State v. Guard
316 P.3d 444
Utah Ct. App.2013Background
- A nine-year-old girl was grabbed from behind on her walk from the bus; she fought free and later described the abductor to police (clothing, height range, curly hair, black cap with an "A").
- A six-photo photographic lineup the next day included Guard; he was the only man in the photos with curly hair. The child identified Guard from the photos and said she was "a hundred percent" sure.
- Police search of Guard’s home found light blue running shoes but not the specific clothing described; two neighbors and a schoolmate provided varying corroborating testimony but only the child could identify Guard.
- Defense gave notice to call Dr. David H. Dodd as an expert on eyewitness identification reliability; the State moved to exclude his testimony and the court held a Rimmasch hearing focused largely on the photo-lineup suppression motion.
- At or just before trial the court excluded Dr. Dodd’s testimony (the exclusion was off-the-record); instead the court gave the jury a Long instruction about eyewitness reliability. The jury convicted Guard of child kidnapping.
- On appeal the court compared this case to State v. Clopten and, applying Clopten’s analysis, concluded exclusion of Dr. Dodd undermined confidence in the verdict and vacated the conviction, remanding for a new trial.
Issues
| Issue | Guard's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by excluding expert testimony on eyewitness-identification reliability | Exclusion was error; expert testimony on general fallibility is routinely admissible and necessary in stranger ID-plus cases (short view, stress, cross-racial issues, suggestive lineup) | Guard failed to meet Rimmasch reliability threshold; jury instruction sufficed | Applying Clopten, exclusion was erroneous; expert testimony should have been admitted and conviction vacated (new trial) |
| Whether Clopten’s rule admitting eyewitness-expert testimony applies retroactively to Guard’s nonfinal case | Clopten should apply retroactively to cases pending on direct review | Clopten was a clear break and not retroactive | Court assumed Clopten was a clear break but, given near-identical timing and facts to Clopten, applied its analysis to avoid disparate outcomes |
| Whether a Long instruction can substitute for expert testimony in stranger ID-plus cases | Expert evidence is required; instructions and cross-examination are insufficient to educate jurors about empirical limits of ID | Long instruction and cross-examination can address reliability concerns | Court followed Clopten: in stranger ID-plus cases, expert testimony is generally more helpful and routinely admissible; the Long instruction alone was inadequate |
Key Cases Cited
- State v. Clopten, 223 P.3d 1103 (Utah 2009) (eyewitness-expert testimony routinely admissible in stranger identification-plus cases and reliable under Rule 702)
- State v. Long, 721 P.2d 483 (Utah 1986) (cautionary jury instruction on eyewitness ID)
- Griffith v. Kentucky, 479 U.S. 314 (U.S. 1987) (new constitutional rules apply retroactively to cases pending on direct review)
- Teague v. Lane, 489 U.S. 288 (U.S. 1989) (limits on retroactivity of new rules; distinguishes constitutional-rule retroactivity)
- State v. Kohl, 999 P.2d 7 (Utah 2000) (reversal standard where appellate court’s confidence in verdict is undermined)