State v. Guard

2013 UT App 270
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JIMMY D. GUARD,
Defendant and Appellant.
Opinion
No. 20100720-CA
Filed November 15, 2013
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 041404606
Margaret P. Lindsay and Matthew R. Morrise,
Attorneys for Appellant
John E. Swallow and Jeffrey S. Gray,
Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
CAROLYN B. MCHUGH and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Jimmy D. Guard appeals from his conviction for child
kidnapping. Guard asserts that the trial court abused its discretion
when it excluded his expert’s testimony on the reliability of
eyewitness identification from trial. We vacate the conviction and
remand for a new trial.
BACKGROUND
¶2 Guard’s conviction for child kidnapping resulted from the
following evidence. Between 3:00 and 4:00 p.m. on November 15,

State v. Guard
20100720-CA 2 2013 UT App 270
2004, a nine-year-old child was grabbed from behind while she was
walking from the school bus to her home. The abductor put his
hand over the child’s mouth and told her that he had a knife. The
child kicked the abductor in the shin, causing him to release her.
The child then turned around and poked the abductor in the eye
repeatedly for about twenty seconds. The child and the abductor
fought before the child broke free and ran home. While she was
running, the child turned back once to see the abductor running in
the opposite direction.
¶3 When the child reached her home, she reported the incident
to her mother. The child and her mother went out to look for the
abductor, and when they could not find him, the mother called the
police. First an officer, and later a detective, responded to the call.
The child described the abductor to the officer as a male who was
wearing white shoes, jeans, and a hat with curly hair sticking out
from underneath. She also told the officer that the abductor could
have been Hispanic and had a shadow of a mustache or beard but
that she did not get a good look at his face. At that point, the
detective, who had more experience and training in interviewing
children, took over and was able to elicit from the child that the
abductor was tall and slightly chubby with a dark complexion and
dark hair. When pressed on how tall he was, the child stated that
he was taller than the officer but shorter than the detective, a range
of approximately 5'7" to 6'1" tall. The child also gave a more specific
description of the abductor’s clothing, describing the hat as a black
baseball cap with the letter “A” on it and stating that he wore
tennis shoes and a black “Stone Cold” Steve Austin T-shirt. The
detective asked the child if she would be able to recognize the
abductor if she saw him again, and the child said that she would.
At trial, the child provided much the same description of her
abductor as she did to the police, with the exception of the shoes.
On direct examination, she said that she told the police the shoes
were blue, but on cross-examination, she clarified that his shoes
were white. A schoolmate, who got off the bus with the child but
was not walking with her, corroborated the child’s account of the
abduction and her description of the abductor’s clothing.

State v. Guard
1. Guard was a person of interest in a similar kidnapping incident
in another city. Because Guard fit the description of the person who
had kidnapped the child, the detective thought Guard might be a
suspect in this case.
20100720-CA 3 2013 UT App 270
According to the schoolmate, a stranger grabbed the child but then
let go, and the child then ran one direction, and the stranger ran the
other way. The schoolmate could not identify the stranger, but she
did see that he was wearing a hat, blue pants, a black shirt, and
white shoes.
¶4 The day after the kidnapping, the detective brought to the
child’s school a six-photograph lineup, which included a
photograph of Guard. While all six men had short dark hair and1
dark complexions and were a little overweight, Guard was the only
suspect who had curly hair. Guard had no facial hair in his
photograph, while four of the others did. The detective showed the
child each photograph individually and asked her “to look at each
one of them and tell [him] whether or not any of these people [was]
the guy that tried to kidnap her.” Although the detective did not
tell the child that the abductor was in one of the six photographs,
the child later testified that she understood that one of the
photographs would be of the person who kidnapped her. Guard’s
photograph was the third one. The child eliminated the first two
photographs, saying to each, “[N]o, that’s not him.” When the child
was shown the third photograph—Guard’s picture—though, the
detective testified that “[h]er eyes got big, she appeared excited and
scared at the same time and she immediately said, ‘That’s him.
That’s him. . . . Yes, I’m sure that’s him.’” The child also testified
that she “was a hundred percent” sure that the person in the
photograph was her abductor and she told the detective “that was
the person . . . ‘for sure.’” The child answered in the negative when
asked about whether anyone in the remaining three photographs
was the abductor.
¶5 Following the child’s identification of Guard, the police
obtained a search warrant for Guard’s residence and began looking
for additional witnesses. The search of Guard’s home did not yield

