                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                  2020 UT 5

                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                Petitioner,
                                       v.
                       MANUEL ANTONIO LUJAN,
                            Respondent.


                            No. 20150840
                      Heard December 12, 2016
                     Reheard September 18, 2019
                       Filed February 11, 2020


             On Certiorari to the Utah Court of Appeals


                 Third District, Salt Lake County
                The Honorable Randall N. Skanchy
                         No. 121910892


                                 Attorneys:
     Sean D. Reyes, Att’y Gen., Kris C. Leonard, Asst. Solic. Gen.,
             Clint T. Heiner, Salt Lake City, for petitioner
  Nathalie S. Skibine, Lisa J. Remal, Salt Lake City, for respondent


 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PETERSEN,
                     and JUDGE BROWN joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
             DISTRICT JUDGE JENNIFER A. BROWN sat.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
   ¶1 Manuel Antonio Lujan was convicted of aggravated robbery
based on eyewitness identification testimony and other evidence
admitted at trial. The court of appeals reversed the conviction under
                           STATE v. LUJAN
                        Opinion of the Court

the “reliability” factors set forth in State v. Ramirez, 817 P.2d 774
(Utah 1991). State v. Lujan, 2015 UT App 199, 357 P.3d 20. Ramirez
identified five factors for courts to consider in assessing the
reliability (and hence admissibility) of eyewitness identification
testimony under the due process clause of the Utah Constitution: (1)
the “opportunity” of the eyewitness to view the suspect; (2) the
degree of attention paid to the suspect; (3) the witness’s capacity to
observe the event; (4) the degree of “spontane[it]y” and
“consisten[cy]” of the eyewitness testimony; and (5) “the nature of
the event being observed.” 817 P.2d at 781 (citation omitted).
Applying these factors, the court of appeals concluded that the
testimony in question was “legally insufficient . . . to warrant a
preliminary finding of reliability and, therefore, admissibility.”
Lujan, 2015 UT App 199, ¶ 15 (quoting Ramirez, 817 P.2d at 784). And
it reversed on the ground that the State had not carried its burden of
establishing    that    “the    improperly     admitted     eyewitness
identifications were harmless beyond a reasonable doubt.” Id. ¶ 16.
    ¶2 In so doing, however, the court of appeals also raised
concerns about the viability of the standard set forth in Ramirez. In
light of developments in “scientific and legal research regarding the
reliability of eyewitness identification[]” testimony since our
decision in Ramirez, the majority indicated that it had “every reason
to believe” that the Ramirez framework “must be revisited” by this
court. Id. ¶ 10 n.1. Then-Judge Pearce dissented but echoed the view
“that the time may have arrived for the Utah Supreme Court to
revisit its holding” in Ramirez. Id. ¶ 21 (Pearce, J., dissenting).
    ¶3 We granted certiorari in light of the court of appeals’ open
call for our reconsideration of Ramirez. And in the course of our
consideration of this case a number of developments have ensued.
We asked for supplemental briefing on the question of whether and
to what extent the Ramirez factors set a freestanding guarantee of
evidentiary reliability rooted in the Utah Constitution. We then
reheard the case after a member of the court retired while the matter
was under advisement. And in the meantime our court considered
and promulgated a new rule of evidence governing the admissibility
of eyewitness identification testimony. See UTAH R. EVID. 617
(effective November 1, 2019).
    ¶4 These developments have informed our consideration of the
important questions presented in this case. In light of them we now
take up the court of appeals’ request that we revisit the factors set
forth in our decision in Ramirez. And we do so first by specifying the
“order of operations” in assessing the reliability and admissibility of
eyewitness identification testimony. We clarify that the threshold
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step in this assessment is a matter for our rules of evidence. We hold
that those rules, including (in cases going forward) new rule 617 of
the Utah Rules of Evidence, prescribe the factors that trial courts
should consider in judging the reliability and admissibility of
eyewitness identification evidence. And we note that our established
rulemaking process lends itself nicely to adaptation over time in
response to developments in scientific and legal scholarship in this
important field.
    ¶5 We also contrast our adaptive rulemaking process with our
settled method of constitutional interpretation. Our recent cases have
clarified our carefully circumscribed role in interpreting the
constitution. We have emphasized that the provisions of this charter
document are not a license for common-law policymaking1 but
instead a fixed set of limits on the operation of our government. Such
limits are interpreted in accordance with the public understanding of
the constitution when it was originally established.2 And these
premises highlight a key limitation on the factors set forth in our
Ramirez decision—the fact that the Ramirez court spoke vaguely of
advancing constitutional “due process” interests but nowhere rooted
the factors we adopted in the text or original understanding of the
Utah Constitution. There is some tension and confusion in our case
law on the question whether the Ramirez factors are mandated as a


