State v. Clopten

2009 UT 84
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20080631
Plaintiff and Respondent,
v.
F I L E D
Deon Lomax Clopten,
Defendant and Petitioner. 	December 18, 2009
---
Third District, Salt Lake
The Honorable Dennis M. Fuchs
No. 031903432
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst.
Att’y Gen., for plaintiff
Michael D. Zimmerman, Troy L. Booher, Katherine
Carreau, Engels Tejeda, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	Defendant, Deon Lomax Clopten, appeals his conviction
for murder on grounds that the trial court abused its discretion
when it excluded expert testimony regarding the reliability of
eyewitness identification. 	Following existing Utah precedent,
the court of appeals affirmed Clopten’s conviction while inviting
this court to revisit our position on the admissibility of such
expert testimony. 	We reverse the decision of the court of
appeals, vacate the conviction, and remand for a new trial.
BACKGROUND
¶2 	In February 2006, Clopten was convicted of first-degree
murder for the shooting of Tony Fuailemaa outside a Salt Lake
City nightclub. 	At trial, Clopten maintained that someone else–-
a man named Freddie White–-was responsible for the shooting. 	The
testimony of several individuals who witnessed the murder and who
identified Clopten as the perpetrator countered this assertion.
In the absence of strong physical or forensic evidence against

No. 20080631 	2
Clopten, the State leaned heavily on the eyewitness testimony to
secure a conviction.
¶3 	As part of his defense, Clopten sought to introduce the
testimony of Dr. David Dodd, an expert on eyewitness
identification. 	Clopten intended to elicit testimony from Dr.
Dodd regarding various factors that can affect the accuracy of
eyewitness identifications, including cross-racial
identification, the impact of violence and stress during an
event, the tendency to focus on a weapon rather than an
individual’s facial features, and the suggestive nature of
certain identification procedures used by police.
¶4 	At Clopten’s first trial, the district court initially
allowed the expert testimony, but later reversed itself and ruled
that Dr. Dodd could not testify. 	The district court changed
course again and decided to permit the testimony, but this ruling
was nullified when, in May 2005, a mistrial was declared because
of a conflict of interest unrelated to the issue before us. 	At
the second trial, the court excluded the expert testimony. 	The
trial court reasoned that the testimony was unnecessary since
potential problems with eyewitness identification could be
explained using a jury instruction, as has been the common
practice in Utah since this court’s decision in State v. Long,
721 P.2d 483 (Utah 1986). 	The trial court concluded that the
jury instruction (hereinafter a “Long instruction”) “does an
adequate job” and that Dr. Dodd’s testimony would be
“superfluous” and “would only confuse the issue.”
¶5 	Clopten appealed the trial court’s ruling. 	The court
of appeals held that trial judges are afforded “significant
deference to exclude expert testimony on this topic” and upheld
the conviction. 	State v. Clopten, 2008 UT App 205, ¶¶ 19-21, 186
P.3d 1004. 	However, the court also cited numerous studies
concluding “that jury instructions and cross-examinations do not
adequately address the vagaries of eyewitness identification.”
Id. ¶ 19. 	Judge Thorne wrote a separate concurrence, in which he
urged this court to “revisit the boundaries of trial court
discretion in excluding expert testimony on the subject.” 	Id.
¶ 32 (Thorne, J., concurring). 	We granted certiorari review, and
we have jurisdiction under Utah Code section 78A-3-102(5) (2008).
ISSUE AND STANDARD OF REVIEW
¶6 	We granted certiorari review on whether expert
testimony regarding the reliability of eyewitness identification
should be presumed admissible when timely requested. 	“On
certiorari, we review de novo the decision of the court of
appeals, not that of the trial court.” 	State v. Gardner, 2007 UT
70, ¶ 20, 167 P.3d 1074. 	A trial court’s exclusion of expert

3 	No. 20080631
testimony is reviewed for an abuse of discretion and is reversed
if it “‘exceeds the limits of reasonability.’” 	State v. Hollen,
2002 UT 35, ¶ 66, 44 P.3d 794 (quoting State v. Larsen, 865 P.2d
1355, 1361 (Utah 1993)).
ANALYSIS
¶7 	Our analysis proceeds in four parts. 	In Part One, we
summarize the evolution of Utah law as it pertains to the
introduction of expert testimony regarding eyewitness
identifications. 	Part Two examines the wealth of empirical
research that, since our decision in Long, has solidly
established the importance of expert testimony to explain factors
contributing to eyewitness fallibility and the resulting
possibility of mistaken identifications. 	In Part Three, we
provide new guidance for the introduction of expert testimony on
this subject. 	Finally, Part Four addresses our holding in this
case.
I. 	UTAH LAW HAS BEEN INTERPRETED AS ESTABLISHING A DE FACTO
PRESUMPTION AGAINST THE ADMISSION OF EXPERT TESTIMONY
ON EYEWITNESS IDENTIFICATION
¶8 	When we decided State v. Long in 1986, it was already
apparent that “[a]lthough research has convincingly demonstrated
the weaknesses inherent in eyewitness identification, jurors are,
for the most part, unaware of these problems.” 	721 P.2d 483, 490
(Utah 1986). 	Thus we confronted a troubling quandary: while
eyewitness identifications are frequently crucial to the State’s
case against a criminal defendant, the human ability to perceive
and remember accurately is subject to numerous limitations. 	See
id. at 488. 	In addition, it appears that jury members are
frequently unaware of these limitations and thus give eyewitness
identifications a disproportionate weight. 	Id. at 490.
¶9 	In Long, we considered the appropriateness of jury
instructions as a way of familiarizing the fact-finder with these
issues. 	Id. at 492. 	There, the defendant was convicted of
aggravated assault based on an identification made by the victim,
who had been wounded by a shotgun blast and acknowledged that his
vision was “glossy” when he saw the shooter. 	Id. at 484.
Counsel for the defendant requested a cautionary instruction
regarding the accuracy of the identification, which the trial
court declined to give. 	Id. at 487.
¶10 	Prior to Long, the decision to issue a cautionary
instruction regarding the infirmities of eyewitness testimony was
left entirely to the trial court’s discretion. 	State v. Tucker,
709 P.2d 313, 316 (Utah 1985); State v. Reedy, 681 P.2d 1251,
1252 (Utah 1984); State v. Newton, 681 P.2d 833, 834 (Utah 1984).