State v. Guard
20100720-CA 4 2013 UT App 270
any of the clothing that the child described, but the police did find
a pair of light blue running shoes. The police also located two
people in the child’s neighborhood who, after being shown Guard’s
picture, said they had seen a man who looked like Guard in the
neighborhood on the day of the kidnapping. One neighbor
reported that she “thought [she] had seen” Guard run past her
house between 3:15 and 3:45 p.m. while she was in her yard
waiting for her children to return home from school. She had found
this behavior odd because the man was not wearing running
clothes and because her neighborhood is not very popular with
joggers due to the large number of dead-end streets. The second
neighbor had seen a man who looked like Guard waiting at a Utah
Transit Authority (UTA) bus stop across the street from the
neighbor’s house for approximately half an hour around mid-
afternoon. The man was wearing denim pants and a dark shirt.
When the UTA bus arrived about 3:00 p.m., the man did not board
the bus but instead stayed at the bus stop, which was near the
school bus stop. The neighbor then saw the school bus drop off the
children and the man follow three girls up the road. The neighbor
did not see the man approach or grab any of the girls. The neighbor
thought the UTA bus stop was “about 70 feet at the most” from his
house but said that he is farsighted and can see well at a distance,
even though his vision is poor “close up.” An investigator for the
defense measured the distance as 245 feet.
¶6 Prior to trial, Guard gave notice that he intended to call Dr.
David H. Dodd to testify as an expert regarding the reliability of
eyewitness identification, specifically “concerning the full range of
cognitive processes associated with the eyewitness, including
attention, perception and memory.” The State moved to exclude
Dr. Dodd’s testimony, asserting that it “would amount to a lecture
to the jury and would infringe on the jury’s responsibility to weigh
the credibility of the witnesses.” Around this same time, Guard
filed a motion to suppress the child’s identification of Guard
through the photograph lineup. In support of this motion, Guard
cited several factors known to affect the reliability of eyewitness
identification that were present in the circumstances of the crime,
including the short duration during which the child viewed her

State v. Guard
2. When asked about his ethnicity at trial, Guard responded, “My
mother . . . is Haitian and my father is American, Caucasian.”
20100720-CA 5 2013 UT App 270
abductor, a stranger; her hyperactive state due to having to defend
herself from attack; and the cross-racial nature of the identification
because the child is African American and she described the
abductor as Hispanic.2
¶7 The court scheduled a hearing on Guard’s motion to
suppress (the motion hearing) during which Guard explained that
recent studies and case decisions from around the country have
“consistent[ly]” identified the same factors he cited in his
memorandum as indicating problematic eyewitness identifications.
Guard then illustrated how those factors were present in the case,
particularly as they related to the photographic lineup. In this
context, Guard agreed to a hearing pursuant to State v. Rimmasch,
775 P.2d 388 (Utah 1989), superseded by rule as stated in State v.
Maestas, 2012 UT 46, ¶ 121 n.134, 299 P.3d 892, where he would call
Dr. Dodd to testify about the fallibility of eyewitness identification
in support of his motion to suppress the child’s photograph lineup
identification. The purpose of that hearing would be to establish
the reliability of Dr. Dodd’s expert testimony under rule 702 of the
Utah Rules of Evidence to determine its admissibility at trial. The
court agreed that a Rimmasch hearing might be necessary for
purposes of Guard’s motion to suppress the child’s photo-lineup
identification but noted that if Dr. Dodd’s testimony was “very
generic . . . , not going to this alleged victim, . . . but a general type
of . . . testimony regarding cognitive processes associated with
eyewitnesses,” the “Court could allow that expert testimony to
come in.” When the State insisted on a Rimmasch hearing because
it was not clear whether Dr. Dodd would testify at trial generally
about the fallibility of eyewitness identification or specifically about
the child’s reliability in identifying Guard, the court denied
Guard’s motion to suppress the child’s photograph identification
of Guard but indicated that it “w[ould] reconsider” if Guard
“renew[ed] the motion at a Rimmasch hearing.”

State v. Guard
3. Following the Rimmasch hearing, the court again denied Guard’s
motion to suppress the identification from the photograph lineup.
Guard does not appeal that decision.
4. The only additional material Guard promised the court on the
record at the Rimmasch hearing was a two-page synopsis of Dr.
Dodd’s general testimony regarding eyewitness identification that
(continued...)
20100720-CA 6 2013 UT App 270
¶8 Guard renewed his motion to suppress, and the matter was
set for a Rimmasch hearing two weeks later. Dr. Dodd’s testimony
at the Rimmasch hearing focused primarily on the reasons that the
photograph-lineup identification should be suppressed. In the3
course of his testimony, however, Dr. Dodd also addressed the
factors that affect the accuracy of eyewitness identification
generally, and the court acknowledged that those factors were
significant in assessing the reliability of an eyewitness
identification. At the close of the hearing, the State inquired about
whether defense counsel would “call [Dr. Dodd] as an expert to
talk to the jury about eyewitness identification reliability” if “he
doesn’t prevail on that motion [to suppress].” Guard’s attorney
confirmed that was his intent and told the court, “I can give a two-
page synopsis of that in the next day or so . . . .” However, counsel
never provided the promised synopsis.
¶9 The case proceeded to jury trial. The State’s entire case at
trial consisted of the testimonies of the four eyewitnesses—the
child, her schoolmate, and the two neighbors—and the officer and
the detective who interviewed them. Guard called several
witnesses in support of an alibi defense, but Dr. Dodd did not
testify. Although six months after trial the trial court issued a
written decision explaining that it had granted a motion by the
State to exclude Dr. Dodd’s testimony about the general fallibility
of eyewitness identification, both the motion and the court’s
resolution of it apparently occurred off-the-record: “At, or just
prior to trial, this Court, having received no supplementary
briefing by [Guard, ] granted the State’s Motion to Exclude4