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   1 See In re Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186 (explaining that
the due process clause of the Utah Constitution is not a
“free-wheeling constitutional license” for this court to “assure
fairness on a case-by-case basis,” but a guarantee of procedural
rights “measured by reference to traditional notions of fair play and
substantial justice” (citation and internal quotation marks omitted)).
   2  See South Salt Lake City v. Maese, 2019 UT 58, ¶ 18, 450 P.3d 1092
(noting that “[w]hen we interpret constitutional language, we start
with the meaning of the text as understood when it was adopted”);
Zimmerman v. Univ. of Utah, 2018 UT 1, ¶ 25, 417 P.3d 78 (explaining
that we interpret the Utah Constitution by examining its “text . . . as
understood when it was adopted in the late nineteenth century”);
Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 96, 416 P.3d 663
(clarifying that we “interpret[] the Constitution according to how the
words of the document would have been understood by a competent
and reasonable speaker of the language at the time of the document’s
enactment” (alteration in original) (citation omitted)).

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                         Opinion of the Court

matter of state constitutional law.3 But it is clear that we have never
identified a basis for these factors in the interpretive methodology
that governs our approach to questions of state constitutional law—
the original public meaning of the due process clause of the Utah
Constitution. And that shortcoming is sufficient for us now to
reinforce a point we alluded to in our decision in State v. Hubbard,
which is that the Ramirez factors themselves are not rooted in
constitutional soil. See 2002 UT 45, ¶ 27, 48 P.3d 953 (the Ramirez
factors “provide guidance” but are not “exhaustive or exclusive”
considerations in determining whether identifications are “violative
of due process”).
   ¶6 We revisit and clarify Ramirez on this basis. We endorse the
need for revising and updating the factors set forth in that opinion.
But we emphasize that the revising and updating is done as a matter
of our revisions to the Utah Rules of Evidence, and not by treating
the Utah Constitution as a vessel for judicial policymaking.
    ¶7 This is not to say that there is no role for the due process
clause in a case like this one. Our decisions in Ramirez and Hubbard
also reinforced a premise established under the federal Due Process
Clause in binding precedent of the United States Supreme Court.
That premise is that eyewitness identification evidence may be
excluded if it is produced as a result of suggestive police activity and
the taint of suggestive police procedures creates a “substantial
likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 201
(1972); see also Ramirez, 817 P.2d at 784 (considering reliability in the
context of a “blatant[ly] suggestive[]” showup); Hubbard, 2002 UT 45,
¶¶ 23, 26 (examining whether “procedural actions taken by [police]”
are so “impermissibly suggestive” as to create a “substantial
likelihood of irreparable misidentification” under both the federal
and state due process clauses). We endorse and reaffirm that
principle here, which controls as a matter of stare decisis. But we
clarify that in the face of suggestive police activity the due process
standard is still only a constitutional backstop to the threshold
inquiry into reliability and admissibility under our rules of evidence.


_____________________________________________________________
    3 Compare State v. Ramirez, 817 P.2d 774, 778, 780–81 (Utah 1991)

(articulating specific factors for judicial assessment of the “required
constitutional admissibility analysis”), with State v. Hubbard, 2002 UT
45, ¶ 27, 48 P.3d 953 (explaining that the Ramirez factors are “not an
exhaustive or exclusive list” for examining due process concerns).

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And we emphasize that that threshold inquiry under our rules may
render the constitutional inquiry unnecessary in many cases.
    ¶8 We thus reverse the court of appeals on the ground that the
legal framework it established (and, indeed, the one it invited us to
reconsider) is no longer viable. Because we have substantially
reformed the law in this field, we might, in an ordinary case, be
inclined to remand to the district court to allow it to apply our new
standards to the facts of this case in the first instance. We see no need
to do so here, however. Instead we reinstate the jury verdict on an
alternative basis advanced by the State—on the ground that any
arguable error in admitting the eyewitness identification evidence in
this case was harmless in light of the other evidence in the record
establishing Manuel Lujan’s guilt.
                                    I
    ¶9 Early in the morning before sunrise on November 25, 2012, a
man went out to get his car ready for an upcoming annual
inspection. When he sat down in the driver’s seat he noticed that the
car’s dome light was on and that someone had opened the rear
driver’s side door. Then he saw a man who was later identified as
Manuel Lujan, who closed the rear door and opened the driver’s
door. Lujan squatted next to the driver’s seat with his face about
eight to nine inches from the man’s face and asked, “why you
following me?” Lujan then stood up, opened his jacket, and reached
near his waist for what the man thought was a knife or gun. The man
decided to retreat to the house, fearing he might be stabbed or shot.
    ¶10 At that point the man stood up, placing himself at eye level
with Lujan and within such close proximity that the men were
“almost touching.” The man then slowly moved towards the house,
maintaining visual contact with Lujan the entire time. Lujan
followed the man, moving into the light of the car’s headlights. Once
inside, the man turned on the floodlights, locked his door, and woke
up his younger brother. The two stepped outside the house in time
to see Lujan drive the car off the property. And the man’s brother
quickly called the police, who responded shortly thereafter.
   ¶11 The man’s encounter with Lujan occurred before sunrise.
But there were streetlights on across the street, the man’s porch light
was on, and the car’s headlights and dome light remained on
throughout the encounter.
   ¶12 When the police arrived at the man’s house, the man gave a
description of the robber. He stated that the robber was about 5’10”,
180 pounds, “Spanish,” wearing a black jacket, and had “‘longish