No. 20080631 	4
Although this court cautioned that refusing to provide a
requested instruction could constitute an abuse of discretion,
see e.g., Reedy, 681 P.2d at 1252-53, until Long we had never
reversed a single conviction on the grounds of such a refusal.
Long, 721 P.2d at 487. 	As a result, trial judges in Utah rarely
used the instruction, even in cases where there was serious doubt
as to the reliability of the identification. 	Id. 	We therefore
faced a choice between abandoning any pretext of requiring a
cautionary instruction or giving the requirement teeth. 	We chose
the latter course, reversed Long’s conviction, and remanded the
case for a new trial. 	Id. at 495. 	In addition, we directed
trial courts to provide instructions “whenever eyewitness
identification is a central issue in a case and such an
instruction is requested by the defense.” 	Id. at 492.
¶11 	We also acknowledged that, because of doubts regarding
its effectiveness in educating the jury, “[a] cautionary
instruction plainly is not a panacea.” 	Id. at 492 n.5. 	Despite
that warning, Long left undisturbed previous holdings that
discouraged the use of expert testimony as an alternative to jury
instructions. 	These disincentives first appeared in State v.
Griffin, which dismissed eyewitness expert testimony as a mere
“lecture” that could invade the jury’s role as sole evaluator of
witness credibility. 	626 P.2d 478, 481 (Utah 1981); accord State
v. Malmrose, 649 P.2d 56, 61 (Utah 1982). 	The Malmrose decision
provoked a dissent by Justice Stewart, who argued that because
the “inherent dangers of good faith error in eyewitness
identification are widely recognized,” it was error for the trial
judge to neither admit expert testimony nor issue a cautionary
instruction. 	Id. at 62, 65-66 (Stewart, J., dissenting). 	These
misgivings later became the core of the majority opinion in Long.
¶12 	It was never the intent of this court to establish
cautionary instructions as the sole means for educating juries
about eyewitness fallibility. 	Indeed, we carefully acknowledged
that “[f]ull evaluation of the efficacy of cautionary
instructions must await further experience.” 	Long, 721 P.2d at
492, n.5. 	With the benefit of hindsight, however, it is clear
that Long actually discouraged the inclusion of eyewitness expert
testimony by failing to dispel earlier notions that such
testimony would constitute a “lecture to the jury about how they
should perform their duties.” 	Malmrose, 649 P.2d at 61. 	As a
result, trial judges reached two logical conclusions: (1) when in
doubt, issuing cautionary instructions was a safe option; and
(2) allowing expert testimony was hazardous if the expert
“lectured the jury” about the credibility of a witness.
¶13 	Subsequent decisions reinforced this bias. 	In State v.
Hubbard, we held that the substance of expert testimony “can be
just as adequately conveyed to the jury through the judge in a

1 	Peter J. Cohen, How Shall They Be Known? 	Daubert v.
Merrell Dow Pharmaceuticals and Eyewitness Identification, 16
Pace L. Rev. 237, 242-43 (1996); Edward Stein, The Admissibility
of Expert Testimony About Cognitive Science Research on
Eyewitness Identification, 2 Law, Probability & Risk 295, 296
(2003).
5 	No. 20080631
jury instruction.” 	2002 UT 45, ¶ 17, 48 P.3d 953. 	Further, we
affirmed trial court rulings that “such evidence could cause
confusion of the issues and could cause undue delay.” 	State v.
Butterfield, 2001 UT 59, ¶ 44, 27 P.3d 1133. 	Proponents of
eyewitness expert testimony also found themselves in a dilemma
regarding the specificity of the proffered testimony. 	On one
hand, eyewitness expert testimony that was too specific was
excluded as having “a significant tendency to cause the jury to
abdicate its role as fact finder.” 	Hubbard, 2002 UT 45, ¶ 20.
If, on the other hand, the eyewitness expert only gave general
testimony about memory phenomena, then it could be excluded
because it “did not deal with the specific facts from this case
but rather would constitute a lecture to the jury about how it
should judge the evidence.” 	Butterfield, 2001 UT 59, ¶ 44. 	In
addition, we held that a Long instruction is enough to render an
erroneous exclusion harmless, even if the instruction failed to
mention significant portions of the proffered expert testimony.
Hubbard, 2002 UT 45, ¶ 20. 	Finally, in a continuation of our
history prior to Long, neither this court nor the court of
appeals has ever reversed a conviction for failure to admit
eyewitness expert testimony. 	Given this history, it is not
surprising that there is a de facto presumption against
eyewitness expert testimony in Utah’s trial courts.
¶14 	This trend, acknowledged by both parties, is troubling
in light of strong empirical research suggesting that cautionary
instructions are a poor substitute for expert testimony. 	We turn
now to a review of that research.
II. 	EMPIRICAL RESEARCH HAS CONVINCINGLY ESTABLISHED THAT
EXPERT TESTIMONY IS NECESSARY IN MANY CASES TO EXPLAIN
THE POSSIBILITY OF MISTAKEN EYEWITNESS IDENTIFICATION
¶15 	“‘[T]he vagaries of eyewitness identification are well
known; the annals of criminal law are rife with instances of
mistaken identification.’” 	State v. Long, 721 P.2d 483, 491
(Utah 1986) (quoting United States v. Wade, 388 U.S. 218, 228
(1967)). 	Decades of study, both before and particularly after
Long, have established that eyewitnesses are prone to identifying
the wrong person as the perpetrator of a crime, particularly when
certain factors are present. 1 	For example, people identify
members of their own race with greater accuracy than they do

2 Cohen, supra note 1, at 244-45; Gary L. Wells & Elizabeth
A. Olson, Eyewitness Testimony, 2003 Ann. Rev. Psychol. 277, 280-
81.
3 Wells & Olson, supra, note 2 at 281-82.
4 Elizabeth F. Loftus, Eyewitness Testimony 9, 19 (1979);
Roger B. Handberg, Expert Testimony on Eyewitness Identification:
A New Pair of Glasses for the Jury, 32 Am. Crim. L. Rev. 1013,
1014 (1995).
5 Cohen, supra note 1, at 250; Steven D. Penrod & Brian L.
Cutler, Eyewitness Expert Testimony and Jury Decisionmaking, 52
Law & Contemp. Probs. 43, 61 (1989) .
6 We note that we are indebted to counsel for Mr. Clopten,
who in this case have prepared a systematic, comprehensive and
persuasive overview of the research and law pertaining to these
questions, unmatched by any work heretofore presented to this
court on the subject.
7 There is significant dispute over how often mistaken
(continued...)
No. 20080631 	6
members of a different race. 2 	In addition, accuracy is
significantly affected by factors such as the amount of time the
culprit was in view, lighting conditions, use of a disguise,
distinctiveness of the culprit’s appearance, and the presence of
a weapon or other distractions. 3 	Moreover, there is little doubt
that juries are generally unaware of these deficiencies in human
perception and memory and thus give great weight to eyewitness
identifications. 4 	Indeed, juries seemed to be swayed the most by
the confidence of an eyewitness, even though such confidence
correlates only weakly with accuracy. 5 	That the empirical data
is conclusive on these matters is not disputed by either party in
this case and has not been questioned by this court in the
decisions that followed Long. 	See State v. Hubbard, 2002 UT 45,
¶ 16, 48 P.3d 953 (noting the “inherent deficiencies” in
eyewitness testimony); State v. Butterfield, 2001 UT 59, ¶ 42, 27
P.3d 1133 (recognizing “the vagaries of eyewitness
identification”).
¶16 	The remaining issue is whether expert testimony is
generally necessary to adequately educate a jury regarding these
inherent deficiencies. 	As discussed below, we are now convinced
that it is. 6 	In the absence of expert testimony, a defendant is
left with two tools-–cross-examination and cautionary
instructions-–with which to convey the possibility of mistaken
identification to the jury. 	Both of these tools suffer from
serious shortcomings when it comes to addressing the merits of
eyewitness identifications. 7 	Additionally, the admission of

