State v. Guard , 371 P.3d 1 ( 2015 )

FILED
This opinion is subject to revision before final UTAH APPELLATE COURTS
publication in the Pacific Reporter
DECEMBER 31, 2015
2015 UT 96IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
JIMMY D. GUARD,
Respondent.
No. 20140039
Filed December 31, 2015
On Certiorari to the Utah Court of Appeals
Fourth District, Provo Dept.
The Honorable Lynn W. Davis
No. 041404606
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen.,
Salt Lake City, for petitioner
Margaret P. Lindsay, Matthew R. Morrise, Salt Lake City,
for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM,
JUSTICE HIMONAS, and JUDGE HARRIS joined.
Having recused herself due to her resignation from this court,
JUSTICE PARRISH did not participate herein;
JUDGE RYAN M. HARRIS sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 We are asked to review the court of appeals‘ retroactive
application of our decision in State v. Clopten to Mr. Guard‘s case. We
issued Clopten while Mr. Guard‘s case was on direct appeal. In
Clopten, we held that ―in cases where eyewitnesses are identifying a
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Opinion of the Court
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.‖1 Prior to Clopten, there was a ―de
facto presumption against the admission of eyewitness expert
testimony,‖ and courts generally relied on jury instructions to
address this issue.2 Mr. Guard‘s motion to put on an expert on
eyewitness testimony was denied because he failed to establish that
such testimony was reliable, but the jury was instructed on the
possible issues surrounding eyewitness testimony. The jury found
Mr. Guard guilty of kidnapping, and he was subsequently sentenced
to a prison term of ten years to life. Mr. Guard timely appealed his
conviction, but his appeal was delayed due to his attorney‘s failure
to file a docketing statement.
¶2 In deciding whether to apply Clopten retroactively, the court
of appeals acknowledged our ―clear break‖ rule regarding
retroactive application of new rules of criminal procedure to cases on
direct review, but declined to apply it. Rather, the court concluded
that the ―unusual circumstances‖ in this case required the retroactive
application of our rule in Clopten.3 The court reasoned that, because
the cases were very similar and were tried around the same time, if
Mr. Guard‘s case had not been delayed, Guard and Clopten would
―almost inevitabl[y] . . . have been either consolidated on appeal or
treated as companion cases‖ and the result in Guard ―would have
been identical to the result in Clopten.‖4 Thus the court stated, ―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.‖5 The
court therefore applied the rule in Clopten, holding that it was
harmful error for the trial court not to admit Mr. Guard‘s eyewitness
expert.
¶3 The State appealed. It argues that Clopten was a ―clear
break‖ from our previous caselaw on the admissibility of eyewitness
expert testimony and should not have been applied retroactively.
The State also argues that Mr. Guard did not preserve the issue.
Mr. Guard counters that the court of appeals did not apply Clopten
1 2009 UT 84, ¶ 49, 223 P.3d 1103.
2 Id. ¶ 30.
3 State v. Guard, 2013 UT App 270, ¶ 18, 316 P.3d 444.
4 Id.5 Id. ¶ 19.
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retroactively (but merely found it persuasive), that Clopten was not a
―clear break,‖ and that Mr. Guard adequately preserved the issue.
¶4 We reverse. We conclude that Mr. Guard adequately
preserved the issue. We decline to decide whether Clopten was a
―clear break‖ (and therefore should not have been given retroactive
application) because we conclude that our ―clear break‖ rule is
flawed and therefore abandon it. Instead, we return to our prior
precedent—new rules of criminal procedure announced in judicial
opinions are applicable retroactively to all cases pending on direct
review at the time the new rule is announced.
¶5 After determining that Clopten applies retroactively to
Mr. Guard‘s case, we then address whether the trial court abused its
discretion under the Clopten standard when it failed to admit
Mr. Guard‘s eyewitness expert. We conclude that it was not an abuse
of discretion for the trial court to deny Mr. Guard‘s motion to admit
eyewitness expert testimony under Clopten, and thus we reverse the
court of appeals‘ decision.
Background
¶6 On November 15, 2004, C.M., who was nine years old at the
time, was attacked as she walked the few blocks from her school bus
stop to her home. After she had parted ways with her friends,
crossed the street, and reached the corner of her apartment complex,
a male stranger grabbed her from behind. He held C.M.‘s arms
behind her back, covered her mouth, and told her to come with him
or he would harm her with a knife. C.M. never saw a knife. She
fought off her attacker using techniques she had learned through a
self-defense course offered at her school. She kicked him in the shin,
causing him to loosen his grip. She then turned around and poked
him repeatedly in the eyes and face. He tried to avoid her jabs and
hit her back. The stranger then released her, and she ran straight
home to her mother. As she ran home, she looked back and saw the
stranger running in the opposite direction. C.M. recounted the attack
to her mother, who called the police.
¶7 The police responded to C.M.‘s home. Officer Becerra was
the first officer on the scene and the first to interview C.M. about her
kidnapping. She described her attacker to Officer Becerra as a
―Hispanic male with curly black hair and a faded beard and
mustache‖ who was ―wearing white shoes, jeans, a black T-shirt
with a picture of the wrestler ‗Stone Cold‘ on it, and a black baseball
cap.‖ When Officer Becerra asked C.M. if she could remember her
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attacker‘s face, she said ―I don‘t know. I saw the shoes,‖ and ―I saw
the pants.‖
¶8 Detective William Devon Jensen arrived at C.M.‘s home a
short while later and took over the interview, as he had more
training and experience interviewing children. Detective Jensen took
time to calm C.M. down and took special care not to lead her, using
non-suggestive questions. C.M. described her attacker as ―slightly
chubby, . . . dark complected, possibly Hispanic‖ and said he ―was
wearing a black baseball cap with the letter ‗A‘ on it, . . . a black shirt
with ‗Stone Cold‘ on the front of it, blue jeans, and white tennis
shoes.‖ She described her assailant as taller than Officer Becerra, but
shorter than Detective Jensen, a range from 5‘7‘‘ to 6‘1‘‘. She also said
he had hair like her brother, who had a short Afro. Detective Jensen
asked C.M. if she would be able to recognize her attacker. She said
she thought she would be able to identify him if she saw him again.
¶9 The following day, Detective Jensen went to C.M.‘s school to
show her a photo array of six men who generally matched her
description of her attacker. The Defendant, Jimmy Guard, was
included in the photo array. Detective Jensen had included
Mr. Guard after he saw his picture on a ―person of interest‖ bulletin
that described a similar kidnapping incident in Springville, Utah.
Detective Jensen did not tell C.M. that her attacker was among those
pictured, but she understood that he would be. Detective Jensen
showed C.M. the photos one at a time and asked her to look at each
photo and tell him whether any of them was the person who had
kidnapped her the day before. C.M. looked at the first two photos
and told the detective they were not her attacker. But when C.M.
was presented with the third picture ―[h]er eyes got big, she
appeared excited and scared at the same time[,] and she immediately
said, ‗That‘s him. That‘s him.‘‖ Detective Jensen asked whether she
was sure the man pictured was her attacker, and she said ―Yes, I‘m
sure that‘s him.‖ The detective then showed C.M. the remaining
three pictures, and she said none of them was of her attacker.
¶10 Through his investigation, Detective Jensen found three
witnesses who identified Mr. Guard as the kidnapper. On the day of
the attack, he interviewed a friend of C.M.‘s who saw the abduction
from about a block away. C.M‘s ten-year-old friend told Detective
Jensen that she had seen the assailant grab C.M., that she initially
thought that the assailant was C.M.‘s brother, and that he was
wearing blue pants, a black shirt, a cap, and white shoes.
¶11 The day after the attack, Detective Jensen found two
witnesses through a canvass of C.M.‘s neighborhood, where he
spoke with fifteen to twenty people. He took Mr. Guard‘s photo with
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him that day and asked people in the neighborhood whether they
had seen Mr. Guard the day before. Two neighbors said they had
seen Mr. Guard: Darwin Goode, who said he saw Mr. Guard
loitering and then following a group of girls, and Kathleen Spechard,
who believed she saw him run past her home.
¶12 Mr. Goode, who lived two blocks from the kidnapping, said
he saw Mr. Guard the previous day standing by a UTA bus stop that
was about 100 feet from his home.6 He was out watering his lawn
when he noticed Mr. Guard at the UTA bus stop. At first he did not
notice anything unusual, as Mr. Guard ―was just kind of . . . hanging
around the bus stop.‖
¶13 But Mr. Goode became suspicious when Mr. Guard did not
board the UTA bus that had stopped for him. He said Mr. Guard
remained at the bus stop for half an hour until a school bus let out a
group of children at the curb in front of his home. He then observed
Mr. Guard follow a group of three girls as they walked past his
house on the opposite side of the street. He did not see Mr. Guard
approach or grab any of the children.
