This opinion is subject to revision before final publication in the Pacific Reporter

201 5 UT 96

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH
, Petitioner

,

v.

J IMMY D. G UARD
, 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

C HIEF J USTICE D URRANT authored the opinion of the Court,

in which A SSOCIATE C HIEF J USTICE L EE , J USTICE D URHAM
, J USTICE H IMONAS
, and J UDGE H ARRIS joined.

Having recused herself due to her resignation from this court,

J USTICE P ARR IS H did not participate herein;
J UDGE R YAN M. H ARRIS sat.

C HIEF J USTICE D URRANT , 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 identifyi ng a 

## DECEMBER 31, 2015S TATE v. G UARD

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 eyew itness 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 i nstructed 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 te n 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

direc t 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 tri ed around t he same time, if

Mr. Guard‘s case had not been delayed, Guard and Clopten would

―almost inevitab l [ 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 ana lysis woul d 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.Cite as: 2015 UT 9 6

Opinion of the Court

3 retroac tively (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 brea k‖ (and therefore should not have been given retroactive application) because we conclude that ou r ―clear break‖ rule is

flawed and therefore abandon it. Instead, we return to our prior precedent

— new rules of criminal procedure announced in judicial opinio ns 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 tri al court abused its

discretion under the Clopten standa rd 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 a ppeals ‘ 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 cor ner of her apartment complex, a male stranger grab bed 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 he r with a knife. C.M. never saw a knife. She fought off her attacker using techni ques 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 str anger 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

k idnapping. 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, j eans, 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 herS TATE v. G UARD

Opinion of the Court

4 attacker‘s face, she said ―I don‘t know. I saw the shoes,‖ and ―I saw the pants.‖

¶8 Detective Willia m Devon Jensen arrived at C.M.‘s home a
short while later and took over the interview, as he had more training and ex perience interviewing children. Detective Jensen took time to calm C.M. down and took special care not to lead her, using

non

- suggestive qu estions. 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, a nd white ten nis

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 re cognize her attacker. She said she thought she would be able to identify h im 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 Def endant, Jimmy Guard, was included in the photo array. Detect ive 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 t hat he would be. Detective Jensen showed C.M. the photos one at a time and asked her to lo ok at each photo and tell him whether any of them was the person who had kidnapped her th e 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 tha t‘s him.‖ The detective then showed C.M. the remaining three pictures, and she said none of them was of her at tacker.

¶10 Through his investi gation, Detective Jensen found three

witnesses who identified Mr. G uard 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 ha d 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 withCite as: 2015 UT 9 6

Opinion of the Court

5 him that day and ask ed people in the neighborhood whether they

had seen Mr

. Gu ard the day before. Two neighbors said they had
seen Mr. Guard: Darwin Goode, w ho 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 st op 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 bu s stop.‖

¶13 But Mr. Goode became susp icious when Mr. Guard did not

board the UTA bu s that had stopped for him. He said Mr. Guar d 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 an y 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, s ometime between 3:15 p

. m

. and 3:45 p

. m

. while she was waiting for her children to

c ome 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 d ay.

¶15 On November 17, two days after the kidnapping, Detective Jensen arrested Mr. Guard at his residence, which was about a mile

from the si te of the kidnapping. Detective Jensen also searched Mr. Guard‘s residence for clothing that matche d the description given by

C.M. He did not find the baseb all 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 th e kidnap ping. He claimed to have gone to Salt Lake City on the afternoon of November 15, visiting several Barnes & Noble bookstores and the Salt L ake City library. Mr. Guard, who was having financial trouble at the time,

6 Investigators later measured th e distance as 245 feet.S TATE v. G UARD

Opinion of the Court

6 said he spent the afternoon r esearching 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 m aterial he was looking for,

Mr. Guard claimed he went to the Salt Lake City li brary, where he spent a significant amount of time browsing the law books, reading the bankruptcy code book, having a coffee, and perus ing 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, De tective Jensen investigated

Mr. Guard‘s alibi. The detective went to the bookstores and the library, showing employees a photo o f Mr. Guard and asking

whether they recognized or remembered him. None of the employees remembered seein g 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 servi ng him a coffee.