7 (...continued)
eyewitness identification results in a wrongful conviction. 	Some
researchers estimate that thousands of wrongful convictions occur
across the country each year, while others argue that they are
far more rare. 	Daniel S. Medwed, Innocentrism, 2008 U. Ill. L.
Rev. 1549, 1552-53 nn.13-18. 	We need not come down on one side
or the other to justify our decision today. 	Jury misperceptions
about eyewitness identifications create the possibility of
wrongful convictions. 	Regardless of how often it actually
occurs, the seriousness of that possibility is enough to justify
the remedy prescribed in Part Three.
8 Steven Penrod, Elizabeth Loftus & John Winkler, The
Reliability of Eyewitness Testimony: A Psychological Perspective,
in The Psychology of the Courtroom 119, 154-55 (Norbert L. Kerr &
Robert M. Bray eds., 1982).
7 	No. 20080631
eyewitness expert testimony is gaining support in courts
throughout the country.
A. 	Expert Testimony Has Been Shown to Be the Best Method
for Educating the Jury About Factors That Can
Contribute to Mistaken Eyewitness Identifications
¶17 	The most troubling dilemma regarding eyewitnesses stems
from the possibility that an inaccurate identification may be
just as convincing to a jury as an accurate one. 	In one study,
subjects watched a mock trial of a defendant accused of armed
robbery. 	One group of subjects heard only circumstantial
evidence against the defendant–-they convicted at a rate of only
18 percent. 	The conviction rate jumped to 72 percent for a
second group, which heard an eyewitness identify the defendant.
A third group heard the same evidence and the same eyewitness,
but was also told that the eyewitness was legally blind and had
not been wearing glasses at the time of the crime. 	Despite the
obvious unreliability of the eyewitness, 68 percent of this group
still voted to convict. 8 	As one leading researcher said:
“[T]here is almost nothing more convincing than a live human
being who takes the stand, points a finger at the defendant, and
says ‘That’s the one!’” 	Elizabeth F. Loftus, Eyewitness
Testimony 19 (1979). 	Because of this overreliance on
questionable eyewitnesses, juries will often benefit from
assistance as they sort reliable testimony from unreliable
testimony.
¶18 	The challenge arises in determining how best to provide
that assistance in cases where mistaken identification is a
possibility. 	It is apparent from the research that the inclusion

9 For general discussion of eyewitness experts, see Brian L.
Cutler & Steven D. Penrod, Mistaken Identification: The
Eyewitness, Psychology and the Law, 250 (1995); Henry F.
Fradella, Why Judges Should Admit Expert Testimony on the
Unreliability of Eyewitness Testimony, 2006 Fed. Cts. L. Rev. 3,
24-25, 28 (June 2006); Richard A. Wise & Martin A. Safer, What
U.S. Judges Know and Believe About Eyewitness Testimony, 18
Applied Cognitive Psychol. 427, 435 (2004).
10 Handberg, supra, note 4 at 1026.
11 Cutler & Penrod, supra, note 9 at 250.
No. 20080631 	8
of expert testimony carries significant advantages over the
alternatives, namely cross-examination and jury instructions. 9
1. 	Expert Testimony Effectively Educates the Jury About the
Possibility of Mistaken Identification Without Unfairly Favoring
the Defendant
¶19 	Typically, an expert is called by a criminal defendant
to explain how certain factors relevant to the identification in
question could have produced a mistake. 	The expert may or may
not be familiar with the facts of the case prior to the
testimony, and in any case will not offer an opinion on whether
the specific eyewitness identification is accurate or not.
Instead, the relevant research is discussed in more general
terms, thus allowing the jury to apply the information to
whatever degree it sees fit.
¶20 	Such testimony performs two beneficial functions.
First, it teaches jurors about certain factors–-such as “weapon
focus” and the weak correlation between confidence and accuracy–-
that have a strong but counterintuitive impact on the reliability
of an eyewitness. 	In other words, the testimony enables jurors
to avoid certain common pitfalls, such as believing that a
witness’s statement of certainty is a reliable indicator of
accuracy. 10 	Second, it assists jurors by quantifying what most
people already know. 	An expert may discuss, for example, the
degree to which accuracy is affected by a disguise or a long
lapse between the crime and the identification. 	Importantly,
expert testimony does not unfairly favor the defendant by making
the jury skeptical of all eyewitnesses. 	In fact, when a witness
sees the perpetrator under favorable conditions, expert testimony
actually makes jurors more likely to convict. 11 	When expert
testimony is used correctly, the end result is a jury that is
better able to reach a just decision.

12 Jacqueline McMurtrie, The Role of the Social Sciences in
Preventing Wrongful Convictions, 42 Am. Crim. L. Rev. 1271, 1277
(2005); Cohen, supra note 1, at 273.
13 Steve D. Charman & Gary L. Wells, Can Eyewitnesses
Correct for External Influences on Their Lineup Identifications?
The Actual/Counterfactual Assessment Paradigm, 14 J. Experimental
Psychol. Applied 5, 5 (2008).
14 Cohen, supra note 1, at 265; Jules Epstein, Tri-State
Vagaries: The Varying Responses of Delaware, New Jersey, and
Pennsylvania to the Phenomenon of Mistaken Identifications, 12
Widener L. Rev. 327, 346 (2006); Handberg, supra note 4, at 1038-
39.
9 	No. 20080631
2. 	Cross-examination May Be Ineffective When the Eyewitness has
Made a Mistaken Identification in Good Faith
¶21 	In the absence of expert testimony, the method most
commonly used to challenge the veracity of eyewitnesses is cross-
examination. 	But because eyewitnesses may express almost
absolute certainty about identifications that are inaccurate,
research shows the effectiveness of cross-examination is badly
hampered. 	Cross-examination will often expose a lie or half-
truth, but may be far less effective when witnesses, although
mistaken, believe that what they say is true. 12 	In addition, as
we recognized in Long, eyewitnesses are likely to use their
“expectations, personal experience, biases, and prejudices” to
fill in the gaps created by imperfect memory. 	721 P.2d at 489.
Because it is unlikely that witnesses will be aware that this
process has occurred, they may express far more confidence in the
identification than is warranted. 13
¶22 	Even if cross-examination reveals flaws in the
identification, expert testimony may still be needed to assist
the jury. 	Cross-examination might show, for example, that the
perpetrator was a different race than the eyewitness and was also
wearing a disguise. 	Without the assistance of expert testimony,
a jury may have difficulty assessing the import of those factors
in gauging the reliability of the identification. 14 	For these
reasons, we cannot rely on cross-examination as a surefire way to
uncover the possibility of mistaken identification.
3. 	Research has Shown That Cautionary Instructions are
Ineffective at Educating the Jury
¶23 	Trial courts in Utah and around the nation have often
tried to remedy the possibility of mistaken identification by
giving cautionary instructions to the jury. 	This approach was
pioneered in United States v. Telfaire, in which the D.C. Circuit

