2021 UT 44

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

GLENN CONWAY HUNTER,

Petitioner.

No. 20190882

Heard April 8, 2021

Filed August 12, 2021

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable William K. Kendall

No. 161401898

Attorneys:

Lori J. Seppi, Salt Lake City, for petitioner

Sean D. Reyes, Att’y Gen., William Hains, Asst. Solic. Gen.,

Tony F. Graf, Salt Lake City, for respondent

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PETERSEN joined.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Glenn Hunter of distributing or arranging 

to distribute a controlled substance. Hunter says the police got the 

wrong man. He admits he possessed methamphetamine when police 

arrested him, but he says he’s not the same man the police saw 

distributing methamphetamine.

¶2 Hunter’s trial counsel presented a theory of mistaken 

identification in his opening and closing arguments, and he crossexamined the prosecution’s witnesses about weaknesses, 

inconsistencies, and gaps in their testimony. But Hunter’s trial 
STATE v. HUNTER

Opinion of the Court

2

counsel did not request a jury instruction about the potential 

unreliability of eyewitness identification testimony—often referred 

to as a Long instruction. See State v. Long, 721 P.2d 483, 492–93 (Utah 

1986).

¶3 On appeal, Hunter argued that his trial counsel’s failure to 

request a Long instruction constituted ineffective assistance of 

counsel. The court of appeals affirmed the conviction, holding that 

Hunter’s trial counsel was not deficient because court of appeals 

precedent held that Long does not apply to “real-time 

identifications” like the identification here.

¶4 We vacate the court of appeals’ holding that Long does not 

apply. We nevertheless affirm because Hunter’s trial counsel was not 

constitutionally deficient in not requesting a Long instruction. A

competent attorney, on the facts of this case, could reasonably 

conclude that a Long instruction might backfire by causing the jury to 

think the officers’ identification testimony was more reliable than 

they would otherwise think without the instruction.

BACKGROUND

¶5 Two Salt Lake City police officers, Officers Willis and 

McNamee (collectively, Surveillance Officers), set up surveillance to 

look for drug activity near a downtown homeless shelter. The

Surveillance Officers conducted their surveillance operation in two 

adjacent, second-story office rooms in a building “just over a 

hundred yards” from the shelter. The Surveillance Officers used 

binoculars to observe the goings on. It was around 7:30 p.m. on a 

summer’s evening. Willis testified at trial that it was “fairly well lit 

outside” when they observed the drug sale at issue in this case. He

also testified that there were no obstructions or weather conditions

that impacted their ability to see.

¶6 At some point, the Surveillance Officers noticed what they 

described as a “White male wearing a white tank top, light colored 

pants,” and with hair done in a bun. The Surveillance Officers

testified that they saw the White male approach a “Black male” who 

was “leaning against” a wooden fence or wall. Hunter and the State 

agree that the back of the White man was to the Surveillance 

Officers, and the Black man faced the Surveillance Officers. Willis 

testified that he had never seen either man before. McNamee 

testified that the Black man was “a subject that appeared to be 

involved in narcotic—typical narcotic activity in the area.”

¶7 McNamee recalled in his trial testimony that the “Black 

male [was] wearing sunglasses, a black hoodie, black T-shirt, he had 
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Opinion of the Court

3

a yellow necklace on, and full length camouflage pants.” McNamee 

also described seeing “the White male approach the other subject, 

they briefly contacted each other, and then the White male began 

walking [away].”

¶8 Willis, in his trial testimony, described the movements of the 

interaction with more specificity but did not, during that description, 

detail the Black man’s appearance other than to note his perceived 

race and gender. Willis testified that he watched the White man 

(Buyer) hand cash to the Black man (Seller). The Seller took the cash

and “retrieved from one of his pockets a clear . . . sandwich baggie” 

that “had some sort of a white substance in it.” Willis watched the 

Seller reach into the bag, remove some of its contents with his hands, 

and distribute that into the Buyer’s cupped hand. Willis further 

detailed that “it appeared . . . similar to if you had salt or some type 

of a substance like that in a plastic bag, and you tried to remove 

some and then give that to someone else in their hand without 

spilling it.”

¶9 But when the prosecution asked if he could “actually see the 

hand motions through the binoculars,” Willis did not directly 

answer yes or no. Instead he responded:

[I]t was very obvious to me based on my life 

experience that what [the Seller] was doing was 

disbursing something that he had taken from the bag 

into the hand of the other male. The manner in which 

the White male was holding his hand, and the way that 

it was being disbursed was consistent with . . . I could 

say with confidence that he was -- it appeared to me he 

was . . . putting something into his hand.

During cross-examination, Willis similarly explained that the Seller 

“appeared to be retrieving [the substance] in a careful manner so as 

not to spill any” because, “based on my experience and training,” 

“Never want to lose any of your suspected drugs.”

¶10 Both Surveillance Officers spoke to the amount of time the 

transaction took. McNamee testified that the Buyer and Seller

“briefly” contacted each other. Willis estimated that the total 

transaction took “[p]robably less than 20 seconds. . . . [I]t was quick, 

and most of the drug transactions in the area occur quickly like 

that.” On cross-examination, Willis detailed that the pass of cash 

took “[p]robably a second or . . . two seconds” while the passing of 

the controlled substance “[t]ook a little bit longer,” “maybe more like 

10 seconds. Eight, 10 seconds, something like that.”
STATE v. HUNTER

Opinion of the Court

4

¶11 Once the transaction was complete, the Surveillance Officers 

observed the Buyer walk away. Officer Willis then “immediately 

notified” the takedown officers that he believed he’d “just seen a 

drug transaction, and that the buyer was the White male in the white 

tank top with his hair up in a bun, and he was walking northbound.” 

Willis described how the Buyer “couldn’t go that far . . . before he 

was out of my view.”

¶12 The prosecution asked Willis if he gave any description 

about the Seller to the takedown officers. Willis responded: 

“Probably not right at that time . . . . I wanted to get the description 

out of the White male as he was . . . walking north.” McNamee, on 

the other hand, testified that after the Buyer walked away from the 

transaction, he provided the takedown officers with “the White 

male’s description, and the description of the Black male that I had 

observed.”

¶13 Regarding the Surveillance Officers’ focus, McNamee 

testified: “I was continuing to watch the White male as he left the 

area. Once he left my view, I transitioned back to the other male that 

I’d watched,” referring to the Seller. Willis, on the other hand, 

initially testified that the Seller remained in his view, but changed 

his tune somewhat on cross-examination. During direct examination, 

Willis explained that the reason he hadn’t given the takedown 

officers a description of the Seller at the same times as he gave a 

description of the Buyer was that he “could still see [the Seller] in my 

view.” Willis further explained that, while he was waiting for the 

takedown officers to apprehend and search the Buyer, he “just tried 

to maintain a visual observation of the Black male to make sure he 

didn’t get out of our view.” Willis also stated that the Seller

“remained right here in the area . . . just right there in the same area 

where he was standing when I first saw him.” And he recalled that 

the Seller was “just kind of loitering there, standing in the area . . .

just kind of hanging around.”

¶14 Willis’s cross-examination testimony was less definitive. 

Defense counsel asked whether, after having watched the Buyer

walk out of sight, Willis “returned [his] line of view to the area 

where the Black male was.” Willis responded: “It was kind of all 

right there in the same area. I may have even kept a view of both of 

them.” Defense counsel pressed: “[W]hat you’re really saying is, you 

don’t remember right now whether you watched both of them.”

Willis responded: “In my report, I noted that the White male walked 

north out of my view. When he was out of my view, I returned to 

watching the Black male. He was still in the same area where he was 
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5

when I last saw him.” Defense counsel again pressed: “So to be clear, 

then, you took eyes off of the Black male and followed the White 

male, based on your report and your memory.” Willis did not

directly answer whether he kept his eyes on the Seller. Instead, 

Willis responded: “I know I followed the White male. Correct.”

¶15 After Willis and McNamee notified the takedown officers 

that the Buyer was walking away, the takedown officers “[a]lmost 

immediately” radioed back “they had located the White male and 

had stopped him.” And “[v]ery shortly after that,” another officer 

radioed that he had found “a white substance in the hand of the 

White male.”

¶16 Willis and McNamee then reported the suspected Seller’s 

description and location. Willis testified that he told the takedown 

officers that “the suspected dealer, the Black male” was “by the ramp 

to the men’s side of the shelter by the fence, and that he was wearing 

camouflage pants, a black hoodie type sweater, black sunglasses and 

a black hat, and he had a gold chain around his neck.” On crossexamination, Willis added that he did not take note of any potential 

“distinctive markings” on the hoodie, and he agreed it was “not 

uncommon” for people in the area to wear hoodies and sunglasses.

