223 P.3d 1103 (Utah 2009), 20080631, State v. Clopten

Docket Nº:20080631.
Citation:223 P.3d 1103, 2009 UT 84
Opinion Judge:DURHAM, Chief Justice:
Party Name:STATE of Utah, Plaintiff and Respondent, v. Deon Lomax CLOPTEN, Defendant and Petitioner.
Attorney: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.
Judge Panel:DURRANT, Associate Chief Justice, concurring in part and dissenting in part: Justice WILKINS concurs in Associate Chief Justice DURRANT'S opinion.
Case Date:December 18, 2009
Court:Supreme Court of Utah

Page 1103

223 P.3d 1103 (Utah 2009)

2009 UT 84

STATE of Utah, Plaintiff and Respondent,


Deon Lomax CLOPTEN, Defendant and Petitioner.

No. 20080631.

Supreme Court of Utah.

December 18, 2009

Page 1104

[Copyrighted Material Omitted]

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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:


¶ 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.


¶ 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 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

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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).


¶ 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 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)).


¶ 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.


¶ 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

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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). 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 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...

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