15 Cohen, supra note 1, at 272; Cutler & Penrod, supra note
9, at 264; Edith Greene, Eyewitness Testimony and the Use of
Cautionary Instructions, 8 U. Bridgeport L. Rev. 15, 20 (1987).
16 Stein, supra note 1, at 302; Cindy J. O’Hagan, Note, When
Seeing Is Not Believing: The Case for Eyewitness Expert
Testimony, 81 Geo. L. J. 741, 753 (1993).
17 Stein, supra note 1, at 302; Cutler & Penrod, supra note
9, at 256.
No. 20080631 	10
proposed a model instruction touching on common problems with
identifications. 	469 F.2d 552, 558-59 (D.C. Cir. 1972). 	In
Long, we pointed out several deficiencies with the Telfaire
approach and suggested a longer, more detailed instruction that
incorporated more recent research. 	Long, 721 P.2d at 494 n.8.
Variations of this model were thereafter used regularly by Utah
trial courts and became collectively known as the “Long
instruction.” 	The standard Long instruction consists of general
cautions about many factors known to contribute to mistaken
identifications, such as brief exposure time, lack of light,
presence of disguises and distractions, and effects of stress and
cross-racial identification. 	Id. 	At the time, it seemed logical
that this measure would substantially enhance a jury’s ability to
evaluate eyewitness accuracy.
¶24 	Subsequent research, however, has shown that a
cautionary instruction does little to help a jury spot a mistaken
identification. 15 	While this result seems counterintuitive,
commentators and social scientists advance a number of convincing
explanations. 	First, instructions “given at the end of what
might be a long and fatiguing trial, and buried in an overall
charge by the court” are unlikely to have much effect on the
minds of a jury. 	Peter J. Cohen, How Shall They Be Known?
Daubert v. Merrell Dow Pharmaceuticals and Eyewitness
Identification, 16 Pace L. Rev. 237, 272 (1996). 	Second,
instructions may come too late to alter the jury’s opinion of a
witness whose testimony might have been heard days before. 16
Third, even the best cautionary instructions tend to touch only
generally on the empirical evidence. 	The judge may explain that
certain factors are known to influence perception and memory, but
will not explain how this occurs or to what extent. 	As a result,
instructions have been shown to be less effective than expert
testimony. 17
¶25 	In conclusion, there is little reason to be confident
that cross-examination and cautionary instructions alone provide
a sufficient safeguard against mistaken identifications. 	In
contrast, expert testimony has been shown to substantially

18 See, e.g., United States v. Thevis, 665 F.2d 616, 641
(5th Cir. 1982) (noting that cross-examination is sufficient,
jury can weigh eyewitness reliability using common sense); United
States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979) (stating that
expert testimony was not “sufficiently beyond the ken of lay
jurors” to be admissible); United States v. Watson, 587 F.2d 365,
369 (7th Cir. 1978) (holding that eyewitness research was
inadequately developed); United States v. Amaral, 488 F.2d 1148,
1153 (9th Cir. 1973) (finding that cross-examination is
adequate).
19 See Fradella, supra, note 9 at 24.
20 See, e.g., Campbell v. People, 814 P.2d 1, 22-23 (Colo.
1991); Johnson v. State, 526 S.E.2d 549, 554-55 (Ga. 2000);
Commonwealth v. Christie, 98 S.W.3d 485, 491-96 (Ky. 2002); State
v. Whaley, 406 S.E.2d 369, 372 (S.C. 1991); Nations v. State, 944
S.W.2d 795, 799 (Tex. Ct. App. 1997); State v. Moon, 726 P.2d
(continued...)
11 	No. 20080631
enhance the ability of juries to recognize potential problems
with eyewitness testimony.
B. 	The Need to Admit Eyewitness Expert Testimony is
Recognized by Courts Throughout the Nation
¶26 	The admissibility of eyewitness expert testimony was
first considered by the nation’s courts starting in the 1970s.
In general, these early decisions excluded the testimony on
grounds that have since been undercut by the research cited
above. 18 	The majority of courts that have considered the issue
since then have held that admission or exclusion of the evidence
is within the broad discretion of the trial court. 19 	Starting in
the 1980s, however, numerous state and federal courts recognized
that the statistical evidence on eyewitness inaccuracy was too
substantial to ignore. 	Many of these appellate courts instructed
trial judges that, under certain circumstances, it would be an
abuse of discretion not to allow expert testimony on the subject.
¶27 	The first such decision came from the Arizona Supreme
Court in State v. Chapple, 660 P.2d 1208 (Ariz. 1983). 	There,
the trial court excluded an eyewitness expert on grounds that the
testimony would not assist the jury and that cross-examination
was sufficient to reveal problems with the identification. 	Id.
at 1223-24. 	The Arizona Supreme Court reversed and held that, in
cases where the expert would provide information about eyewitness
factors relevant to the case, it was error to exclude the
testimony as unhelpful. 	Id. 	Over the last two decades, numerous
other state courts have either reversed decisions to exclude or
encouraged the inclusion of eyewitness expert testimony. 20

20 (...continued)
1263, 1267-68 (Wash. Ct. App. 1986).
No. 20080631 	12
Calling on courts to “face up to the reliability problems of
eyewitness identification,” the Supreme Court of California held
in People v. McDonald that “it will ordinarily be error” to
exclude qualified expert testimony when an eyewitness
identification is key to the prosecution’s case and is not
“substantially corroborated” by independent evidence. 	690 P.2d
709, 717, 727 (Cal. 1984), overruled on other grounds by People
v. Mendoza, 4 P.3d 265 (Cal. 2000).
¶28 	Similar positions have been adopted in the federal
courts. 	The Sixth Circuit was the first to hold that eyewitness
expert testimony is sufficiently reliable to assist the jury.
United States v. Smith, 736 F.2d 1103, 1107 (6th Cir. 1984). 	The
next year, the Third Circuit held that exclusion of expert
testimony was an abuse of discretion when the conviction was
based solely on an eyewitness identification. 	United States v.
Downing, 753 F.2d 1224, 1226 (3rd Cir. 1985). 	The Third Circuit
further held that the discretion of trial judges was limited in
this area, and that rule 702 of the Federal Rules of Evidence
“requires . . . that expert testimony on eyewitness perception
and memory be admitted at least in some circumstances.” 	Id. at
1232. 	The Fifth Circuit reached a similar conclusion in United
States v. Moore and held that “in a case in which the sole
testimony is casual eyewitness identification, expert testimony
regarding the accuracy of that identification is admissible and
properly may be encouraged.” 	786 F.2d 1308, 1313 (5th Cir.
1986).
¶29 	In short, a growing number of courts have recognized
that eyewitness expert testimony is both reliable and helpful to
the jury. 	See United States v. Smithers, 212 F.3d 306, 311-12
(6th Cir. 2000). 	Numerous courts have also rejected the idea
that such testimony is impermissible because it is misleading or
because it “invades the province” of the jury. 	See, e.g.,
McDonald, 690 P.2d at 722 (calling the latter argument no “more
than a shibboleth which . . . would deprive the jury of important
information”) (quoting Patrick M. Wall, Eye-Witness
Identification in Criminal Cases 213 (1965)). 	With this in mind,
we now provide new guidance regarding the admissibility of such
expert testimony in Utah trial courts.