Willis also did not notice whether the suspected Seller’s pants were 

“any specific or particular kind of camouflage,” stating that it was “a 

basic camouflage that could be easily recognizable by most 

anyone.”1 Nor could Willis definitively say whether “no one else 

there was wearing camouflage pants.” But he clarified that he 

“didn’t see anyone else wearing camouflage pants that could’ve been 

confused with the pants that the suspect had on,” so he “didn’t feel 

that anything more than camouflage pants was needed to direct the 

officers to the appropriate suspect.”

¶17 Willis’s and McNamee’s trial testimony describing the 

suspected Seller’s “sunglasses” differed somewhat from that of one 

of the takedown officers. The takedown officer testified that he was 

not told to look for someone wearing sunglasses. Rather, “[t]he 

description [he] was given was a Black male in a black hooded 

sweater wearing camo pants and holding an orange sports drink.” 

Another takedown officer testified that he was given a description of 

“a male, Black, with camouflage pants” and “there would’ve been a 

full clothing description.”

 

1 Thus defeating camouflage’s purpose.
STATE v. HUNTER

Opinion of the Court

6

¶18 In addition, Willis testified that he had observed “quite a 

number of people” congregated near the shelter that day. Willis

acknowledged during cross-examination that he “didn’t take note” 

of the precise number of “Black people in that area that day,” nor the 

precise number of people of other races or ethnicities. One of the 

takedown officers similarly could not recall whether there were 

Black people other than Hunter there that day, though he testified 

that the shelter area was “known” to have a large number of Black, 

Hispanic, and Asian people and that there were consistently people 

of “all races” there.2

¶19 After Willis and McNamee gave the takedown officers the 

description of the person they believed to be the Seller, they waited 

for the takedown officers to arrive. Willis testified that, while they 

waited, he was “able to remain in visual contact with the Black male 

during this time,” and “was able to watch as the other officers 

arrived in the area, got out of their cars, and approached him, and 

was able to verify that they had contacted the correct male.”

McNamee similarly testified that he saw the takedown officers 

“come into the area and contact the subject that I had described and 

take him into custody.” One of the takedown officers similarly 

verified that, once he placed the person suspected to be the Seller in 

handcuffs, he received “verbal confirmation,” presumably from the 

Surveillance Officers, “that that was indeed the individual observed 

dealing the narcotics.”

¶20 McNamee agreed with the prosecutor’s clarification that, 

when he was talking about the person the takedown officers 

arrested, he was “talking about the Black male” that he had watched 

participate in the drug transaction, and that that man “was in that 

same area,” when the takedown officers arrested him. Similarly, 

Willis testified during cross-examination that the Seller and the 

person arrested were the “same.” Specifically, defense counsel asked 

whether, after the Buyer walked away, “[Willis] returned and 

viewed a Black male.” (Emphasis added.) Willis responded that it 

was “[t]he same Black male.” (Emphasis added.) And when further 

pressed, Willis again said, “It was the same Black male,” and again 

that “[i]t was the same Black male that was wearing the hat, the 

sunglasses, the hoodie, the camouflage pants, and the gold chain . . .

[t]hat was standing there when he made the transaction with the 

 

2 The record before us does not contain any evidence on the race 

or ethnicity of the Surveillance Officers and the takedown officers.
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Opinion of the Court

7

White male.” On re-direct, Willis agreed twice with the prosecution 

that the arresting officers responded to “the Black male.” (Emphasis 

added.) Finally, the prosecution asked Willis, “during the course of 

your investigation, were you able to determine the name of the Black 

male?” Willis said “Yes” and that his name was “Glen [sic] Hunter.”

¶21 One of the takedown officers testified that when they 

apprehended Hunter, he was wearing a black hooded sweatshirt and

camouflage pants. Hunter was also holding an orange sports drink.

In addition, the takedown officer initially testified during crossexamination that Hunter was wearing what “appeared to be 

sunglasses” at the time of arrest. But he then agreed with defense 

counsel that Hunter’s glasses at the time of arrest were the glasses he 

was wearing in court, which “look clear.” However, the takedown 

officer reiterated that, “[f]rom what I observed on scene, they 

appeared to be sunglasses.” The takedown officer did not recall 

finding any other pair of glasses during his search of Hunter.

¶22 The takedown officers did find other items during their 

search of Hunter. Specifically, the takedown officers found a “bag of

a white crystal like substance,” a firearm, and cash.

¶23 The state crime lab tested the white substances from both 

Hunter and the Buyer and determined the substances to be

methamphetamine. But the crime lab witness acknowledged during 

cross-examination that the lab did not test the purity of the two 

samples to determine if they were the same or cut with different 

types or amounts of other substances.

¶24 The takedown officers recorded Hunter’s arrest on body 

cameras. But Willis and McNamee did not record or photograph the 

alleged transaction between the Buyer and the Seller. No other image 

or recording of the transaction was introduced into evidence.

¶25 The State charged Hunter with second-degree felony 

distribution of or arranging to distribute a controlled substance.3 At

trial, Hunter’s defense counsel argued that Hunter had been 

misidentified as the man involved in the drug transaction. He raised

that point in opening and closing arguments. During opening 

 

3 The State also charged Hunter with purchase, transfer, 

possession or use of a firearm by restricted person, as well as 

possession or use of a controlled substance. At a preliminary 

hearing, the district court granted the State’s motion to dismiss the 

controlled substance possession charge.
STATE v. HUNTER

Opinion of the Court

8

arguments, Hunter’s trial counsel asked the jury to consider whether 

the evidence shows that Hunter was, in fact, the person who 

engaged in the exchange with the Buyer. During closing, he posited

that “the officers took down the wrong person” and that the State 

had not proven Hunter was “the individual who distributed 

controlled substances.”4

¶26 Hunter’s counsel stressed in his closing argument that the 

Surveillance Officers didn’t “stay focused” on the Seller and “took 

eyes off” him, instead following the Buyer before “turn[ing] back 

and . . . look[ing] at” the Seller. He also pointed out multiple times in 

his opening and closing arguments that, although the Surveillance 

Officers viewed the transaction through binoculars, it was “at some 

distance,” and the Surveillance Officers had used their “personal 

binoculars,” not government-issued ones. Moreover, Hunter’s 

counsel pointed out that there were “multiple individuals present at 

that time milling about,” including other Black people, according to 

photographs of the arrest. Yet, noted Hunter’s counsel, the Officers 

could not recall whether there were other Black people in the area

then. And Hunter’s counsel reminded the jury during closing that 

the Surveillance Officers had not taken any photographs of the drug

transaction.

¶27 In his closing arguments, Hunter’s counsel also questioned 

whether the Surveillance Officers’ description of the suspected Seller

as a Black male in a hoodie, gold chain, sunglasses, and camouflage

pants was “so unique” as to make an accurate identification, 

highlighting how the description included nothing about height, age, 

weight, size, body type, or distinctive markings. He also identified 

multiple discrepancies in the Surveillance Officers’ descriptions of 

the suspected Seller, asserting that “there’s no gold chain in 

evidence,” nor are there sunglasses. And he pointed out in closing 

 

4 This argument also formed the basis of Hunter’s motion for a 

directed verdict. In that motion, Hunter’s counsel contended that 

Hunter was “different from the person that the officers were 

observing” during the drug transaction, that the State had presented 

insufficient evidence to prove Hunter “was the individual who 

distributed that methamphetamine,” and that there was “clearly a 

break in the [S]tate’s evidence” and only “pure speculation” could 

lead a jury to conclude that Hunter was “the individual who was 

observed doing the distribution of controlled substances.”
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that the Surveillance Officers did not describe the Seller as having an 

orange sports drink, yet Hunter had an orange sports drink in hand 

when arrested.

¶28 In addition, Hunter’s counsel pointed out in his opening 

and closing arguments that the state crime lab had not conducted a 

purity test to determine whether the methamphetamine found on 

the Buyer was the same purity as the methamphetamine found on 

Hunter.

¶29 Hunter’s trial counsel had evinced those details during his 

cross-examination of the Surveillance Officers, the takedown officers, 

and the state crime lab employee. As discussed above, Hunter’s 

counsel pressed Officer Willis on whether or to what extent he took 

his eyes off the Seller while the Buyer was walking away. See supra

¶ 14. He also asked Willis about how much time the transaction took 

and how long he was able to observe the seller. See supra ¶ 10. He 

questioned Willis on whether there was anything more distinct 

about the Seller’s clothing and accessories. See supra ¶ 16. And he

pressed Willis on whether Hunter was the same Black man as the 

person observed selling the drugs. See supra ¶ 20. Hunter’s counsel 

also pressed one of the takedown officers on whether the 

Surveillance Officers’ description of the Seller included sunglasses 

and whether Hunter was indeed wearing sunglasses or clear glasses 

during arrest. See supra ¶¶ 17, 21. And, finally, Hunter’s counsel

questioned the crime lab personnel on why they did not conduct 

purity testing on the methamphetamine samples to determine if the 

methamphetamine found on the Buyer and Hunter were the same. 

