This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 82

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

DEON L. CLOPTEN,

Appellant.

No. 20111020

Filed September 4, 2015

Third District, Salt Lake

The Honorable Randall N. Skanchy

No. 031903432

Attorneys:

Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,

Salt Lake City, for appellee

Samuel P. Newton, Kalispell, MT, for appellant

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT and JUSTICE PARRISH joined.

JUSTICE LEE filed a concurrence, in which JUDGE HARRIS joined.

Due to his retirement, JUSTICE NEHRING did not participate

herein; DISTRICT JUDGE RYAN M. HARRIS sat.

JUSTICE DENO G. HIMONAS became a member of the Court on

February 13, 2015, after oral argument in this matter

and accordingly, did not participate.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Deon Clopten was convicted of murdering Tony 

Fuailemaa after a concert in Salt Lake City. He now appeals his 

conviction, alleging five errors in the district court proceedings.
STATE V. CLOPTEN

Opinion of the Court

¶2 Two of these alleged errors relate to Mr. Clopten’s 

principal theory at trial, namely that the murder was committed 

by his cousin Freddie White. First, Mr. Clopten asked to call 

Mr. White as a witness so that he would claim a Fifth Amendment 

privilege in front of the jury, but the trial court denied this 

request. Second, Mr. Clopten attempted to introduce testimony 

that Mr. White told fellow prison inmates that Mr. Clopten was 

not the murderer, but the trial court excluded this testimony as 

inadmissible hearsay. Mr. Clopten challenges both of these rulings 

on appeal.

¶3 The remaining three alleged errors relate to the 

eyewitness testimony that identified Mr. Clopten as 

Mr. Fuailemaa’s killer. As we have recognized in a series of 

opinions beginning with State v. Long, 721 P.2d 483 (Utah 1986), 

the use of eyewitness testimony to identify perpetrators of crime 

presents a difficult constitutional problem. On the one hand, such 

testimony is often the only evidence available to establish a 

criminal’s identity. On the other hand, as forensic science has 

demonstrated, eyewitness identifications are frequently wrong 

but nevertheless powerfully persuasive to juries. Accordingly, 

such identifications lead with unusual frequency to wrongful 

convictions—an uncomfortable prospect for a criminal justice 

system committed to letting ten felons escape before punishing a 

single innocent. See 4 WILLIAM BLACKSTONE, COMMENTARIES *358. 

We have now wrestled with this problem for nearly three 

decades, articulating a number of doctrines intended to reduce the 

likelihood of wrongful convictions based on unreliable eyewitness 

identification testimony.

¶4 Mr. Clopten argues that the trial court incorrectly 

applied three of these doctrines. First, he argues that under State v. 

Ramirez, 817 P.2d 774 (Utah 1991), the trial court should have 

excluded a number of the prosecution’s eyewitnesses as 

unconstitutionally unreliable. Second, he argues that under State 

v. Clopten (Clopten I), 2009 UT 84, 223 P.3d 1103, the trial court 

should have excluded the testimony of a prosecution expert who 

disputed the defense’s claims about eyewitness unreliability. The 

prosecution expert’s testimony, Mr. Clopten argues, 

impermissibly contradicts Clopten I’s conclusions about forensic 

science. Third and finally, he argues that the trial court’s 

instructions to the jury regarding eyewitness reliability were 

constitutionally insufficient under Long, 721 P.2d 483.

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Opinion of the Court

¶5 For reasons explained below, we reject all five of 

Mr. Clopten’s assertions of error and affirm his conviction.

BACKGROUND

¶6 On December 1, 2002, Tony Fuailemaa attended a 

concert in downtown Salt Lake City with his fiancée, Shannon 

Pantoja. Also present at the concert were Deon Clopten, his cousin 

Freddie White, and two of their friends.

¶7 Early in the evening, Mr. Fuailemaa pointed Mr. Clopten 

out to his fiancée, asking her if she knew the guy “in all red, the 

one all flamed up.” When she answered that she did not, 

Mr. Fuailemaa told her his name, that Mr. Fuailemaa knew him, 

and that “he had a problem with some of the homeys.” An 

undercover officer testified that he noticed tension between the 

groups, but no violence immediately ensued.

¶8 Both groups left the concert early; Ms. Pantoja testified 

that she and Mr. Fuailemaa wanted to beat the traffic. Outside the 

venue, she noticed Mr. Clopten’s three friends attempting to hide 

on the street in front of them, and Mr. Fuailemaa told her that he 

anticipated a confrontation. Ms. Pantoja suggested that they 

return to the concert so as to avoid a fight, but Mr. Fuailemaa 

insisted he would not back down. Ms. Pantoja then noticed 

Mr. Clopten approaching Mr. Fuailemaa from behind with his 

arm extended, holding a pistol. He exclaimed “What’s up now, 

homey?” and shot Mr. Fuailemaa in the back of the head.

¶9 Four undercover officers at the concert heard the shots 

and came running. Informed by Ms. Pantoja that the killer was the 

man “in all red,” they chased Mr. Clopten and his friends to their 

vehicle. Mr. Clopten and his friends drove away at high speed, 

pursued by police, and threw the murder weapon out the window 

before they were caught.

¶10 It is undisputed that Mr. Fuailemaa’s murderer was one 

of the four men in the vehicle, but proving that it was Mr. Clopten 

has now taken over a decade. Mr. Clopten was charged in 2003 

and tried in 2005, but the court declared a mistrial. He was tried 

again and convicted in 2006, but we reversed the conviction 

because Mr. Clopten had not been allowed to present expert 

testimony about the reliability of eyewitness identifications. 

Clopten I, 2009 UT 84, ¶ 49, 223 P.3d 1103.

¶11 At Mr. Clopten’s third trial in 2011, the state presented 

eyewitnesses who identified him as the shooter. Mr. Clopten

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Opinion of the Court

primarily attacked the state’s case in two ways. First, he sought to 

exclude the state’s evidence and to minimize its effect, calling an 

expert witness to testify about the unreliability of eyewitness 

identifications and asking the judge for jury instructions on the 

same subject. Second, he presented his own evidence that another 

man in the vehicle—Mr. Clopten’s cousin Mr. White—actually 

committed the murder.

¶12 Mr. Clopten’s strategy failed. The jury convicted him of 

murder, and he now challenges his conviction on appeal.

ANALYSIS

I. THE TRIAL COURT CORECTLY DENIED MR. CLOPTEN’S 

REQUEST TO CALL A DEFENSE WITNESS FOR THE SOLE 

PURPOSE OF PLEADING THE FIFTH IN FRONT OF THE JURY

¶13 In support of his defense that Mr. White was the true 

perpetrator of Mr. Fuailemaa’s murder, Mr. Clopten proposed to 

call Mr. White as a witness. But Mr. Clopten stipulated that Mr. 