State v. Guard
4. (...continued)
Guard intended to present if the motion to suppress was denied.
But because at least a portion of the proceedings after the Rimmasch
hearing relating to the admission of Dr. Dodd’s testimony took
place off-record, we cannot determine whether the court, in its
written decision to grant the State’s motion to exclude Dr. Dodd’s
testimony, was referring to the synopsis or some other promised or
requested briefing, the nature of which is not apparent. Despite the
court’s statement that Guard had failed to provide the
supplemental material he promised, the court explained that the
motion was not granted on that basis but because “[Guard had]
failed to meet the initial threshold requirement [of demonstrating
that the scientific principles underlying the expert’s opinion are
reliable] in a Rimmasch analysis.” Thus, even if the court was
referring to Guard’s promised synopsis, the failure to provide it
was not a factor in its decision and we do not address it further.
5. The State suggests a third alternative, that Guard’s failure to
provide the synopsis may indicate that he decided simply to
withdraw his notice to call Dr. Dodd. In the face of a barren record,
this is simply an invitation to speculate, which we must decline.
20100720-CA 7 2013 UT App 270
[Guard’s] Expert Witness from the bench. A subsequent search of
the record, however, indicates that a record was not made of that
Ruling.” As a consequence, the record provides no explanation of
the circumstances under which the court made its ruling to exclude
Dr. Dodd’s testimony, i.e., it cannot be determined whether Guard
simply did not call Dr. Dodd because the trial court had already
excluded his testimony or if at trial Guard indicated his intent to
call Dr. Dodd and the court then granted a motion by the State to
exclude him. However it came about, the court refused to let Dr.5
Dodd testify and instead gave what has come to be known as a
Long instruction (after State v. Long, 721 P.2d 483 (Utah 1986), in
which it was first approved), cautioning the jury about the risks
inherent in eyewitness identification and describing specific factors
that jurors should consider in assessing the reliability of the child’s
identification of Guard. The jury convicted Guard of child

State v. Guard
20100720-CA 8 2013 UT App 270
kidnapping. Guard now appeals the trial court’s decision to
exclude Dr. Dodd’s testimony about the reliability of eyewitness
identification.
ISSUE AND STANDARD OF REVIEW
¶10 “The trial court has wide discretion in determining the
admissibility of expert testimony.” State v. Hollen, 2002 UT 35, ¶ 66,
44 P.3d 794 (citation and internal quotation marks omitted). Thus,
we review a trial court’s decision to admit or exclude expert
testimony for abuse of discretion, which means we will not disturb
that decision “unless [it] exceeds the limits of reasonability.” Id.
(citation and internal quotation marks omitted).
ANALYSIS
¶11 After Guard’s trial, the Utah Supreme Court issued State v.
Clopten, 2009 UT 84, 223 P.3d 1103, which addresses the precise
issue Guard raises here. In Clopten, the supreme court held that
eyewitness expert testimony should be routinely admitted in most
stranger identification cases. Id. ¶¶ 30, 49. Although Clopten was a
murder case, it involves eyewitness identification issues
remarkably similar to those raised here. Clopten and Guard were
each tried and convicted in 2006, barely three months apart. See id.
¶ 2. In both cases, the convictions resulted solely from the
identification of the defendant by eyewitnesses who had never seen
the defendant before the day of the crime. See id. ¶¶ 2, 46. In
Clopten, the principal eyewitness saw the defendant as the witness
entered the club where the murder occurred, but she described the
shooter to the police while she was “frantic” and identified Clopten
later that same day while she was “still distraught.” Id. ¶ 44. In this
case, the child viewed her abductor for a very short time while she
was in an emotional and fearful state and described him to the
police shortly thereafter. See id. The respective eyewitnesses
subsequently identified the defendants from a lineup (an in-person

State v. Guard
6. In this case, the child, who is African American, identified her
abductor as “possibly Hispanic.” The record establishes that
Guard’s mother “is Haitian” and his father “is American,
Caucasian” and that Guard emigrated from Haiti to the United
States as a teenager. The State argues that Haitians are of African
descent and that because Guard was of the same race as the victim,
her identification was not cross-racial. The record, however, does
not provide a clear picture of Guard’s racial status; thus, the
question of whether the identification is cross-racial in reality or
simply in perception cannot be resolved here. That the victim
perceived Guard as of a different race, though, suggests that the
fundamental problem with cross-racial identification may still have
been present. The concern raised by the child’s possible
misidentification of Guard’s race presents a cross-racial
identification issue similar to the one that has been widely
recognized as a reliability concern and that was present in Clopten.
20100720-CA 9 2013 UT App 270
lineup in Clopten and a photographic lineup in this case) where
only the defendant possessed a prominent attribute of the person
the eyewitnesses had described to the police—only Clopten was
wearing a red hooded sweatshirt, as had been the shooter, and only
Guard had curly hair, as did the abductor. See id. Although the
primary eyewitness in Clopten picked Clopten out of the lineup
within an hour of the shooting, id., while the child did not identify
Guard until the next day, each identification was potentially
influenced by police expectation. The witness in Clopten was
reluctant to identify the shooter and did so only after “an officer
told her to ‘[d]o it for [the victim].’” Id. (first alteration in original).
The child testified that she understood that her abductor would be
in one of the photographs, even though the detective had not said
that he would be. The primary eyewitness in each case also
described the perpetrator’s race as different from her own. See id.6
¶ 46.
¶12 In addition, there were concerns about the reliability of the
other eyewitnesses in each case. In Clopten, one of the witnesses
changed his story in response to the officer’s ultimatum that he “‘be