¶19 Detective Jen sen also reviewed the surveillance video f rom 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 sh e believed the video showed

Mr. Guard ente ring 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 in vestigator 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 pho to 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 assoc iated with the eyewitness, including attention,

p erception and memory.‖ The State opposed these filings in a

Motion to Exclud e 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 hearingCite as: 2015 UT 9 6

Opinion of the Court

7 focused on the reliability of C.M.‘s identification of Mr. Guard, including issues surrounding the reliability of th e 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 identifi cations 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 th at expert test imony

to come in.‖ The State argued that this type of general testimony was ―perhaps‖ admissible and called for a Rimmasch 7 heari ng 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 Rimmas c h is needed, then we‘ll move forward in that direction .‖

The trial court agreed with the State and so denied t he motion to

suppress but allowe d Mr. Guard to renew his motion at the

Rimmas c h hearing

, where the court would re consider the issue.

¶22 At the Rimmas c h hearing, Dr. Dodd testified about his expertise in the area of eyewitness identification and specifically

about C.M.‘s identification of M r. 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 u se 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 a bout 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.S TATE v. G UARD

Opinion of the Court

8 provide a two

- page synopsis explaining his intended use of Dr.

Dodd so that the State coul d properly respond. He never provided this synopsis.

¶23 The trial court made two rulings. First, it issued a writte n ruling denying the Defendant‘s motion to suppress C.M.‘s

identification of her atta cker. 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 t estimony under rule 702

and cho se 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 issu e its written ruling unti l 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 t he 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

s upporting the methods which Dr. Dodd employed.‖ The trial court
also re lied 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

cap acity 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

w itness 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.Cite as: 2015 UT 9 6

Opinion of the Court

9 ¶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 doc keting statement. More than three years later, in July 2010, the district court reinstated

h is right to appeal. Th e case was transferred to the court of appe als,

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 wit ness 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

t wo cases would ―almost inevitab l [ y] . . . have been either consolidated on appeal or treated as companion cases‖ and we

would have de cided 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 ana lysis 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 excludin g 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

.S TATE v. G UARD

Opinion of the Court

10 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 concl ude 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 adequatel y 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 admiss ion of his expert. While these shortcomings are relevant to whether the trial court abused its discretion in granting th e 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 unpre served.

¶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 l ess 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.Cite as: 2015 UT 9 6

Opinion of the Court

11 cognitive processes associated with the eyewitness, including attention, p erception and memory.‖ The State addressed this notice

in a Motion to Exclude Defendant ‘s Expert Witness. M r. 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 a nd the reliability of the science Dr. Dodd intended to employ,‖ and thus ―the proposed expert testimony of

Dr. Dodd had not been demonstra ted 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 ide ntifications.‖ The court also seemed to acknowledge problems with cross

- racial id entification.

23 Dr. Dodd testified that ―[t]he age of the witness makes a big

diffe rence‖ 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 s tudies that to the extent people are upset . . . they . . . fail to fully process the information that is availa ble to them.‖

25 Dr. Dodd testified that the confidence expressed by the witness ―is relevant but is not as powerful as ge nerally presumed‖ and that

―the correlation between certainty and accuracy is often very small.‖

He made these statements ―base d on the research literature.‖

26 Although we hold that Mr. Guard‘s claim was preserved under our traditional preservation doctrin e, we note the tension between preservation and retroactivity. See, e.g., Aa ron

- Andrew P. Bruhl, Deciding When to Decide: How Appellate Procedure Distributes the Costs of Legal Change , 96 C ORNELL L. R EV

. 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 i s required to meetS TATE v. G UARD

Opinion of the Court

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. T his issue is

now moot. U nder 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 ‖ erro r 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

— wher e the

law at the time of trial was settled and clearly contrar y 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 wi th 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

retroactivi ty 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,

200 6, 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 hi s appeal be withdrawn. He was unaware that his appeal had been dismissed and sought

reinstateme nt of his right to appeal under Manning v. State in June

2010. 2005 UT 6 1, ¶ 31, 122 P.3d 628. On July 30, 2010, the district court granted his request and reinstated his ap peal. 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.Cite as: 2015 UT 9 6

Opinion of the Court

13 case , we conclude that the trial court did not abuse its discretion when it excluded Dr. Dodd‘s expert testi mony. 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

t o be applied prospectively only, and (2) Clopten only clarified ―how eyewitness expert testimo ny 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 holdings 29 had ―created a de facto presumption against the admission of eyewitness expert testimony‖

and in favor of a Long jury instructio n. 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 ―ha s turned the  ̳clear break‘ exception into a leviathan that has swallowed the rule of a uto matic 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.S TATE v. G UARD

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 s ome 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 r eliance 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.Cite as: 2015 UT 9 6

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 Suc h

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, su ch as wh en a new rule is declared to apply only prospectively 42 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 enti rely new rule

which in effec t 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

hin ges 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 ― Gri ffith 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 bu t 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 N orton , 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 omitt ed).S TATE v. G UARD

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

retroact ive application of of new rules of criminal proced ure 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‖ r ule 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 authority 50 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 (discussi ng retroactivity under our Post

- Conviction Remedies Act).