¶14 Ms. Spechard believed she had seen Mr. Guard run past her
home, which is a block from the site of the attack, sometime between
3:15 p.m. and 3:45 p.m. while she was waiting for her children to
come home from school. She took note of the man running past her
home because he was not dressed for running and her street was not
popular with runners as it was a dead end. When asked whether the
man she saw running past her home was the man in the photo, she
said that she ―couldn‘t say for positive,‖ but the man in the photo
―certainly looked like the man‖ she had seen the previous day.
¶15 On November 17, two days after the kidnapping, Detective
Jensen arrested Mr. Guard at his residence, which was about a mile
from the site of the kidnapping. Detective Jensen also searched Mr.
Guard‘s residence for clothing that matched the description given by
C.M. He did not find the baseball cap with the ―A‖ on it or the black
T-shirt with ―Stone Cold‖ Steven Austin. He did find a pair of light
blue running shoes in Mr. Guard‘s bedroom.
¶16 During an interview with Detective Jensen, Mr. Guard
claimed to have an alibi for the time of the kidnapping. He claimed
to have gone to Salt Lake City on the afternoon of November 15,
visiting several Barnes & Noble bookstores and the Salt Lake City
library. Mr. Guard, who was having financial trouble at the time,
6 Investigators later measured the distance as 245 feet.
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Opinion of the Court
said he spent the afternoon researching bankruptcy. He claimed to
first have visited the Barnes & Noble stores in Sandy and Murray,
where he had brief interactions with employees.
¶17 After failing to find the material he was looking for,
Mr. Guard claimed he went to the Salt Lake City library, where he
spent a significant amount of time browsing the law books, reading
the bankruptcy code book, having a coffee, and perusing the art
display. During his time at the library, Mr. Guard said he interacted
with a female library employee, asking her for help locating a code
book, and also spoke with a female employee at the coffee shop,
from whom he purchased a coffee. Mr. Guard claimed he next went
to the Barnes & Noble in Sugarhouse, where he also had passing
interactions with employees.
¶18 A week after the kidnapping, Detective Jensen investigated
Mr. Guard‘s alibi. The detective went to the bookstores and the
library, showing employees a photo of Mr. Guard and asking
whether they recognized or remembered him. None of the
employees remembered seeing Mr. Guard. He also talked with a
female employee at the coffee shop where Mr. Guard claimed to
have purchased a coffee. Although she was working on the
afternoon of November 15, she did not remember seeing Mr. Guard
or serving him a coffee.
¶19 Detective Jensen also reviewed the surveillance video from
the Salt Lake City library but did not see anyone who looked like
Mr. Guard. A private investigator viewed the surveillance video as
well and testified at trial that she believed the video showed
Mr. Guard entering the library. The video was not introduced, as it
had been overwritten. The library staff had printed three still images,
however, one of which the private investigator claimed depicted
Mr. Guard. The images were admitted at trial.
¶20 At trial, Mr. Guard filed (1) a motion to suppress C.M.‘s
eyewitness identification of him, both through the photo lineup and
at trial and (2) a notice of intent to call Dr. David H. Dodd as an
expert witness to ―testify concerning the full range of cognitive
processes associated with the eyewitness, including attention,
perception and memory.‖ The State opposed these filings in a
Motion to Exclude Defendant‘s Expert Witness. The trial court
conducted two hearings in this regard. First, it held a hearing on Mr.
Guard‘s motion to suppress (motion hearing); and second, it held a
Rimmasch hearing.
¶21 At the motion hearing, the court heard oral argument from
both sides and denied Mr. Guard‘s motion to suppress. This hearing
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focused on the reliability of C.M.‘s identification of Mr. Guard,
including issues surrounding the reliability of the photo lineup.
During the hearing, the State expressed confusion about whether Dr.
Dodd‘s proposed testimony would focus on the specifics of C.M.‘s
identification, which the State contended would be ―inappropriate,‖
or would focus on problems with eyewitness identifications
generally. The trial court expressed similar confusion and a
willingness to let in expert testimony as to eyewitness reliability
generally, stating that ―this Court could allow that expert testimony
to come in.‖ The State argued that this type of general testimony was
―perhaps‖ admissible and called for a Rimmasch7 hearing under rule
702 of the Utah Rules of Evidence. Mr. Guard stated that he believed
Dr. Dodd‘s testimony should be admissible given his credentials, but
―if Rimmasch is needed, then we‘ll move forward in that direction.‖
The trial court agreed with the State and so denied the motion to
suppress but allowed Mr. Guard to renew his motion at the
Rimmasch hearing, where the court would reconsider the issue.
¶22 At the Rimmasch hearing, Dr. Dodd testified about his
expertise in the area of eyewitness identification and specifically
about C.M.‘s identification of Mr. Guard and the photo lineup used
to identify him. After Dr. Dodd testified extensively on these issues,
the State and the trial court again indicated confusion about how the
Defendant intended to use the witness. Mr. Guard clarified that he
intended to use Dr. Dodd in two possible ways. First, he intended to
use the witness to exclude C.M.‘s identification of Mr. Guard
entirely. Also, he intended to call Dr. Dodd as an expert on
eyewitness identification reliability generally, with no specific
testimony about C.M.‘s identification. Mr. Guard then offered to
7 See State v. Rimmasch, 775 P.2d 388, 398, 398 n.7–8 (Utah 1989)
(requiring (1) ―a showing of the inherent reliability of the underlying
principles or techniques,‖ (2) the principles or techniques have been
properly applied to the facts of the case by a qualified expert, and (3)
the probative value of the evidence outweighs any prejudicial impact
under rule 403, in order to meet rule 702). We note that rule 702 was
amended in 2007, and those amendments subsumed the Rimmasch
standard. Mr. Guard was tried under the old rule. We have held,
however, that the old ―Rule 702 plus Rimmasch‖ standard and the
current rule yield the same results when applied to eyewitness
testimony. State v. Clopten, 2009 UT 84, ¶¶ 37−38, 223 P.3d 1103.
Therefore, we proceed with our analysis under the current version of
rule 702. The stylistic changes made to rule 702 in 2011 also do not
affect our analysis.
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Opinion of the Court
provide a two-page synopsis explaining his intended use of Dr.
Dodd so that the State could properly respond. He never provided
this synopsis.
¶23 The trial court made two rulings. First, it issued a written
ruling denying the Defendant‘s motion to suppress C.M.‘s
identification of her attacker. In this ruling, the court found that
C.M.‘s eyewitness testimony met the five factors set out in State v.
Ramirez.8
¶24 Second, based on the Rimmasch hearing, the court granted
the State‘s motion to exclude Dr. Dodd‘s testimony under rule 702
and chose instead to provide a Long instruction. While the court
orally made this ruling at or just prior to trial, which started on May
15, 2006, it did not issue its written ruling until November 9, 2006.
The court prepared the written ruling from the notes it had made
before its May ruling from the bench. In this written ruling, the court
concluded that Mr. Guard had failed to meet the threshold
requirement of the Rimmasch standard, in that he had failed to
establish the ―inherent reliability of the underlying principles or
techniques.‖9 Specifically, the court found that ―the Defendant‘s
presentation relative to the legitimacy of the science underlying Dr.
Dodd‘s testimony [was] woefully inadequate.‖ The court cited Mr.
Guard‘s failure to present ―other experts supporting Dr. Dodd‘s
assertions, or testimony summarizing peer-reviewed studies
supporting the methods which Dr. Dodd employed.‖ The trial court
also relied heavily on State v. Butterfield,10 where we stated that trial
courts were not required to admit expert testimony on potential
issues with eyewitness identification, but could instead rely on a
Long instruction.11
8 817 P.2d 774, 781 (Utah 1991) (―(1) [T]he opportunity of the
witness to view the actor during the event; (2) the witness‘s degree of
attention to the actor at the time of the event; (3) the witness‘s
capacity to observe the event . . . ; (4) whether the witness‘s
identification was made spontaneously and remained consistent
thereafter, or whether it was the product of suggestion; and (5) the
nature of the event being observed and the likelihood that the
witness would perceive, remember and relate it correctly.‖
(alteration in original) (internal quotation marks omitted) (quoting
State v. Long, 721 P.2d 483, 493 (Utah 1986)).
9 See Rimmasch, 775 P.2d at 398.
10 2001 UT 59, 27 P.3d 1133.
11 Id. ¶¶ 27, 41−44.
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¶25 Mr. Guard was found guilty of child kidnapping, a first
degree felony, and sentenced to ten years to life. He filed a timely
appeal, which was dismissed for failure to file a docketing statement.