State v. Guard
20100720-CA 10 2013 UT App 270
a witness’ or ‘go to jail for many years’” and then disappeared
prior to trial, while another “received a substantially reduced
sentence in exchange for his testimony.” Id. ¶ 42. A third witness
saw a man in a red sweatshirt with whom she had spoken just prior
to the shooting standing over the victim with a gun. Id. ¶ 45.
Although she later identified Clopten as the shooter, she had told
the police that the shooter had not been wearing red pants, as
Clopten had been, and she had described a different red sweatshirt
than the one Clopten was wearing when arrested that, in fact,
matched the sweatshirt another suspect had been wearing prior to
the lineup. Id. Here, the neighbors were shown Guard’s picture
before being asked if they had seen him the previous day. One
neighbor reported that she “thought [she] had seen” Guard run by
while she was in the front yard waiting for her children to return
from school. That neighbor, who lived some blocks away from
where the abduction occurred, did not witness the event itself. The
other neighbor claimed to have observed Guard for some time but
at a significant distance by his own measurement (and at a distance
more than three times the neighbor’s estimate, according to the
defense investigator who measured it). And while the schoolmate
witnessed the kidnapping and corroborated the child’s description
of the abductor’s clothing, she did not provide any information that
would identify Guard as the perpetrator.
¶13 Furthermore, in both cases, defense counsel sought to have
Dr. Dodd testify as an expert on the “various factors that can affect
the accuracy of eyewitness identifications.” See id. ¶ 3. And in each,
the court excluded Dr. Dodd’s testimony. In Clopten, the trial court
excluded Dr. Dodd’s expert testimony because it concluded that
the potential problems with eyewitness identification could be
adequately explained through the use of a jury instruction. Id. ¶ 4.
Here, the court excluded the testimony because “[Guard] failed to
meet the initial threshold requirement [of demonstrating that the
scientific principles underlying Dr. Dodd’s expert’s opinion are
reliable] in a Rimmasch analysis.” It instead gave the jury a Long
instruction.

State v. Guard
20100720-CA 11 2013 UT App 270
¶14 We recognize that the facts in Clopten presented some
additional concerns regarding the eyewitness identifications that
are not present in this case and that even the existing analogous
concerns are not entirely equivalent. Certainly, some aspects of the
identification of Guard in this case were not as problematic as the
identification of Clopten, but there are some eyewitness issues
present here that are arguably of greater concern. Overall, we
believe that the facts of this case substantially parallel the facts that
led the supreme court to be concerned about the conviction in
Clopten in the absence of expert testimony to educate the jury on
the fallibility of eyewitness testimony. This conclusion, coupled
with the similarity of the issue presented, the commonality of the
proposed expert, and the proximity of the trials, thus confronts us
with the question of whether our resolution of Guard’s case should
follow Clopten.
I. The Unusual Circumstances of This Case Require Application
of the Same Analysis as in Clopten.
¶15 Following oral argument, we requested supplemental
briefing from the parties to address the question of whether Clopten
should apply to the decision before us. In response to our request,
Guard asserts that when a procedural rule changes during a
criminal case, the new rule is automatically retroactive to all
nonfinal criminal cases, including those on direct appeal, unless the
change is expressly declared to be prospective only. Because
Clopten did not limit its application to future cases only, Guard
argues that its rationale automatically applies to his case. The State
counters that the issue is governed by the “clear break” exception,
which provides that changes to procedural rules that are merely a
clarification of existing rules are retroactive while changes that
represent a clear deviation from prior practice are not. According
to the State, because Clopten rejected the longstanding practice of
instructing the jury on eyewitness reliability rather than routinely
admitting this type of expert testimony, it “was a clear break with
. . . rulings in previous cases dealing with eyewitness expert
testimony.” (Citation and internal quotation marks omitted.)

