State v Clopten

Clopten appealed his conviction for murder. The Court, with 2 justices concurring in part and in judgment, affirmed. All justices agreed that the district court had the authority to exclude a witness who Clopten knew would take the fifth on the stand and did not err in so excluding the witness and that there was no error in excluding statements by that witness that Clopten did not kill the victim as those statements did not constitute statements against interest given the motive to protect Clopten from other gangs while in jail and were not of themselves sufficiently reliable to admit under the residual hearsay clause. The majority held that there was no error in admitting the eyewitness testimony of one witness as most of her testimony was about attributes of the person she saw which is not identification evidence and as to the phot array, the defense elicited the fact that she identified Clopten not the state. Thus, the majority held that any claim for unreliability or due process was waived through the cross examination. The concurrence on this issue argued that basing the conclusion on cross examination places defendants in a dilemma of either not attacking the identification or waiving constitutional claims which is unfair. It further argued that because the photo array was done by the defense, there was no state action and would have affirmed on that basis. All the justices agreed that state expert testimony that eyewitness testimony can be reliable was permitted under the mandate of an earlier appealed in this case as mandates cannot foreclose factual testimony on a subject for all time and that the witness met the standards of Rule of Evidence 702 and, while the conclusions drawn by the witness were in the minority of the field, the methods were accepted and thus the testimony was admissible.