More than three years later, in July 2010, the district court reinstated
his right to appeal. The case was transferred to the court of appeals,
which reversed the trial court‘s decision, finding that the unusual
circumstances of the case called for the retroactive application of our
decision in State v. Clopten.12
¶26 In Clopten, we held that where a witness is identifying a
stranger, expert eyewitness testimony meets the requirements of rule
702 if certain established factors affecting accuracy are present.13 In
deciding whether to apply Clopten retroactively, the court of appeals
acknowledged our ―clear break‖ rule regarding retroactive
application of new rules of criminal procedure to cases pending on
direct review, but declined to apply it. Instead of addressing the
question of whether Clopten was a ―clear break‖ from the prior rule
on eyewitness expert testimony, the court decided that the ―unusual
circumstances‖ in this case—the eyewitness issues in Mr. Guard‘s
case were very similar to those in Mr. Clopten‘s case and the cases
were tried around the same time—required the retroactive
application of our rule in Clopten.14 The court reasoned that because
of these similarities, if not for the delay in Mr. Guard‘s appeal, the
two cases would ―almost inevitabl[y] . . . have been either
consolidated on appeal or treated as companion cases‖ and we
would have decided Guard in the same manner we decided Clopten.15
The court of appeals stated that ―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.‖16 The court then applied the
rule in Clopten, holding that the district court had abused its
discretion in excluding the eyewitness expert testimony and instead
relying upon a Long instruction.17 We granted the State‘s petition for
12 State v. Guard, 2013 UT App 270, ¶¶ 15−19, 316 P.3d 444; see also
State v. Clopten, 2009 UT 84, 223 P.3d 1103.
13 Clopten, 2009 UT 84, ¶ 32.
14 Guard, 2013 UT App 270, ¶¶ 15−19.
15 Id. ¶ 18.
16 Id. ¶ 19.
17 Id. ¶¶ 20–27.
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Opinion of the Court
writ of certiorari. We have jurisdiction under Utah Code section 78A-
3-102(5).
Standard of Review
¶27 The State raises two issues in its appeal. First, it claims the
court of appeals erred in applying our holding in Clopten
retroactively to Mr. Guard‘s case, which was tried three and a half
years before Clopten was decided. Whether a new rule applies
retroactively is a question of law reviewed for correctness.18 Second,
if Clopten does apply retroactively, the State asks us to decide
whether Mr. Guard properly preserved his challenge to the trial
court‘s decision. This issue is also reviewed for correctness.19
Analysis
¶28 As a threshold matter, we conclude that Mr. Guard
adequately preserved the issue of whether his proposed eyewitness
expert testimony should have been admitted as reliable and, thus,
whether Clopten should have been applied retroactively. The State
argues that Mr. Guard did not adequately preserve this issue for
appeal because he failed to clearly argue that judicial notice was
appropriate, failed to provide a two-page synopsis to the court, and
failed to vigorously press for the admission of his expert. While these
shortcomings are relevant to whether the trial court abused its
discretion in granting the State‘s motion to exclude Dr. Dodd‘s
testimony (as we discuss in Part II), they do not dictate the
conclusion that the issue of admissibility of eyewitness expert
testimony was unpreserved.
¶29 In order to preserve an issue for appeal, a party must
present the issue in the trial court.20 The issue must be ―specifically
raised, in a timely manner, and must be supported by evidence and
relevant legal authority.‖21 Although his advocacy was less than
ideal, Mr. Guard did enough to satisfy the requirements of
preservation. The issue—the reliability and thus the admissibility of
expert testimony concerning problems with eyewitness
identification—was specifically raised. Mr. Guard filed a notice that
he intended to call Dr. Dodd to ―testify concerning the full range of
18 Cf. State v. Lusk, 2001 UT 102, ¶ 11, 37 P.3d 1103 (holding that
whether a statutory amendment applied retroactively was a question
of law reviewed for correctness).
19 Cf. id.20 Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839.
21 Id.10
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cognitive processes associated with the eyewitness, including
attention, perception and memory.‖ The State addressed this notice
in a Motion to Exclude Defendant‘s Expert Witness. Mr. Guard
opposed the State‘s motion, and the trial court ruled on the reliability
of Dr. Dodd‘s proposed testimony following a Rimmasch hearing on
the issue. At the Rimmasch hearing, Dr. Dodd testified generally
about issues that can affect the accuracy of eyewitness testimony,
including cross-racial identifications,22 age,23 level of stress,24 and the
level of confidence of the witness‘s identification.25 But the trial court
found that ―the Defendant [had] failed to marshal evidence
supporting the legitimacy and the reliability of the science Dr. Dodd
intended to employ,‖ and thus ―the proposed expert testimony of
Dr. Dodd had not been demonstrated to be reliable.‖ Because Mr.
Guard raised the issue of the admissibility of eyewitness expert
testimony and argued for the admission of such testimony at the
Rimmasch hearing, and the trial court subsequently ruled on this
issue, we conclude that the issue was adequately preserved.26
22 Dr. Dodd testified that ―[t]here are other issues, such as we
know that cross-racial identifications are more difficult than within
racial identifications.‖ The court also seemed to acknowledge
problems with cross-racial identification.
23 Dr. Dodd testified that ―[t]he age of the witness makes a big
difference‖ and that ―it turns out that . . . before adolescence . . . as
the witness gets older they get better, but it‘s adolescence before they
get to the level of an adult . . . .‖
24 Dr. Dodd testified that ―the other issue of stress we know from
multiple studies that to the extent people are upset . . . they . . . fail to
fully process the information that is available to them.‖
25 Dr. Dodd testified that the confidence expressed by the witness
―is relevant but is not as powerful as generally presumed‖ and that
―the correlation between certainty and accuracy is often very small.‖
He made these statements ―based on the research literature.‖
26 Although we hold that Mr. Guard‘s claim was preserved under
our traditional preservation doctrine, we note the tension between
preservation and retroactivity. See, e.g., Aaron-Andrew P. Bruhl,
Deciding When to Decide: How Appellate Procedure Distributes the Costs
of Legal Change, 96 CORNELL L. REV. 203, 213−14 (2011) (noting that
―[a]s a practical matter, the application of plain error review in the
changed-law context significantly erodes our theoretical
commitment to applying new law retroactively to pending cases‖).
We further note that under federal law a litigant is required to meet
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¶30 Having concluded that Mr. Guard preserved the issue of the
admissibility of eyewitness expert testimony, we turn to the
substance of his appeal. Below, we first discuss the serious flaws in
the ―clear break‖ rule and ultimately abandon that rule. We revert to
our previous rule, which provides for retroactive application to all
cases pending on direct review of new rules of criminal procedure
announced in judicial decisions. We decline to address whether
Clopten was a ―clear break‖ under our prior caselaw. This issue is
now moot. Under the rule announced herein, Clopten applies to Mr.
Guard‘s case because Clopten was announced while Mr. Guard‘s case
was on direct appeal.27 Second, in applying Clopten to Mr. Guard‘s
the plain error exception to the preservation doctrine in order for the
new rule to apply retroactively. See Johnson v. United States, 520 U.S.
461, 466−67 (1997). But instead of asking whether the trial court‘s
decision was ―plain‖ error under the rule in place at the time of the
trial, the federal court instead asks whether the trial court‘s decision
would have been plain error under the rule in place at the time of the
appeal. Id. at 468 (―We . . . hold that in a case such as this—where the
law at the time of trial was settled and clearly contrary to the law at
the time of appeal—it is enough that an error be ‗plain‘ at the time of
appellate consideration.‖). We do not address whether and how our
preservation rules should be modified with respect to retroactivity,
as this issue was not presented by the parties and the issue presented
in this case was adequately preserved under our traditional
preservation doctrine.
27 Generally, a conviction becomes ―final‖ for purposes of our
retroactivity analysis when the defendant‘s right to direct appeal
―has been exhausted and the time for filing a petition for a writ of
certiorari has elapsed or a timely filed petition has been finally
denied.‖ See Beard v. Banks, 542 U.S. 406, 411 (2004) (internal
quotation marks omitted). Mr. Guard was convicted on May 15,
2006, and timely appealed. In February 2007, his case was dismissed
for failure to file a docketing statement. Mr. Guard never waived his
right to an appeal nor did he request that his appeal be withdrawn.
He was unaware that his appeal had been dismissed and sought
reinstatement of his right to appeal under Manning v. State in June
2010. 2005 UT 61, ¶ 31, 122 P.3d 628. On July 30, 2010, the district
court granted his request and reinstated his appeal. Therefore, when
Clopten issued in December 2009, Mr. Guard‘s case had technically
been dismissed. But because Mr. Guard was improperly denied his
right to appeal, which was subsequently reinstated, we treat his case
as pending on direct review at the time our new rule in Clopten was
announced.