State v. Guard
7. Guard cites State v. Belgard, 615 P.2d 1274 (Utah 1980) (per
curiam), and State v. Norton, 675 P.2d 577 (Utah 1983), overruled on
other grounds by State v. Hansen, 734 P.2d 421 (Utah 1986), in
(continued...)
20100720-CA 12 2013 UT App 270
¶16 In Griffith v. Kentucky, 479 U.S. 314 (1987), the United States
Supreme Court discussed the application of the clear break
exception to questions of retroactivity when a conviction is not yet
final, meaning the appeal period has not expired and the appeal
process has not been exhausted. Id. at 321 n.6, 326–28. Griffith
addressed whether the new rule establishing the burdens for
making a claim of racial discrimination in selecting a jury
announced in Batson v. Kentucky, 476 U.S. 79 (1986), was applicable
to two defendants—one of whom was tried in the same Kentucky
court three months after Batson—whose cases were pending on
direct appeal. Griffith, 479 U.S. at 316. The Court concluded that “a
new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review
and not yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.” Id. at 328 (emphasis
added). The United States Supreme Court and the Utah Supreme
Court have since limited Griffith’s holding to its context, cases
involving rule changes of constitutional dimension. See id. at 322
(explaining that “failure to apply a newly declared constitutional
rule to criminal cases pending on direct review violates basic norms
of constitutional adjudication”); see also Teague v. Lane, 489 U.S. 288,
303–04 (1989) (explaining Griffith’s reasoning for applying
constitutional rule changes retroactively); State v. Stilling, 770 P.2d
137, 143 (Utah 1989) (declining to apply the rule mandating a
cautionary jury instruction on eyewitness identification adopted in
State v. Long, 721 P.2d 483 (Utah 1986), retroactively because Long
was decided “on neither federal nor state constitutional
principles”); see also State v. Baker, 2010 UT 18, ¶ 24, 229 P.3d 650
(observing that Griffith “eliminated the ‘clear break’ exception to
retroactive application of newly declared constitutional rules for
cases pending on direct review”). Clopten was not decided on a7

State v. Guard
7. (...continued)
support of his position that Utah treats all procedural rule changes
as applicable retroactively to cases that are not yet final. Belgard
and Norton both pre-date Griffith, and we do not analyze their
continuing viability because we resolve the case on different
grounds.
8. Prior to the adoption of an automatic retroactivity rule, the
United States Supreme Court applied a three-part test to determine
if a rule change may be retroactively asserted to challenge a
conviction, regardless of whether the conviction was final or
pending on appeal. Griffith v. Kentucky, 479 U.S. 314, 320–21 (1987)
(discussing the analysis adopted by Linkletter v. Walker, 381 U.S. 618
(1965)). That same test has been adopted and applied by the Utah
Supreme Court in cases involving final convictions. See, e.g., Labrum
v. Utah State Bd. of Pardons, 870 P.2d 902, 912 (Utah 1993); Andrews
v. Morris, 677 P.2d 81, 91 (Utah 1983). But we have not located any
cases where the Utah appellate courts have applied that test to non-
final convictions, and the case law our supreme court has
developed in the meantime simply applies the clear break rule
described above. See, e.g., State v. Lovell, 2011 UT 36, ¶ 73, 262 P.3d
803; State v. Hoff, 814 P.2d 1119, 1123 (Utah 1991). Furthermore, the
parties do not address the three-part test in their briefings. For
these reasons, we do not consider whether the three-part test is
applicable here.
20100720-CA 13 2013 UT App 270
constitutional basis, and the reasoning of Griffith is therefore not
controlling.
¶17 Where a rule change is not constitutional, Utah appellate
courts have ordinarily not applied “a new rule . . . retroactively if
it constitutes a clear break with the past.” State v. Lovell, 2011 UT8
36, ¶ 73, 262 P.3d 803 (citation and internal quotation marks
omitted). “A new rule is a clear break with the past if it caused an
abrupt and fundamental shift in doctrine as to constitute an
entirely new rule which in effect replaced the older one.” Id.
(citation and internal quotation marks omitted). The State contends

State v. Guard
20100720-CA 14 2013 UT App 270
that Clopten establishes a new rule requiring routine admission of
expert testimony on the reliability of eyewitness identification
evidence that is a clear break from the prior practices that
established “a de facto presumption against eyewitness expert
testimony in Utah’s trial courts.” State v. Clopten, 2009 UT 84, ¶ 13,
223 P.3d 1103. In his reply brief, Guard expressly rejects any
characterization of Clopten as a “clear break” from prior law. In
supplemental briefing on the specific issue of retroactivity,
however, Guard recognizes that Clopten may be “subject to a[]
‘clear break’ exception” and advocates for automatic retroactive
application of all rule changes to cases pending on direct appeal.
We assume, without deciding, that Clopten is a clear break from
prior law. Thus, because Griffith does not control, the general rule
precluding retroactive application of a rule change that amounts to
a clear break with prior precedent applies here.
¶18 Despite our conclusion that Clopten is not retroactive, we
believe that the unusual circumstances of Guard’s case nevertheless
require application of Clopten’s analysis. Clopten was tried and
convicted in February 2006, id. ¶ 2, and Guard’s trial and
conviction occurred in May 2006. Both filed timely appeals.
Guard’s initial appeal was dismissed due to defense counsel’s
failure to file a docketing statement, and his appeal rights were
duly reinstated four years later. Had Guard’s initial appeal gone
forward in a timely manner, it would have been at roughly the
same stage of proceedings on appeal as Clopten. Given the
similarities of both the facts and the issues in each case, as well as
both defendants’ intention to call the same expert witness, it seems
almost inevitable that the two cases would have been either
consolidated on appeal or treated as companion cases. See, e.g.,
State v. Davis, 2011 UT 57, ¶¶ 1, 5, 8, 11, 266 P.3d 765 (consolidating
the interlocutory appeals of three cases arising in three consecutive
years where the “three consolidated cases . . . involve nearly
identical facts and issues”); State v. Morrison, 2001 UT 73, ¶¶ 1–4, 31
P.3d 547 (considering the constitutionality of the sexual
exploitation of a minor statute in a consolidated appeal where both
defendants were convicted after downloading and printing child