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                            STATE v. LUJAN
                         Opinion of the Court

hair’ [that] poked out of [a] beanie to ‘mid-ear length.’” While the
man was giving his statement, the police officer noticed a trail of
liquid on the ground from where the car had been parked and
leading north out of the driveway. The officer cut the interview short
to follow the trail of liquid. He found the car abandoned a few blocks
away near an elementary school. The officer then had additional
officers set up a containment area and called for a K-9 unit to help
him search for the culprit.
    ¶13 One of the officers participating in the safety sweep around
the school heard a noise sounding like someone climbing a chain
link fence near the classrooms. The officer followed the noise and
found Lujan “curled into a ball” next to a fenced-off air conditioning
unit outside one of the classrooms. When the officer asked Lujan
why he was hiding, Lujan responded “somebody is following me.”
The officer described Lujan as a Hispanic man with closely shaven
hair and a goatee, wearing a black beanie and a black jacket.
   ¶14 Approximately thirty minutes after the robbery, an officer
transported the man to the site where the police had found Lujan.
Lujan was the only non-police officer in the area, was in handcuffs,
and was illuminated with police spotlights. The police asked the
man if he could identify the robber. And he identified Lujan as the
same person who had accosted him and stolen his car.
    ¶15 Lujan was charged with first-degree-felony aggravated
robbery. A few months later, the defense requested a lineup
identification procedure. The man identified two possible
perpetrators in the lineup—Lujan and another person who “looked
familiar.” The man again identified Lujan as the robber at the
preliminary hearing. After the preliminary hearing, Lujan moved to
suppress the in-court identification as well as evidence that the man
had identified Lujan in the showup. The court denied his motion and
permitted the man to identify Lujan at trial as the person who
robbed him. At trial, the defense called an expert to testify about the
reliability of eyewitness identification. But the jury ultimately
convicted Lujan for aggravated robbery.
    ¶16 Lujan appealed. The court of appeals reversed and vacated
Lujan’s conviction, remanding for a new trial. It concluded that the
eyewitness identification testimony was not reliable, and thus
inadmissible, under the reliability factors laid out in State v. Ramirez,
817 P.2d 774 (Utah 1991). State v. Lujan, 2015 UT App 199, ¶ 19, 357
P.3d 20. Yet it also openly called on this court to revisit the Ramirez
factors, asserting that Ramirez was an “unreliable tool” and stating
that the “scientific and legal research regarding the reliability of

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eyewitness identifications has progressed significantly in the last
twenty-four years.” Id. ¶ 10 n.1.
    ¶17 Then-Judge Pearce dissented. He “agree[d] with the
majority that the time may have arrived for the Utah Supreme Court
to revisit its holding” in Ramirez. Id. ¶ 21 (Pearce, J., dissenting). Yet
he also noted that the court of appeals was “duty-bound to apply”
the Ramirez standard so long as it stands as precedent. Id. And he
proceeded to disagree with the majority’s conclusion in applying
Ramirez to the facts of this case. Id. Judge Pearce concluded that “the
showup involving Defendant in this case was substantially less
troublesome than that the Ramirez court approved.” Id. And he
accordingly indicated that he would have affirmed Lujan’s
conviction. Id. ¶ 31.
   ¶18 We granted certiorari. We review the court of appeals’
decision de novo, affording no deference to its analysis of the
important legal questions presented.

                                    II
    ¶19 The court of appeals has invited us to reconsider and revise
the standards of evidentiary reliability set forth in our decision in
Ramirez. And understandably so, as the scientific and legal
scholarship in this field has evolved substantially since the time of
our decision in that case—in a manner raising serious questions
about the continuing viability of the factors we prescribed in the
Ramirez decision. See State v. Clopten, 2015 UT 82, ¶ 53, 362 P.3d 1216
(noting that “eyewitness memory science” relied upon in prior
precedent had “already been called into question by subsequent
research”). We granted certiorari to take up the court of appeals’
challenge. And in the course of the briefing and argument we also
uncovered a key point of conflict or imprecision in our case law in
this field. The imprecision concerns the legal basis for the factors
prescribed in our Ramirez opinion.
    ¶20 On one hand, we have sometimes suggested that the
Ramirez factors are rooted in constitutional soil. See, e.g., State v.
Ramirez, 817 P.2d 774, 778 (Utah 1991); State v. Guzman, 2006 UT 12,
¶ 21, 133 P.3d 363; State v. Hubbard, 2002 UT 45, ¶ 25, 48 P.3d 953. In
the Ramirez case itself, for example, we spoke of a “required
constitutional admissibility analysis” for eyewitness identification
testimony. 817 P.2d at 778. And when we articulated factors for
judging reliability and admissibility of such testimony, we spoke of
the matter as presenting a “constitutional” question. Id. at 780–81.