White would not give any testimony because he would invoke his 

Fifth Amendment privilege when called to the stand. Mr. Clopten 

argued in the trial court that the jury should be allowed to observe 

Mr. White plead the Fifth on the witness stand, but the trial court 

denied this request. Mr. Clopten later requested a jury instruction 

informing the jury that Mr. White had invoked his Fifth 

Amendment privilege and stating that the jurors were “entitled to 

give whatever weight you deem appropriate and draw any 

inference you feel is warranted regarding White’s invocation of 

his Fifth Amendment privilege.” The trial court refused this 

instruction.

¶14 On appeal, Mr. Clopten has challenged only the trial 

court’s refusal to require Mr. White to take the witness stand and 

invoke his Fifth Amendment privilege in the presence of the jury, 

thus allowing him to argue inferences favorable to the defense 

from that act. He has not challenged the trial court's refusal to 

instruct the jury about the inferences jurors could make from 

Mr. White’s out-of-court invocation of the privilege. Thus this case 

does not reach the question of inferences, but only the question of 

whether it was proper for the court to preclude an in-court 

demonstration.

¶15 As to the trial court’s determination to avoid what 

would have been purely a theatrical event—putting a witness on 

the stand merely to refuse to testify—we have no doubt that its 

decision was well within its power to manage the trial process. See 

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State v. Parsons, 781 P.2d 1275, 1282 (Utah 1989) (“The trial court, 

with its inherent powers as the authority in charge of the trial, has 

broad latitude to control and manage the proceedings and 

preserve the integrity of the trial process.”) Therefore, it was 

proper to exclude the witness.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION 

WHEN IT EXCLUDED HEARSAY TESTIMONY

A. Statements Against Interest

¶16 Next, Mr. Clopten claims that the trial court erred when 

it excluded the hearsay testimony of two potential witnesses. Both 

of these proposed witnesses were inmates who spoke with 

Mr. White while he was in prison. At the time of these 

conversations, Mr. White feared that Polynesians in the prison 

system would harm his cousin, Mr. Clopten, because of their

belief that Mr. Clopten killed Mr. Fuailemaa. The first prisoner 

claimed Mr. White told him, “Look, if you can just let your homies 

know it wasn’t [Mr. Clopten], I was there and I can tell you for a 

fact it wasn’t him.” When the prisoner asked Mr. White if he 

killed Mr. Fuailemaa, Mr. White gave the prisoner a ”look” and 

said, “It wasn’t [Mr. Clopten].” The second prisoner asked 

Mr. White if Mr. Clopten shot Mr. Fuailemaa. Mr. White 

responded negatively. When the prisoner then asked Mr. White if 

he was the shooter, Mr. White said “I can’t talk about that.”

¶17 Mr. Clopten argued below that these two prisoners 

should have been allowed to tell the jury about Mr. White’s 

hearsay statements because they were admissible as statements 

against interest. But the trial court excluded this testimony 

because it found that Mr. White’s alleged statements were not 

sufficiently contrary to his self-interest to warrant the application 

of this exception to the hearsay rule. To reverse the trial court on 

this issue, we must conclude the trial court abused its discretion. 

See State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639. 

¶18 Mr. Clopten had to satisfy two requirements in order to 

qualify for the statement-against-interest exception to the hearsay 

rule. First, he had to show that the hearsay statement was an 

utterance that “a reasonable person in the declarant’s position 

would have made only if the person believed it to be true because, 

when made, it . . . had so great a tendency to . . . expose the 

declarant to . . . criminal liability.” UTAH R. EVID. 804(b)(3)(A). 

Second, because Mr. Clopten sought to introduce hearsay 

testimony in a criminal case under the theory that it tended to 

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expose the declarant to criminal liability, he also had to show that 

the statement was “supported by corroborating circumstances 

that clearly indicate its trustworthiness.” Id. 804(b)(3)(B). 

¶19 “In determining if a statement is one made against penal 

interest” under the first requirement, “we look to the 

circumstances under which the statement was given.” State v. 

Drawn, 791 P.2d 890, 894 (Utah Ct. App. 1990). The statement need 

not be an outright confession to a crime in order to be sufficiently 

contrary to the declarant’s penal interest to be admissible. The 

United States Supreme Court, for example, has theorized that

statements such as “I hid the gun in Joe’s apartment” may be 

sufficiently self-inculpatory where the declarant knows that it 

would help the police to find a murder weapon. Williamson v. 

United States, 512 U.S. 594, 603 (1994) (internal quotation marks 

omitted). The key inquiry is whether the statement has a sufficient 

tendency to expose the declarant to criminal liability that “a 

reasonable person in the declarant’s position would have made 

[it] only if the person believed it to be true.” UTAH R. EVID. 

804(b)(3)(A); see also State v. Sanders, 496 P.2d 270, 273 (Utah 1972) 

(statements that subject the declarant to criminal punishment are 

admissible “because experience teaches that it is unlikely that [a 

person] would so declare unless it were true”).

¶20 None of the hearsay statements allegedly made by 

Mr. White directly exposed him to criminal liability because he 

never said that he committed the murder. Mr. Clopten argues that 

Mr. White’s statements that Mr. Clopten did not commit the 

murder are nonetheless contrary to Mr. White’s penal interests. 

Four individuals were in the vehicle that sped away from the 

scene of the murder: Mr. Clopten, Mr. White, and two other 

associates. The murder weapon was thrown from this vehicle 

during the ensuing high-speed pursuit. Thus, Mr. White would 

have known that the police suspected that one of these four 

individuals murdered Mr. Fuailemaa. Under these circumstances, 

statements exculpating Mr. Clopten necessarily indicate that one 

of the other three occupants of the getaway vehicle was the 

shooter.1 

1 Mr. Clopten argues that Mr. White’s statements are selfinculpatory because State witnesses testified that the shooter was 

dressed all in red and only Mr. Clopten and Mr. White wore solid 

red tops on the night of the murder. But there is no indication that 

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Opinion of the Court

¶21 Although Mr. White’s statements have at least some

tendency to expose him to criminal liability, this does not 

necessarily mean that his statements have a sufficient tendency to 

expose him to punishment that a reasonable person would not 

utter them if they were not true. That is a question for the trial 

court. Moreover, there is another motive for Mr. White to say that 

Mr. Clopten did not commit the murder other than the truth of 

the statement. Mr. White was concerned that other prisoners 

would harm his cousin if they believed that Mr. Clopten 

committed the murder. Mr. White, therefore, wanted to spread 

the word that Mr. Clopten was innocent in order to protect his 

cousin. The trial court was entitled to weigh the tendency of 

Mr. White’s statements to expose him to criminal liability against 

Mr. White’s other motives for uttering the statements. See Sanders, 

496 P.2d at 273 (the district court may consider “various possible 

motivations” for the declarant to make the hearsay statement that 

cut against the application of the statement-against-interest 

exception, including “concern for assisting the defendant”). Under 

the facts of this case, the trial court did not abuse its discretion 

when it determined that Mr. White’s statements did not have a 

sufficient tendency to expose him to criminal punishment that “a 

reasonable person in the declarant’s position would have made 

[the statements] only if the person believed [them] to be true.” 