See supra ¶ 23.

¶30 Although Hunter’s trial counsel spent much of his 

arguments and cross-examination on his theory of mistaken 

identification and pointing out weaknesses in the witnesses’ 

testimonies, he did not ask the judge to give the jury a Long 

instruction. A Long instruction educates and cautions a jury about 

the factors that might impact the reliability of eyewitness 

identifications. See State v. Long, 721 P.2d 483, 492–93 (Utah 1986).

Hunter’s counsel also did not call an eyewitness expert to educate 

the jury about the issues that can impact the quality of eyewitness 

identification.

¶31 Hunter’s trial counsel did, however, request a jury

instruction on the “Credibility of Witnesses,” which included such 

questions as, “How good was the witness’s opportunity to see, hear, 

or otherwise observe what the witness testified about?” And 
STATE v. HUNTER

Opinion of the Court

10

whether the witness’s testimony was “consistent over time,” and 

“believable . . . in light of other evidence” and “in light of human 

experience.” The judge gave the witness credibility instruction as 

part of the jury’s preliminary instructions.

¶32 The jury instructions told jurors that “[t]here has been 

evidence suggesting that a person other than the defendant may 

have been involved in the crime for which the defendant is on trial,” 

and reminded the jury that their duty is to decide whether the State 

has “proven, beyond a reasonable doubt, the guilt of the defendant 

who is on trial.” The instructions also advised that “[t]he fact that a 

witness is employed in law enforcement does not mean that his 

testimony deserves more or less consideration than that of any other 

witness,” and that it is up to the jurors “to give any witness’s 

testimony whatever weight [the jurors] think it deserves.” Further, 

the jury instructions included, at Hunter’s request, an instruction on 

possession as a lesser-included offense of distribution.

¶33 The jury convicted Hunter of distributing or arranging to 

distribute a controlled substance.5 Hunter appealed.

¶34 In the court of appeals, Hunter argued that his trial 

counsel’s failure to request a Long instruction amounted to 

ineffective assistance of counsel. State v. Hunter, 2019 UT App 157, 

¶ 9, 451 P.3d 272. He also challenged the sufficiency of the evidence 

on the distribution charge. Id. The court of appeals rejected both of 

Hunter’s arguments and affirmed the conviction. Id. ¶ 21. The court 

held that the evidence was sufficient to support Hunter’s conviction. 

Id. ¶¶ 16–21. And it held that Hunter’s trial counsel was not deficient 

for failing to request a Long instruction because Long does not apply 

to “real-time identifications” like the officers’ identifications here. Id.

¶¶ 14–15. To arrive at that conclusion, the court of appeals relied on 

State v. Bowdrey, 2019 UT App 3, 438 P.3d 946. The court reasoned 

that the Surveillance Officers’ “contemporaneous identification of 

Hunter was nearly identical to the real-time identification of the 

defendant in Bowdrey,” Hunter, 2019 UT App 157, ¶ 14, and that the 

 

5 The jury also convicted Hunter of the firearm charge, after 

Hunter’s trial counsel conceded his guilt on that charge during 

closing arguments. State v. Hunter, 2019 UT App 157, ¶¶ 7–8, 451 

P.3d 272. The trial court sentenced Hunter to serve prison terms of 

one-to-fifteen years for each of the two charges, to run concurrent 

with each other.
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Opinion of the Court

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Surveillance Officers’ “momentary shift in focus while perceiving 

real-time events is not the type of memory-based eyewitness 

identification that the Long instruction addresses.” Id.

¶35 Hunter petitioned for a writ of certiorari. Hunter seeks

review of the court of appeals’ decision that his trial counsel did not 

provide ineffective assistance when it failed to ask for a cautionary 

instruction relating to eyewitness identifications.6 He did not ask us 

to review the court of appeals’ sufficiency of evidence determination.

We granted Hunter’s petition.

STANDARD OF REVIEW

¶36 “‘On certiorari, this court reviews the decision of the court 

of appeals for correctness, giving no deference to its conclusions of 

law.’ An ineffective assistance of counsel claim presents a question of 

law that we review for correctness.” State v. Scott, 2020 UT 13, ¶ 27, 

462 P.3d 350 (citations omitted).

ANALYSIS

¶37 “The Sixth Amendment to the United States Constitution 

guarantees criminal defendants the effective assistance of counsel.” 

State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Hunter argues that he 

was deprived of effective assistance of counsel when his trial 

attorney failed to request a cautionary jury instruction about the 

potential unreliability of eyewitness identification testimony—often 

referred to as a Long instruction. See State v. Long, 721 P.2d 483, 492–

93 (Utah 1986).

¶38 “[W]e evaluate claims of ineffective assistance under the 

standard articulated by the United States Supreme Court in 

Strickland v. Washington, 466 U.S. 668 (1984).” Ray, 2020 UT 12, ¶ 24. 

“[W]e employ the two-part test Strickland established, which requires 

the defendant to show (1) that counsel’s performance was deficient

and (2) that the deficient performance prejudiced the defense.” State v. 

Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641 (emphases added) (citations 

omitted) (internal quotation marks omitted).

 

6 Specifically, we granted Hunter’s Petition for Writ of Certiorari 

on the following issue: “Whether the Court of Appeals erred in 

concluding that Petitioner failed to demonstrate reversible error 

arising from his claim that his trial counsel had provided ineffective 

assistance by failing to seek a cautionary instruction relating to 

eyewitness identifications.”
STATE v. HUNTER

Opinion of the Court

12

¶39 The court of appeals affirmed Hunter’s conviction, deciding 

Hunter’s ineffective assistance of counsel claim on the first prong of 

the Strickland test. State v. Hunter, 2019 UT App 157, ¶¶ 11, 21, 451 

P.3d 272. The court held that Hunter’s trial counsel was not deficient 

for failing to request a Long instruction because “Long doesn’t apply 

to this case.” Id. ¶ 12. Specifically, the court of appeals concluded 

that Long does not apply to “real-time identifications” and therefore 

counsel could not be deficient in failing to make a “futile” request for 

an inapplicable Long instruction. Id. ¶¶ 12, 14–15.

¶40 Hunter argues the court of appeals erred because, he 

contends, he would have been entitled to a Long instruction if his 

trial counsel had requested it. And he contends that it was deficient 

for Hunter’s trial counsel to not request such an instruction, and that 

his counsel’s failure to ask for one prejudiced his defense.

¶41 The State agrees with the court of appeals that Long doesn’t 

apply to this case, and the State largely agrees with the court of 

appeals’ rationale. But the State also advances an alternative 

argument that, even if Long were available to Hunter, his counsel 

was not deficient because a reasonable attorney could surmise that a 

Long instruction risked hurting his defense. The State also argues 

that Hunter was not prejudiced by his counsel’s performance, even if 

it were deficient.

¶42 We vacate the court of appeals’ holding that Hunter would 

not have been entitled to a Long instruction had his counsel 

requested one. But, because we agree with the State that a reasonable 

attorney could surmise that a Long instruction risked hurting his 

client’s defense, we nevertheless affirm the court of appeals’

conclusion that Hunter’s counsel was not deficient.

I. THE COURT OF APPEALS ERRED IN HOLDING

THAT LONG DOES NOT APPLY TO

REAL-TIME IDENTIFICATIONS

¶43 A Long instruction is a cautionary jury instruction about 

factors that can impact the accuracy or reliability of eyewitness 

identification testimony and human perception. See State v. Long, 721 

P.2d 483, 492–93 (Utah 1986). The need for such an instruction stems 

from the fact that “jurors are, for the most part, unaware of the[] 

problems” inherent in human perception and eyewitness testimony. 

Id. at 490. “People simply do not accurately understand the 

deleterious effects that certain variables can have on the accuracy of 

the memory processes of an honest eyewitness.” Id.; see also State v. 

Clopten (Clopten I), 2009 UT 84, ¶ 15, 223 P.3d 1103 (“[J]uries are 
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Opinion of the Court

13

generally unaware of these deficiencies in human perception and 

memory and thus give great weight to eyewitness identifications.”). 

Moreover, “juries seemed to be swayed the most by the confidence 

of an eyewitness, even though such confidence correlates only 

weakly with accuracy.” Clopten I, 2009 UT 84, ¶ 15.

¶44 Trial courts must give a Long instruction whenever three 

elements are met: (1) “eyewitness identification is a central issue in a 

case”; (2) “such an instruction is requested by the defense”; and 

(3) the defense has not called an expert witness on eyewitness 

testimony. See Long, 721 P.2d at 492, as modified by Clopten I, 2009 UT 

84, ¶ 34.