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                         Opinion of the Court

    ¶21 Lujan has advanced this view of the Ramirez factors in his
briefing in this case. Citing Ramirez and other decisions, Lujan has
urged us to reinforce the factors that we prescribed in Ramirez. And
he asks us to treat them as establishing a threshold standard of
evidentiary reliability that a court should use in “fulfilling its charge
as [a] gatekeeper . . . [for] eyewitness identification.” Lujan asserts
that this standard is guaranteed by the due process clause of our
Utah Constitution.
    ¶22 The State urges a contrary view. It asks us to “free the
[Ramirez] factors of a constitutional foundation” and instead
establish that the threshold standard of reliability and admissibility
of evidence is a matter for our rules of evidence. It maintains that
keeping up with “current research” is best “accomplished through
evidentiary means” given the “fast-changing dynamics” of the field.
    ¶23 This position also finds some support in our case law—and,
as the State notes, in recent authority from the United States
Supreme Court. In Hubbard we stated that the factors set forth in
Ramirez “provide guidance” on the reliability of eyewitness
identification testimony but suggested that the list is not “an
exhaustive or exclusive list of factors that may be considered in
determining whether an identification is reliable.” 2002 UT 45, ¶ 27.
Our cases, moreover, have never proffered the Ramirez factors as a
freestanding standard of evidentiary admissibility. Instead, as the
State notes in its briefing, almost every case4 in which we have
applied the Ramirez factors has involved a threshold showing of state
action in the form of suggestive police activity.5 This implicates a key

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    4 Hubbard is the one case in which we applied the Ramirez factors

in the absence of suggestive police activity. 2002 UT 45, ¶ 26. But as
noted above, we made clear in that case that we did not consider
their application constitutionally required. Id. ¶ 27; see also infra
¶¶ 26–28.
   5  See Ramirez, 817 P.2d at 777–84 (addressing admissibility of
identification following a one-person showup arranged by police);
see also State v. Hollen, 2002 UT 35, ¶¶ 9–11, 29–64, 44 P.3d 794
(addressing admissibility of identification following a photo array
arranged by police); State v. Hoffhine, 2001 UT 4, ¶¶ 7, 13–19, 20 P.3d
265 (addressing admissibility of identification following a two-
person showup arranged by police); State v. Decorso, 1999 UT 57,
¶¶ 7, 41–47, 993 P.2d 837, abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016 (addressing admissibility of
                                                         (continued . . .)
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question on which we requested supplemental briefing in this case:
whether the Utah due process clause establishes a freestanding
guarantee of evidentiary reliability or instead just comes into play in
the face of suggestive police activity.
    ¶24 The State points us to recent authority from the United
States Supreme Court on this question—Perry v. New Hampshire, 565
U.S. 228 (2012). The Perry Court held that the threshold inquiry for
admissibility of eyewitness identification testimony is a matter for
“statutes and rules . . . govern[ing] the admissibility of evidence.” Id.
at 237. It also stated that “due process concerns arise only when law
enforcement officers use an identification procedure that is both
suggestive and unnecessary.” Id. at 238–39. “Even when the police
use such a procedure,” the Perry Court held that “suppression of the
resulting identification is not the inevitable consequence.” Id. at 239.
“Instead of mandating a per se exclusionary rule, . . . the Due Process
Clause requires courts to assess, on a case-by-case basis, whether
improper police conduct created a substantial likelihood of
misidentification.” Id. (citation and internal quotation marks
omitted). “The due process check for reliability” of eyewitness
identification testimony, in other words, “comes into play only after
the defendant establishes improper police conduct.” Id. at 241.
    ¶25 We need not and do not decide whether to endorse the Perry
framework as a matter of the law of due process under the Utah
Constitution. In this case the State has not challenged the allegation
of suggestive police activity. And for that reason we need not decide
the broader question whether the Utah due process clause
establishes a freestanding guarantee of the reliability of eyewitness
identification testimony that would attach in the absence of state
action in the form of suggestive police activity.
   ¶26 That still leaves the question whether, in a case involving
suggestive police activity, the Ramirez factors themselves are
mandated by the Utah Constitution. We hereby hold that they are
not so mandated. We suggested as much in our decision in Hubbard.
2002 UT 45, ¶ 27. And, importantly, Lujan has proffered no basis for
a determination that the Ramirez factors would have been
understood by the public as an element of the guarantee of “due
process of law” at the time of the ratification of the Utah

_____________________________________________________________
identification following a police lineup); State v. Willett, 909 P.2d 218,
224 (Utah 1995) (addressing admissibility of identification following
a photo array arranged by police).