UTAH R. EVID. 804(b)(3)(A). 

¶22 Because the trial court did not abuse its discretion when 

it found that the first requirement of the statement-against-interest 

exception was not met, we need not examine the second 

requirement—whether “corroborating circumstances” clearly 

indicate the trustworthiness of the hearsay statements. See id.

804(b)(3)(B).

B. The Residual Hearsay Exception

¶23 Mr. Clopten also argues that the trial court erred when it 

refused to admit the hearsay statements under the residual 

exception to the hearsay rule. The residual exception is a catchall 

provision that may be applied when a hearsay statement “is not 

specifically covered by a hearsay exception in Rule 803 or 804.” 

Mr. White knew that eyewitnesses would testify that the shooter 

wore red when Mr. White made the statements. The relevant 

inquiry is whether the declarant knew that a statement was 

inculpatory at the time the statement was made. Information 

unknown to the declarant at that time is irrelevant.

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UTAH R. EVID. 807(a). Under this exception, a hearsay statement is 

admissible when

(1) the statement has equivalent circumstantial 

guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is 

offered than any other evidence that the proponent 

can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these 

rules and the interests of justice.

Id. This exception is “intended for use in those rare cases where, 

although the out-of-court statement does not fit into a recognized 

exception, its admission is justified by the inherent reliability of 

the statement and the need for its admission.” State v. Nelson, 777 

P.2d 479, 482 (Utah 1989).

¶24 We hold that the trial court did not abuse its discretion 

when it declined to admit Mr. White’s hearsay statements under 

the residual exception. Mr. Clopten has not shown that the 

statements have “equivalent circumstantial guarantees of 

trustworthiness” that are different from other recognized 

exceptions to the hearsay rule. 

¶25 Mr. Clopten first contends that Mr. White’s statements 

exonerating Mr. Clopten are corroborated by extrinsic evidence 

that Mr. White was the true killer. Mr. Clopten cites, for example, 

evidence produced at trial that Mr. White had suggested to other 

individuals that he was guilty of the crime and that he wore a red 

top on the night of the murder, which would be consistent with 

eyewitness testimony that the shooter was dressed “in all red.” 

But the trustworthiness requirement is not satisfied by extrinsic 

corroborating evidence. Instead, courts look to either the 

circumstances in which the hearsay statement was made or the 

content of the statement itself to determine whether the declarant 

would be unlikely to lie. See, e.g., UTAH R. EVID. 804(b)(2) (hearsay 

statement made under the belief of imminent death admissible); 

id. 804(b)(3)(A) (hearsay statement that is contrary to declarant’s 

self-interest may be admissible). In order to satisfy the “equivalent 

circumstantial guarantees of trustworthiness” element of the 

residual hearsay exception, id. 807(a)(1), “hearsay evidence . . . 

must possess indicia of reliability by virtue of its inherent 

trustworthiness, not by reference to other evidence at trial,” State 

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v. Plant, 461 N.W.2d 253, 265 (Neb. 1990) (internal quotation 

marks omitted); see also Nelson, 777 P.2d at 482 (residual exception 

applies where the hearsay statement’s “admission is justified by 

the inherent reliability of the statement” (emphasis added)). Mr. 

Clopten’s citations to evidence unrelated to the hearsay 

statements are simply not relevant to the trustworthiness 

requirement. 

¶26 Mr. Clopten also argues that the statements have 

circumstantial guarantees of trustworthiness because the 

statements tended to subject Mr. White to potential harm from 

other inmates. Mr. White believed that other prisoners wanted to 

seek retribution against Mr. Fuailemaa’s killer. Thus, Mr. Clopten 

contends that statements implicating Mr. White as the actual killer 

are trustworthy because he would not subject himself to the 

danger of prison violence had the statements not been true. But 

the problem with this argument is that Mr. White never said that 

he killed Mr. Fuailemaa. And any assertion that Mr. White’s 

statements indirectly implicated himself as the killer could 

reasonably be rejected by the trial court for the same reasons that 

the statement-against-interest exception does not apply to the 

hearsay statements. See supra ¶ 21.

C. Adoptive Admission

¶27 The state filed a motion in limine to prohibit the two 

prisoners from testifying about Mr. White’s hearsay statements. 

The motion, of necessity, provided the content of the hearsay 

statements. Mr. Clopten claims that because the state repeated the 

hearsay statements it sought to exclude, the testimony is 

admissible as an adoptive admission. See UTAH R. EVID. 801(d)(2) 

(a statement is not hearsay if it “is offered against an opposing 

party and . . . is one the party manifested that it adopted or 

believed to be true”).

¶28 This argument is without merit because it conflates the 

filing of a motion summarizing the hearsay statements with the 

endorsement of these statements. It is strange to suggest that 

merely by articulating hearsay statements as part of a motion in 

limine the state embraces the very statements it is trying to 

exclude. Without some manifestation of adoption of the statement 

or affirmation of the truthfulness of the statement, statements like 

those in the state’s motion are not adoptive admissions. 

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D. Constitutionality of the Hearsay Rule

¶29 Finally, Mr. Clopten argues that if no exception to the 

hearsay rule applies to the statements, he nonetheless should have 

been permitted to introduce the hearsay statements into evidence 

because of his constitutional due process right to present evidence 

in his defense. In support of this contention, he quotes State v. 