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case, we conclude that the trial court did not abuse its discretion
when it excluded Dr. Dodd‘s expert testimony. We therefore reverse
the court of appeals‘ decision.
I. We Abandon the ―Clear Break‖ Rule and Instead Apply New
Rules of Criminal Procedure Retroactively to All Cases
Pending on Direct Review
¶31 Mr. Guard argues that Clopten is not a ―clear break‖ from
the previous rule on eyewitness expert testimony for two reasons: (1)
Clopten did not contain an express or implied declaration that it was
to be applied prospectively only, and (2) Clopten only clarified ―how
eyewitness expert testimony fits into the Utah Rules of Evidence‖
and did not work a fundamental shift in the law.28 In Clopten, we
recognized that our previous holdings29 had ―created a de facto
presumption against the admission of eyewitness expert testimony‖
and in favor of a Long jury instruction.30 We moved away from this
presumption, however, stating 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.‖31 Here, we decline to
decide whether Clopten was a ―clear break‖ because we conclude
that the ―clear break‖ rule is seriously flawed and so abandon it in
favor of a rule of retroactive application to all cases pending on
direct review of new rules of criminal procedure announced in
judicial decisions.
¶32 Mr. Guard invites our reexamination of the ―clear break‖
rule, asserting that our current caselaw ―has turned the ‗clear break‘
exception into a leviathan that has swallowed the rule of automatic
retroactivity.‖ Below, we discuss the serious flaws in the ―clear
break‖ rule and conclude that this rule is neither persuasive nor
firmly established and thus abandon it in favor of a rule of automatic
retroactivity.
¶33 Abandoning our ―clear break‖ rule requires us to overrule
our use of this doctrine in several cases. We have recognized stare
28 State v. Clopten, 2009 UT 84, ¶ 30, 223 P.3d 1103.
29Such decisions included State v. Hubbard, 2002 UT 45, ¶ 17, 48
P.3d 953, and State v. Butterfield, 2001 UT 59, ¶ 44, 27 P.3d 1133.
30 Clopten, 2009 UT 84, ¶ 30.
31 Id. ¶ 49.
13
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Opinion of the Court
decisis as ―a cornerstone of Anglo-American jurisprudence.‖32 And
―[b]ecause [it] is so important to the predictability and fairness of a
common law system, we do not overrule our precedents ‗lightly.‘‖33
The doctrine of stare decisis, however, ―is neither mechanical nor
rigid as it relates to courts of last resort.‖34 Further, ―our
presumption against overruling precedent is not equally strong in all
cases,‖ and some precedents are weightier than others.35
¶34 We have an established body of law regarding the weight
we give to our precedent. Generally, we analyze two broad factors in
assessing the strength of our precedent.36 First, we look to ―the
persuasiveness of the authority and reasoning on which the
precedent was originally based.‖37 Second, we analyze ―how firmly
the precedent has become established in the law since it was handed
down.‖38 In analyzing how firmly established precedent has become,
we have looked to a range of considerations, ―including the age of
the precedent, how well it has worked in practice, its consistency
with other legal principles, and the extent to which people‘s reliance
on the precedent would create injustice or hardship if it were
overturned.‖39 We abandon the ―clear break‖ rule because it is
neither persuasive nor firmly established.
¶35 Below, we first frame our discussion with an overview of
the ―clear break‖ rule and its place in our retroactivity caselaw. Next,
we discuss why the ―clear break‖ rule should be overturned as
unpersuasive and not firmly established. Finally, we return to our
previous rule applying new rules of criminal procedure announced
in judicial decisions retroactively to all cases pending on direct
review.
32Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (internal
quotation marks omitted).
33 Id. (citation omitted).
34 State v. Menzies, 889 P.2d 393, 399 (Utah 1994).
35 Eldridge, 2015 UT 21, ¶ 22.
36 Id.37 Id.38 Id.39 Id.14
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A. The “Clear Break” Rule and Its Place in Our Retroactivity Caselaw
¶36 Generally, courts apply a new judicially announced rule of
criminal procedure retroactively to cases on direct appeal.40 Such
retroactive application is required when the new rule is
constitutionally based.41 But we have recognized some exceptions to
this general rule of retroactive application in the context of changes
to criminal procedure that have no constitutional basis, such as when
a new rule is declared to apply only prospectively42 or when a new
rule is a ―clear break‖ from the previous rule.43 A rule is a ―clear
break‖ from the old rule when ―it cause[s] an abrupt and
fundamental shift in doctrine as to constitute an entirely new rule
which in effect replace[s] an older one.‖44 A ―clear break‖ also
―occurs when a decision disapproves a practice this Court arguably
has sanctioned in prior cases.‖45 Therefore, the ―clear break‖ rule is
an exception to the general rule that new rules of criminal procedure
announced in judicial decisions are applied retroactively to cases
pending on direct review.
¶37 Because the issue of whether a rule is applied retroactively
hinges on many factors, we emphasize that in this opinion we
address only the retroactive application of new rules of criminal
40See, e.g., State v. Belgard, 615 P.2d 1274, 1276 (Utah 1980); State v.
Norton, 675 P.2d 577, 583−84 (Utah 1983).
41 See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (making clear
that the ―clear break‖ rule no longer applies to new constitutional
rules of criminal procedure); State v. Baker, 2010 UT 18, ¶ 24, 229 P.3d
650 (applying a new constitutional rule retroactively to a case on
direct review because ―Griffith v. Kentucky eliminated the ‗clear
break‘ exception to retroactive application of newly declared
constitutional rules for cases pending on direct review‖); State v.
Stilling, 770 P.2d 137, 143 (Utah 1989) (recognizing the rule
announced in Griffith but refusing to apply Long retroactively
because ―[w]e decided Long on neither federal nor state
constitutional principles, but rather as a result of our supervisory
capacity over the lower courts‖).
42 See Norton, 675 P.2d at 584; see also Stilling, 770 P.2d at 143
(refusing to apply State v. Long retroactively when Long explicitly
stated it applied prospectively only).
43 See, e.g., State v. Lovell, 2011 UT 36, ¶ 73, 262 P.3d 803.
44 Id. (internal quotation marks omitted).
45 Id. (internal quotation marks omitted).
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STATE v. GUARD
Opinion of the Court
procedure, including those that are not constitutionally based,
announced in judicial decisions. And we consider the retroactive
application of these new rules only as applied to cases pending on
direct review at the time the new rule was announced. We say
nothing about the retroactive application of judicially announced
new rules of criminal procedure to post-conviction proceedings,46
the application of statutory changes in criminal law, 47 or the
retroactive application of of new rules of criminal procedure that
result from our ruling-making process.48
B. The “Clear Break” Rule Rests on Overruled Authority
and Weak Reasoning
¶38 Having put our decision in context, we now address the
flaws in the ―clear break‖ rule exception in light of the factors we
have established for determining whether to overrule precedent. The
first factor we consider when assessing the strength of precedent is
―the persuasiveness of the authority and the reasoning on which the
precedent was originally based.‖49 We have found precedent less
weighty when it rests on insufficient or weak authority50 and when it
does not ―weigh[] all the arguments and reach[] a reasoned
46 See Winward v. State, 2015 UT 61, ¶¶ 10−12, 355 P.3d 1022(discussing retroactivity under our Post-Conviction Remedies Act).
47 See, e.g., Beaver Cty. v. Utah State Tax Comm’n, 2010 UT 50, ¶ 10,
254 P.3d 158 (―In Utah, there is a long-standing rule . . . that a
legislative enactment which alters the substantive law . . . will not be
read to operate retrospectively unless the legislature has clearly
expressed that intention. However, the rule against retroactive
application does not apply where a statute changes only procedural
law by providing a different mode or form of procedure for
enforcing substantive rights without enlarging or eliminating vested
rights.‖ (alterations in original) (internal quotation marks omitted)).
48 See UTAH CODE OF JUD. ADMIN. 11-105(4) (―Rules shall become
effective 60 days after adoption by the Supreme Court unless
otherwise ordered.‖).
49 Eldridge, 2015 UT 21, ¶ 22.
50See id. ¶ 28 (―To begin with, Pratt‘s application of improper-
purpose liability was based entirely on Leigh Furniture, without any
discussion of other authority.‖)
16
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conclusion.‖51 Here, our ―clear break‖ rule was based on weak
precedent and was not well-reasoned.