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                          Opinion of the Court

Constitution. This is a fatal deficiency under our case law. We have
repeatedly reinforced the notion that the Utah Constitution is to be
interpreted in accordance with the original public meaning of its
terms at the time of its ratification. See South Salt Lake City v. Maese,
2019 UT 58, ¶ 18, 450 P.3d 1092; Zimmerman v. Univ. of Utah, 2018 UT
1, ¶ 25, 417 P.3d 78; Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89,
¶ 96, 416 P.3d 663. And we have emphasized that it is this mode of
analysis that controls. The due process clause of the Utah
Constitution is not a “free-wheeling constitutional license” for this
court to “assure fairness on a case-by-case basis.” In re Steffensen,
2016 UT 18, ¶ 7, 373 P.3d 186. It is a guarantee of procedural rights
“measured by reference to traditional notions of fair play and
substantial justice.” Id. (citation and internal quotation marks
omitted). And Lujan has not established a basis for the conclusion
that the “traditional notions” of due process rooted in the original
public meaning of the Utah Constitution would sustain a decision to
chisel the Ramirez factors into constitutional stone.
    ¶27 Nor can we find any such basis in our opinion in Ramirez.
The Ramirez opinion looked only to evolving social science in its
articulation of the reliability factors that it identified. It based the
factors on “well-respected and essentially unchallenged empirical
studies” as laid out in State v. Long, 721 P.2d 483 (Utah 1986), even
while conceding that the holding in Long “was not squarely based on
the state constitution.” Ramirez, 817 P.2d at 780. The opinion
established this “more empirically based approach” solely because
the court “judge[d] this to be a more appropriate approach.” Id.
    ¶28 These sorts of considerations—rooted in evolving social
science and legal scholarship—may be appropriate grounds for our
provision of “guidance” on the reliability of eyewitness
identification testimony. See Hubbard, 2002 UT 45, ¶ 27. But such
evolving grounds are not a basis for establishing fixed principles of
constitutional law. And our decision in Ramirez nowhere offered an
originalist basis for constitutionalizing the reliability factors set forth
in that opinion.
   ¶29 We reinforce that understanding of Ramirez here. In so
doing we reverse the decision of the court of appeals, which applied
the factors set forth in the Ramirez opinion as the threshold basis for
assessing the admissibility of the eyewitness identification testimony




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in this case.6 We thus clarify that the threshold legal framework for
judging the admissibility of eyewitness identification testimony is
established under our rules of evidence. Those rules, importantly,
have the virtue of being subject to nimble reformulation and revision
in response to changes in prevailing scientific and legal scholarship
of relevance to the reliability of eyewitness identification testimony.
See Clopten, 2015 UT 82, ¶ 80 (Lee, A.C.J., concurring) (explaining
that concerns about our eyewitness identification testimony law “can
and should be dealt with by an amendment to our rules of evidence”
and noting the “many virtues of that system” in contrast to having
judges “make rules of evidence on the fly based on evolving social
science”).
    ¶30 And we note that our rulemaking process has in fact
fulfilled this task. Even while this case was under advisement, our
advisory committee on the Utah Rules of Evidence considered and
proposed a new rule of evidence governing the admissibility of
eyewitness identification testimony—rule 617. This rule draws on
recent scholarship in social science journals and law journals of
relevance to the reliability of eyewitness identification testimony.
And it establishes factors and standards for a trial court to employ in
judging the admissibility of eyewitness testimony.
    ¶31 This new rule, of course, was not in place at the time of the
trial in this proceeding. So it could not have been applied in the
disposition of this case. But other rules of evidence were in place at
the time of the trial court proceedings, and those rules could and
should have been applied in assessing Lujan’s challenge to the
admissibility of the eyewitness identification testimony in this case.
   ¶32 The governing rules of evidence were not the basis for the
lower court decisions before us on certiorari in this case. And in the
absence of a lower court decision applying the governing law as now

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   6 This is, of course, no knock on the court of appeals. That court

was bound to follow our case law as it stood in place at the time of
the decision before us on certiorari review. And our precedent was
plausibly read as establishing the Ramirez factors as a freestanding,
constitutionally mandated standard for judging the admissibility of
eyewitness identification testimony. So although we reverse the
court of appeals, the judges of that court are to be applauded for a
decision that helpfully cued up an important question for our
review—and that prompted a reformulation of precedent that is only
ours to make.