Harding, where we stated that “the defendant’s right to present all 

competent evidence in his defense is a right guaranteed by the due 

process clause of our State Constitution, Art. I, Sec. 7, as well as 

our Federal Constitution.” 635 P.2d 33, 34 (Utah 1981) (emphasis 

added). But a criminal defendant does not have a due process 

right to present any evidence the defendant may desire. A 

defendant only has a right to introduce competent, admissible 

evidence. See Evidence, BLACK’S LAW DICTIONARY (9th ed. 2009) 

(defining “competent evidence” by cross-referencing the term 

“admissible evidence”). Because hearsay evidence is not competent 

evidence under Utah law, and because Mr. Clopten has not 

presented any support for the proposition that the hearsay rule is 

unconstitutional when applied to evidence proffered by a criminal 

defendant, we reject his constitutional claim.

III. ADMISSION OF EYEWITNESS IDENTIFICATIONS

¶30 As we explained above, the prosecution had little 

difficulty proving that Mr. Fuailemaa was killed by one of the 

four men the police captured after the shooting. But to prove that 

Mr. Clopten committed the murder, rather than Mr. White as the 

defense argued, the state relied on the testimony of eyewitnesses. 

Because some of these eyewitnesses testified that they recognized 

Mr. Clopten as the killer, their testimony potentially implicates 

the doctrines we have articulated to protect the innocent from 

convictions based on unreliable eyewitness identifications.

¶31 The first such doctrine to which Mr. Clopten appeals is 

the Ramirez test, announced by State v. Ramirez, 817 P.2d 774 (Utah 

1991), which, according to Mr. Clopten, governs the admission of 

eyewitness identification testimony under the Utah due process 

clause. Mr. Clopten argues that the trial court violated Ramirez by 

allowing two of the state’s eyewitnesses—Shannon Pantoja and 

Melissa Valdez—to identify him as the killer. Because of the 

importance of these witnesses’ identifications to the state’s case, 

Mr. Clopten argues, his conviction must be reversed.

¶32 We reject Mr. Clopten’s appeals to Ramirez, concluding 

that we can apply it neither to Ms. Valdez’s testimony nor to 

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Ms. Pantoja’s. First, as to Ms. Valdez, we conclude that the state 

did not actually present her identification of Mr. Clopten to the 

jury and that Ramirez therefore simply does not apply. Second, as 

to Ms. Pantoja, we conclude that we cannot review the trial court’s 

decision to allow Ms. Pantoja to identify Mr. Clopten because 

Mr. Clopten has not adequately challenged that decision on 

appeal.

A. The State Did Not Present Ms. Valdez’s Identification

of Mr. Clopten to the Jury

¶33 The state argues that Ramirez does not apply to 

Ms. Valdez because her testimony did not actually identify 

Mr. Clopten as the killer. Although the state was permitted by 

pretrial ruling both to have Ms. Valdez identify Mr. Clopten in 

court and to introduce evidence that she had picked Mr. Clopten 

out of a police photo lineup, it ultimately chose to do neither of 

these things. Instead, it questioned Ms. Valdez primarily about 

her memories of the night of the murder.

¶34 Mr. Clopten disputes the state’s characterization of 

Ms. Valdez’s testimony, suggesting three ways in which 

Ms. Valdez identified Mr. Clopten before the jury. First, 

Ms. Valdez identified Mr. Clopten’s red sweatsuit as the clothing 

the killer wore. Second, her testimony corroborated the testimony 

of other eyewitnesses who did identify Mr. Clopten as the killer. 

And third, she testified that a defense investigator had presented 

her with a photo array, that she had recognized a person in the 

photo array as the killer, and that the defense investigator then 

told her that she “wasn’t going to be any help to his case.”

¶35 We can easily dismiss Mr. Clopten’s first two arguments 

because Ramirez applies only to “eyewitness identifications.” 

Ramirez, 817 P.2d at 779. This category includes in-court 

identifications and testimony about out-of-court identifications 

like police lineups and photo arrays, but it does not include, as 

Mr. Clopten seems to believe, all eyewitness testimony tying a 

defendant to a crime. Ramirez thus does not apply to witnesses 

who, like Ms. Valdez, testify merely about a perpetrator’s 

appearance or apparel—his height, build, coloring, clothing, 

tattoos, and other qualities that might be shared by any number of 

people. It applies only when the state seeks to inform the jury that 

an eyewitness has recognized the defendant as the perpetrator.

¶36 Mr. Clopten’s third argument is a closer call since the 

state did ask Ms. Valdez to testify that she had recognized the 

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killer in the defense’s photo array. The question, then, is whether 

the state sought to inform the jury that the person Ms. Valdez had 

recognized was Mr. Clopten.

¶37 If we viewed the relevant testimony in isolation, we 

would likely conclude that was precisely the state’s intent. Why 

else would the state have asked about Ms. Valdez’s interview 

with the defense investigator? Yet the broader context ultimately 

persuades us that such a conclusion would be incorrect. At no 

point did the state present testimony that the person Ms. Valdez 

had identified was Mr. Clopten, or even that Mr. Clopten was 

among the people depicted in the defense investigator’s photo 

array.2 Neither did it admit the photo array into evidence, or even 

mention Ms. Valdez’s testimony about the photo arrays in its first 

closing statement.

¶38 Instead, it was the defense that made sure the jury knew 

that Ms. Valdez had identified Mr. Clopten. It questioned her in 

detail about the various lineups she saw, admitted those lineups 

into evidence, and called a detective to testify about their flaws. 

Finally, during closing arguments, it was the defense that brought 

up Ms. Valdez’s identification of Mr. Clopten, using the manifest 

weakness of the identification to support its argument for 

reasonable doubt.

¶39 This effort by the defense to tear down Ms. Valdez’s 

identifications of Mr. Clopten—identifications the defense itself 

had presented to the jury—provoked the following rebuttal from 

the state:

2 During the state’s direct examination, Ms. Valdez testified 

only that she had recognized one of the defense investigator’s 

photographs as the killer, and that the investigator had told her 

that she would not be helpful for his case. Although in hindsight 

it may seem obvious that this meant she had identified 

Mr. Clopten, it may not have been obvious at the time. From the 

state’s questioning, the jury knew nothing about the lineup except 

that it had been shown to Ms. Valdez by a defense investigator, 

and the jurors may have imagined alternative explanations for the 

defense investigator’s reaction. In particular, given the defense’s 

theory that Mr. White was the killer, the jurors may have 

imagined that Mr. White, not Mr. Clopten, was depicted on the 

array, and that rather than successfully identifying Mr. Clopten, 

Ms. Valdez had failed to identify Mr. White. 

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[T]hese photo arrays here are a pointless distraction. 

Defense counsel is correct. Melissa Valdez didn’t 

pick [Clopten] out of those lineups that were 

presented to her. Keep in mind, yes, she points to a 

guy to the defense investigator, but then when she is 

shown this [police photo array] she is unable to pick 

him out . . . .

