State v. Guard

FILED

This opinion is subject to revision before final UTAH APPELLATE COURTS

publication in the Pacific Reporter

DECEMBER 31, 2015

2015 UT 96

IN 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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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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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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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.

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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.

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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.

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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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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.‖)

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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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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)).

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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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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).

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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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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).

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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.

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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.

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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

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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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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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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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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.

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