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clarified by this court, we might ordinarily remand the case for
reconsideration in light of the newly revised standard. We see no
need to do so here, however, because we affirm the verdict in the
trial court on an alternative basis advanced by the State. We hold
that any arguable error in the admission of the eyewitness testimony
in this case was harmless beyond a reasonable doubt in light of the
substantial evidence connecting Lujan to the crime even absent the
testimony of the eyewitness.
    ¶33 In the paragraphs below we first highlight the standards in
our rules of evidence (both at the time of trial and under newly
adopted rule 617) that should have formed the basis for the
threshold inquiry into the admissibility of the eyewitness testimony
in this case. Second, we clarify the remaining role for due process in
a case involving suggestive police activity—a constitutional backstop
for the reliability standards set forth in our rules of evidence. And
finally, we conclude by explaining the basis for our decision to
affirm the trial verdict without any need for a remand under the
framework as clarified in this decision.
                                  A
    ¶34 Our rules of evidence include several tools for assessing the
reliability and admissibility of eyewitness identification testimony.
And importantly, these tools leave room for consideration of, and
adaptation based on, developments in scholarly literature in this
field.
   ¶35 A key question for admissibility under the rules in place at
the time of the trial in this case arises under rule 403. That rule
provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of” (among
other things) “unfair prejudice.” UTAH R. EVID. 403.
    ¶36 The threshold inquiry under rule 403 goes to the probative
value of the testimony of a given eyewitness. Where there is an
eyewitness to a crime, his testimony typically will have at least some
probative value. Yet developments in the scholarly literature have
uncovered some grounds for questioning the strength or reliability
of such evidence. Important research has identified both “estimator
variables” and “system variables” that may tend to undermine the
reliability of a given eyewitness account. See MASSACHUSETTS
SUPREME JUDICIAL COURT STUDY GROUP ON EYEWITNESS EVIDENCE,
REPORT AND RECOMMENDATIONS TO THE JUSTICES (2013); State v.
Henderson, 27 A.3d 872 (N.J. 2011). And these variables may be
considered in assessing both the probative value of a given piece of

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eyewitness identification testimony and the possibility of it
producing unfair prejudice.
    ¶37 Estimator variables are factors connected to the event,
witness, or perpetrator—items over which the justice system has no
control. See Henderson, 27 A.3d at 895. These are factors that may
affect the reliability of an eyewitness account. They include (among
others) the viewing conditions at the time of the event (distance,
lighting, etc.), the amount of stress (or duress) the witness was
under, whether there was a weapon that the witness focused on,
witness characteristics (age, impairment, etc.), perpetrator
characteristics (like age and race, given that witnesses are better at
identifying persons of their own age and race), and factors affecting
memory decay. Id. at 904–10.
   ¶38 System variables consist of factors controlled by the court or
law enforcement. See id. at 895–96. Examples of system variables that
may affect the reliability of an eyewitness account are the use of
double-blind     identification   procedures,    the    quality    of
pre-identification instructions, and the use of proper lineup
construction. See id. at 896–903.
    ¶39 These lists are exemplary. The cited sources list other
estimator and system variables. And research in this field is
ongoing—over time we are understanding better and better how
human perception and recall work when it comes to eyewitness
identification. But the core point is this: The perception and memory
of an eyewitness account may be affected by a wide range of factors
not intuitively obvious to a juror (or even a judge), and careful
consideration of these factors is important in assessing the reliability
or probative value of eyewitness testimony. See Nicholas A.
Kanh-Fogel, The Promises and Pitfalls of State Eyewitness Identification
Reforms, 104 KY. L.J. 99, 124 (2016).
    ¶40 Our rulemaking process is set up in a manner that enables
us to react nimbly to further developments in this field. And as our
understanding of the factors that affect the reliability of eyewitness
testimony develops, our application and understanding of our rules
of evidence can likewise evolve.
   ¶41 The above-listed factors are crucial to the assessment of
unfair prejudice. Eyewitness testimony is common. And it is
sometimes viewed as the gold standard. It is tempting to say that
“there is almost nothing more convincing . . . than a live human
being who takes the stand, points a finger at the defendant, and says
‘That’s the one!’” Henderson, 27 A.3d at 889 (citation and emphasis
omitted). But some eyewitness accounts are fool’s gold. An
                                    13
                             STATE v. LUJAN
                         Opinion of the Court