Her testimony is not important because she picks 

somebody or doesn’t pick somebody. Her testimony 

is critical, absolutely. But it’s important because she 

corroborates [other eyewitnesses] and her 

description of what the shooter was wearing 

matches what the defendant was wearing.

¶40 We are persuaded that the state did not intend to 

present Ms. Valdez’s identification of Mr. Clopten to the jury, and 

that if the defense had not used the weakness of Ms. Valdez’s 

identification to bolster its own case, the jury would probably not 

have known that Ms. Valdez had identified Mr. Clopten. Though 

it is a close question, we therefore conclude that Ramirez does not 

apply.

B. Mr. Clopten Has Not Adequately Challenged the

Admission of Ms. Pantoja’s Testimony

¶41 Ms. Pantoja, Mr. Fuailemaa’s fiancée, was especially 

important to the prosecution’s case because she was the closest 

observer of the murder and because she identified Mr. Clopten as 

the shooter less than an hour after the shooting. These factors, 

combined with her close personal connection to the victim, likely 

made her identification of Mr. Clopten very persuasive to the jury.

¶42 Accordingly, the defense asked Judge Skanchy, who 

presided over Mr. Clopten’s third trial, to suppress Ms. Pantoja’s 

testimony because it was insufficiently reliable under Ramirez. 

Judge Skanchy “decline[d]” to consider this argument, concluding 

that he “need not readdress whether Ms. Pantoja’s identification 

of Mr. Clopten is sufficiently reliable” because Judge Fuchs, who 

presided over Mr. Clopten’s second trial, had already decided that 

issue. To support this decision, Judge Skanchy cited the following 

paragraph from one of our cases:

A different branch of the law of the case doctrine—

often called the mandate rule—dictates that a prior 

decision of a district court becomes mandatory after 

an appeal and remand. The mandate rule, unlike the 

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law of the case before a remand, binds both the 

district court and the parties to honor the mandate 

of the appellate court. The mandate is also binding 

on the appellate court should the case return on 

appeal after remand.

IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 28, 196 

P.2d 588 (footnotes omitted). This rule, if it applied in this case, 

would presumably not only prohibit the trial court from 

reconsidering the reliability of Ms. Pantoja’s testimony, but also 

prohibit us from considering Ms. Pantoja’s reliability on appeal.

¶43 We decline to address the question of whether the 

mandate rule applies in this case because Mr. Clopten has not 

properly raised or briefed it. In all of Mr. Clopten’s briefing, the 

trial court’s decision not to reconsider Judge Fuchs’s order is 

challenged only in a single footnote, reproduced here in its 

entirety:

Judge Fuchs did not have the benefit of the 

multiple times Ms. Pantoja testified in this matter to 

highlight the numerous contradictions (including a 

subsequent trial) and the trial court should have 

revisited the issue given the new testimony.

This footnote neither acknowledges that the trial court invoked 

the mandate rule, nor argues that its invocation of that rule was in 

error, nor tells us whether any challenge to the trial court’s use of 

the mandate rule has been preserved. Cf. UTAH R. APP. P.

24(a)(5)(A) (requiring appellants’ briefs to include a “citation to

the record showing that the issue was preserved in the trial 

court”). With some charity, we might read it as asserting that the 

mandate rule should not apply where new evidence has cast 

doubt on the earlier ruling, but it cites no authority for such an 

exception. Cf. id. 24(a)(9) (requiring “citations to the authorities . . . 

relied on”). And it certainly raises no argument that the mandate 

rule does not apply in a new trial. In short, it is entirely 

inadequate for contesting the trial court’s decision.

¶44 Instead of contesting Judge Skanchy’s decision not to 

determine Ms. Pantoja’s reliability, Mr. Clopten has asked us to 

determine Ms. Pantoja’s reliability ourselves. We cannot oblige. 

We cannot simply review Judge Fuchs’s order, as Mr. Clopten 

apparently intends us to do: it was Judge Skanchy’s order, not 

Judge Fuchs’s order, that admitted Ms. Pantoja’s testimony in the 

trial from which Mr. Clopten appeals. We also cannot review 

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Opinion of the Court

Judge Skanchy’s order as if he had independently decided that 

Ms. Pantoja’s testimony is reliable under Ramirez: applying 

Ramirez involves factual determinations that are outside our 

purview as an appellate court, and Judge Skanchy made none of 

those determinations because he concluded that the mandate rule 

prevented him from applying Ramirez.

¶45 Our cases occasionally remark that we are not “‘a 

depository in which the appealing party may dump the burden of 

argument and research.’” Carlton v. Brown, 2014 UT 6, ¶ 18, 323 

P.3d 571 (quoting State v. Thomas, 961 P.2d 299, 305 (Utah 1998)). 

Mr. Clopten did not intend to use us as one; his brief is lengthy 

and generally thorough. But where Ms. Pantoja’s testimony is 

concerned, he has asked us to review a decision the trial court did 

not make, and he has failed to challenge the decision the trial 

court did make. We therefore decline to consider whether the trial 

court erred in allowing Ms. Pantoja to testify.

IV. THE STATE’S EXPERT TESTIMONY WAS ADMISSIBLE 

UNDER RULE 702 AND CLOPTEN I

¶46 At trial, Mr. Clopten took advantage of our decision in 

his first appeal and called an expert witness to testify about the 

various factors that might make eyewitness testimony unreliable. 

In response, the state called its own expert, Dr. John Yuille.

¶47 Dr. Yuille testified primarily that the laboratory studies 

on which the defense expert based his testimony have limited 

real-world applicability because of the differences between 

laboratory studies and actual crimes. Consequently, although 

many laboratory studies have shown that such factors as high 

stress and the presence of a weapon reduce the likelihood of 

accurate identifications—and although we have adopted these 

factors into our jurisprudence in Long and Ramirez—Dr. Yuille 

testified that the extent to which these factors actually influence 

eyewitnesses’ ability to remember crimes is much less certain and 

much more complicated than the laboratory studies suggest.

¶48 Mr. Clopten now argues that Dr. Yuille’s testimony was 

inadmissible under rule 702 of the Utah Rules of Evidence and 

our decision in Clopten I. Because the defense did not object below 

to the qualification of Dr. Yuille as an expert witness or to most of 

his testimony, Mr. Clopten acknowledges that this issue was not 

preserved. He argues that we may nevertheless consider it 

because admitting the testimony was plain error and because the 

defense’s failure to object denied Mr. Clopten his constitutional 

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STATE V. CLOPTEN

Opinion of the Court

right to effective assistance of counsel. Both arguments fail 

because Dr. Yuille’s testimony was admissible under rule 702 and 

Clopten I.