1. The ―Clear Break‖ Rule is Rooted in Weak Precedent That has
Since Been Overruled
¶39 First, our ―clear break‖ rule was based on weak federal
precedent that has since been abandoned. That precedent created an
ill-advised exception to the longstanding rule of automatic
retroactivity. Prior to adopting the ―clear break‖ rule, we
automatically applied new judicially announced rules of criminal
procedure to cases pending on direct review. In State v. Belgard, we
explained that ―when a lower court relies on a legal principle which
[has] changed . . . prior to direct review, an appellate court must
apply the current law rather than the law as it existed at the time the
lower court acted.‖52 We subsequently affirmed our holding in
Belgard but stressed that the ―automatic rule of retroactivity only
applies by its terms to criminal cases pending on direct review when
the rule is changed.‖53
¶40 But in State v. Norton, we adopted the ―clear break‖ rule
exception to the general rule of automatic retroactivity, citing
exclusively to federal precedent that has since been overruled. In
Norton, we stated that ―a new rule of criminal procedure which
constitutes ‗a clear break with the past‘ will sometimes be
nonretroactive‖ and cited to United States v. Johnson.54 We stated that
―[t]his qualification is necessary to prevent automatic retroactivity
from displacing the traditional rule that a new rule of criminal
procedure‖ that is a ―clear break‖ from the previous rule is not
retroactive.55 But far from being the ―traditional rule,‖ the ―clear
break‖ rule was an exception announced by the U.S. Supreme Court
51 Id.; see also Menzies, 889 P.2d at 399 (noting that in establishing
Crawford‘s per se rule, the court ―not only failed to explain why [it]
was abandoning the long-established Hopt rule, but failed to cite that
line of cases altogether‖ and established the new rule ―with little
analysis and without reference to authority‖ (citation omitted)).
52 615 P.2d at 1276 (internal quotation marks omitted).
53 Norton, 675 P.2d at 583.
54 Id. at 584.
55 Id.
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Opinion of the Court
in 1982 to the general rule of automatic retroactivity and then
abandoned by that Court only five years later.56
¶41 In Johnson, the U.S. Supreme Court announced the ―clear
break‖ rule in an ultimately failed attempt to address serious
concerns about the case-by-case nature of its retroactivity
determinations. In that case, the Court discussed concerns raised by
Justice Harlan about the balancing test it had adopted in Linkletter v.
Walker57 and elaborated on in Stovall v. Denno.58 Under the rule in
Stovall, the Court balanced three factors to determine whether a
―new‖ constitutional rule should be given retroactive effect both to
cases on direct review and to cases that were final.59 These factors
included: ―(a) the purpose to be served by the new standards, (b) the
extent of the reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of justice of a
retroactive application of the new standards.‖60
¶42 The Court in Johnson then discussed problems presented by
the Stovall balancing test in the context of new constitutional rules.
First, the Court concluded that this case-by-case analysis had created
precedent that was difficult to follow.61 Next, the Court noted Justice
Harlan‘s critique of the case-by-case analysis. He was concerned that
the balancing test ―violated three norms of constitutional
adjudication‖: (1) it ―conflict[ed] with the norm of principled
decisionmaking‖; (2) it allowed for ―a ‗new‘ constitutional rule [to
apply] entirely prospectively, while making an exception only for
the particular litigant whose case was chosen as the vehicle for
56See United States v. Johnson, 457 U.S. 537, 550−51 (1982)
(announcing the ―clear break‖ exception); Griffith, 479 U.S. at 328(abandoning the ―clear break‖ exception).
57 381 U.S. 618 (1965).
58 388 U.S. 293 (1967).
59Davis v. United States, 131 S. Ct. 2419, 2430 (2011) (noting that
the Linkletter analysis was originally applied to cases on collateral
review but was extended to cases on direct review the next year).
60 Johnson, 457 U.S. at 544.
61 Id. (noting that ―for some, the subsequent course of Linkletter
[following the adoption of the Stovall factors] became almost as
difficult to follow as the tracks made by a beast of prey in search of
its intended victim‖ (internal quotation marks omitted)).
18
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establishing that rule‖; and (3) it ―departed from the principle of
treating similarly situated defendants similarly.‖62
¶43 After noting the problems presented by the Stovall balancing
test, instead of jettisoning the test altogether as the Court eventually
did in Griffith v. Kentucky,63 the Court chose to limit the application of
the Stovall factors in a way that did not offend its precedent. It noted
―three narrow categories of cases‖ where ―the answer to the
retroactivity question has been effectively determined, not by
application of the Stovall factors, but rather, through application of a
threshold test.‖64
¶44 The ―clear break‖ rule we cite in Norton emerged from one
of these ―narrow categories of cases.‖65 In the ―clear break‖ category
of precedent, the Court explained that where it had ―expressly
declared a rule of criminal procedure to be ‗a clear break with the
past,‘‖ it had ―almost invariably . . . gone on to find such a newly
minted principle nonretroactive.‖66 The Court said that when a ―new
rule was unanticipated, the second and third Stovall factors—reliance
by law enforcement authorities on the old standards and effect on
the administration of justice . . . of the new rule—have virtually
compelled a finding of nonretroactivity.‖67
¶45 Just five years after articulating this ―clear break‖ rule in
Johnson, however, the U.S. Supreme Court abandoned the rule as to
cases pending on direct review. Instead, the Court held 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 or
not yet final, with no exception for cases in which the new rule
62Id. at 546−47 (Justice Harlan wrote separately to expresses these
concerns in Desist v. United States, 394 U.S. 244, 256–58 (1969) and
Mackey v. United States, 401 U.S. 667, 675–702 (1971)).
63 479 U.S. at 327.
64 Johnson, 457 U.S. at 548.
65 Id. at 548–50 (in addition to the ―clear break‖ rule, the three
threshold ―categories‖ also included situations ―when a decision of
this Court merely has applied settled precedents to new and
different factual situations‖ and when there is ―a ruling that a trial
court lacked authority to convict or punish a criminal defendant in
the first place‖).
66 Id. at 549 (citation omitted).
67 Id. at 549–50.
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STATE v. GUARD
Opinion of the Court
constitutes a ‗clear break‘ with the past.‖68 The Court abandoned the
―clear break‖ rule for reasons very similar to those it cited when
limiting the application of the Stovall factors in Johnson. It again cited
to Justice Harlan‘s previous dissents69 and found the ―clear break‖
rule was inappropriate because (1) it undermined ―the principle that
this Court does not disregard current law[] when it adjudicates a
case pending before it on direct review‖ and (2) it ―create[d] the
same problem [as the Stovall factors] of not treating similarly situated
defendants the same.‖70 While there has been some dispute in the
federal courts over whether Griffith applies to new federal rules that
are not constitutionally based,71 we have clearly confined Griffith to
the constitutional context.72
¶46 After we cited the ―clear break‖ rule in Norton, we went on
to apply it in several cases, including State v. Hoff,73 State v. Gordon,74
68 Griffith, 479 U.S. at 328.
69See Mackey, 401 U.S. at 675−702 (Harlan, J., concurring in part
and dissenting in part); Desist, 394 U.S. at 256–58 (Harlan, J.,
dissenting).
70 Griffith, 479 U.S. at 326–27.
71 Compare United States v. Lopez-Pena, 912 F.2d 1542, 1545 (1st Cir.
1989) (concluding that ―nothing in Griffith, either in terms or purport,
distinguish[es] between constitutional and statutory
interpretations‖), with Diggs v. Owens, 833 F.2d 439, 442 (3d Cir. 1987)
(―Griffith should be confined to constitutional rules of criminal
procedure and thus does not require retroactive application of new
procedural decisions not constitutionally grounded.‖).
72See Stilling, 770 P.2d at 143 (refusing to apply Griffith v. Kentucky
when the new rule of criminal procedure was decided ―on neither
federal nor state constitutional principles, but rather as a result of
our supervisory capacity over the lower courts‖).
73 814 P.2d 1119, 1123 (Utah 1991) (refusing to apply a rule
retroactively when ―[t]he strict compliance rule announced in
Gibbons was . . . a clear break with this Court‘s rulings in previous
cases dealing with the validity of guilty pleas‖).
74 913 P.2d 350, 354 (Utah 1996) (holding that ―our decision in
Brown announced for the first time that counsel with concurrent
prosecutorial duties could not represent indigent defendants‖ was ―a
clear change from past procedures‖ and thus a clear break and not
retroactive).
20
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State v. Baker,75 and most recently in State v. Lovell.76 In these cases,
we did not analyze whether the U.S. Supreme Court‘s abandonment
of the ―clear break‖ rule in the constitutional context should affect
retroactivity analysis for non-constitutional changes.77 In Gordon, the
dissent did recognize the Supreme Court‘s decision to abandon the
―clear break‖ rule as applied to rule changes based on federal
constitutional grounds,78 arguing that because the change in criminal
procedure ―could have been decided on federal constitutional
grounds,‖ the U.S. Supreme Court‘s decision in Griffith controlled.79
¶47 The ―clear break‖ exception to the general rule of retroactive
application was a failed attempt by the U.S. Supreme Court to limit
the case-by-case nature of the Stovall balancing test. The U.S.