eyewitness who is affected by significant estimator or system
variables may appear to present a highly probative account of the
crime; but false appearance of probity may ultimately translate into
unfair prejudice. Cf. State v. Maestas, 1999 UT 32, ¶ 26, 984 P.2d 376
(“[B]ecause jurors do not appreciate the fallibility of [eyewitness]
identifications, they often give eyewitness testimony undue
weight.”).
    ¶42 The above-noted estimator and system variables also
informed our advisory committee’s proposal that we adopt a new
rule of evidence aimed specifically at eyewitness identification
testimony. New rule 617 first identifies nine nonexclusive factors
(based on “estimator variables” identified in the literature) for a
judge to use in assessing the reliability and thus admissibility of
eyewitness identification evidence: (1) “opportunity to observe the
suspect committing the crime”; (2) impaired attention caused by a
weapon or other distraction; (3) physical and mental capacity to
make an observation; (4) awareness that a crime was taking place
and resulting effect on a witness’s ability to “perceive, remember,
and relate it correctly”; (5) cross-racial identification; (6) length of
time between the original observation and identification;
(7) instances of identification or failure to identify a suspect, and
later consistency; (8) exposure to opinions, photographs, or other
information influencing the independence of the identification; and
(9) “any other aspect of the identification” affecting reliability. UTAH
R. EVID. 617(b). Under rule 617(b), the court is to exclude eyewitness
identification evidence if the party challenging the evidence “shows
that a factfinder . . . could not reasonably rely on the eyewitness
identification.” Id.
    ¶43 Rule 617 also incorporates “system variables.” These
variables are incorporated by the rule in its identification of factors
relevant to determining whether a photo array, lineup, or showup
was “unnecessarily suggestive.” Id. 617(c). If an identification
procedure is “contested,” the court is to “determine whether the
identification procedure was unnecessarily suggestive or conducive
to mistaken identification” based on the system and estimator
variables set forth in the rule. Id. “If so, the eyewitness identification
must be excluded unless the court, considering” both estimator and
system variables, “finds that there is not a substantial likelihood of
misidentification.” Id.
   ¶44 By taking account of both the “estimator variables” and
“system variables” that have been identified in scholarly literature,
rule 617 thus allows a trial judge to more effectively assess whether
such variables have undermined the reliability of a given eyewitness
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                         Opinion of the Court

account. In light of the evolving nature of academic discourse on this
subject, however, the rule does not paint courts into a corner. Rule
617 makes clear that the factors it identifies to account for estimator
and system variables are nonexhaustive: “As scientific research
advances, other factors in addition to those outlined . . . may be
considered” by judges in performing their gatekeeping function. Id.
617 advisory committee notes.
   ¶45 A threshold focus on the rules of evidence furthers the
principle of constitutional avoidance—by frontloading the question
of admissibility under our rules of evidence in advance of any
constitutional inquiry. And it yields the kind of flexibility called for
by the court of appeals in its decision below and by the parties in
their briefing. See State v. Lujan, 2015 UT App 199, ¶ 10 n.1, 357 P.3d
20 (referring to developments in “scientific and legal research
regarding the reliability of eyewitness identification[]” testimony
over the years since our decision in Ramirez and suggesting that the
Ramirez framework “must be revisited” by this court); see also
Clopten, 2015 UT 82, ¶ 80, 362 P.3d 1216 (Lee, A.C.J., concurring) (the
evolution of eyewitness identification science “can and should be
dealt with by an amendment to our rules of evidence”).
                                   B
    ¶46 While the threshold standard of admissibility of eyewitness
testimony is provided by the Utah Rules of Evidence, the governing
case law also preserves a role for due process. When eyewitness
identification evidence is secured by “unnecessarily suggestive”
police action, the federal Due Process Clause adds a constitutional
backstop to our rules of evidence. Perry v. New Hampshire, 565 U.S.
228, 235 (2012). And our case law has established a similar backstop
under the due process clause of the Utah Constitution. See, e.g., State
v. Ramirez, 817 P.2d 774, 779, 784 (Utah 1991); State v. Hubbard, 2002
UT 45, ¶¶ 25–26, 48 P.3d 953.
   ¶47 The backstop test under federal law bars eyewitness
evidence if the taint of suggestive police procedures created a
“substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S.
188, 201 (1972). In assessing that likelihood, the court is to weigh the
“indicia of reliability” against the “corrupting effect of the
police-arranged suggestive circumstances.” Perry, 565 U.S. at 232.
    ¶48 The Supreme Court has identified factors to consider in that
assessment. These factors include: “the opportunity of the witness to
view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time
                                    15
                            STATE v. LUJAN
                         Opinion of the Court

between the crime and the confrontation.” Id. at 239 n.5 (citation
omitted). These factors are to be applied in assessing “on a case-by-
case basis[] whether improper police conduct created a ‘substantial
likelihood of misidentification.’” Id. at 239 (quoting Biggers, 409 U.S.
at 201). Where the court finds such a likelihood in light of the
“totality of the circumstances,” due process requires the exclusion of
the evidence. Id.
    ¶49 While this court did expand on the Supreme Court’s
“factors” in Ramirez—with factors that we deemed to “more
precisely define the focus of the relevant [due process] inquiry,” 817
P.2d at 781—these factors are not constitutionally required because
they are not rooted in the text or original understanding of the Utah
Constitution. See supra ¶¶ 26–28. We reinforce that holding here. But
we nonetheless preserve the standards set forth in Ramirez as a
matter of stare decisis as clarified above. Thus, we hold that the
Ramirez factors are entitled to stare decisis respect, and will not be
overridden, insofar as they provide “guidance” of relevance to the
purpose for which they have been applied in our case law—as
possible considerations in assessing whether evidence produced as a
result of suggestive police activity should be excluded on the ground
that it leads to a substantial likelihood of misidentification. But
unless and until the framework for a backstop due process test is
rooted in the original meaning of the Utah due process clause, these
factors remain just that—guidance, rather than a constitutionally
required test.7