State v. Guard
9. Indeed, the Supreme Court in Griffith took note of what appear
to be comparable concerns in its analysis of why disparity in
treatment between “similarly situated defendants” undercuts the
administration of justice. Griffith v. Kentucky, 479 U.S. 314, 327
(1987). There, the defendant in Batson v. Kentucky, 476 U.S. 79
(1986), and one of the defendants in Griffith had been tried in
February and May 1984, respectively, by the same Kentucky state
court. Id. The same prosecutor exercised the peremptory challenges
that became the subject of appeal. Id. And it was due simply to the
“fortuities of the judicial process” that the United States Supreme
Court heard Batson before Griffith. Id.
20100720-CA 15 2013 UT App 270
pornography, and each claimed that the statute “was
unconstitutionally overbroad and vague on its face”); Stromquist v.
Cokayne, 646 P.2d 746, 746 (Utah 1982) (consolidating the appeals
from two separate cases that “raise[d] identical issues”); see also,
e.g., Wasatch Cnty. v. Okelberry, 2008 UT 10, ¶ 15, 179 P.3d 768
(adopting a bright line test for determining when an event
interrupts the ten-year period of continuous use necessary to
dedicate a road to the public); Town of Leeds v. Prisbrey, 2008 UT 11,
¶¶ 6–7, 179 P.3d 757 (applying the bright line test adopted in the
companion case of Okelberry issued the same date because it
concerned the same issue); Utah Cnty. v. Butler, 2008 UT 12,
¶¶ 14–17, 179 P.3d 775 (same). Under the circumstances, we
conclude that had Guard’s case proceeded on appeal as it would
have without his counsel’s default, the result would have been
identical to the result in Clopten.
¶19 Given that Guard’s and Clopten’s trials essentially
paralleled each other and that the eyewitness issues in their cases
were substantially similar, if not perfectly aligned, it seems
inconsistent with the administration of justice to deny Guard the
benefit of the supreme court’s approach in Clopten where, but for
the happenstance that delayed Guard’s appeal, it appears to us that
the same analysis would have been applied to both cases. Cf.9
Teague, 489 U.S. at 303 (explaining that the United States Supreme
Court has applied a new rule to companion cases even when it did

State v. Guard
20100720-CA 16 2013 UT App 270
not apply the new rule retroactively to cases then pending on
appeal). Thus, we conclude that the same analysis that the supreme
court applied in Clopten should be applied here. Applying that
analysis, we conclude that Dr. Dodd’s testimony should have been
admitted.
II. Application of the Principles Adopted in Clopten Leads to the
Conclusion that Dr. Dodd’s Eyewitness Identification Testimony
Should Have Been Admitted.
¶20 Appellate courts have long recognized that “‘the 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)); see also id. at 488 (noting that there is “no
significant division of opinion” about the “unreliability of
eyewitness identification”). But “[a]lthough research has
convincingly demonstrated the weaknesses inherent in eyewitness
identification, jurors are, for the most part, unaware of these
problems.” Id. at 490. The fallibility of eyewitness identification
increases when the witness is “identifying a stranger and . . . one or
more established factors affecting accuracy are present.” Clopten,
2009 UT 84, ¶¶ 15, 32. Among the “well-documented factors that
affect the reliability of eyewitness identifications” generally are the
emotional state of the observer at the time of observation; “the
circumstances of the observation”; “the expectations, personal
experiences, biases, and prejudices” of the observer, particularly
when identifying a person of another race; the confidence of the
person making the identification, as “the accuracy of an
identification is, at times, inversely related to the confidence with
which it is made”; and the process by which the observation is
reported, e.g., through interrogation, which tends to “influence
what a witness ‘remembers,’” or by narrative, which is more likely
to produce only the facts that the eyewitness remembers and
deems important. Long, 721 P.2d at 488–90; see also Clopten, 2009 UT
84, ¶¶ 15, 32 n.22.