21 The current version of rule 702 reads:
(a) Subject to the limitations in
subsection (b), if scientific, technical, or
other specialized knowledge will assist the
trier of fact to understand the evidence or
to determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education may
testify thereto in the form of an opinion or
otherwise.
(b) Scientific, technical, or other
specialized knowledge may serve as the basis
for expert testimony if the scientific,
technical, or other principles or methods
underlying the testimony meet a threshold
showing that they (i) are reliable, (ii) are
(continued...)
13 	No. 20080631
III. 	EXPERT TESTIMONY REGARDING EYEWITNESS IDENTIFICATION
SHOULD BE ADMITTED IF IT MEETS THE STANDARDS
SET OUT IN UTAH RULE OF EVIDENCE 702
¶30 	Our previous holdings have created a de facto
presumption against the admission of eyewitness expert testimony,
despite persuasive research that such testimony is the most
effective way to educate juries about the possibility of mistaken
identification. 	Clopten urges us to remedy this situation by
creating a new rule establishing eyewitness expert testimony as
presumptively admissible. 	We decline to adopt an outright
presumption. 	Instead, we clarify how eyewitness expert testimony
fits into the Utah Rules of Evidence. 	We ultimately hold that
the testimony of a qualified expert regarding factors that have
been shown to contribute to inaccurate eyewitness identifications
should be admitted whenever it meets the requirements of rule 702
of the Utah Rules of Evidence. 	We expect this application of
rule 702 will result in the liberal and routine admission of
eyewitness expert testimony, particularly in cases where, as
here, eyewitnesses are identifying a defendant not well known to
them.
¶31 	We conclude that this approach best conforms to the
intent of rule 702. 	Under the rule, trial judges perform a
gatekeeper function to screen out unreliable expert testimony and
are advised to view proposed experts with “rational skepticism.”
Utah R. Evid. 702, advisory comm. note (2007). 	It should be
noted that the current rule 702 was amended in 2007 and was not
in effect when Clopten was convicted. 	We therefore analyze the
admission of eyewitness expert testimony under both the current
version of the rule and the version that was in place at the time
of Clopten’s trial. 21 	Analysis of the current version of rule

21 (...continued)
based upon sufficient facts or data, and
(iii) have been reliably applied to the facts
of the case.
(c) The threshold showing required by
subparagraph (b) is satisfied if the
principles or methods on which such knowledge
is based, including the sufficiency of facts
or data and the manner of their application
to the facts of the case, are generally
accepted by the relevant expert community.
The old version of rule 702 consisted of section (a) above,
but with the first phrase omitted.
22 An illustrative but not exhaustive list of such factors
can be broken down into several categories. 	The first category
pertains to the eyewitness and includes factors such as
uncorrected visual defects, fatigue, injury, intoxication,
presence of a bias, an exceptional mental condition such as an
intellectual disability or extremely low intelligence, age (if
the eyewitness is either a young child or elderly), and the race
of the eyewitness relative to the race of the suspect (cross-
racial identification). 	The second category relates to the event
witnessed and includes the effects of stress or fright, limited
visibility, distance, distractions, the presence of a weapon
(weapon focus), disguises, the distinctiveness of the suspect’s
appearance, the amount of attention given to the event by the
eyewitness, and whether the eyewitness was aware at the time that
a crime was occurring. 	The third category pertains to the
identification itself. 	This category includes such factors as
the length of time between observation and identification, any
instances in which the eyewitness failed to identify the suspect
(continued...)
No. 20080631 	14
702 consists of two basic parts. 	First, the trial judge must
find that the expert testimony will “assist the trier of fact.”
Utah R. Evid. 702(a). 	Second, the testimony must “meet a
threshold showing” of reliability. 	Id. 702(b). 	Focusing on this
analysis allows us to dispose of several arguments that have been
used in the past to exclude eyewitness experts.
A. 	Expert Eyewitness Testimony Is Helpful in Cases Involving
Identification of a Stranger and One or More of the
Factors Known to Affect Eyewitness Accuracy
¶32 	As explained in Part One, trial judges have often
excluded eyewitness experts on grounds that the testimony will
not be helpful to the jury. 	We now hold that, in cases where
eyewitnesses are identifying a stranger and where one or more
established factors affecting accuracy are present, 22 the

22 (...continued)
or gave an inconsistent description, the value of lineups
compared to showups, the value of photo identifications compared
to in-person identifications, and any exposure of the eyewitness
to influences such as news reports or interaction with other
witnesses. 	It also includes potentially suggestive police
conduct, such as the instructions given to the eyewitness by
police, the composition of the lineup, the way in which the
lineup was carried out, and the behaviors of the person
conducting the lineup. 	For a thorough discussion of many of
these factors, see Wells & Olson, supra, note 2 at 280-91.
15 	No. 20080631
testimony of an eyewitness expert will meet rule 702’s
requirement to “assist the trier of fact.” 	As the research makes
clear, the topics covered by eyewitness experts are often beyond
the common knowledge of ordinary jurors and usually cannot be
effectively elicited through cross-examination alone. 	It is
therefore inappropriate for a trial judge to exclude an
eyewitness expert merely on grounds that the jurors’ life
experiences already provide enough information, that cross-
examination will suffice to reveal weaknesses with the
identification, or that the testimony presented will be
misleading or confusing.
¶33 	We are not mandating the admission of eyewitness expert
testimony in every case. 	Trial judges must still analyze whether
the testimony will assist the jury, and in some cases it will
not. 	The research on eyewitness identifications, for example,
almost exclusively focuses on individuals who are attempting to
identify a stranger. 	If the eyewitness is identifying someone
with whom he or she has been acquainted over a substantial period
of time (for example, a family member, long-time business
associate, neighbor, or friend), then expert testimony is not
likely to assist the jury in evaluating the accuracy of a
witness’s testimony. 	Similarly, there may be cases in which a
witness viewed the perpetrator under such ideal conditions that
an expert would not be able to identify factors that could have
contributed to a misidentification. 	In such cases, the trial
judge retains the discretion to exclude the testimony. 	We
expect, however, that in cases involving eyewitness
identification of strangers or near-strangers, trial courts will
routinely admit expert testimony.
¶34 	In addition, the testimony of an eyewitness expert
should not be considered cumulative or duplicative of cautionary
instructions to the jury. 	To reconcile this holding with our
previous decision in Long, we modify our guidance regarding
cautionary instructions. 	In cases where the defense does not
call an eyewitness expert, the holding in Long still applies. 	In
other words, the trial judge must provide a cautionary