¶45 The court of appeals held that Hunter would not have been 

entitled to a Long instruction even if his trial counsel had asked for 

one because that court believes that Long applies only to “memorybased” identifications, not “real-time” identifications. State v. Hunter, 

2019 UT App 157, ¶¶ 14–15, 451 P.3d 272. Therefore, the court 

continued, Hunter’s counsel could not be deficient in failing to make 

a “futile” request for an inapplicable Long instruction. Id. ¶ 15.

¶46 The State urges us to affirm the court of appeals’ holding 

and rationale. The State also offers two additional theories for why 

Long doesn’t apply to Hunter’s situation. The State posits that Long 

only applies to identifications based on facial recognition. The State 

further contends that the Surveillance Officers’ testimonies here 

weren’t “actual identification[s]” and “never identified Hunter as the 

seller.”

¶47 Hunter, naturally, argues that the court of appeals and the 

State are incorrect on the applicability of Long. Hunter contends he 

would have been entitled to a Long instruction if his trial counsel had 

requested it.

¶48 For reasons discussed below, we agree with Hunter that the 

court of appeals and the State are incorrect in deeming Long 

inapplicable.7

 

7 In 2019, after Hunter’s trial was complete, we adopted rule 617 

of the Utah Rules of Evidence to govern questions regarding the 

admissibility of eyewitness identification evidence. See UTAH R. EVID. 

617(b). The rule also governs when a court may and must give a 

cautionary instruction. Id. 617(f). We therefore expect that rule 617 

will answer most questions which previously would have been 

(continued . . .)
STATE v. HUNTER

Opinion of the Court

14

A. Identifications Need Not Involve Long-Term

Memory to Invoke Long

¶49 We first vacate the court of appeals’ holding that Long only 

applies to “memory-based” identifications, and not “real-time” 

identifications. See Hunter, 2019 UT App 157, ¶¶ 14–15. To reach that 

conclusion, the court of appeals relied upon its decision in State v. 

Bowdrey, 2019 UT App 3, 438 P.3d 946. In Bowdrey, the court of 

appeals held that “eyewitness identification based on memory is the 

key factor in Long and its progeny,” id. ¶ 16, and that Long did not 

apply where an officer had “made a continuous, real-time 

observation of Bowdrey as he engaged in selling drugs and was 

subsequently detained by the Arrest Team,” id. ¶ 15, and the officers 

had kept their eye on Bowdrey “the entire time.” Id. ¶ 17.

¶50 The Hunter court analogized that the “real-time 

identification” in Bowdrey was “nearly identical” to the Surveillance 

Officers’ “contemporaneous identification of Hunter.” Hunter, 2019 

UT App 157, ¶ 14. The court acknowledged that the Surveillance 

Officers “momentarily focused on Buyer as he left the scene.” Id. But 

the court believed that the “Officers’ fleeting focus on Buyer did not 

place their observation of Hunter’s drug dealing in the realm of 

Long.” Id. It reasoned that “a mere momentary shift in focus while 

perceiving real-time events is not the type of memory-based 

eyewitness identification that the Long instruction addresses.” Id.

¶51 We disagree with the court of appeals. Although we 

discussed “memory” at length in Long, we did not limit the need for 

cautionary instructions to only those identifications involving 

longer-term memory as the court of appeals did in this case and in 

Bowdrey. Rather, Long focused on the “memory process,” 

emphasizing that “[r]esearch on human memory has consistently 

shown that failures may occur and inaccuracies creep in at any stage

 

analyzed under Long. However, litigants might use Long and its 

progeny when arguing about the rule’s applicability and reach. See

id. 617(a)(1). Further, there may still be pending cases in which the 

court of appeals’ Long analysis is a live issue. We therefore deem it 

prudent to reject the State’s arguments on what constitutes an 

“eyewitness identification” meriting a cautionary instruction and 

correct the court of appeals’ error so it does not improperly preclude 

future litigants from receiving cautionary instructions in appropriate 

cases.
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Opinion of the Court

15

of what is broadly referred to as the ‘memory process.’” Long, 721 

P.2d at 488 (emphases added). We explained that the stages of the 

memory process “include[] the acquisition of information, its 

storage, and its retrieval and communication to others.” Id.

¶52 During the “acquisition stage” of the “memory process,” a 

“wide array of factors” may “affect the accuracy of an individual’s 

perception,” including the observer’s distance from the event, the 

length of time to perceive the event, the lighting, the amount of

movement, and the witness’s physical and emotional conditions. Id.

at 488–89. The “acquisition stage” is also impacted by factors that are 

“unique to each observer, includ[ing] the expectations, personal 

experiences, biases, and prejudices brought by any individual to a 

given situation,” as well as “the significance of the event to the 

witness at the time of perception.” Id. at 489. Witnesses also have 

“unconscious strategies of selective perception” which “may result 

in the exclusion of information that will later prove important in a 

court proceeding.” Id. “[T]he observer may have absolutely no 

memory of the facts simply because he or she failed to select the 

critical information for perception.” Id. 

¶53 The “retention stage” is “when information that may or may 

not have been accurately perceived is stored in the memory.” Id. 

“Just as in the perception stage, where the mind infers what occurred 

from what was selected for perception, in the retention stage people 

tend to add extraneous details and to fill in memory gaps over 

time . . . .” Id. at 489–90. And, to be fair to the court of appeals, we 

did say “the length of time between the witness’s experience and the 

recollection of that experience” can “affect the accuracy and 

completeness of recall.” Id. at 489. But that does not negate that 

inaccuracies and imperceptions can occur “at any stage” of the 

“memory process.” Id. at 488.

¶54 Finally, “the retrieval stage of the memory process” is 

“when the observer recalls the event and communicates that 

recollection to others.” Id. at 490. This stage is “fraught with potential 

for distortion” for many reasons, including that “few individuals 

have such a mastery of language that they will not have some 

difficulty in communicating the details and nuances of the original 

event.” Id. Research also shows that “the accuracy of an 

identification is, at times, inversely related to the confidence with 
STATE v. HUNTER

Opinion of the Court

16

which it is made” or communicated. Id.; see also Clopten I, 2009 UT 84, 

¶ 15 (“[C]onfidence correlates only weakly with accuracy.”).8

¶55 The court of appeals failed to acknowledge Long’s attention 

to problems with all stages of the memory process, including the 

initial acquisition of information. Instead, the court of appeals’ 

understanding of “memory” seems to be limited to the retention and 

retrieval stages of the memory process. The State, on the other hand, 

did acknowledge in its brief that “Long discussed potential problems 

not just with memory, but with perception as well.” But the State 

failed to persuasively explain why Long instructions would be 

limited to applying only to memory-based identifications when Long

was concerned with perception and acquisition of details right from 

 

8 Empirical research also supports Long’s concerns with the faults 

in eyewitness identifications from the very moment of intaking the 

details of an event. See Fredric D. Woocher, Did Your Eyes Deceive 

You? Expert Psychological Testimony on the Unreliability of Eyewitness 

Identification, 29 STAN. L. REV. 969, 976–82 (1977) (discussing how 

perception can be selective based on individual biases, stress, and 

poor observation conditions); Jacqueline Marks Bibicoff, Seeing is 

Believing? The Need for Cautionary Jury Instructions on the Unreliability 

of Eyewitness Identification Testimony, 11 SAN FERN. V. L. REV. 95, 99–

101 (1983) (discussing factors that impact perception, such as stress, 

timing, lighting, and race); Robin Sanders, Helping the Jury Evaluate 

Eyewitness Testimony: The Need for Additional Safeguards, 12 AM. J.

CRIM. L. 189, 194–96 (1984) (discussing factors that impact perception 

and selective memory, such as fear, personal bias, and race); Robert 

Buckhout, Eyewitness Testimony, 231 SCI. AM. 23 (1974), reprinted in 15 

JURIMETRICS J. 171, 172–76 (1975) (outlining factors impacting the 

reliability of perception, including the importance of the event to the 

observer, length of observation, stress, distance and lighting, the 

observer’s physical capacity to see, race, bias, and expectancy); Gary 

L. Wells, Applied Eyewitness-Testimony Research: System Variables and 

Estimator Variables, 36 J. PERSONALITY & SOC. PSYCH. 1546, 1550–52 

(1978) (discussing how preconceptions and race can impact the 

accuracy of the acquisition of details); I. Daniel Stewart, Jr., 

Perception, Memory, and Hearsay: A Criticism of Present Law and the 

Proposed Federal Rules of Evidence, 1970 UTAH L. REV. 1, 8–22 (detailing 

how perception and memory are impacted by neurological, 

psychological, and physiological factors).
Cite as: 2021 UT 44

Opinion of the Court

17

the very start. The State only points out Long’s use of the term 

“memory process.”

