State v Guard

Guard was convicted of kidnapping. There was a three year delay in filing his appeal. During the delay, the Utah Supreme Court changed the law on when expert testimony should be allowed to challenge eyewitness identification. The Court of Appeals applied the new rule despite the “clean break” standard used by the Supreme Court in retroactivity analysis and reversed Guard’s conviction. The Court reversed. It first held that Guard preserved the issue because trail counsel notified the district court of his intent to present expert testimony about eyewitness identification and argued its admissibility at a pretrial hearing. The Court next abandoned the “clear break” rule for criminal procedure decisions reasoning that it was based on poorly reasoned federal case law that has since been overruled, the Court has never engaged in meaningful analysis of the “clear break” rule and concluded the rule was not well established being a relatively recent addition to the case law, is vague, leads to disparate treatment of similarly situated defendants and created tension with appropriate use of judicial power and any reliance interests by the State are outweighed by the interest in protecting criminal defendants’ rights. However, it held the new rule on expert eyewitness testimony did not proved a basis of relief here as trail counsel failed to inform the district court what the proposed expert would testify about let alone demonstrate the testimony was reliable.