No. 20080631 	16
instruction if one is requested by the defense and eyewitness
identification is a “central issue.” 	State v. Long, 712 P.2d
483, 492 (Utah 1986). 	Where eyewitness expert testimony is
heard, however, Long no longer applies and the inclusion of a
cautionary instruction, if requested, is a matter for the trial
judge’s discretion.
B. 	Eyewitness Expert Testimony Is Sufficiently Reliable
to Be Admitted Under Rule 702 and Should Not Be
Excluded as a Lecture to the Jury
¶35 	Though it disputes whether judicial notice of
reliability is appropriate, the State concedes that the testimony
of eyewitness experts is based on sufficiently reliable
principles to merit admission. 	Under rule 702, there are two
ways to establish reliability. 	First, the proponent may show
that the “principles or methods underlying the testimony meet a
threshold showing that they (i) are reliable, (ii) are based upon
sufficient facts or data, and (iii) have been reliably applied to
the facts of the case.” 	Utah R. Evid. 702(b) (2007). 	Second,
the proponent may show that the underlying principles or methods
“are generally accepted by the relevant expert community.” 	Id.
We hold that the testimony of eyewitness experts satisfies both
tests. 	The phenomena that eyewitness experts seek to explain
have been reviewed and replicated many times in recent decades.
In addition, this court recognized in State v. Rimmasch that it
was appropriate to take judicial notice of “general acceptance”
of those principles in the community of researchers that
specialize in the study of eyewitness identification. 	775 P.2d
388, 398 (Utah 1989).
¶36 	Finally, we hold that eyewitness expert testimony
should not be excluded as intruding on the province of the jury
or as an impermissible “lecture.” 	The current version of rule
702 resolves the Catch-22 of the old rule, in which proponents of
eyewitness expert testimony risked being too specific on the one
hand and too general on the other. 	The rule as now written
recognizes that “[i]t might be important in some cases for an
expert to educate the factfinder about general principles,
without attempting to apply these principles to the specific
facts of the case.” 	Utah R. Evid. 702, advisory comm. note
(2007). 	It is therefore acceptable for an eyewitness expert to
“give a dissertation or exposition” of factors found in the case
that are understood to contribute to eyewitness inaccuracy. 	Id.
As long as the expert does not attempt to tell the jury that a
specific eyewitness identification either is or is not accurate,
then the expert has not impinged on the jury’s duty as the sole
evaluator of witness credibility.

17 	No. 20080631
C. 	Eyewitness Expert Testimony Was Also Admissible Under the
Version of Rule 702 That Was in Effect When Clopten Was Tried
¶37 	Our analysis has up to this point relied on the current
version of rule 702. 	As the State correctly points out, this
version was not in effect when Clopten was tried. 	Thus, we must
evaluate the decision to exclude the expert testimony in light of
the law that existed in 2005. 	Under the previous version of rule
702, expert testimony could be admitted if the witness was
properly qualified as an expert and the testimony would “assist
the trier of fact.” 	Utah R. Evid. 702 (2006). 	There was no
language in the older version of rule 702 to require a threshold
showing of reliability. 	However, we previously held that
unreliable expert testimony could not assist the jury and
therefore applied the three-prong test developed in Rimmasch to
test reliability. 	State v. Crosby, 927 P.2d 638, 640-41 (Utah
1996) (citing Rimmasch, 775 P.2d at 400).
¶38 	Because the current version of rule 702 incorporates an
updated reliability analysis for expert testimony, the Rimmasch
test has been subsumed in the new rule. 	However, the old “Rule
702 plus Rimmasch” test yields the same result as the current
rule when applied to eyewitness expert testimony. 	The Rimmasch
opinion itself states in regards to Long that judicial notice may
be taken “of the fact that eyewitness identification is
unreliable on [the] basis of general acceptance of that view.”
775 P.2d at 398. 	The Rimmasch reliability standard is therefore
satisfied. 	Since there has never been a dispute over Dr. Dodd’s
qualifications, the only remaining issue is helpfulness. 	The
language in rule 702 has not changed regarding helpfulness; in
both the old and new versions, expert testimony may be admitted
if it “will assist the trier of fact to understand the evidence
or to determine a fact in issue.” 	The application of the older
version of rule 702 therefore does not change the analysis for
this case. 	In cases where an eyewitness is identifying a
stranger and in which various factors that can affect accuracy
are present, eyewitness expert testimony is helpful to the jury
and thus admissible. 	Having determined that Dr. Dodd’s testimony
could have been admitted, we now consider whether its exclusion
was an abuse of discretion.
IV. 	THE TRIAL COURT ABUSED ITS DISCRETION
BY EXCLUDING THE EXPERT TESTIMONY
¶39 	Before deciding the ultimate outcome of this case, we
analyze whether the decision to exclude Dr. Dodd’s testimony
constituted an abuse of discretion by “‘exceed[ing] the limits of
reasonability.’” 	State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794
(quoting State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)). 	We
are less likely to find an abuse of discretion “‘where there has

23 The evidence is disputed as to whether Pantoja told the
officer the shooter was “the guy in the red” or “the guy in all
red.” 	If the former, then Pantoja could have been describing
either Clopten or White. 	If the latter, then only Clopten
matched the description. 	Pantoja herself was inconsistent on the
matter, testifying at the first trial that she said the former
and at the second trial that it was the latter.
No. 20080631 	18
been no showing that the excluded evidence would probably have
had a substantial influence in bringing about a different
verdict.’” 	State v. Hubbard, 2002 UT 45, ¶ 20, 48 P.3d 953
(quoting State v. Butterfield, 2001 UT 59, ¶ 43, 27 P.3d 1133).
Similarly, we find errors by the trial court harmful only if
there is a “reasonable likelihood” that the verdict would have
been different had the expert testimony been included.
Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah
1993). 	If no such reasonable likelihood exists, then the error
is harmless and reversal is not warranted. 	In order to analyze
these issues, we review the facts presented in the record.
¶40 	Tony Fuailemaa, the victim in this case, was shot and
killed outside a nightclub following a rap concert. 	An
undercover police officer responded and was told by the victim’s
girlfriend, Shannon Pantoja, that the shooter was “the guy in the
red.” 23 	The officer gave chase and saw several men jump into a
Ford Explorer and drive away at high speed. 	A police pursuit
ensued and resulted in the capture of Clopten and three other
men. 	Clopten was in the driver’s seat of the Explorer at the
time of the arrest. 	Freddie White, the individual identified by
Clopten as the shooter, was in the rear passenger seat. 	Both
Clopten and White are African-American. 	Clopten was wearing both
a red hooded sweatshirt and red pants at the time of arrest,
while White was wearing a red T-shirt. 	Another red hooded
sweatshirt was later found in the Explorer near where White had
been sitting; the evidence suggested that White had been wearing
it earlier in the evening. 	The handgun was found on the side of
a road, having been thrown from the Explorer during the pursuit.
¶41 	The State was unable to link Clopten to the handgun
using fingerprints or other forensic evidence. 	Instead, the
State relied heavily on eyewitness testimony. 	Pantoja testified
that she was standing some fifteen feet away when she saw the man
in red shoot Fuailemaa. 	She was taken by police to the scene of
the arrest and there identified Clopten as the shooter. 	Pantoja
also picked Clopten out of a police lineup some thirteen months
later and identified him as the shooter at trial. 	Clopten was
also identified by Melissa Valdez, another concertgoer who
witnessed the shooting. 	Valdez testified that she had spoken
briefly to a man dressed in a red sweatshirt both before and
after the concert at the nightclub. 	Valdez said that just after