Supreme Court abandoned the rule because of serious concerns
about its workability and its disparate treatment of similarly situated
defendants. Thus, our adoption of the ―clear break‖ rule in Norton,
where we cite exclusively to Johnson for support, was based on weak
federal precedent that has since been abandoned. This makes it less
persuasive and more susceptible to being overruled than precedent
with a stronger foundation.
75 935 P.2d 503, 509 (Utah 1997) (holding that because ―[t]here
ha[d] been no rule covering the instance of a defendant who
exhausted all of his peremptories subsequent to allowing a biased
juror to sit,‖ the new rule on this issue was not a ―clear break‖ from
the past and thus was retroactive).
76 2011 UT 36, ¶ 73.
77 We do cite to Griffith in other opinions, applying its rule to
federal constitutional issues. See State v. Baker, 2010 UT 18, ¶ 24, 229
P.3d 650 (applying a new constitutional rule retroactively to a case
on direct review because ―Griffith v. Kentucky eliminated the ‗clear
break‘ exception to retroactive application of newly declared
constitutional rules for cases pending on direct review‖); Labrum v.
Utah State Bd. of Pardons, 870 P.2d 902, 912 n.9 (Utah 1993); Stilling,
770 P.2d at 143 (recognizing the rule announced in Griffith but
refusing to apply Long retroactively because ―[w]e decided Long on
neither federal nor state constitutional principles, but rather as a
result of our supervisory capacity over the lower courts‖); State v.
Cantu, 750 P.2d 591, 596 (Utah 1988).
78 913 P.2d at 359−60 (Stewart, A.C.J., dissenting).
79 Id. at 359.
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STATE v. GUARD
Opinion of the Court
2. The ―Clear Break‖ Rule Is Based on Weak Reasoning
¶48 Second, in addition to considering the precedent upon
which a decision is based, we also consider whether in announcing
the rule we ―did the hard work of weighing all the arguments and
reaching a reasoned conclusion.‖80 Far from engaging in well-
reasoned analysis, we first mentioned the ―clear break‖ rule in dicta
and failed to subsequently analyze it in a meaningful way. We also
failed to address the significance of the U.S. Supreme Court‘s
abandonment of the exception.
¶49 We initially referenced the ―clear break‖ rule in dicta in
Norton, where we considered whether a defendant who had been
convicted of murder and sentenced to death could benefit from a
change in criminal procedure that had been announced while his
case was on direct appeal.81 In our discussion of retroactivity caselaw
in Norton, we affirmed our previous holding in Belgard but
―stress[ed] that Belgard‘s automatic rule of retroactivity only applies
by its terms to criminal cases pending on direct review when the rule
is changed.‖82 ―We also stress[ed] that Belgard‘s automatic rule of
retroactivity as to nonfinal judgments only applies to significant
changes of rules that are not expressly declared to be prospective in
operation.‖83 We explained that this second ―qualification [wa]s
necessary to prevent automatic retroactivity from displacing the
traditional rule that a new rule of criminal procedure which
constitutes ‗a clear break with the past‘ will sometimes be
nonretroactive‖ and cited to United States v. Johnson.84 We went on to
say that ―[a]n appellate court needs the latitude to immunize a
80 Eldridge, 2015 UT 21, ¶ 28.
81 675 P.2d at 583–84. Specifically, the defendant argued that the
standard of persuasion at the penalty hearing in his capital case
should have been the higher standard announced in State v. Wood—
―‘beyond a reasonable doubt‘ both as to the fact that total
aggravation outweighs total mitigation and as to the conclusion that
the imposition of the death penalty is justified and appropriate.‖ Id.
at 583. At the defendant‘s trial, the jury was instructed that ―[t]here
[was] no fixed standard as to the degree of persuasion needed for a
particular sentence.‖ Id. (quoting jury instructions given at trial in
accordance with Utah Code section 76-3-207, which was applicable
at the time).
82 Id. at 583.
83 Id. at 584 (emphasis added).
84 Id. (quoting Johnson, 457 U.S. at 549).
22
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particular change of rule from the effect of automatic retroactivity in
an appropriate case where this is consistent with constitutional
principles.‖85 We did not, however, analyze or apply the ―clear
break‖ rule.86
¶50 A close reading of this case suggests that, in referencing the
―clear break‖ rule and in citing to United States v. Johnson, we did not
intend to adopt the ―clear break‖ rule. Instead, our citation to Johnson
demonstrated that in certain instances it might be necessary for us to
include an express declaration of prospective application to remain
―consistent with constitutional principles.‖
¶51 But once the seed of the ―clear break‖ rule was planted—
possibly inadvertently—in Norton, it continued to grow in our
caselaw, with little to no analysis, into the full expression of the rule.
For instance, in State v. Hoff we stated that ―[w]hen a new rule of
criminal procedure constitutes a clear break with the past, it is not
generally applied retroactively.‖87 We cited Norton in support of this
proposition along with other cases recognizing the validity of an
express declaration of prospective application.88 We then applied the
―clear break‖ rule to a significant change in the law that was not
made expressly prospective.89 Despite our application of the rule, we
failed to recognize that the U.S. Supreme Court had abandoned the
―clear break‖ rule four years earlier in Griffith v. Kentucky.
¶52 Our most recent cases applying the ―clear break‖ rule
abandon any requirement of express language of prospective
application and instead apply the rule as articulated in Johnson. In
State v. Baker, we quoted Johnson extensively to articulate the ―clear
break‖ rule.90 We went on to hold that the change in criminal
85 Id.86 Id.87 814 P.2d at 1123.
88 Id. (citing State v. Lafferty, 749 P.2d 1239, 1259–61 (Utah 1988),
where we ―exercise[d our] inherent supervisory power to add two
requirements to the penalty phases of capital trials‖ and then stated
that ―[t]hese requirements shall apply prospectively only‖); State v.
Jonas, 725 P.2d 1378, 1380 (Utah 1986) (refusing to give the Long
decision retroactive effect when it ―was specifically limited in its
application to cases tried after its date of issuance‖)).
89 Hoff, 814 P.2d at 1123−24.
90 935 P.2d at 508–09.
23
STATE v. GUARD
Opinion of the Court
procedure in Baker was not a ―clear break‖ because there was no
initial rule to break from.91 Most recently, in State v. Lovell we cited
Hoff and Baker to articulate the ―clear break‖ rule.92 In Lovell, we
concluded that because ―the current standard fundamentally alters a
defendant‘s rights, we decline to retroactively apply the current
formulation of rule 11 to Mr. Lovell.‖93 In neither of these cases did
we recognize that the U.S. Supreme Court had overruled the ―clear
break‖ rule or analyze the rule in a meaningful way.
¶53 Far from doing ―the hard work of weighing all the
arguments and reaching a reasoned conclusion,‖ we first cited the
―clear break‖ rule in dicta and subsequently applied it without
analyzing the retroactivity issue in a meaningful way. We also failed
to address the significance of the U.S. Supreme Court‘s
abandonment of the rule in the constitutional context. Because the
―clear break‖ rule is based on weak federal precedent that has
subsequently been overruled and because it was not based on a well-
reasoned analysis by this court, we conclude that it is not persuasive.
Thus, it is less weighty and more susceptible to being overruled than
it would be if we had fully analyzed the issue and explicitly chosen
to apply the ―clear break‖ rule despite its having been abandoned by
the U.S. Supreme Court.
C. The “Clear Break” Rule Has Not Become Firmly Established
¶54 Having concluded that the ―clear break‖ rule was based on
weak precedent that has since been overruled and was not well-
reasoned, we now turn to the second factor we use to determine the
weight of precedent. Under the second factor, we look to a range of
considerations to determine ―how firmly the precedent has become
established in the law since it was handed down.‖94 These
considerations include ―the age of the precedent, how well it has
worked in practice, its consistency with other legal principles, and
the extent to which people‘s reliance on the precedent would create
injustice or hardship if it were overturned.‖95 Below, we consider
each of these factors in turn and conclude that the ―clear break‖ rule
is not firmly established in the law and thus is not of weighty
precedential value.
91 Id. at 509.
92 2011 UT 36, ¶ 73.
