be sure, there are cases in which a claim of error requires development of a factual record and factual findings, without which an appellate court cannot properly serve its appellate function. Some challenges to the constitutionality of statutes, particularly as applied challenges, could fall into that category. See People v. Patrick, T72 P.2d 98, 100 (Colo.1989); People v. Veren, 140 P.3d 181, 140 (Colo.App.2005). But most challenges to the constitutionality of statutes are facial challenges or otherwise do not require development of a factual record. See, e.g., Hinojos-Mendoza, 169 P.3d at 667-70 (addressing both facial and as applied challenges to the constitutionality of a statute, neither of which had been raised in the trial court).5
In sum, Cagle cannot be reconciled with Rule 52(b) or other case law. Nor do I believe it is possible to limit Cagle to a certain category of cases: that horse has left the barn. Hence, it seems preferable to me for those with the power to do so to say that Cagle is simply an incorrect statement of Colorado law. See Harlan, 8 P.38d at 474 (disapproving certain prior case law), overruled on other grounds by Miller, 118 P.3d at 748.
B. Certain Claimed Errors Are Unreviewable
Notwithstanding my disagreement with Cagle, I believe there are situations in which an appellate court should not consider a claim raised for the first time on appeal in a criminal case. None of them, however, are based on whether the claim arises under the federal or state constitutions.
First, we may lack jurisdiction to grant relief. There may not be an appealable order, the notice of appeal may be untimely, or we may simply lack subject matter jurisdiction.
Second, as alluded to above, a claim which requires development of a factual record and factual findings should not be reviewable on appeal, even for plain error, unless raised and ruled on in the trial court. As both federal and Colorado decisions have explained, this is because, in such cases, our determination of whether there was error (the first step in plain error review) is stymied from the outset: absent an adequate record and findings, we simply cannot determine whether the trial court erred.6 See Umited States v. Svacina, 137 F.3d 1179, 1186-87 (10th Cir.1998); Patrick, 772 P.2d at 100; see also United States v. Zubla-Torres, 550 F.3d 1202, 1209-10 (10th Cir.2008) (lack of factual record made it impossible to determine if the defendant's substantive rights were affected).
*937Third, and more broadly, claims of error that are waived, as opposed to merely forfeited, should not be reviewable for plain error. See Olamo, 507 U.S. at 738, 118 S.Ct. 1770. If a defendant in a criminal case waives an error in the trial court-ie., intentionally relinquishes or abandons a known right-he waives any right to plain error review on appeal. Id. at 7883-34, 118 S.Ct. 1770; seg, e.g., United States v. Teague, 448 F.3d 1310, 1314-17 (10th Cir.2006); McMurtry, 122 P.3d at 240-42 (guilty plea waives nonjuris-dictional claims of error); People v. Rodri-gues, 209 P.3d 1151, 1160 (Colo.App.2008), affd, 238 P.3d 1288 (Colo.2010); People v. Lopez, 129 P.3d 1061, 1065 (Colo.App.2005); People v. Salyer, 80 P.3d 881, 885 (Colo.App. 2003) (particular argument on appeal that the district court erred in denying motion to suppress was waived where the defendant did not raise that argument in the district court).7
Fourth, unpreserved claims that a defendant raises-in the sense of identifying an alleged error-but does not adequately argue should not be reviewable. See, eg., United States v. Charles, 469 F.8d 402, 407-08 (5th Cir.2006); People v. Simpson, 98 P.3d 551, 555 (Colo.App.2003). This would include claims for which the defendant provides no supporting authority or record citations as required by the rules of appellate procedure.
C. Adopt the Federal Four-Part Test
Assuming that an unpreserved claim of error does not require further development of a factual record, has not been waived, and has been adequately presented on appeal, I would consider the claim, of whatever ilk, under Crim. P. 52). Were I writing on a clean slate, I would apply the four-part test applied by the federal courts.
As noted, Crim. P. 52(b) is identical to Fed.R.Crim.P. 52(b). Because the rules are identical, and because the supreme court adopted Crim. P. 52(b) in 1961, seventeen years after Congress adopted Fed.R.Crim.P. 52(b), it seems clear that the Colorado rule was patterned after the federal rule.8 Therefore, case law interpreting Fed. R.Crim.P. 52(b) is persuasive in applying the Colorado counterpart. See Harding Glass Co., Inc. v. Jones, 640 P.2d 1128, 1125 n. 3 (Colo.1982) (applying this principle to rules of civil procedure); People v. Gallegos, 226 P.3d 1112, 1117-18 (Colo.App.2009) (applying this principle to rules of criminal procedure); People v. Medina, 72 P.3d 405, 410 (Colo. App.20083) (applying this principle to rules of evidence). Neither Miller nor any other Colorado Supreme Court decision explains why we should apply Crim. P. 52(b) differently from how the federal courts apply Fed. R.Crim.P. 52(b).