¶56 In sum, the court of appeals erred in holding that cautionary 

instructions are unwarranted unless the identification at issue 

involved “memory.”

B. Identifications Need Not Involve Facial

Recognition to Invoke Long

¶57 The State urges us to narrow the applicability of cautionary 

instructions even more than the court of appeals did. The State posits 

that “Long and its progeny are limited to identifications based on 

facial recognition.” And it asserts that the Surveillance Officers did not 

use facial recognition, so a request for a Long instruction would have 

been futile.

¶58 Long is not limited to identifications featuring facial 

recognition. The State even acknowledges as much. The State simply 

asserts that facial recognition is a “prominent[]” part of studies on 

eyewitness identification, but it acknowledges that those studies “do 

not focus exclusively on facial recognition.” For example, one study 

cited in Long discusses not only issues with facial recognition, but 

also witnesses’ “failure to observe the details of an event” due to 

“selective perceptual processes,” including non-facial physical 

characteristics of a perpetrator. Fredric D. Woocher, Did Your Eyes 

Deceive You? Expert Psychological Testimony on the Unreliability of 

Eyewitness Identification, 29 STAN. L. REV. 969, 977 (1977). It laments 

that “even trained observers find it difficult to describe such obvious 

physical characteristics as height, weight and age.” Id.

¶59 Further, as discussed above, supra ¶¶ 51–55, Long was 

concerned with the “process of perceiving events and remembering 

them,” and how “failures may occur and inaccuracies creep in at any 

stage” of that process. Long, 721 P.2d at 488. “[T]he observer may 

have absolutely no memory of the facts simply because he or she 

failed to select the critical information for perception.” Id. at 489.

¶60 Identifications primarily utilizing facial recognition may be 

more wrought with inaccuracies—particularly when they involve 

cross-racial identifications—and thus would more strongly merit a 

cautionary instruction. See Sheri Lynn Johnson, Cross-Racial 

Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 935–51 

(1984); Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 

ANN. REV. PSYCH. 277, 280–81 (2003). But facial recognition is not the 

only way to identify a perpetrator. Consider, for example, if a 

witness identified a perpetrator by the tattoos on his arms. That 
STATE v. HUNTER

Opinion of the Court

18

identification would implicate the memory process and raise the 

same concerns Long identified. Even though the identification did 

not involve facial features, we would still want the jury to know 

about the factors that can impact a witness’s recollection, including

the witness’s ability to view the actor during the event, the witness’s

degree of attention to the actor, and whether the identification was 

spontaneous and consistent, or the product of suggestion.9

¶61 Simply put, eyewitness identifications utilizing facial 

recognition are not the only kind of eyewitness identifications that 

can merit a cautionary instruction. Long does not require a facial 

recognition to warrant a cautionary instruction.10

C. The Surveillance Officers Identified Hunter

¶62 The State’s final push to constrict the applicability of 

cautionary instructions on eyewitness testimony asks us to conclude 

that the Surveillance Officers’ testimonies here weren’t “actual 

identification[s]” and “never identified Hunter as the seller.” The 

State relies on State v. Clopten (Clopten II), where we said that the 

rules of admissibility of “eyewitness identifications” under another 

since-abrogated case, Ramirez, “appl[y] only when the state seeks to 

inform the jury that an eyewitness has recognized the defendant as 

the perpetrator.” Clopten II, 2015 UT 82, ¶ 35, 362 P.3d 1216 (citing 

 

9 We note that Utah Rule of Evidence 617 does not limit itself to 

identifications involving facial recognition. See UTAH R. EVID.

617(a)(1). Nor, for that matter, does it exclude real-time 

identifications. Id. Rather, it defines “Eyewitness Identification[s]” as 

“witness testimony or conduct in a criminal trial that identifies the 

defendant as the person who committed a charged crime.” Id. While 

rule 617 does not govern our analysis of Hunter’s case, as we 

adopted that rule after completion of Hunter’s trial, we nevertheless 

find rule 617 instructive and consistent with this court’s thinking on 

eyewitness identifications and cautionary instructions under Long 

and its progeny.

10 Even if cautionary instructions under Long were limited to 

identifications utilizing facial recognition, it’s not clear that would 

help the State’s argument. The State’s brief asserts that the “seller 

was facing the officers.” If that is true, it would seem that the 

Surveillance Officers’ identification of Hunter did involve viewing 

faces, even though the description they gave to the takedown officers 

and at trial focused on Hunter’s clothing and accessories.
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Opinion of the Court

19

State v. Ramirez, 817 P.2d 774 (Utah 1991), abrogated by State v. Lujan, 

2020 UT 5, ¶ 4, 459 P.3d 992 (holding that the Utah Constitution does 

not mandate the factors used in Ramirez for assessing reliability and 

admissibility of eyewitness identification testimony, and that the 

rules of evidence are what apply)).

¶63 First, we are not convinced that Clopten II and Ramirez 

apply, as those cases involved the reliability of eyewitness 

identification testimony for the threshold purpose of admissibility, 

not whether a cautionary instruction is warranted after evidence is 

admitted. Clopten II, 2015 UT 82, ¶¶ 31–32; Ramirez, 817 P.2d at 778, 

782. And, given our general rule to admit relevant evidence, see 

UTAH R. EVID. 402, it makes sense that we might have had a 

narrower understanding of what eyewitness identification testimony 

should be altogether excluded as compared to when admitted 

testimony merits a cautionary instruction.

¶64 Even if what we said in Clopten II did apply to this situation, 

the Surveillance Officers informed the jury multiple times that the 

man arrested—Hunter—was the person they saw selling the drugs. 

The State’s assertions to the contrary are simply inconsistent with the 

record. At the time of Hunter’s arrest, the takedown officer received 

a “verbal confirmation,” impliedly from the Surveillance Officers, 

that the person they were arresting “was indeed the individual 

observed dealing the narcotics,” according to the trial testimony of 

one of the takedown officers. See supra ¶ 19. Willis testified that he 

“watch[ed] as the other officers arrived in the area, got out of their 

cars, and approached him, and was able to verify that they had 

contacted the correct male.” See supra ¶ 19. McNamee similarly 

testified that he saw the takedown officers “come into the area and 

contact the subject that I had described,” referring to the Seller, “and 

take him into custody.” See supra ¶ 19.

¶65 Further, Willis testified that the Seller and the person 

arrested were the “same.” See supra ¶ 20. When pressed by defense 

counsel, he repeated two more times that it was “the same Black 

male.” Supra ¶ 20. And again on re-direct, Willis agreed that the 

arresting officers responded to “the Black male” that had been 

involved in the drug transaction. Supra ¶ 20. Finally, the prosecution 

asked Willis if he was “able to determine the name of the Black 

male?” Willis responded, “Yes. . . . Glen [sic] Hunter.” Supra ¶ 20.

¶66 The Surveillance Officers’ identification of Hunter could not 

be much clearer. The State’s argument that the Surveillance Officers 
STATE v. HUNTER

Opinion of the Court

20

did not “identify” Hunter within the meaning of what merits a 

cautionary instruction, therefore, does not hold water.11

¶67 In sum, both the court of appeals and the State are incorrect 

in their assertions that Long is categorically and factually 

inapplicable to situations like Hunter’s.12

II. COUNSEL’S FAILURE TO REQUEST A LONG

INSTRUCTION WAS NOT CONSTITUTIONALLY DEFICIENT

¶68 An attorney’s performance is constitutionally deficient if 

“counsel’s act or omission caused her representation to fall below an 

objective standard of reasonableness.” State v. Gallegos, 2020 UT 19, 

¶ 57, 463 P.3d 641. “If an attorney’s decisions can be explained by a 

reasonable trial strategy, the defendant has necessarily failed to 

show deficient performance.” Id. ¶ 56 (citing State v. Ray, 2020 UT 12, 

¶ 34, 469 P.3d 871; and Strickland v. Washington, 466 U.S. 668, 688 

(1984)). The defendant has the burden to overcome a “strong 

presumption that counsel’s conduct falls within the wide range of 

 

11 The State also attempts to support its theory with Lujan, 2020 

UT 5. As with Ramirez and Clopten II, see supra ¶ 63, Lujan dealt with 

the admissibility of eyewitness identification testimony. Lujan, 2020 

UT 5, ¶ 4. Lujan held that the rules of evidence, not the Utah 

Constitution, “prescribe the factors that trial courts should consider 

in judging the reliability and admissibility of eyewitness 

identification evidence.” Id. Therefore, for the same reasons we are 

not convinced that Ramirez and Clopten II have much to tell us in this 

case, we are not convinced that Lujan applies here either. See supra 

¶ 63.