93 Id. ¶ 74.
94 Eldridge, 2015 UT 21, ¶ 22.
95 Id.24
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1. Age of the Precedent
¶55 First, in deciding whether a precedent has become firmly
established, ―we look to the age of the precedent[] since newer
precedents are likely to be less firmly established.‖96 As discussed
above, the ―clear break‖ rule first appeared in our caselaw in Norton
in 198397 and was arguably not actually adopted until Hoff in 1991.98
Therefore, it has been part of our jurisprudence for at least twenty-
four years. While this may seem a significant amount of time, it is a
relatively recent development when one considers that ―the
fundamental rule of retrospective operation,‖ to which the ―clear
break‖ rule was an exception, had ―governed [j]udicial decisions . . .
for near a thousand years.‖99 Similarly, in Eldridge v. Johndrow100 we
found that precedent that had been on the books for thirty-two years
was not firmly established when it was not rooted in long-
established legal principles. In that case, we decided to overturn
Leigh Furniture & Carpet Co. v. Isam in which we held that an
―improper purpose . . . [would] support a cause of action for
intentional interference with prospective economic relations even
where the defendant‘s means were proper.‖101 Leigh Furniture was
thirty-two years old, and in deciding to overturn it we noted that it
was ―not based on a legal principle established in the earliest days of
statehood‖ unlike precedent we had upheld.102 While it is not
necessary for precedent to be thousands of years old or date back to
the time of statehood to be firmly established, here where the ―clear
break‖ precedent is a relative newcomer to well-established law on
retroactivity and has not firmly taken root in our jurisprudence,103
96 Id. ¶ 34.
97 675 P.2d at 584.
98 814 P.2d at 1124–25.
99 Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 94 (1993) (alteration
in original) (internal quotation marks omitted).
100 2015 UT 21, ¶¶ 34, 64.
101 657 P.2d 293, 307 (Utah 1982).
102 Eldridge, 2015 UT 21, ¶ 34 (internal quotation marks omitted).
103 We have applied the ―clear break‖ rule only a handful of
times. See Lovell, 2011 UT 36, ¶¶73−74; Baker, 935 P.2d at 508−09;
Gordon, 913 P.2d at 354; State v. Chapman, 921 P.2d 446, 450 n.6 (Utah
1996); Menzies, 889 P.2d at 406 n.7; Hoff, 814 P.2d at 1124−25; State v.
Hickman, 779 P.2d 670, 672 n.1 (Utah 1989); Norton, 675 P.2d at 584.
And the Utah Court of Appeals has applied the rule in very few
25
STATE v. GUARD
Opinion of the Court
the age of this rule does not demonstrate that it has become firmly
established in our law.
2. Workability
¶56 We also consider ―how well [the precedent] has worked in
practice‖ when determining its weight.104 The ―clear break‖ rule is
vague and difficult for courts to apply. It requires the court to ask
whether a decision ―explicitly overrules a past precedent . . . or
disapproves a practice [we] arguably ha[ve] sanctioned in prior
cases.‖105 While those instances where we explicitly overrule past
precedent regarding a rule of criminal procedure are easy to identify,
those instances where we disapprove of a practice that we have
―arguably‖ sanctioned in prior cases are much less so. The later
analysis requires the court to look at all of our past caselaw on a
subject and decide whether we ―arguably‖ have sanctioned a
particular practice. This is an arduous task, 106 one that introduces a
level of unpredictability that is not appropriate when dealing with
the application of critically important rules of criminal procedure.
3. Consistency with Legal Principles
¶57 In addition to considering the precedent‘s age and
workability, we also look to its consistency with other legal
principles when deciding whether it has become firmly
established.107 The ―clear break‖ rule is in tension with two
important legal principles. First, the ―clear break‖ rule does not
address the root policy concerns that arise when we decide
retroactivity on a case-by-case basis. As noted by the U.S. Supreme
Court in Griffith, the ―clear break‖ rule creates many of the same
issues that the Court was concerned about under the Stovall factors—
it goes against the ―principle that [the court] does not disregard
current law[] when it adjudicates a case pending before it on direct
review,‖ and it may treat similarly situated defendants differently.108
cases. See State v. Guard, 2013 UT App 270, ¶¶ 15−19, 316 P.3d 444;
State v. Vasilacopulos, 756 P.2d 92, 94 (Utah Ct. App. 1988).
104 Eldridge, 2015 UT 21, ¶40.
105 Baker, 935 P.2d at 509 (internal quotation marks omitted).
106See cf. Teague v. Lane, 489 U.S. 288, 301 (1989) (―It is admittedly
often difficult to determine when a case announces a new rule . . . .‖).
107 Eldridge, 2015 UT 21, ¶ 22.
108 Griffith, 479 U.S. at 326–27.
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¶58 While we recognize that Griffith does not apply directly to
non-constitutional changes in criminal procedure, we find its logic
equally persuasive in the non-constitutional context. Even in the
non-constitutional context, new rules of criminal procedure may
implicate a defendant‘s right to a fair trial. The new rule in Clopten
demonstrates this. Although Clopten was not decided on a
constitutional basis, the rule it creates does impact a defendant‘s
ability to present eyewitness expert testimony to the jury. In cases,
such as Mr. Guard‘s, where a defendant‘s conviction is based heavily
on eyewitness testimony, the ability of the defendant to present such
a witness to the jury can be critically important—although not
constitutionally required. Also, given that non–constitutionally
based changes in criminal procedure can implicate important rights
of defendants, the problem of treating similarly situated defendants
differently is also troubling. We agree with the court of appeals
reasoning in this case that ―it seems inconsistent with the
administration of justice to deny Guard the benefit of [our] approach
in Clopten‖ when the two cases present very similar issues and were
tried contemporaneously.109
¶59 Second, selective retroactive application of new rules is in
tension with the exercise of our judicial power.110 Indeed, the U.S.
Supreme Court abandoned the ―clear break‖ rule in Griffith in part
for this reason. The Court concluded that ―‗the nature of judicial
review‘ strips us of the quintessentially ‗legislat[ive]‘ prerogative to
make rules of law retroactive or prospective as we see fit.‖111 It
found that ―the nature of judicial review‖ ―preclude[d] [it] from
[s]imply fishing one case from the stream of appellate review, using
it as a vehicle for pronouncing new constitutional standards, and
then permitting a stream of similar cases to flow by unaffected by
that new rule.‖112 When exercising our judicial power, we resolve
109 Guard, 2013 UT App 270, ¶ 19.
110But see Kennecott Corp. v. State Tax Comm’n, 862 P.2d 1348, 1352
(Utah 1993) (recognizing in the civil context that ―retroactive or
prospective operation is not a question of judicial power but instead
depends solely upon an appraisal of the relevant judicial policies to
be advanced‖ (internal quotation marks omitted)).
111Harper, 509 U.S. at 95 (alteration in original) (quoting Griffith,
479 U.S. at 322).
112Griffith, 479 U.S. at 323 (third alteration in original) (internal
quotation marks omitted).
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STATE v. GUARD
Opinion of the Court
concrete disputes presented by parties and interpret the law.113
Therefore, when we decide cases we correctly interpret the rules of
criminal procedure, and these interpretations should apply
retroactively to cases on direct review. The appropriate method for
our prospective decision making in this area is through our
rulemaking process.114
4. Reliance Interests
¶60 Finally, in deciding the weight of a precedent ―we consider
the extent to which people‘s reliance on the precedent would create
injustice or hardship if it were overturned.‖115 The policy rationale
for considering reliance interests is rooted in fairness.116 Under the
113 See Timpanogos Planning & Water Mgmt. Agency v. Cent. Utah
Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984) (―[We]
investigate[], declare[] and enforce[] liabilities as they stand on
present or past facts and under laws supposed already to exist. . . .
[We] are interpreters of law.‖(internal quotation marks omitted)).
The important exception to this general rule is matters of common
law, where judges do in fact make the law. State v. Walker, 2011 UT
53, ¶¶ 31−33, 267 P.3d 210; see also Jones v. Barlow, 2007 UT 20, ¶ 61,
154 P.3d 808 (Durham, C.J., dissenting) (―[B]y definition, the
common law is judge-made law. . . . Thus, the judicial role in a
common law system is not solely to apply legislative enactments.
Where the legislature has not acted, we frequently exercise the
power to articulate rights and obligations that have not previously
been recognized.‖ (internal quotation marks omitted)). But the
common law has largely been displaced in the area of criminal
procedure by our rules of evidence and criminal procedure. See R.
COLLIN MANGRUM & DEE BENSON, MANGRUM & BENSON ON UTAH
EVIDENCE 1−4 (2014) (discussing the displacement of the common
law of evidence with the Utah Rules of Evidence).
114 See Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 149, 289 P.3d 369(Lee, J., dissenting) (―[W]e have settled mechanisms for exercising
[our supervisory] power when it impacts established rules of
evidence and procedure. When we see a need to adapt our rules, we
do so through a structured amendment process that involves the
advisory committees we have appointed for that purpose, with time
and opportunity for comments from the bench and bar in an orderly
process of amendment. We follow that process for good reason.‖).