47 See, e.g., Beaver C ty. 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 intent ion . However, the rule against retroactive application does not apply where a statu te changes only procedural law by providing a different mode or form of procedure for enforcing substantive rights without enlar ging or eliminating vested rights.‖ (alterations in original) (internal quotation marks omitted)).

48 See U TAH C ODE OF J UD

. A DMI N

. 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 improper

purpose liability was based entirely on Leigh Furniture , without any discussion of other authority.‖)Cite as: 2015 UT 9 6

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 dire ct review. In State v. Belgard , we explained that ―when a lower court relies on a legal princi ple 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 b reak‖ 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 som etimes 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.S TATE v. G UARD

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 rais ed by Justice Harlan about the balancing test it had adopted in Linkletter v.

Walker 57 and elaborated on in Stovall v. Denno

. 58 Under the rule in

Sto vall

, the C ourt 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

include d : ―(a) the purpose to be served by the new standard s , (b) the

extent of t he 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 tha t 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

decision making ‖; (2) it allowed for ―a  ̳new‘ constitutional rule [to apply] entirely prospectively, while making an exception only f or the particular litigant whose case was chosen as the veh icle 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 cou rse 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)).Cite as: 2015 UT 9 6

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, inst ead of jettisoning the test al toget her 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 th ese ―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 standard s and effect o n the administration of justice . . . of the new rule

— have virtually compelled a finding of nonretroactivity.‖ 67

¶45 Just f ive 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 he ld that ―a n ew 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 separa tely to expresses these

con cerns 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 crimi nal defendant in the first place‖).

66 Id. at 549 (citation omitted).

67 Id. at 549

– 50.S TATE v. G UARD

Opinion of the Court

20 constitutes a  ̳clear break‘ with the past.‖ 68 The Co urt 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 dissents 69 and found the ―clear break‖ rule was inappro priate becaus e (1) it undermined ―the principle that

this Court does not disregard current law[] when it adjudicates a case pending before it on di rect 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 brea k‖ 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 154 2, 1545 (1st Cir. 1989) (concluding that ―nothing in Griffith , either in terms or purport, distinguish [ es ] between constitutional and statutory interpretations‖ ), with D iggs 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 Still ing , 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 (Ut ah 1996) (holding that ―our decision in

Brown announced for the first time that counsel with concurrent prosecutorial duties could not repres ent indigent defendants‖ was ―a clear change from past procedures‖ and thus a clear break and not retroactive)

.Cite as: 2015 UT 9 6

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 rul e of retroactive application was a failed attempt by the U.S. Supreme Court to limit

the case

- by

- case nature of the St ovall balancing test. The U.S. Supreme Court abandoned the rule because of serious concerns about its workability and its disparate treatm ent 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 suscep tible to being overruled than precedent with a stronger foundation.

75 9 35 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 allowi ng 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 capaci ty 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.S TATE v. G UARD

Opinion of the Court

22 2. The ―Clear Break‖ Rule I s 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 ―d id the hard work of weighing all the arguments and reaching a reasoned conclusion.‖ 80 Far fr o m 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 ini tially 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 dir ect 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 ―qualifi cation [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 W e 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 ne eded 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).Cite as: 2015 UT 9 6

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, o ur 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 inadv ertently

— 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

bre ak‖ rule. 90 We went on to hold that the change in criminal

85 Id.

86 Id.

87 81 4 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 appl y 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 appl ication to cases tried after its date of issuance‖))

.

89 Hoff , 814 P.2d at 1123

− 24.