12 The State argues that mistaken identification was not a “central 

issue” in the case, which is one of the requirements for Long to apply. 

721 P.2d at 492. We need not devote much airtime to that argument 

because it has no impact on our ultimate affirmance of Hunter’s 

conviction and because we anticipate that future cases fighting over 

eyewitness identification evidence will be governed by rule 617, 

which does not include a “central issue” requirement. See UTAH R.

EVID. 617(a)(1), (f). But we observe that Hunter’s trial counsel 

discussed his theory that police had arrested the wrong person atlength in his opening statement, closing statement, and in a motion 

for directed verdict. See supra ¶¶ 25–32. Therefore, we agree with 

Hunter that mistaken identification was a “central issue” in his trial 

counsel’s defense theory.
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Opinion of the Court

21

reasonable professional assistance.” Id. ¶ 34 (citation omitted); see 

also id. ¶ 37. “[T]he question of deficient performance ‘is not whether 

some strategy other than the one that counsel employed looks 

superior given the actual results of trial. It is whether a reasonable, 

competent lawyer could have chosen the strategy that was employed 

in the real-time context of trial.’” Id. ¶ 36 (citations omitted); see also 

Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The question is 

whether an attorney’s representation amounted to incompetence 

under ‘prevailing professional norms,’ not whether it deviated from 

best practices or most common custom.” (quoting Strickland, 466 U.S. 

at 690)).

¶69 Hunter argues that his trial counsel was deficient for not 

requesting a Long instruction. While trial courts have “some 

latitude” to craft the content of each Long instruction, the instruction 

should address the following factors:

(1) the opportunity of the witness to view the actor 

during the event; (2) the witness’s degree of attention 

to the actor at the time of the event; (3) the witness’s 

capacity to observe the event, including his or her 

physical and mental acuity; (4) whether the witness’s 

identification was made spontaneously and remained 

consistent thereafter, or whether it was the product of 

suggestion; and (5) the nature of the event being 

observed and the likelihood that the witness would 

perceive, remember and relate it correctly. This last 

area includes such factors as whether the event was an 

ordinary one in the mind of the observer during the 

time it was observed, and whether the race of the actor 

was the same as the observer’s.

State v. Long, 721 P.2d 483, 492–93 (Utah 1986). Further, “a proper 

instruction should sensitize the jury to the factors that empirical 

research have shown to be of importance in determining the 

accuracy of eyewitness identifications, especially those that 

laypersons most likely would not appreciate.” Id. at 492. Factors 

impacting accuracy can include “the quality of the lighting and the 

time available for observation.” Id. at 492–93; see also State v. Clopten 

(Clopten I), 2009 UT 84, ¶ 15, 223 P.3d 1103. It can also include the 

“use of a disguise, distinctiveness of the culprit’s appearance, and 

the presence of a weapon or other distractions.” Clopten I, 2009 UT 

84, ¶ 15. In addition, “people identify members of their own race 

with greater accuracy than they do members of a different race.” Id.; 

see also Long, 721 P.2d at 493.
STATE v. HUNTER

Opinion of the Court

22

¶70 Hunter argues that instructing the jury on these Long factors 

would have alerted the jury to weaknesses in the Surveillance 

Officers’ testimony and, therefore, trial counsel was deficient for not 

requesting such an instruction.

¶71 To support his argument, Hunter invokes what we said in 

State v. Maestas—that “unless obvious tactical reasons exist to forego 

an instruction, trial counsel faced with . . . eyewitnesses who, with 

varying degrees of certainty and consistency, all identify his client as 

the perpetrator, should request a cautionary eyewitness instruction.” 

1999 UT 32, ¶ 28, 984 P.2d 376. Hunter also highlights that we found 

the performance of the trial counsel in Maestas to be deficient in part 

because “none of the identifications in [that] case were impervious to 

attack under the criteria set forth in Long,” id. ¶ 29, and in part 

because the “counsel did nothing to focus the jury’s attention on the 

limitations of eyewitness identification,” id. ¶ 30. Hunter contends

that, like in Maestas, his trial counsel’s failure to request a Long 

instruction was deficient because the Surveillance Officers’

testimonies were not “impervious to attack” under the Long factors.

¶72 Maestas is legally and factually distinguishable from the 

situation here. First, whether a witness’s testimony was “impervious 

to attack” is not the proper test for determining whether counsel was 

constitutionally deficient under Strickland. The test is whether 

counsel’s act or omission fell “below an objective standard of 

reasonableness.” Gallegos, 2020 UT 19, ¶ 57. And the court in Maestas

acknowledged as much, clarifying that it did “not wish to imply that 

in every case in which eyewitness identification is an issue, trial 

counsel’s performance is per se deficient if a cautionary instruction is 

not requested.” Maestas, 1999 UT 32, ¶ 32 n.2. We predicted that the

“facts in another case might provide a plausible justification for such 

a tactic.” Id. The court’s conclusion flowed from the fact that the 

record did “not reveal any reasonable tactic that would ameliorate or 

explain” why counsel had not requested a Long instruction. Id. ¶ 32.

¶73 Second, Maestas presented a different factual situation than 

the one Hunter’s counsel faced. The witness testimony in Maestas

suffered from greater inconsistencies than those here. And the issues 

with eyewitness testimony that Long alerts the jury to were far more 

acute in Maestas. The robberies and identifications in Maestas 

occurred at night. Maestas, 1999 UT 32, ¶ 23. All of the witnesses in 

Maestas “had a limited opportunity to observe the robber” because 

“the robberies were completed quickly and the robber’s face and 

head were covered.” Id. ¶ 29. Further, the robber had pointed a gun 

at several of the witnesses, id. ¶¶ 2, 5, 9, 11, and many of the 
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Opinion of the Court

23

witnesses were “afraid or fixat[ed] on the weapon rather than on the 

robber,” id. ¶ 29. The descriptions the eyewitnesses gave “varied 

widely.” Id. ¶ 24. Descriptions varied as to whether the robber had a 

limp or no limp, had brown eyes or green eyes, and spoke with an 

accent or no accent. Id. ¶ 24. Further, “at least some of the witnesses 

were making a cross-racial identification,” id. ¶ 29, and “only three 

of the seven eyewitnesses could positively identify Maestas in a lineup when asked to choose among him and six other Hispanic males,” 

id. ¶ 24.

¶74 The identifications in Maestas were also procedurally tainted 

because the police had employed a “highly suggestive show-up 

prior to the line-up in which they selected” the defendant. Id. ¶ 29. 

At that show-up, police had handcuffed Maestas, surrounded him 

with police cars with their lights shining on him at night, the officers 

told the eyewitnesses they had caught a suspect, and at least one of 

the witnesses “heard a report over the radio that the suspect was 

involved in another robbery, increasing the likelihood that he would

believe Maestas also committed the robbery to which he was a 

witness.” Id. ¶ 23.

¶75 Finally, Maestas’s trial counsel “did nothing to focus the 

jury’s attention on the limitations of eyewitness identification.” 

Id. ¶ 30. Nor did he object to, attempt to correct, or ask questions on 

cross-examination about the “inaccurate testimony” of a detective 

who testified “without foundation that it is possible to identify a 

person when a witness sees the person, but to be unable to describe 

the person accurately.” Id. ¶ 31.

¶76 Maestas is not this case. Unlike in Maestas, Hunter’s trial 

counsel highlighted in his opening and closing arguments to the jury 

various weaknesses in the Surveillance Officers’ testimony. See supra

¶¶ 25–29. Hunter’s counsel noted that the Surveillance Officers had 

taken their eyes off of the Seller and that there was some distance 

between the Surveillance Officers and the drug transaction. See supra

¶ 26. He noted that the Surveillance Officers had used their personal

binoculars and had not taken any photographs of the transaction. 

Supra ¶ 26. He further noted that the area was crowded and that the 

Surveillance Officers could not recall if there were other Black people 

in the area whom they could have confused with the Seller. See supra

¶ 26. Hunter’s counsel also highlighted the inconsistencies between 

the Surveillance Officers’ descriptions of the Seller and the takedown 

officers’ descriptions of Hunter. See supra ¶ 27. And he emphasized 

other weaknesses in the State’s evidence, including that the State 

hadn’t tested the purity of the methamphetamine found on Hunter 
STATE v. HUNTER

Opinion of the Court

24

to verify if it was the same as that found on the Buyer.13 See supra

¶ 28.