19 	No. 20080631
speaking to the man in red for the second time, she saw him shoot
Fuailemaa in the back of the head. 	She identified Clopten as the
man in red both in a photo array and at trial. 	The State also
introduced testimony given by Christopher Hamby, who accompanied
Clopten to the concert and was riding in the Explorer at the time
of the arrest. 	Hamby testified at a preliminary hearing that
Clopten was the shooter. 	Finally, the State called Robert Land,
who had been in prison with Clopten following the arrest. 	Land
claimed that Clopten confessed to killing Fuailemaa.
¶42 	There were significant problems, however, with the
State’s case. 	Hamby initially told police that he had not
witnessed the shooting. 	Hamby changed his story after being told
by police that Clopten would inevitably be convicted and that he
could either “be a witness” or “go to jail for many years.”
Hamby disappeared prior to trial, leaving the State no
alternative but to read his preliminary hearing testimony into
evidence. 	Land’s credibility was also attacked since he received
a substantially reduced prison sentence in exchange for his
testimony. 	There were also questions about whether Clopten would
have been able to have the in-depth discussion that Land
described, since the two inmates were housed in different parts
of the prison. 	Given these issues, the testimony of the other
eyewitnesses–-particularly that of Pantoja–-were of primary
importance.
¶43 	Pantoja had never met or seen Clopten prior to the
night of the murder. 	She testified at trial that, upon arriving
at the nightclub, Fuailemaa recognized Clopten as someone with
whom he had previously been incarcerated. 	Fuailemaa pointed
Clopten out to Pantoja, and told her that Clopten “had some
problems with the homies out in the prison.” 	The murder occurred
some two hours later, as Fuailemaa and Pantoja were returning to
their parked car. 	Pantoja spoke to the police on numerous
occasions, and she testified at a preliminary hearing and at both
trials.
¶44 	Pantoja’s testimony at trial contained numerous
inconsistencies when compared to her previous statements. 	At
trial, for example, Pantoja testified that she looked closely at
Clopten as she entered the nightclub prior to the shooting. 	In
an interview with police just two days after the shooting,
however, she stated that “I didn’t really look at [Clopten] when
I entered the club.” 	In addition, the circumstances under which
she saw the shooting and later identified the perpetrator
indicate that inaccuracy could have occurred at several points.
Just after the shooting, for example, a frantic Pantoja told
police that the shooter was “the guy in red.” 	She did not
identify Clopten by name, even though Fuailemaa had pointed him
out by name earlier in the evening. 	Less than an hour later, a

No. 20080631 	20
still-distraught Pantoja was told by police that “they have some
suspects pulled over” and that they needed her “to go identify
these guys.” 	When she demurred, an officer told her to “[d]o it
for Tony.” 	After being transported to the scene of the arrest,
she viewed the four men one at a time at a distance of some
thirty-five feet. 	All four men were handcuffed. 	Although there
was evidence that White had been wearing a red hooded sweatshirt
earlier in the night, at the time of the identification only
Clopten was wearing such a garment. 	Pantoja identified Clopten
as the shooter, and a short time later picked Clopten out of a
photo array. 	She also identified Clopten in a police lineup
approximately thirteen months later and again at trial. 	When
asked by defense counsel how she could identify Clopten in a
lineup after so much time had passed, Pantoja testified that she
picked Clopten out due to his distinctive hairline. 	Every other
eyewitness, however, testified that the perpetrator had a hood
pulled up over the top of his head at the time of the shooting.
¶45 	The testimony of Melissa Valdez presented similar
difficulties. 	Valdez had also never seen Clopten prior to the
night of the murder. 	At trial, she said that she had spoken
twice to a man wearing red about getting tickets to the concert.
Moments after speaking to the man the second time, Valdez heard
shots and turned to see him standing over Fuailemaa with a gun.
She later picked Clopten out of a photo array. 	In a police
interview shortly after the shooting, however, Valdez stated that
the shooter had not been wearing red pants. 	This weakened her
own identification, contradicted Pantoja’s testimony, and
suggested that someone other than Clopten (who was wearing red
pants when arrested) was responsible. 	In addition, Valdez’s
description of the red sweatshirt worn by the shooter varied from
the sweatshirt actually worn by Clopten, and may have better
matched the sweatshirt later found near White’s seat in the
Explorer.
¶46 	Both Valdez and Pantoja witnessed a brutal crime
committed by a stranger. 	They each saw the shooter for no more
than a few seconds, from some distance away, at night, and while
in extreme fear for their own lives. 	The shooter’s facial
features were likely disguised by a hood. 	The shooter was of a
different race than either eyewitness, and the presence of a
weapon may have served as a significant distractor. 	Pantoja’s
identification may have been biased by her expectations, since
Fuailemaa had told her just before the murder that he and Clopten
were enemies. 	Her identification may also have been affected by
circumstances that occurred later, such as the fact that Clopten
was the only individual wearing a red sweatshirt at the time of
the initial “show up” identification. 	Pantoja’s statement that
she was urged by police to go identify a perpetrator for the sake
of her murdered boyfriend, at a time when she was still extremely

24 Pantoja walked past Clopten on the way into the club and
was later told his name by Fuailemaa. 	Valdez had two brief
conversations with Clopten about getting tickets to the concert.
21 	No. 20080631
distraught, also creates doubts as to her accuracy. 	Finally, the
fact that Pantoja insisted that she remembered the shooter’s
distinctive hairline, when others testified that the shooter’s
head was covered, raises a fair question as to whether Pantoja
actually recalled the shooter’s hairline, or if she later
incorporated that feature into her memory after seeing pictures
of Clopten.
¶47 	In short, the circumstances found in the Clopten trial
are exactly those under which the testimony of an eyewitness
expert is most helpful to a jury. 	Dr. Dodd, the proffered expert
in this case, could have testified about research into how
eyewitness identification of a stranger is affected by stress,
disguises, darkness and length of exposure. 	He could have
quantified the impact of factors such as weapon focus and cross-
racial identification. 	Dr. Dodd could also have testified as to
the impact that comments made by police officers may have on an
eyewitness making an identification. 	Additionally, he could have
discussed a common phenomenon in which witnesses fill gaps in
their memory with information obtained later and thus, over time,
become more and more certain of identifications that may be
inaccurate. 	All of these factors were present here, and thorough
testimony by a qualified expert as to their nature would have
significantly assisted the jury in evaluating the accuracy of the
State’s most important witnesses. 	In addition, the critical
importance of the eyewitnesses here forces the conclusion that
the proffered testimony might have had a “substantial influence
in bringing about a different verdict.” 	It was therefore
unreasonable for the trial court to rule that such expert
testimony would be superfluous. 	While we acknowledge that the
trial court followed established precedent, we hold that the
court of appeals erred in concluding that the exclusion of Dr.
Dodd’s testimony was not an abuse of discretion.
¶48 	The court of appeals acknowledged the body of research
that supports the admission of eyewitness expert testimony.
State v. Clopten, 2008 UT App 205, ¶ 19, 186 P.3d 1004. 	It then
noted that “[t]he precise situation in this case is somewhat
different” because some of the eyewitnesses “were not complete
strangers to Clopten.” 	Id. ¶ 20. 	The court of appeals therefore
concluded that any error made by the trial court was not
prejudicial. 	Id. 	We disagree. 	While Valdez and Pantoja each
had brief encounters with Clopten prior to the shooting, both
were essentially strangers to him. 24 	To say that either
eyewitness was “acquainted” with Clopten, and thus not subject to
the vagaries of identifying a stranger, stretches the definition

