This opinion is subject to revision before final 

publication in the Pacific Reporter

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 

DECEMBER 31, 2015
STATE v. GUARD

Opinion of the Court

2

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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Opinion of the Court

3

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 
STATE v. GUARD

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4

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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Opinion of the Court

5

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.
STATE v. GUARD

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6

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.
STATE v. GUARD

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8

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.
STATE v. GUARD

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writ of certiorari. We have jurisdiction under Utah Code section 78A3-102(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 
STATE v. GUARD

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12

¶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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Opinion of the Court

13

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.

29 Such 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.
STATE v. GUARD

Opinion of the Court

14

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.

 

32 Eldridge 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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Opinion of the Court

15

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 

 

40 See, 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).
STATE v. GUARD

Opinion of the Court

16

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.

50 See id. ¶ 28 (―To begin with, Pratt‘s application of improperpurpose liability was based entirely on Leigh Furniture, without any 

discussion of other authority.‖)
Cite as: 2015 UT 96

Opinion of the Court

17

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.
STATE v. GUARD

Opinion of the Court

18

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 

 

56 See 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).

59 Davis 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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Opinion of the Court

19

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 

 

62 Id. 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.
STATE v. GUARD

Opinion of the Court

20

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.

69 See 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.‖).

72 See 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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Opinion of the Court

21

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.
STATE v. GUARD

Opinion of the Court

22

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 wellreasoned 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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Opinion of the Court

23

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.
STATE v. GUARD

Opinion of the Court

24

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 wellreasoned 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 wellreasoned, 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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Opinion of the Court

25

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 twentyfour 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 longestablished 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 
STATE v. GUARD

Opinion of the Court

26

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).

106 See 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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Opinion of the Court

27

¶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.

110 But 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)). 

111 Harper, 509 U.S. at 95 (alteration in original) (quoting Griffith, 

479 U.S. at 322).

112 Griffith, 479 U.S. at 323 (third alteration in original) (internal 

quotation marks omitted).
STATE v. GUARD

Opinion of the Court

28

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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Opinion of the Court

29

―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.‖).
STATE v. GUARD

Opinion of the Court

30

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, 

 

119 We 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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Opinion of the Court

31

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.‖).
STATE v. GUARD

Opinion of the Court

32

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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Opinion of the Court

33

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.