¶77 A “reasonable, competent lawyer” could have looked at the 

factors that a Long instruction would have highlighted and 

determined that such an instruction would be unhelpful, or even 

hurtful, to his client’s defense. See Gallegos, 2020 UT 19, ¶ 36 (citation 

omitted). That is, reasonable counsel could have concluded that 

focusing the jury’s attention on frequently encountered problems 

with eyewitness testimony might have highlighted for the jury that 

the Surveillance Officers’ identification did not suffer from many of 

those problems. Competent counsel could have reasonably 

concluded that using opening and closing arguments and crossexaminations to highlight specific weaknesses in the State’s case was 

the safer route. And competent counsel could have considered that 

the “Credibility of Witnesses” instruction, which told the jury to 

assess factors such as “How good was the witness’s opportunity to 

see, hear, or otherwise observe what the witness testified about” and 

whether the testimony was “consistent over time,” see supra ¶ 31, 

gave him some of the Long instruction’s upside with less of its 

potential downside.

¶78 Our conclusion comes into clearer focus when we compare 

the evidence before the jury to the factors the Long instruction 

details. First, there was nothing significantly impeding the 

“opportunity of the [Surveillance Officers] to view the [Seller] during 

the event.” See Long, 721 P.2d at 493. Hunter asserts in his briefing to 

us that the lighting was “imperfect” and that the “sun’s angle was 

casting long shadows that may have interfered with the 

[Surveillance Officers’] view.” But that speculation is contrary to the 

record, which shows that area was “fairly well lit” and the weather 

was good at the time. See supra ¶ 5. Hunter’s brief acknowledges that 

testimony but speculates about what the conditions “may have” 

been. Even if Hunter’s speculations about the late-in-the-day “long 

shadows” were accurate, that still is nothing like Maestas, where the 

robberies occurred in the dark of night. Maestas, 1999 UT 32, ¶ 23. A 

reasonable, competent lawyer could have determined that further 

emphasizing the lighting and viewing conditions with a Long 

instruction might have hurt his defense.

 

13 Hunter’s counsel had extracted these details during crossexamination of the various officers and crime lab personnel. See 

supra ¶ 29.
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Opinion of the Court

25

¶79 Hunter also asserts that the Surveillance Officers had an 

“obstructed” view of the Seller during the transaction. Hunter 

asserts that the Buyer blocked McNamee’s view of the Seller. But the 

evidence was less than definitive on that point. McNamee’s 

testimony on his line of sight to the Seller’s face was not clear.14

Hunter also speculates that “Willis’s view must also have been at 

least partially obstructed.” But Willis testified that there were not

“any obstructions” to his view, that the Seller was facing him,15 and 

that he “could clearly see” the transaction.16

¶80 Hunter also characterizes the “length of time the officers 

had to observe the [Seller]” as “very short.” The entire transaction 

took “less than 20 seconds,” including the passing of the drugs, 

which took about ten seconds. See supra ¶ 10. During crossexamination, Hunter’s trial counsel counted out a full ten seconds for 

the jury. Reasonable counsel could have concluded, after watching 

the jury’s reaction to that demonstration, that ten to twenty seconds 

felt like a significant enough time that it would have been imprudent 

to further emphasize how long the Surveillance Officers had 

observed the suspect.

 

14 On direct examination, McNamee said he saw the Buyer 

“approach the subject I described earlier,” referring to the Seller, and 

that “subject’s back was to me.” In other words, McNamee indicated 

that the Seller’s back was to him. But on cross-examination, 

McNamee agreed that “the back of the White male was to [him]” and 

“the front of the White male was to the Black male,” implying that 

Seller was facing McNamee. In their briefing to us, however, both 

Hunter and the State agree that the back of the Buyer was to the 

Surveillance Officers, and the Seller faced the Surveillance Officers.

15 Willis testified that the Seller was “facing to the south,” and 

that the windows from which he and McNamee observed the 

transaction faced north and west, indicating that the Seller was 

facing them.

16 Hunter also points out that Willis acknowledged that part of 

his interpretation of what he perceived was based on his “experience 

and training,” rather than direct observation. But that statement by 

Willis was in response to the prosecution’s question about whether 

he could “[a]ctually see the hand motions,” see supra ¶ 9, and speaks 

more to the question of whether or not a drug transaction occurred, 

not whether Hunter was misidentified as the alleged seller.
STATE v. HUNTER

Opinion of the Court

26

¶81 As to the second Long factor, Hunter does not point to 

evidence before the jury that would show that the Surveillance 

Officers’ “degree of attention to the [Seller] at the time of the event” 

was so compromised that the only reasonable strategy of a 

competent attorney would have been to highlight it with a Long 

instruction. See Long, 721 P.2d at 493. For example, Hunter asserts 

that “the area the officers were observing was full of distracting 

noises,” but he points to nothing in the record that suggests the 

Surveillance Officers would have been distracted by noise. Hunter 

does accurately note that the area was crowded, but he again points 

to nothing in the record to show that the Surveillance Officers found 

the number of people to be a “distraction[].” To the contrary, the 

Surveillance Officers observed the event from the solitude of 

enclosed offices, and their sole purpose of sitting there was to watch 

the area to observe potential drug transactions. See supra ¶ 5. And 

Hunter’s trial counsel pointed out multiple times in his opening and 

closing arguments that there were “multiple individuals present at 

that time milling about,” including other Black people. A reasonable, 

competent attorney could have concluded that a Long instruction 

that further attuned the jury to the Officers’ level of focus might have 

hurt Hunter’s defense.

¶82 Hunter’s better arguments about the Surveillance Officers’

degree of attention and capacity to perceive and recall the pertinent 

details are, first, that men involved in the transaction were 

“stranger[s]” to the Officers. And second, that Willis provided a 

“detailed” description of the drug transaction but only a “general” 

description of the suspected Seller. Hunter notes that Willis gave a

“general description of the man’s clothing—camouflage pants, a 

black hoodie, black sunglasses, a black hat, and a gold necklace,” but 

no description of his “facial features, height, age, hairstyle, facial hair 

(if any), or any distinguishing marks or characteristics.” Hunter also 

highlights that neither the Surveillance Officers nor the takedown 

officers could recall how many other Black men or men of other 

races or ethnicities were in the area that day. See supra ¶ 18. Hunter 

additionally asserts that the Surveillance Officers “focused their 

attention on the white man until he walked out of sight.” Hunter 

highlights how Willis stated he only “may have even kept view of 

both” the Buyer and the Seller, and how McNamee implied that he 

took eyes off of the Seller and then “transitioned back” and 

“returned to watching” the Black man he believed to be the Seller 

after the Buyer walked out of sight. (Emphasis added.)
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Opinion of the Court

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¶83 We agree that the potential reliability of the Surveillance 

Officers’ identifications may be undermined if the Seller was a 

“stranger” to them. See Clopten I, 2009 UT 84, ¶ 33 (“The research on 

eyewitness identifications . . . almost exclusively focuses on 

individuals who are attempting to identify a stranger.”). We further

agree that the reliability of the Surveillance Officers’ identifications is 

somewhat undermined by the generality of their descriptions of the 

Seller, as well as their testimonies implying they were not 

exclusively focused on the Seller.

¶84 And that may be why during closing arguments, Hunter’s 

counsel highlighted those facts. Hunter’s counsel asked the jury to 

consider whether the Surveillance Officers’ description of the 

suspected Seller was “so unique” as to make an accurate 

identification. And he highlighted how the description included 

nothing about height, age, weight, size, body type, or distinctive 

markings. See supra ¶ 27. Hunter’s counsel also stressed that the 

Surveillance Officers didn’t “stay focused” on the Seller and “took 

eyes off” him. Instead, they watched the Buyer before “turn[ing] 

back and . . . look[ing] at” the Seller. Although the Surveillance 

Officers’ descriptions of the suspected Seller could have been more 

detailed, we are not convinced they were so lacking in detail or 

“attention” that it required Hunter’s counsel to go beyond 

highlighting those deficiencies in his closing arguments. Cf. Long, 721 

P.2d at 493. It is not difficult to conclude that reasonable counsel 

could decide to not request a Long instruction to emphasize this 

point, when the other Long factors were a mixed bag at best. Indeed, 

as we point out above and below, reasonable counsel could decide 

that much of what the jury would take from the Long instruction 

would encourage the jury to judge the Surveillance Officers’ 

observations to be reliable.

¶85 Third, Hunter points to nothing in the record indicating that 

the Surveillance Officers lacked “capacity to observe the event” or 

lacked “physical and mental acuity.” See id. Hunter highlights that

the Surveillance Officers were stationed approximately a football 

field away from the transaction. But they both had binoculars 

through which they viewed the event, and they were able to describe 

details about the appearances of both the Buyer and Seller, their 

hand movements, and the substances they passed back and forth. See 

supra ¶¶ 5–9. Hunter’s trial counsel pointed out multiple times in his 

opening and closing arguments that, although the Surveillance 

Officers viewed the transaction through binoculars, it was “at some 

distance.” Supra ¶ 26. And he highlighted that the binoculars were 
STATE v. HUNTER

Opinion of the Court

28

the Surveillance Officers’ personal ones, not those issued by the 

police department. Supra ¶ 26. A reasonable, competent attorney 

could conclude that the Long instruction would actually focus the 

jury on the Surveillance Officers’ otherwise unimpaired physical and 

mental capacity to observe, and that this would undermine the 

points he wanted to hammer home in his closing arguments.