A. Dr. Yuille’s Testimony Was Admissible Under Rule 702

¶49 Dr. John Yuille is an emeritus professor in the 

Department of Psychology at the University of British Columbia. 

He has specialized in eyewitness memory research for forty years, 

during which time he has published over a hundred scholarly 

works, including eight books and many dozens of peer-reviewed 

articles. In recognition of his work, he has been inducted as a 

fellow into the Canadian Psychological Association.

¶50 There is therefore no dispute that Dr. Yuille is a qualified 

expert under rule 702(a). The only question is whether his 

testimony is based on “principles or methods” that “(1) are 

reliable, (2) are based upon sufficient facts or data, and (3) have 

been reliably applied to the facts.” UTAH R. EVID. 702(b). This

condition is automatically deemed satisfied “if the underlying 

principles or methods, including the sufficiency of facts or data 

and the manner of their application to the facts of the case, are 

generally accepted by the relevant expert community.” UTAH R.

EVID. 702(c). Mr. Clopten argues that Dr. Yuille’s testimony did 

not meet the requirements of rule 702(b) because, as Dr. Yuille 

acknowledged, his conclusions differed from those of the majority 

of researchers.

¶51 Mr. Clopten’s argument fails because rule 702(b)’s 

reliability requirement does not apply to expert witnesses’ 

conclusions, but rather to the “principles and methods” 

underlying their conclusions. Certainly, if an expert’s conclusions 

are universally rejected by other experts in the field, that may be 

strong evidence that her principles and methods are unsound, or 

at least not generally accepted. But rule 702 does not permit courts 

to exclude expert testimony because it represents a minority view 

or because the court disagrees with it. See UTAH R. EVID. 702, 

advisory comm. note (“Contrary and inconsistent opinions may 

simultaneously meet the threshold; it is for the factfinder to 

reconcile—or choose between—the different opinions.”). It allows 

suppression only where the testimony lacks an adequate 

methodological basis.

¶52 In this case, nothing amiss has been identified in the 

methodological basis for Dr. Yuille’s testimony. His criticism of 

the defense expert’s conclusions was not mere speculation, as 

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Opinion of the Court

Mr. Clopten has asserted on appeal. Rather, it was based on a 

thirty-year history of peer-reviewed field studies, many of them 

not conducted by Dr. Yuille, and on the generally accepted 

principle of psychological science that differences between 

laboratory studies and the real world sometimes limit the studies’ 

external validity—that is, their ability to predict real-world 

behavior. That Dr. Yuille disagrees with the majority of 

researchers in his field about some laboratory studies’ external 

validity does not prove that his conclusions lack an adequate 

methodological basis. It merely demonstrates that eyewitness 

memory science, like all science, is an unfinished project whose 

conclusions are subject to debate and revision as researchers 

publish more studies and methodologies improve.

B. Dr. Yuille’s Testimony Was Admissible Under Clopten I

¶53 The continued progress of science is among the chief 

reasons that expert testimony is superior to the Long instructions: 

expert witnesses will be aware of recent developments in the field 

and testify accordingly, while our Long factors are now almost 

thirty years old. See State v. Long, 721 P.2d 483 (Utah 1986). Even 

our lengthy discussion of eyewitness memory science in Clopten I

is five years old, see Clopten I, 2009 UT 84, 223 P.3d 1103, and we 

expect that some of the scientific findings on which Clopten I

relied have already been called into question by subsequent 

research. We would not have expected otherwise when Clopten I

was decided.

¶54 Yet Mr. Clopten asks us to bind trial judges and experts 

like Dr. Yuille forever to our own assessment of the state of the 

science in 2009, arguing that “Yuille’s claims directly violated this 

Court’s clear precedent.” This argument is a category error: 

precedent is a statement of law, not fact, so it is logically 

impossible for a witness’s factual claims to “violate precedent.”

¶55 It may violate precedent for a judge to allow a particular 

witness to testify, but nothing in Clopten I directs judges to accept 

only those expert witnesses whose understanding of eyewitness 

memory science agrees with the one we expressed five years ago 

based on the state of the science at that time. Indeed, it would 

have been legally problematic if the Clopten I court had required 

suppression of experts who disagreed with it—Clopten I interprets 

and applies rule 702, and, as explained above, rule 702 does not 

allow a court to suppress expert witnesses because it disagrees 

with their conclusions.

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STATE V. CLOPTEN

Opinion of the Court

¶56 We therefore conclude that Dr. Yuille’s testimony was 

properly admitted. Consequently, Mr. Clopten’s trial counsel was 

not constitutionally ineffective for failing to object to it, and the 

trial court did not plainly err by failing to exclude it.

V. THE TRIAL COURT DID NOT ERR WHEN IT DECLINED 

TO GIVE ADDITIONAL PROPOSED INSTRUCTIONS ON 

EYEWITNESS TESTIMONY

¶57 Finally, Mr. Clopten argues that his conviction should be 

reversed because the trial court did not give certain instructions 

on eyewitness identification that he had requested. Even though 

Mr. Clopten and the State presented expert testimony on the 

reliability of eyewitness identifications, the trial court instructed 

the jury on the Long factors. The Long factors identify a number of 

considerations a jury may weigh in determining the reliability of 

an eyewitness identification, including whether the eyewitness 

had an adequate opportunity and capacity to observe a criminal 

actor and whether the eyewitness’s memories are reliable. State v. 

Long, 721 P.2d 483, 494 n.8 (Utah 1986). In addition to these Long

instructions, Mr. Clopten asked the trial court to give more 

detailed instructions regarding identifications where the 

eyewitness and the suspect are of different races and instructions 

regarding the degree of certainty expressed by the eyewitness. 

¶58 The trial court refused to give these proposed 

instructions. On appeal, Mr. Clopten argues that the trial court 

erred. He asserts that the trial court improperly denied him “the 

ability to educate the jury about factors this Court expressly 

countenanced in Clopten I.”¶59 In State v. Long, we directed 

trial courts to instruct the jury on eyewitness identifications 

whenever it “is a central issue in a case and such an instruction is 

requested by the defense.” 721 P.2d at 492. Later, in Clopten I, we 

held that expert testimony “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.” 2009 UT 84, ¶ 30, 223 P.3d 

1103. In order to reconcile the central holdings of Long and Clopten 

I, we further clarified that trial courts should still give a Long 

instruction where the defendant does not call an expert on 

eyewitness identifications. Id. ¶ 34. “Where eyewitness expert 

testimony is heard, however, Long no longer applies and the 

inclusion of a cautionary instruction, if requested, is a matter for 

the trial judge’s discretion.” Id. 