Further, adopting the fourth part of the federal plain error test would be consistent with the text of Crim. P. 52(b) and would allow Colorado courts to limit findings of plain error to those cases in which failing to remedy the error would sanction a miscarriage of justice. Under current practice, we laboriously analyze whether unpreserved claims of nonconstitutional error satisfy the three-part test. Oddly, we review every such claim (if not waived). As a result, a defendant has a better chance of obtaining reversal based on an unpreserved noneonstitutional error than he does if the unpreserved error is a violation of his constitutional rights, a result that arguably turns on its head the concept of "substantial" error in Crim. P. 52(b). Adopting the fourth prong of the plain error test would allow us to efficiently weed out claimed errors-eonstitu-tional or otherwise-that clearly do not seriously affect the fairness, integrity, or public reputation of judicial proceedings without addressing the first three prongs of the test. Doing so would further encourage defendants to raise purported errors in the trial court.
I have not exhaustively surveyed the law in all fifty states. I note, however, that a *938number of states' courts apply the Olano four-prong test. See, eg., Rogers v. State, 247 Ga.App. 219, 548 S$.E.2d 81, 88 (2000); People v. Carines, 460 Mich. 750, 597 N.W.2d 130, 137-39 (1999); State v. MacInnes, 151 N.H. 782, 867 A.2d 485, 489-40 (2005); State v. Barnes, 94 Ohio St.83d 21, 759 N.E.2d 1240, 1247 (2002); Dysthe v. State, 68 P.3d 875, 884 (Wy0.2008). Though I would prefer that Colorado follow suit, I recognize that, under the current state of the law in Colorado, I do not have the authority to apply the fourth prong articulated in Olano to an unpreserved claim of error. Whether that prong should be applied in plain error review under Crim. P. 52(b) is for the Colorado Supreme Court to decide. See People v. Gladney, 250 P.3d 762, 768 n. 8 (Colo.App.2010) (Court of Appeals must follow Colorado Supreme Court precedent).
V. Application to this Case
I began this concurrence by saying that I do not believe the supreme court has clearly held that an unpreserved claim of constitutional error may not be reviewed for plain error (at least where the claim is not one challenging the constitutionality of a statute). Miller appears to hold that such claims should be reviewed for plain error. Thus, I would address defendant's due process challenge to the prosecution's failure to notify him before trial that Ms. Smith would testify as an expert.
Defendant has not cited any case for the proposition that due process requires advance notice of any witness the prosecution intends to call as an expert, and I have found none.9 Rather, the determination whether failure to notify a defendant of a witness or the witness's proposed testimony before trial violates due process appears to turn on a case-by-case inquiry into whether the defendant was prejudiced by any lack of notice. See, e.g., United States v. Williams, 576 F.3d 385, 388-91 (7th Cir.2009); Umited States v. Ashley, 274 Fed.Appx. 698, 697 (10th Cir. 2008) (unpublished decision) ("the Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information"; citing Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)); United States v. Johnson, 228 F.3d 920, 924-25 (8th Cir.2000) (expert witness); Umited States v. Ortega, 150 F.3d 987, 948-44 (8th Cir.1998) (expert witness).
As the majority notes, defendant did not request a continuance, which belies any claim of prejudice. Further, defendant merely speculates that the verdict would have been different if the prosecution had disclosed the substance of Ms. Smith's testimony before trial. He points to nothing showing that he could have attacked her credibility, for example, and the record shows that his counsel was able to cross-examine her thoroughly. During that cross-examination, Ms. Smith admitted that she had interviewed children who had either lied about sexual abuse or misunderstood what had occurred.
Therefore, I perceive no due process violation. Hence, there was no error, plain or otherwise.
. Judge Bernard recently covered some of this territory in his concurring opinion in Tilery, 231 P.3d at 52-59 (Bernard, J., specially concurring). My views on the matter, however, differ somewhat from his.
. Fed.R.Crim.P. 52(b) originally referred to '[pllain errors or defects," just as Crim. P. 52(b) does. The federal rule was amended in 2002 to delete "or defects."
. For these same reasons, I am unpersuaded by the majority's reliance on civil cases.
. One could argue that the interest in judicial efficiency is served by requiring defendants to raise a constitutional challenge to a statute at trial or forever be barred from asserting it. After all, if the defendant is correct in his claim, a trial may have been avoided. But the same can be said for many other types of constitutional claims. Indeed, the same can be said for many types of nonconstitutional claims. This interest is best and most consistently served not by cary-ing out certain exceptions to the rule, but by recognizing the discretion afforded to appellate courts by the text of the rule to decline to remedy errors not resulting in a miscarriage of justice. See Olano, 507 U.S. at 731, 736, 113 S.Ct. 1770; Young, 470 U.S. at 15-16, 105 S.Ct. 1038.
. Although, the same is true for many claims based on the Colorado Constitution, our appellate courts appear to have carved out a categorical exception for such claims. See, e.g., Martinez, 244 P.3d at 139; People v. Oynes, 920 P.2d 880, 883 (Colo.App.1996).
. - It is possible to regard such claims as a species of waived claims. See United States v. Robinson, 503 F.2d 208, 214 (7th Cir.1974).
. Invited error is akin to waived error. See, eg., United States v. Hardwell, 80 F.3d 1471, 1487 (10th Cir.1996), reh'g granted and rev'd, 88 F.3d 897 (10th Cir.1996); People v. Zapata, 779 P.2d 1307, 1308-09 (Colo.1989). Invited error obviously should not be reviewable for plain error.
. Crim. P. 52(b) has remained unchanged since the supreme court adopted it in 1961.
. Defendant does not contend that the prosecution failed to timely disclose any exculpatory information as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 LEd.2d 215 (1963).