115 Eldridge, 2015 UT 21, ¶ 35.
116 See Cope v. Utah Valley State Coll., 2014 UT 53, ¶ 19, 342 P.3d
243 (―[P]eople should know what their legal rights are as defined by
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―clear break‖ rule, the main reliance interests are those of the State,
which will have to give criminal defendants the benefit of new rules
of criminal procedure announced while the defendant‘s case is on
direct review. While the State‘s interests are certainly important, they
are not the type of public reliance interests we traditionally protect
most strongly.117 And the interest of the State does not outweigh the
interests of criminal defendants in obtaining the benefit of new rules
of criminal procedure.118 Also, the impact on the State will be
mitigated by the fact that in abandoning the ―clear break‖ rule we
will be requiring retroactive application of changes in criminal
procedure only to a narrow class of cases: those cases on direct
review at the time the new rule is announced. Further, even if a new
rule applies retroactively, defendants still have to demonstrate that it
should apply to the facts of their case and that denial of the new rule
was not harmless error. This can be a substantial hurdle, as
demonstrated by the case at hand. Despite receiving the benefit of
our decision in Clopten, Mr. Guard has not shown that the trial court
abused its discretion in not admitting Dr. Dodd‘s testimony (as
discussed in the next section).
¶61 In sum, the ―clear break‖ rule has not become firmly rooted
in our caselaw because it is a relatively recent development in light
of the long tradition of retroactive application of judicial decisions, it
is difficult to apply in practice, it is inconsistent with other important
legal principles, and the State‘s reliance interests do not outweigh
the interests of criminal defendants in the application of new rules of
criminal procedure to their case. We therefore conclude that the
―clear break‖ rule is neither persuasive nor firmly rooted in our
caselaw and is thus more susceptible to being overturned than
better-reasoned and more firmly established precedent. Because of
judicial precedent, and having conducted their affairs in reliance on
such rights, ought not to have them swept away by judicial fiat.‖
(internal quotation marks omitted)).
117 See Id. (framing the reliance assessment as whether
overturning precedent would ―undermine the public‘s substantial
reliance upon an established legal principle‖).
118 See Harper, 509 U.S. at 121 (O‘Conner, J., dissenting)
(―[N]onretroactivity in criminal cases historically has favored the
government‘s reliance interests over the rights of criminal
defendants. As a result, the generalized policy of favoring individual
rights over governmental prerogative can justify the elimination of
prospectivity in the criminal arena.‖).
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STATE v. GUARD
Opinion of the Court
the flaws in the ―clear break‖ rule detailed above, we now abandon
it and instead hold that new rules of criminal procedure announced
in judicial decisions apply retroactively to all cases pending on direct
review.
II. Under Clopten, the Trial Court Did Not Abuse Its Discretion in
Denying the Admissibility of Mr. Guard‘s
Eyewitness Expert Testimony
¶62 Having determined that Clopten applies to cases on direct
review, we now apply it to Mr. Guard‘s case and hold that the trial
court did not abuse its discretion in concluding that Mr. Guard‘s
eyewitness expert testimony was unreliable and thus inadmissible
under rule 702119 because he failed to make clear to the court what
this testimony would include. In Clopten, we declined to create ―a
new rule establishing eyewitness expert testimony as presumptively
admissible.‖120 Instead, we clarified 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.‖121 Further, we recognized that ―trial judges perform a
gatekeeper function to screen out unreliable expert testimony and
are advised to view proposed experts with ‗rational skepticism.‘‖122
¶63 Although we did ―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,‖123 in so holding we did
not strip trial judges of their ―gatekeeper‖ role. Under Clopten, the
trial court must still apply rule 702 and decide whether the proposed
eyewitness expert ―is qualified as an expert by knowledge, skill,
119We note that although the current rule 702 of the Utah Rules of
Evidence was not in effect when Mr. Guard was convicted, we have
previously held that ―the old Rule 702 plus Rimmasch test yields the
same result as the current rule when applied to eyewitness expert
testimony.‖ State v. Clopten, 2009 UT 84, ¶ 38, 223 P.3d 1103 (internal
quotation marks omitted). Therefore, we proceed with our analysis
under the current version of rule 702. The stylistic changes made to
rule 702 in 2011 also do not affect our analysis.
120 Id. ¶ 30.
121 Id.
122 Id. ¶ 31.
123 Id. ¶ 49 (emphasis added).
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experience, training, or education‖;124 and the judge must also decide
whether the specific testimony that the eyewitness expert proposes
to offer to the jury is reliable.125
¶64 The burden is on the party ―wishing to rely on the expert‘s
testimony‖ to establish that the testimony it would like to offer is
reliable.126 The party can do this either by arguing for judicial notice
and demonstrating that the testimony they propose is based on
―generally accepted‖ principles and methods127 or by making ―a
threshold showing that the principles or methods that are
underlying in the testimony are reliable.‖128 The proponent of the
evidence must make a higher showing of reliability when arguing
for judicial notice than when arguing for admission under 702(b). In
order to obtain judicial notice, the party must show that the
testimony they propose is ―generally accepted by the relevant expert
community.‖129 This is a higher showing than the mere ―threshold
showing‖ of reliability that is required under 702(b). A ―threshold
showing‖130 of reliability requires ―only a basic foundational
showing of indicia of reliability.‖131
¶65 Under this framework, Mr. Guard had the burden of
showing that the testimony his eyewitness expert planned to present
to the jury was reliable. Our decision in Clopten did not negate this
requirement. One critical step in this process is telling the court what
testimony the expert will provide.132 Clopten did not sweep so
124 UTAH R. EVID. 702(a).
125 Id. 702(b).
126 See State v. Perea, 2013 UT 68, ¶ 72, 322 P.3d 624.
127 UTAH R. EVID. 702(c).
128 Id. 702(b).
129 Id. 702(c).
130 Id. 702(b).
131 Id. 702 advisory committee note.
132 See id. (―[T]he gatekeeping trial judge must take care to direct
her skepticism to the particular proposition that the expert testimony
is offered to support. The Daubert court characterized this task as
focusing on the ‗work at hand.‘ The practitioner should equally take
care that the proffered expert testimony reliably addresses the ‗work
at hand,‘ and that the foundation of reliability presented for it
reflects that consideration.‖).
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STATE v. GUARD
Opinion of the Court
broadly as to hold that any eyewitness expert testimony is
automatically admissible as reliable and helpful. Instead, we
specifically stated that this expert testimony must be offered by a
―qualified expert‖ and must concern ―established factors‖ affecting
the accuracy of eyewitness testimony;133 and that trial judges retain
their ―gatekeeper function to screen out unreliable expert
testimony.‖134 We noted some ―established factors‖ in our opinion135
but in so doing did not intend to etch these factors on a stone tablet.
Indeed, as we recognized in Clopten, research in the area of
eyewitness identification is an evolving science. Thus, it is the
responsibility of the proponent of such testimony to establish its
reliability, and the trial court‘s role to evaluate its reliability, at the
time of trial. And we review the trial court‘s evaluation under an
abuse of discretion standard.
¶66 Therefore, under Clopten, proponents of evidence under rule
702 still must show that the eyewitness expert testimony they intend
to present to the jury is reliable. It was not an abuse of discretion for
the trial court to hold that Mr. Guard failed to make this showing.
Mr. Guard‘s notice of intent to call an expert witness described the
testimony broadly as ―concerning the full range of cognitive
processes associated with the eyewitness, including attention,
perception and memory.‖ The trial court and the State each
expressed confusion during both the initial motion hearing and the
subsequent Rimmasch hearing about what testimony Mr. Guard‘s
proposed expert anticipated presenting to the jury. At the end of the
Rimmasch hearing, Mr. Guard offered to provide ―a two-page
synopsis‖ of the proposed testimony to both inform the trial court of
the scope of the proposed testimony and allow the State to respond.
He failed to provide the synopsis, however, and ―[a]t, or just prior to
trial, the Court, having received no supplemental briefing by the
Defendant granted the State‘s Motion to Exclude Defendant‘s Expert
Witness from the bench.‖ Because Mr. Guard failed to even tell the
trial court what factors affecting eyewitness identification his
eyewitness expert was going to testify about, let alone demonstrate
that this testimony related to established factors affecting eyewitness
testimony, it was not an abuse of discretion for the trial court to deny
his motion to call Dr. Dodd.
133 Clopten, 2009 UT 84, ¶ 49.
134 Id. ¶ 31.
135 Id. ¶ 32 & n.22.
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Conclusion
¶67 We conclude that the ―clear break‖ rule is seriously flawed
and so abandon it in favor of a rule of retroactive application to all
cases pending on direct review of new rules of criminal procedure
announced in judicial decisions. Because Mr. Guard‘s case was on
direct review at the time we issued Clopten, we apply our rule in
Clopten to his case and conclude that it was not an abuse of discretion
for the trial court to exclude Dr. Dodd‘s expert testimony. Therefore,
we reverse the court of appeals‘ decision and uphold that of the trial
court.
33