¶86 As to the fourth Long factor—“whether the witness’s 

identification was made spontaneously and remained consistent 

thereafter, or whether it was the product of suggestion,” Long, 721 

P.2d at 493—there were some inconsistencies between how the 

Surveillance Officers described the attire and accessories of the 

suspected Seller and how the takedown officers described Hunter. 

But these discrepancies in Hunter’s accessories were not the same 

level or type of inconsistencies that caused us to say in Maestas that 

counsel had rendered ineffective assistance by failing to request the 

Long instruction. See Maestas, 1999 UT 32, ¶ 24 (describing 

eyewitness inconsistencies regarding permanent characteristics of 

robber, including eye color and whether robber had a limp and 

accent). And unlike in Maestas, Hunter’s trial counsel, in his closing 

argument to the jury, did highlight these discrepancies as to whether 

Hunter wore a gold chain and sunglasses, and whether the Seller 

had an orange sports drink. See supra ¶ 27. A reasonable, competent 

attorney could have concluded that a Long instruction could cut both 

ways and it was not worth the potential downside.

¶87 As to whether the identifications were “the product of

suggestion,” see Long, 721 P.2d at 493, Hunter argues that 

“McNamee’s belief that the men had engaged in a drug deal must 

have been the product of suggestion because he, by his own 

admission, did not see any behavior that looked like a drug deal.” 

But that’s not what McNamee said. He testified that he saw a “White 

male approach the other subject, they briefly contacted each other, 

and then the White male began walking away.” While McNamee’s 

description does not alone definitively establish that a drug deal

happened, it certainly is not an “admission” that he “did not see any 

behavior that looked like a drug deal.” The jury also heard Willis 

provide detailed testimony about observing a drug transaction, see 

supra ¶¶ 8–9, which frustrates Hunter’s argument about the import 

of any gaps in McNamee’s testimony.

¶88 A reasonable, competent attorney could have concluded 

that the better avenue for undermining the State’s identification of 

Hunter as the Seller was by highlighting the inconsistencies between

the various witnesses’ descriptions of the Seller and Hunter, and by 
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Opinion of the Court

29

highlighting that the State did not test the purity of the drug samples 

to determine if the methamphetamine found on the buyer and on 

Hunter were the same—all of which Hunter’s trial counsel indeed 

did in closing arguments and in cross-examinations. See supra ¶¶ 26–

29.

¶89 Finally, we are also not convinced that evidence the fifth 

Long factor implicates—“the nature of the event being observed and 

the likelihood that the witness would perceive, remember and relate 

it correctly”—was such that reasonable counsel would have wanted 

a Long instruction. See Long, 721 P.2d at 493. This case is not like 

Maestas, where the robber had pointed a gun at several of the 

witnesses, Maestas, 1999 UT 32, ¶¶ 2, 5, 9, 11, and where many of the 

witnesses were “afraid or fixat[ed] on the weapon rather than on the 

robber.” Id. ¶ 29. Nor is this case like Long, where the witness, “[a]t 

the same time he was identifying his assailant, . . . was shot, was 

thrown back against the wall by the force of the blast, returned the 

fire, and experienced ‘glossy’ vision,” and failed to identify the 

defendant in a photo array. Long, 721 P.2d at 487–88. By contrast 

here, the Surveillance Officers had no weapons pointed at them, nor

were there other similarly traumatizing distractions. Instead, the 

Surveillance Officers observed the event from the solitude of 

enclosed offices, and their sole purpose was to watch the area to 

observe potential drug transactions. See supra ¶ 81.

¶90 Under these circumstances—where the Surveillance Officers 

were not distracted by weapons or physical threats to their wellbeing—we cannot say it was unreasonable for counsel to choose not 

to attune a jury through a Long instruction about how eyewitness 

reliability is impacted by “the nature of the event being observed 

and the likelihood that the witness would perceive, remember and 

relate it correctly.” Long, 721 P.2d at 493.17

 

17 Another subfactor within the fifth Long factor is whether the 

race of the perpetrator was the same as the witness’s. Long, 721 P.2d 

at 493; see also Clopten I, 2009 UT 84, ¶ 15 (“[P]eople identify 

members of their own race with greater accuracy than they do 

members of a different race.”); Maestas, 1999 UT 32, ¶ 29 (noting that 

at least some of the identifications meriting a Long instruction in that 

case involved “cross-racial identification”). Hunter speculates that 

“there may have been a cross-racial identification” of Hunter by the 

Surveillance Officers. But Hunter acknowledges that the record does 

(continued . . .)
STATE v. HUNTER

Opinion of the Court

30

¶91 Hunter argues that his trial counsel “could not reasonably 

rely on cross-examination without requesting a Long instruction” 

because the Surveillance Officers expressed “almost absolute 

certainty” in their identifications and because we said in Clopten I 

that where witnesses express that level of certainty, “the 

effectiveness of cross-examination is badly hampered.” 2009 UT 84, 

¶ 21. Hunter further highlights that in Clopten I, we said that that 

“[e]ven if cross-examination reveals flaws in the identification,” a 

jury may nevertheless “have difficulty assessing the import” of those 

flaws and “in gauging the reliability of the identification,” unless the 

jury has specific help in understanding the factors that may make 

eyewitness testimony more or less reliable. Id. ¶ 22.

¶92 But in Clopten I we were examining whether a trial court 

must admit expert eyewitness testimony regarding the reliability of 

eyewitness identification when timely requested. Id. ¶ 6. We were 

not analyzing whether it would be constitutionally deficient for a 

defense counsel not to request expert eyewitness testimony, let alone 

whether it would be constitutionally deficient for defense counsel 

not to request a cautionary instruction.

¶93 The question before us is simply whether Hunter’s trial 

counsel’s failure to request a Long instruction “caused [his] 

representation to fall below an objective standard of 

reasonableness,” Gallegos, 2020 UT 19, ¶ 57, or “whether a 

reasonable, competent lawyer could have chosen the strategy that 

was employed in the real-time context of trial,” id. ¶ 36 (citations 

omitted).

¶94 We conclude that a “reasonable, competent lawyer” could 

have chosen to not request a Long instruction. A reasonable, 

competent lawyer could look at the Long factors, compare them to 

the facts the jury heard, and reasonably determine that a Long 

instruction carried an unacceptable risk of increasing the jury’s 

confidence in the Surveillance Officers’ identification. And that 

competent attorney could conclude that highlighting inconsistencies 

 

not include any evidence that would allow us to conclude that the 

identification of Seller was potentially tainted by the problems 

inherent in cross-racial identification. We are not at liberty to make 

guesses about facts that are not in the record, and therefore we 

cannot weigh this aspect of Long in our consideration of the 

performance of Hunter’s trial counsel.
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Opinion of the Court

31

and weaknesses through cross-examination and opening and closing 

arguments was the less risky way to go.

¶95 We are not saying that was the best strategy or the right 

approach. But the question is “not whether some strategy other than 

the one that counsel employed looks superior given the actual 

results of trial.” Id. ¶ 36 (citation omitted). Hunter’s counsel “was 

entitled to formulate a strategy that was reasonable at the time and 

to balance limited resources in accord with effective trial tactics and 

strategies.” Harrington, 562 U.S. at 107. There are “countless ways to 

provide effective assistance in any given case. Even the best criminal 

defense attorneys would not defend a particular client in the same 

way.” Id. at 106 (citation omitted). Hunter has not met his burden to 

overcome a “strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.” See Gallegos, 

2020 UT 19, ¶ 34 (citation omitted); see also id. ¶ 37.

¶96 We therefore affirm the court of appeals’ judgment that 

Hunter’s trial counsel was not constitutionally deficient, though on a 

different ground than the one the court of appeals articulated.

CONCLUSION

¶97 We hold that the court of appeals erred when it ruled that 

Long only applies to “memory-based” identifications. We 

nevertheless affirm Hunter’s conviction because Hunter did not 

receive ineffective assistance of counsel. Hunter’s trial counsel was 

not constitutionally deficient when he failed to request a Long 

instruction because a reasonable attorney could conclude that a Long 

instruction risked increasing the perceived reliability of the officers’ 

testimonies and hurting Hunter’s defense. Although we repudiate 

the reasoning the court of appeals employed to reach its decision, we 

affirm.