At the end of 2015, the Utah Supreme Court reversed a decision the Utah Court of Appeals that granted a new trial to a defendant who was not permitted to call an eyewitness identification expert at his trial. The decision, based on a conclusion that the trial judge did not abuse its discretion in disallowing the expert testimony, reaffirms the Utah Supreme Court’s recognition that eyewitness identification experts are, at least in some cases, an essential safeguard of a defendant’s right to a fair trial. The decision also stands as a reminder that lawyers who want to call expert witnesses must be prepared to explain why the expert’s testimony is important.

Eyewitness Identification Experts

Juries often consider eyewitness testimony to be the strongest evidence in a criminal trial. While jurors have faith in eyewitness identifications of people who are charged with a crime, studies have established that eyewitnesses are often wrong when they identify a suspect. A 1996 review of 28 wrongful convictions in which the defendant was exonerated by DNA evidence revealed that each conviction was supported by one or more false identifications of an innocent defendant. The Innocence Project reports that mistaken identifications play a role in more than 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all convictions that are later overturned as a result of DNA evidence.

Research confirms that eyewitness identifications are tainted by:

• Suggestive lineups or photo arrays in which police subtly encourage a witness to identify a particular suspect.

• The likelihood that a witness will misidentify a suspect after seeing that suspect’s picture in a photo array or newspaper.

• The difficulty of focusing on the details of a criminal’s appearance and imprinting a memory under stressful conditions that usually exist while the crime is occurring, particularly when a weapon is present.

• The malleability of memory — that is, the fact that what we “remember” changes as we receive new information, so that memories we believe to be reliable have in fact been altered.

• The absence of a strong correlation between a witness’ certainty that a memory is accurate and the actual accuracy of that memory.

• The difficulty that eyewitnesses have when they attempt to identify a suspect of a different race.

• Conditions that impair the ability to make a careful observation, including poor lighting, distance, and the brevity of time during which the criminal is in view.

A comprehensive review of these and other factors by the National Academy of Sciences points to the important role that psychologists and neuroscientists play in explaining perception and memory to juries when a prosecution is founded on an eyewitness identification. Expert testimony conveys research findings to juries that explain why “common sense” understandings of memory and perception are often mistaken.

Studies of jury decision-making establish that eyewitness identification experts have a beneficial impact on jury deliberations. Research also confirms that cautionary jury instructions, advising a jury of potential pitfalls of eyewitness identifications, have no significant impact on a jury’s evaluation of eyewitness testimony.

Clopten Decision

Prior to 2009, appellate court decisions in Utah discouraged trial judges from admitting expert witness testimony. The decisions created a presumption that, in most cases, jurors were capable of evaluating eyewitness identifications without the assistance of an expert. Expert testimony was seen as invading the jury’s province as the sole evaluator of witness credibility. The Utah Supreme Court repeatedly held that an instruction regarding the evaluation of eyewitness testimony was adequate to guide the jury, and that expert testimony would be superfluous and confusing.

The Utah Supreme Court jettisoned that presumption in 2009 when it decided State v. Clopten. The Clopten decision acknowledged that jurors rarely understand the limitations in human perception and memory that are critical to the accuracy of an eyewitness identification. The court determined that cross-examination and cautionary jury instructions are inadequate substitutes for expert testimony as tools for conveying the reasons that an eyewitness identification might be mistaken. The court decided that expert testimony is the best method for educating the jury about the vagaries of eyewitness identification. Accordingly, the court followed a growing trend by ruling that trial courts should admit expert testimony whenever it might help the jury evaluate the reliability of an eyewitness identification.

Guard Decision

In a case decided on December 31, 2015, the Utah Supreme Court revisited the issue of expert testimony in eyewitness identification cases. In that case, a stranger tried to kidnap a 9-year-old girl at knifepoint. The girl kicked and punched her assailant, freeing herself from his grasp. She then ran home.

When the police interviewed her, the girl described a man with curly hair and a beard, but said she did not see his face. She was able to describe some of his clothing, including his shoes and a distinctive t-shirt and cap. The next day, a police detective showed her six photographs, and she identified the photograph of Jimmy Guard with certainty. Further investigation found two neighborhood residents who, after looking at Guard’s photograph, said they saw a man who looked like Guard in the area of the assault on the day that it occurred. Another child, who was a block away when the assault occurred, confirmed the victim’s general description of the assailant.

The police arrested Guard two days later. They searched his home but could not locate the cap, t-shirt, or shoes that the victim described. Guard described stores he had been in at the time of the assault. The police waited a week before they interviewed the store employees, none of whom recalled Guard. Guard also told the police that he visited a library in addition to the stores. Unclear photographs from a surveillance camera at a library may have depicted Guard’s image.

Guard’s attorneys wanted to call an expert witness to testify about the problems with attention, perception, and memory that influence eyewitness identifications. The trial court refused to allow the expert testimony. After Guard was convicted and while his appeal was pending, the Utah Supreme Court decided Clopten.

The Utah Court of Appeals decided that Clopten should apply retroactively to Guard’s case. It made that decision notwithstanding a Utah Supreme Court decision that declined to apply a newly announced rule of criminal procedure to cases that are pending on appeal when the new rule represents a “clean break” from past decisions. Since Guard’s case went to trial at about the same time as Clopten’s, the Court of Appeals thought it would be fundamentally unfair to deny Guard the protection of the new rule.

Abandoning the “clean break” rule, the Utah Supreme Court agreed that the Clopten decision should apply to Guard’s case. The court nevertheless ruled that the trial judge was entitled to disallow the expert’s testimony. The court held that Guard failed to establish that the proposed testimony was reliable. Following Utah’s version of the Daubert test, the Utah Supreme Court concluded that Guard failed to make a pretrial showing of the eyewitness identification factors that the expert deemed relevant or how those factors could have influenced the identifications in Guard’s case. Responding to the trial court’s confusion, Guard’s counsel had offered to provide a written summary of the expert’s proposed testimony before trial, but failed to do so. Under those circumstances, the supreme court concluded that the trial court did not abuse its discretion in disallowing the expert testimony.

The Guard decision should not be viewed as an abandonment of the Clopten ruling, which the Utah Supreme Court expressly reaffirmed. Instead, Guard illustrates the importance of making a strong pretrial showing of the relevant testimony that an eyewitness identification expert will offer. Guard’s attorney probably could have made that showing and might have rendered ineffective assistance of counsel by failing to do so. In the end, Guard is the unfortunate victim of poor advocacy rather than poor rules governing the admission of expert testimony.