2009 UT 84 - State v. Clopten

DURRANT, Associate Chief Justice,

¶1concurring in part and dissenting in part:

¶2151 Our case law has consistently recognized that the decision to admit or exclude expert testimony is within the discretion of the district court.1 Although this discretion is not unconstrained, and is obviously limited by the parameters set out in the Utah Rules of Evidence, it is nonetheless real and important. It is fundamentally a product of the structure of our judicial system, in which district court judges are placed in a superior position to evaluate the proffered testimony in light of the principles set out in the rules of evidence.2

¶34 52 Accordingly, I agree with the majority's rejection of the presumption against admissibility of eyewitness expert testimony that seems to have been precipitated by our decision in State v. Long3 as well as the majority's clarification that the presence of a Long instruction does not necessarily render eyewitness expert testimony improper or superfluous. I also concur in the majority's express rejection of a presumption in favor of eyewitness expert testimony and agree with its acknowledgment that decisions regarding the admissibility of eyewitness expert testimony should be made by district courts based on a standard application of Utah Rule of Evidence 702.

¶4€58 But after declaring its view that all requests for eyewitness expert testimony are to be evaluated according to the principles of rule 702, the majority then goes on to perform this evaluation for the district courts, concluding that these requirements are satisfied in every case involving an eyewitness identification of a stranger.4 This effectively dictates to district courts how they should conduct the rule 702 analysis in all cases involving an eyewitness identification of a stranger, leaving them no discretion in an area where we have emphasized the importance and propriety of their discretion in the past.

¶5T54 I would take a different approach. Rather than categorically decide that eyewitness expert testimony satisfies the elements *1119of rule 702, I would simply instruct the district courts that they are to treat eyewitness expert testimony like any other type of expert testimony and determine its admissibility based on the requirements of the rule. I would neither create a presumption in favor, nor one against, the admission of eyewitness expert testimony, and district court rulings on the admissibility of such expert testimony would be entitled to the same deference we have traditionally accorded rulings on the admissibility of other types of expert testimony.

¶6(55 Because a presumption against the admission of eyewitness expert testimony seems to have developed based on our decision in Long, and because this presumption may have influenced the district court's decision to deny admission of Clopten's proffered eyewitness expert testimony, I would remand this case for a new trial to allow the district court to exercise its discretion in light of the principles I have set forth above. Accordingly, I respectfully dissent from Parts III and IV of the majority opinion.

¶71] 56 Justice WILKINS concurs in Associate Chief Justice DURRANTS opinion.

¶8. See State v. Maestas, 2002 UT 123, 119, 63 P.3d 621, ("With regard to the admissibility of expert testimony, the trial court has wide discretion ..., and such decisions are reviewed under an abuse of discretion standard. Under this standard, we will not reverse a decision to admit or exclude expert testimony unless the decision exceeds the limits of reasonability." (internal citations and quotation marks omitted, omission in original)). See also State v. Hubbard, 2002 UT 45, 114, 48 P.3d 953; State v. Hollen, 2002 UT 35, 166, 44 P.3d 794; State v. Butterfield, 2001 UT 59, 128, 27 P.3d 1133.

¶9. Maestas, 2002 UT 123, 168, 63 P.3d 621 (noting that district court discretion exists "because of the trial court's superior position to judge the advisability of allowing [expert] testimony" (quoting Hubbard, 2002 UT 45, 114, 48 P.3d 953)).

¶10. 721 P.2d 483 (Utah 1986).

¶11. Although the majority does leave open the possibility that "there may be cases in which a witness viewed the perpetrator under such ideal conditions that an expert would not be able to identify factors that could have contributed to a misidentification," it is hard to imagine, in light of the majority's comprehensive, but nonexhaustive, list of relevant factors contained in footnote 16, a situation in which at least one factor would not be present.