No. 20080631 	22
of acquaintance too far. 	In addition, there is little doubt that
eyewitness testimony was of paramount importance in the State’s
case against Clopten, as there was no other independent
corroboration of the shooter’s identity. 	Thus, we cannot
conclude that the jury would have convicted solely on the basis
of other evidence or testimony from other witnesses. 	There is
therefore a reasonable likelihood that, if allowed to hear Dr.
Dodd’s testimony, the jury would have questioned the accuracy of
the eyewitnesses more rigorously and would not have convicted
Clopten. 	While the trial judge did give a Long instruction,
there is no reason to believe this measure was effective in
mitigating the error. 	This is particularly true because the
instruction discussed neither the phenomenon of “weapon focus”
nor the lack of correlation between eyewitness confidence and
accuracy. 	Dr. Dodd’s testimony would have reached both issues.
We therefore conclude that it is necessary to reverse the court
of appeals and vacate Clopten’s conviction.
CONCLUSION
¶49 	We are always reluctant to reverse a jury’s decision to
convict, particularly when the crime in question is as serious as
this one. 	The seriousness of the crime, however, makes it only
more imperative that the jury’s decisionmaking abilities are
supported by the best information available. 	If unreliable
identifications are not addressed properly at trial, then there
exists an unacceptable risk of the innocent being punished and
dangerous criminals remaining at large. 	We therefore hold that,
in cases where eyewitnesses are identifying a stranger and one or
more established factors affecting accuracy are present, the
testimony of a qualified expert is both reliable and helpful, as
required by rule 702. 	Such eyewitness expert testimony should
therefore be routinely admitted, regardless of whether the trial
judge decides to issue a cautionary instruction. 	Given the
circumstances present in this case, we hold that the court of
appeals erred; the trial court’s decision to exclude eyewitness
expert testimony was an abuse of discretion that cannot be
considered harmless. 	Accordingly, we reverse the decision of the
court of appeals, 	vacate Clopten’s conviction and remand for a
new trial in accordance with our decision today.
---
¶50 	Justice Parrish and Justice Nehring concur in Chief
Justice Durham’s opinion.
---
DURRANT, Associate Chief Justice, concurring in part and
dissenting in part:

1 See State v. Maestas, 2002 UT 123, ¶ 19, 63 P.3d 621,
(“With regard to the admissibility of expert testimony, the trial
court has wide discretion . . ., and such decisions are reviewed
under an abuse of discretion standard. 	Under this standard, we
will not reverse a decision to admit or exclude expert testimony
unless the decision exceeds the limits of reasonability.”
(internal citations and quotation marks omitted, omission in
original)). 	See also State v. Hubbard, 2002 UT 45, ¶ 14, 48 P.3d
953; State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794; State v.
Butterfield, 2001 UT 59, ¶ 28, 27 P.3d 1133.
2 Maestas, 2002 UT 123, ¶ 68 (noting that district court
discretion exists “because of the trial court’s superior position
to judge the advisability of allowing [expert] testimony”
(quoting Hubbard, 2002 UT 45, ¶ 14)).
3 721 P.2d 483 (Utah 1986).
4 Although the majority does leave open the possibility that
“there may be cases in which a witness viewed the perpetrator
under such ideal conditions that an expert would not be able to
(continued...)
23 	No. 20080631
¶51 	Our case law has consistently recognized that the
decision to admit or exclude expert testimony is within the
discretion of the district court. 1 	Although this discretion is
not unconstrained, and is obviously limited by the parameters set
out in the Utah Rules of Evidence, it is nonetheless real and
important. 	It is fundamentally a product of the structure of our
judicial system, in which district court judges are placed in a
superior position to evaluate the proffered testimony in light of
the principles set out in the rules of evidence. 2
¶52 	Accordingly, I agree with the majority’s rejection of
the presumption against admissibility of eyewitness expert
testimony that seems to have been precipitated by our decision in
State v. Long 3 as well as the majority’s clarification that the
presence of a Long instruction does not necessarily render
eyewitness expert testimony improper or superfluous. 	I also
concur in the majority’s express rejection of a presumption in
favor of eyewitness expert testimony and agree with its
acknowledgment that decisions regarding the admissibility of
eyewitness expert testimony should be made by district courts
based on a standard application of Utah Rule of Evidence 702.
¶53 	But after declaring its view that all requests for
eyewitness expert testimony are to be evaluated according to the
principles of rule 702, the majority then goes on to perform this
evaluation for the district courts, concluding that these
requirements are satisfied in every case involving an eyewitness
identification of a stranger. 4 	This effectively dictates to

4 (...continued)
identify factors that could have contributed to a
misidentification,” it is hard to imagine, in light of the
majority’s comprehensive, but nonexhaustive, list of relevant
factors contained in footnote 16, a situation in which at least
one factor would not be present.
No. 20080631 	24
district courts how they should conduct the rule 702 analysis in
all cases involving an eyewitness identification of a stranger,
leaving them no discretion in an area where we have emphasized
the importance and propriety of their discretion in the past.
¶54 	I would take a different approach. 	Rather than
categorically decide that eyewitness expert testimony satisfies
the elements of rule 702, I would simply instruct the district
courts that they are to treat eyewitness expert testimony like
any other type of expert testimony and determine its
admissibility based on the requirements of the rule. 	I would
neither create a presumption in favor, nor one against, the
admission of eyewitness expert testimony, and district court
rulings on the admissibility of such expert testimony would be
entitled to the same deference we have traditionally accorded
rulings on the admissibility of other types of expert testimony.
¶55 	Because a presumption against the admission of
eyewitness expert testimony seems to have developed based on our
decision in Long, and because this presumption may have
influenced the district court’s decision to deny admission of
Clopten’s proffered eyewitness expert testimony, I would remand
this case for a new trial to allow the district court to exercise
its discretion in light of the principles I have set forth above.
Accordingly, I respectfully dissent from Parts III and IV of the
majority opinion.
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¶56 	Justice Wilkins concurs in Associate Chief Justice
Durrant’s opinion.