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Opinion of the Court

¶60 Because Mr. Clopten presented extensive expert 

testimony designed to educate the jury on the factors relevant to 

the reliability of eyewitness identifications, the trial court had no 

obligation to present a Long instruction. The presentation of any 

instructions on this subject, including the supplemental 

eyewitness identification instructions created by Mr. Clopten, was 

discretionary. Given the extent of expert testimony on eyewitness 

identifications at trial, we see no reason to believe it was an abuse 

of discretion to decline to give the additional proposed 

instructions. 

CONCLUSION

¶61 We conclude that none of Mr. Clopten’s assertions of 

error have merit. We therefore affirm his conviction.

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STATE v. CLOPTEN

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and in result

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and 

concurring in the judgment:

¶62 I concur in the judgment of the court and concur in its 

opinion in part. I write separately, however, because I disagree 

with the analysis in Part III of the majority opinion. 

¶63 In Part III the majority holds that Clopten lacks 

standing to complain about the eyewitness identification 

testimony of Melissa Valdez because it was the defense, and not 

the prosecution, that presented Valdez’s identification to the jury. 

Supra ¶ 38. In so concluding, the court sidesteps the question 

whether the due process standards articulated in State v. Ramirez, 

817 P.2d 774 (Utah 1991), are implicated in a case in which there is 

no state action in the form of suggestive police misconduct. 

¶64 I see the matter differently. I see no basis for the 

decision to deem Clopten to have affirmatively advanced the 

eyewitness in question. Valdez was unquestionably a witness for 

the prosecution. And Clopten did not present her identification

testimony to the jury for any of his own purposes; he only sought 

to undermine the credibility of her eyewitness identification on 

cross-examination. In deeming such cross-examination the 

equivalent of affirmative advancement of a witness’s testimony, 

the court imposes a substantial (and unnecessary) burden on the 

exercise of the right of cross-examination. It also creates a Catch22 for defense counsel—of either accepting the eyewitness as 

presented by the prosecution (while preserving the right to 

challenge that witness under Ramirez) or undermining that 

eyewitness on cross-examination (but waiving the right to assert a 

Ramirez claim).

¶65 The court’s analysis on this point is both legally and 

practically troubling. Accordingly, I would reject Clopten’s claim 

on a different ground. I would hold that the due process standard 

in Ramirez requires a threshold showing of police misconduct, and 

that Clopten’s claim fails because there was nothing of that sort in 

this case.

I

¶66 The briefs filed on appeal argued at length over a 

threshold question concerning the applicability of the standards 

set forth in State v. Ramirez, 817 P.2d 774 (Utah 1991), in a case like 

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Associate Chief Justice Lee, concurring in part and in result

this one. The question is whether the factors we identified in 

Ramirez apply in a case in which there is no allegation of 

suggestive police activity. In the State’s view, such activity is 

required because Ramirez articulates standards for analyzing a 

constitutional due process claim, and police misconduct is 

necessary to establish the state action element of any such claim. 

Clopten staked out the contrary view. He asserted that Ramirez

has been extended—and should be extended—to all cases where 

eyewitness identification testimony is in question. And he asked 

us to construe the Due Process Clause of the Utah Constitution to 

establish a standard of evidentiary reliability even absent police 

misconduct.

¶67 The majority avoids this question. It does so on the 

ground that that Clopten has no standing to complain about 

Valdez’s testimony regarding the photo lineup because “it was 

the defense” (and not the State) who “made sure the jury knew 

that Ms. Valdez had identified Mr. Clopten.” Supra ¶ 38. The court 

acknowledges that it was the State that first put Valdez on the 

witness stand—and elicited her testimony “that a defense 

investigator had presented her with a photo array, that she had 

recognized a person in the photo array as the killer, and that the 

defense investigator then told her that she ‘wasn’t going to be any 

help to his case.’” Supra ¶ 34. But it nonetheless concludes that the 

State somehow “did not intend to present Ms. Valdez’s 

identification of Clopten to the jury,” and thus that it was the 

defense that ultimately did so. Supra ¶ 40. 

¶68 I find this analysis unpersuasive. Melissa Valdez was 

unquestionably the prosecution’s witness, and the prosecutor’s 

questions regarding the photo array had only one purpose—to 

imply that Valdez had identified Clopten. Certainly the defense 

understood her testimony in that way. And it accordingly went 

out of its way to do damage control. Its cross-examination of 

Valdez, however, was aimed at undermining her identification. 

Clearly the defense had no interest in “seek[ing] to inform the jury

that an eyewitness ha[d] recognized the defendant as the 

perpetrator.” Supra ¶¶ 35–36. And the prosecution had a clear 

incentive to do so; it’s hard to imagine any other reason for 

presenting this evidence to the jury.

¶69 I suppose there is a sense in which “it was the defense 

that made sure the jury knew that Ms. Valdez had identified Mr. 

21
STATE v. CLOPTEN

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and in result

Clopten.” Supra ¶ 38. But the defense’s cross-examination of 

Valdez was hardly “intend[ed] to present Ms. Valdez’s 

identification of Clopten to the jury.” Supra ¶ 40 (emphasis 

added). It was aimed at undermining the (implied) identification 

presented in Valdez’s direct–examination. So if the question is 

which side—prosecution or defense—introduced Valdez’s 

identification to the jury, there can be only one answer. It was 

clearly the prosecution.

¶70 We create perverse incentives in holding the contrary. 

Under the majority’s rule, a defense lawyer will act at his peril in 

pursuing the course of undermining an eyewitness for the 

prosecution. Cross-examination for the purpose of damage 

control will risk waiver of a due process claim under Ramirez. 

¶71 I see no reason to put defense lawyers in this quandary. 

We can avoid the problem by resolving the case on the 

straightforward ground that the due process standard in Ramirez

is triggered only by state action in the form of police misconduct. I 

would so hold, for reasons explained below.

II

¶72 Our cases in this area are not a model of clarity. On one 

hand, Clopten is right to note that our cases at least arguably 

suggest that Ramirez may extend to cases where police misconduct 

is absent. Yet the State, for its part, correctly notes that standard 

due process analysis would require suggestive police activity, and 

that we have never squarely held the contrary. We should resolve 

this issue. It is squarely presented and well-briefed. And putting it 

off will sow the seeds of confusion in our lower courts going

forward.