State v. Guard
20100720-CA 17 2013 UT App 270
¶21 It is in this kind of stranger identification-plus situation that
the Utah Supreme Court determined that expert testimony is
critical to ensuring that jurors understand the limitations of an
eyewitness identification. As the court explained in Clopten, in the
absence of expert testimony, defense attorneys have only two tools
for conveying to the jury the possibility that an identification
is mistaken: cross-examination and cautionary jury instructions.
2009 UT 84, ¶ 16. These tools, however, “suffer from serious
shortcomings when it comes to addressing the merits of eyewitness
identifications” of a stranger because an eyewitness may appear
confident even when his or her identification is mistaken, a juror
may be unwilling to alter his or her belief that the eyewitness is
reliable when a cautionary instruction is received only at the close
of trial, and such instructions “tend to touch only generally on the
empirical evidence . . . that certain factors are known to influence
perception and memory” without “explain[ing] how this occurs or
to what extent.” Id. ¶¶ 15–16, 24. Expert testimony, on the other
hand, “quantif[ies]” the problems that can arise in eyewitness
identifications and “teaches jurors about certain factors . . . that
have a strong but counterintuitive impact on the reliability of an
eyewitness” while the evidence is still being presented, ensuring a
better likelihood that “a jury . . . is . . . able to reach a just decision.”
Id. ¶ 20. In addition, such testimony can focus more specifically on
circumstances generally influencing the accuracy of identifications
that are also present in the particular case.
¶22 In Clopten, the Utah Supreme Court recognized the
shortcomings of the Long instruction for the first time and held that
expert testimony is preferable in the stranger identification-plus
situation. State v. Clopten, 2009 UT 84, ¶¶ 32–34, 223 P.3d 1103. In
the course of its analysis, the court recognized that testimony on
the factors that generally affect the accuracy of eyewitness
identification is “sufficiently reliable” to be admissible under rule
702 of the Utah Rules of Evidence, id. ¶¶ 35, 38, provided that the
witness is “qualified as an expert by knowledge, skill, experience,

State v. Guard
10. There is no dispute that Dr. Dodd, who was also the expert in
Clopten, is qualified as an expert in eyewitness identification.
20100720-CA 18 2013 UT App 270
training, or education,” Utah R. Evid. 702(a). The supreme court10
explained that the current version of rule 702 requires a threshold
showing that expert testimony is reliable, a showing that can be
made in one of two ways: through a demonstration that the
“‘principles or methods underlying the testimony . . . (i) are
reliable, (ii) are based upon sufficient facts or data, and (iii) have
been reliably applied to the facts of the case,’” Clopten, 2009 UT 84,
¶ 35 (quoting Utah R. Evid. 702(b)), or by a demonstration that the
“underlying principles or methods ‘are generally accepted by the
relevant expert community,’” id. (quoting Utah R. Evid. 702(c)). The
court also explained that at the time of Clopten’s 2006 trial, rule 702
required a showing of reliability according to the three-part
Rimmasch test but that “the current version of rule 702 incorporates
an updated reliability analysis for expert testimony” that
“subsume[s]” the Rimmasch test. Id. ¶¶ 37–38; see also State v.
Maestas, 2012 UT 46, ¶ 121 n.134, 299 P.3d 892 (citing Clopten, 2009
UT 84, ¶ 38). The court therefore concluded that under either test,
the reliability of eyewitness identification expert testimony is so
widely acknowledged that it should be considered routinely
admissible in cases where the evidence would be helpful to the
jury. Clopten, 2009 UT 84, ¶¶ 35–38 (“The phenomena that
eyewitness experts seek to explain have been reviewed and
replicated many times in recent decades. . . . [Utah appellate courts
have recognized] 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.”). And “[i]n cases where an eyewitness is identifying
a stranger and in which various factors that can affect accuracy are
present”—the stranger identification-plus situation—“eyewitness
expert testimony is helpful to the jury and thus admissible.” Id.
¶ 38.
¶23 The circumstances of Guard’s case fit the stranger
identification-plus model. Guard was unknown to the child and the
other witnesses prior to their identifying him as the child’s

State v. Guard
20100720-CA 19 2013 UT App 270
abductor, and there were additional factors that raised questions
about the accuracy of the identification. For instance, the child’s
opportunity to view her abductor was of very short duration while
she was also attempting to escape by fighting him off. When the
child later identified Guard as the abductor, he was the only
suspect in the photograph lineup who had curly hair, a prominent
attribute in her description of the abductor. The child testified that
upon seeing Guard’s picture, she told the detective that “that was
the person . . . ‘for sure.’” The presence of this factor is important
because “juries seemed to be swayed the most by the confidence of
an eyewitness, even though such confidence correlates only weakly
with accuracy.” See id. ¶ 15. Yet the jury did not receive any
information regarding this weak correlation, even in the Long
instruction.
¶24 The State contends, however, that Guard cannot take
advantage of the supreme court’s acknowledgment of the
reliability of eyewitness expertise. According to the State, Guard
did not ask the court to take judicial notice of Dr. Dodd’s testimony
in the trial court and, instead, agreed to a Rimmasch hearing. Thus,
Guard voluntarily took on the burden of establishing reliability, a
burden the trial court said he did not meet.
¶25 That argument misses the mark. First of all, Guard could not
be expected to foresee that a future decision would determine that
the reliability of this type of testimony is subject to judicial notice
given that, until Clopten, the widespread approach in Utah courts
was to the contrary. And, in any event, at the motion hearing,
Guard made what was, in all but name, an argument for judicial
notice. Specifically, Guard identified the same factors outlined in
Clopten as tending to affect the reliability of an eyewitness
identification and asserted that “those items are well established in
not only Utah case law but throughout the country.” See 2009 UT
84, ¶¶ 15, 32 & n.22 (discussing the consensus of research that
certain factors affect the accuracy of eyewitness identification).
¶26 In fact, before trial, the trial court seemed to acknowledge
that Dr. Dodd’s testimony was based on principles “generally