90 935 P.2d at 508

– 09

.S TATE v. G UARD

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 Lovel l , 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 o verruled 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

an alyzing 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

su bsequently 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 an d 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 h ardship 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.Cite as: 2015 UT 9 6

Opinion of the Court

25 1. Age of the Precedent

¶55 First, in deciding whethe r 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 1983 97 and was argua bly 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. Johndrow 100 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

i ntentional interf erence 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‖ un like 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

- establ ished 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 , 9 35 P.2d at 508

− 09;

Gordon , 913 P.2d at 354 ; State v. Chapman , 92 1 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 fewS TATE v. G UARD

Opinion of the Court

26 the age of this rule does not de monstrate 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 c ourt to ask whether a decision ―explicitly overrules a past precedent . . . or disapp roves 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 ca selaw on a subject and decide whether we ―arguab ly‖ 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 Pr inciples

¶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 prin ciples. 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

.Cite as: 2015 UT 9 6

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 j ury. 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

reaso ning 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 applica tion 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 quinte ssential ly  ̳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 vehicl e 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 C orp. v. State Tax Comm’n , 862 P.2 d 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 r elevant 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).S TATE v. G UARD

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 decidin g 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 int erests is rooted in fairness. 116 Under the

113 See Timpanog os 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 t o 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 Jon es 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 a cted, 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 evid ence and criminal procedure. See R.

C OLLIN M ANGRUM & D EE B ENSON
, M ANGRUM & B ENSON ON U TAH

E VIDENCE 1

− 4 (2014 ) (discussing the displacement of the common law of evidence with the Utah Rules of Evidence).

114 See Wilson v. IHC Hosp s ., 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 C ope v. Utah Valley State Coll. , 2014 UT 53, ¶ 19, 342 P.3d 243 ( ―[P]eople should know what their legal rights are as defined byCite as: 2015 UT 9 6

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 re view. While the State‘s interests are certainly important, they are not the type of public reliance interests we traditionally protect most strongly. 117 A nd the interest of the State does not outweigh the interests of criminal defendants in obtaining the ben efit 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: t hose 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 erro r. 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 practic e, 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

crimin al 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 th em swept aw ay 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 government al prerog ative can justify the elimination of prospectivity in the criminal are n a.‖).S TATE v. G UARD

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

E yewitness Expert Testimony

¶62 Having determined that Clopten applies to cases on direct

review, we no w 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 unrel iable and thus inadmissible

under rule 702 119 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 cl arified that ―the testimony of a qualified expert regarding factors that have been shown to contribute to

inaccurate eyewitness identification s should be admitted whenever

it meets the requirements of rule 702 of the Utah Rules of

Evidence.‖ 121 Further, we r ecognized 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

tria l 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 Rimm asch test yields the same result as the current rule when applied to eyewitness expert testimony.‖ State v. C lopten , 2009 UT 84, ¶ 38 , 223 P.3d 1103 (internal quotation marks omitted) . Therefore, we proceed with our analysis

under the current version of ru le 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).Cite as: 2015 UT 9 6

Opinion of the Court

31 experience, training, or education‖; 124 and the judge must also decide whether the specific testimony that the eyewitness expe rt 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 methods 127 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

show ing 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 U TAH R. E VID

. 702 (a).

125 Id. 702(b).

126 See State v. Perea , 2013 UT 68, ¶ 72, 322 P.3d 624.

127 U TAH R. E VID

. 70 2 (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 a s focusing on the  ̳work at hand.‘ The practitioner should equally take care that the proffered expert testimony relia bly addresses the  ̳work
at hand,‘ and that the foundation of reliability presented for it

reflects t hat consideration.‖).S TATE v. G UARD

Opinion of the Court

32 broadly as to hold that any eyewitness expert testimony is automatically admissible as reliable and h elpful. 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 sc reen out unreliable expert testimony.‖ 134 We noted some ―esta blished factors‖ in our opinion 135

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 di scretion 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. G uard f ailed to make this showing.

Mr. Guard‘s notice o f intent to call an expert witness described the testimony broadly as ―concerning the full range of cognitive processes associated with the eyewitness, including att ention, perception and memory.‖ The t rial court and the State each expressed confusion during both the initial motion hearing and the subsequent Rimmas c h hearing about what testimony Mr. Guard‘s proposed expert anticipated presenting to the jury. At the end of the

Rimmas c h 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 St ate to respond. He failed to provide the synopsis, however, and ―[a]t, or just prio r to trial, the Court, having received no supplemental briefing by the Defendant granted the State‘s Motion to Exclude Defendant‘s Expert

Wi tness from the bench.‖ Because Mr. Guard failed to even tell the trial court what factors affecting eyewitness ident ification his eyewitnes s expert was going to testify about, let alone demonstrate that this testimony related to establish ed 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.Cite as: 2015 UT 9 6

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. Gua rd‘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 appeal s‘ decision and uphold that of the trial

court.