¶73 Ramirez involved “blatant [police] suggestiveness” in 

the course of a police “showup”—a point the court deemed “most 

critical[] for purposes of this case.” State v. Ramirez, 817 P.2d 774,

777, 784 (Utah 1991). Yet Clopten is right to note that Ramirez did 

not expressly establish police misconduct as a threshold 

requirement. And it is true that the Ramirez factors have been 

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Associate Chief Justice Lee, concurring in part and in result

applied in some subsequent cases in which suggestive police 

activity is missing.3

¶74 That said, our court has never squarely addressed the 

question presented in this case under the Due Process Clause of 

the Utah Constitution. Ramirez itself involved suggestive activity 

by the police, so there was no reason in that case for us to address 

that question. And in introducing its discussion of reliability, the

Ramirez court framed the matter as “the analytical model to be 

used by a trial court in determining the admissibility of arguably 

suggestive eyewitness identifications.” Id. at 779 (emphasis added). 

It also emphasized that the factors it identified “depart[ed] from 

federal case law only to the degree that [it] f[ou]nd the federal 

analytical model scientifically unsupported.” Id. at 780 (emphasis 

added).

¶75 The federal model, moreover, is one that unequivocally 

requires threshold proof of state action in the form of police 

misconduct. That was our conclusion in State v. McCumber, 622 

P.2d 353, 357 (Utah 1980). In McCumber we acknowledged that 

factors undermining an eyewitness identification’s reliability 

“may weaken the probative impact of the evidence offered,” but 

concluded that such considerations “do not mandate suppression 

of the evidence in the name of due process without some showing 

that the identification procedures were themselves impermissibly 

suggestive.” Id. (emphasis added). Under that standard, our 

decision in McCumber rejected a due process challenge to an 

eyewitness identification made pursuant to a photographic 

display and subsequent lineup performed by the police because it 

found that neither was “impermissibly suggestive.” Id. 

¶76 The McCumber decision appears to be based on the Due 

Process Clause of the U.S. Constitution. And in interpreting the 

Utah Constitution, we are by no means bound to follow federal 

caselaw. Our prerogative of interpreting the state constitution is 

not a license to make policy, however; it is a charge to interpret.

Clopten, moreover, has proffered no basis for reading the words 

of the Due Process Clause of the Utah Constitution in a manner 

3 State v. Decorso, 1999 UT 57, ¶ 47, 993 P.2d 837; State v. 

Hubbard, 2002 UT 45, ¶ 25, 48 P.3d 202; State v. Hollen, 2002 UT 35, 

¶ 64, 44 P.3d 794; State v. Willett, 909 P.2d 218, 224 (Utah 1995).

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STATE v. CLOPTEN

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and in result

inconsistent with the traditional understanding of “due process” 

(which requires proof of suggestive police activity). And absent 

such a basis, I would construe the Utah Due Process Clause to be 

in line with its federal counterpart.

¶77 Historically, the guarantee of due process has been 

understood as a bar on state action that deprives a protected party 

of “life, liberty, or property, without due process of law.”4 This is 

not a sweeping charter for judges to assure fairness by excluding 

evidence that may be of questionable reliability in light of 

emerging principles of social science. It is as a limitation on 

government action depriving a person of the traditional 

components of “due process,” such as the right to reasonable 

notice and a meaningful opportunity to be heard.5

¶78 I see no basis for extending this longstanding view of 

due process to establish an omnibus guarantee of evidentiary 

reliability. Nor do I see a limiting principle on such a slippery 

slope. 

¶79 Our law has never required trial judges to make 

independent assessments of evidentiary reliability based on an 

informed understanding of social science. Instead we require 

judges simply to follow the law of evidence, and to rule on 

counsel’s objections thereunder. A judge is accordingly a state 

actor to the extent he is performing the duties our law expects of 

him. But it makes no sense to charge the judge, as Clopten 

suggests, with a due process obligation to foreclose the admission of 

evidence that is perfectly admissible under the law as it currently 

4 UTAH CONST. art. I, § 7. See Mathews v. Eldridge, 424 U.S. 319, 

332 (1976) (“Procedural due process imposes constraints on 

governmental decisions which deprive individuals of ‘liberty’ or 

‘property’ interests within the meaning of the Due Process Clause 

of the Fifth or Fourteenth Amendment.” (emphasis added)).

5 See Perry v. New Hampshire, 132 S. Ct. 716, 720–21 (2012) 

(holding that due process concerns, absent “the presence of 

[suggestive] state action” relating to an eyewitness identification, 

are met by the traditional guarantees of a “fair trial” embedded in 

the Sixth Amendment, such as “the right to counsel, compulsory 

process to obtain defense witnesses, and the opportunity to crossexamine witnesses for the prosecution”).

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Associate Chief Justice Lee, concurring in part and in result

stands. That is not the judge’s job under longstanding rules of 

evidence, and it cannot therefore be his job as a matter of due 

process.

¶80 Any concerns about our current law, moreover, can and 

should be dealt with by an amendment to our rules of evidence. 

We would lose the many virtues of that system—and thwart the 

reliance interests of parties and lower courts—if we required 

judges to make rules of evidence on the fly based on evolving 

social science. 

¶81 In any event, established caselaw forecloses the 

conclusion that the admission of unreliable evidence is state 

action infringing a defendant’s right to due process. Unreliability 

is not the touchstone of a due process challenge to the admission 

of evidence. State action is. See Colorado v. Connelly, 479 U.S. 157, 

164 (1986) (upholding admission of privately coerced confession 

against due process attack given the lack of state action); Mooney 

v. Holohan, 294 U.S. 103, 112 (1935) (concluding that only the 

knowing presentation of perjured testimony implicates due 

process). 

¶82 This principle dooms Clopten’s position. If we are to 

remain consistent to the historical understanding of due process, 

we cannot hold that it guarantees a defendant that only reliable 

evidence will be admitted against him. Coerced confessions and 

perjured testimony are undoubtedly unreliable. Yet they do not 

implicate due process unless they are actively, knowingly 

proffered by the State. See Connelly, 479 U.S. at 164 (“Absent police 

conduct causally related to the confession, there is simply no basis 

for concluding that any state actor has deprived a criminal 

defendant of due process of law.”); Mooney, 294 U.S. at 113

(requiring knowing presentation of perjured testimony; 

emphasizing that due process governs only the “action of a 

state”).

¶83 I would apply this principle here. I would hold that the 

Utah Constitution’s Due Process Clause is not a guarantee of 

evidentiary reliability but a bar to state action in knowingly 

presenting unreliable evidence. And I would reject Clopten’s 

challenge to Melissa Valdez’s testimony on that basis.

25