State v. Guard
20100720-CA 20 2013 UT App 270
accepted by the relevant expert community,” Utah R. Evid. 702(c).
For instance, at the motion hearing, the trial court said that if Dr.
Dodd’s testimony was limited to “very generic . . . testimony
regarding cognitive processes associated with eyewitnesses,” it
“could allow that expert testimony to come in,” presumably based
on the court’s own understanding that the reliability of this type of
testimony was well established. Further, the court seemed to
recognize a distinction between testimony that amounts to “generic
education of the jury as it relates to fallibility of eyewitness
[identification]” and testimony that “reach[es] conclusions and . . .
some opinion[s] relative to the reliability of this child.” The
Rimmasch hearing itself focused not on the reliability of the general
principles underlying the fallibility of eyewitness testimony but
principally on the particular issues related to the circumstances of
the photograph lineup and Guard’s motion to suppress it as
unreliable. In fact, at the hearing the court itself described the
factors that are usually associated with mistaken identifications as
if they were both well known and uncontroversial. While the court
seemed to take a different view six months after the trial when it
issued its memorandum decision justifying the decision to exclude
Dr. Dodd’s testimony, it is difficult to reconcile that decision with
its earlier statements, and the court itself did not do so. In light of
Clopten’s definitive resolution of the question of the reliability of the
same type of eyewitness expert testimony that Guard offered
below (from the same expert witness), it would seem pointlessly
technical to conclude that Guard is somehow foreclosed from
raising the issue of judicial notice in this appeal because he acceded
to a Rimmasch hearing and did not manage to put on enough
evidence at that hearing to show the reliability of fundamental
principles that the Utah Supreme Court has now recognized as the
subject of widespread consensus. Thus, we do not find persuasive
the State’s argument that this case is procedurally distinct enough
from Clopten to overcome its strong similarities.
¶27 Because Guard’s conviction is based solely on eyewitnesses
who identified him as the abductor, the reliability of those
identifications is “of paramount importance.” See State v. Clopten,
2009 UT 84, ¶ 48, 223 P.3d 1103. Yet several circumstances are

State v. Guard
20100720-CA 21 2013 UT App 270
present that potentially undercut the reliability of the child’s
identification of Guard as her abductor, including the child’s
limited opportunity to view the abductor, a stranger; her focus on
defending herself from his attack; the possible implications of a
cross-racial identification; the photograph lineup only containing
one suspect—Guard—who had curly hair, a prominent attribute of
the child’s abductor; and the child’s belief that her abductor would
be in the lineup. The concern about reliability is underscored by the
fact that the child was the only eyewitness to the kidnapping who
could identify the perpetrator. The schoolmate witnessed the
kidnapping and could describe the person who kidnapped the
child but could not identify Guard. And the two neighbors, neither
of whom had witnessed the kidnapping or knew Guard, claimed
to have seen Guard in the neighborhood only after being shown his
picture. Yet both neighbors’ opportunity to view the person they
identified as Guard had limitations: one neighbor’s primary focus
was on the arrival of her children from school and the other had
only seen the person he thought was Guard at a significant
distance. In the absence of independent corroborating evidence to
support the conviction, we are persuaded that there is a reasonable
likelihood that had the jury heard Dr. Dodd’s testimony, it may
have assessed the reliability of the eyewitnesses’ identifications
differently. See id. (concluding that there was a reasonable
likelihood of a more favorable result for Clopten where the
primary eyewitnesses were strangers to Clopten, other factors
affecting the reliability of the identifications were present, and
there was no independent corroborating testimony). At the very
least, in the absence of Dr. Dodd’s testimony, our “confidence in
the verdict . . . is undermined.” See State v. Kohl, 2000 UT 35, ¶ 17,
999 P.2d 7 (“We will reverse an erroneous evidentiary ruling . . . if,
absent the error, there is a reasonable likelihood that there would
have been a more favorable result for the defendant. A reasonable
likelihood of a more favorable outcome exists when the appellate
court’s confidence in the verdict actually reached is undermined.”
(citations and internal quotation marks omitted)). Accordingly, we
vacate Guard’s conviction and remand for a new trial.

State v. Guard
20100720-CA 22 2013 UT App 270
CONCLUSION
¶28 As the supreme court acknowledged in Clopten,
[w]e 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.
2009 UT 84, ¶ 49. For the foregoing reasons, we vacate Guard’s
conviction and remand for a new trial in accordance with this
decision.