_____________________________________________________________
    7 In so holding we do not rule out the possibility of a

determination, in a future case in which the question is squarely
presented, that state constitutional standards under the Utah due
process clause differ from federal due process standards under Neil
v. Biggers, 409 U.S. 188, 201 (1972). See Alpine Homes, Inc. v. City of
West Jordan, 2017 UT 45, ¶ 16, 424 P.3d 95 (explaining that even
where “the Utah clause is similar to the federal clause, we do not
presume that federal court interpretations of federal Constitutional
provisions control the meaning of identical provisions in the Utah
Constitution” (citation and internal quotation marks omitted));
Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 46, 250 P.3d 465
(emphasizing that even though “some of the language of our state
and federal constitutions is substantially the same, similarity of
language does not indicate that this court moves in ‘lockstep’ with
the United States Supreme Court’s [constitutional] analysis”
(alteration in original) (citation and internal quotation marks
                                                        (continued . . .)
                                    16
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                        Opinion of the Court

    ¶50 In so stating we reinforce points we have made throughout
this opinion. We endorse the need for ongoing adjustment and
refinement of the standards of reliability and admissibility of
eyewitness identification testimony in response to scholarly
developments in this field. Yet we emphasize that the principal,
threshold basis for such adjustment and refinement is through
amendments to our rules of evidence.
    ¶51 We also emphasize the predominant role for our rules of
evidence in the run of cases. The standard for admissibility under
our rules of evidence is, if anything, more protective than the
constitutional due process standard. Cf. Ramirez, 817 P.2d at 784
(declining to engage in “separate Biggers federal analysis” in light of
the court’s conclusion that the state due process clause “is certainly
as stringent as, if not more stringent than, the federal analysis”).
Specifically, the estimator and system variables that have been
incorporated into rule 617, and could be considered under rule 403,
encompass all of the factors relevant to the due process inquiry (and
more). It seems likely that whenever there is a “substantial
likelihood of misidentification” under the due process framework
there will also be a basis for exclusion under our rules of evidence.
And this will allow our courts to avoid the constitutional inquiry in
the run of cases, and to keep the focus on the standards of
admissibility under our rules of evidence.



_____________________________________________________________
omitted)). We are of course not bound to follow precedent on federal
due process in our formulation of state due process standards. And
we may thus depart from the federal formulation if and when we are
presented with state constitutional analysis rooted in the original
meaning of the Utah due process clause. See South Salt Lake City v.
Maese, 2019 UT 58, ¶ 18, 450 P.3d 1092 (clarifying that “[w]hen we
interpret constitutional language, we start with the meaning of the
text as understood when it was adopted”); Zimmerman v. Univ. of
Utah, 2018 UT 1, ¶ 25, 417 P.3d 78 (noting that we interpret the Utah
Constitution by examining its “text . . . as understood when it was
adopted in the late nineteenth century”); Neese v. Utah Bd. of Pardons
& Parole, 2017 UT 89, ¶ 96, 416 P.3d 663 (explaining that we
“interpret[] the Constitution according to how the words of the
document would have been understood by a competent and
reasonable speaker of the language at the time of the document’s
enactment” (alteration in original) (citation omitted)).

                                   17
                             STATE v. LUJAN
                         Opinion of the Court

                                    C
    ¶52 We have clarified and reformulated the framework for the
analysis of the admissibility of eyewitness identification testimony in
Utah. Ordinarily that might call for a remand to allow a lower court
to apply our revised legal standard to the facts of this case in the first
instance. We see no need for a remand in a case like this one,
however, because we endorse an alternative basis for affirming the
trial verdict even assuming (for the sake of argument) error in the
admission of the eyewitness testimony in this case. We conclude,
specifically, that any arguable error was harmless beyond a
reasonable doubt8 in light of other substantial evidence connecting
Lujan to the crime in question.
   ¶53 We can evaluate the harmlessness of the eyewitness
identification testimony by considering “the importance of the
witness’ testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence collaborating or
contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.” State v. Villarreal, 889 P.2d
419, 425–26 (Utah 1995) (citation omitted). And here we harbor no
reasonable doubt that the jury would still have convicted Lujan even
without the testimony from the eyewitness.
    ¶54 Even without Lujan’s eyewitness identification, the jury
would still have had the description of the robber and corroboration
from the police that Lujan largely matched that description. The jury
also would have heard that Lujan was found when police followed a
trail of liquid on the ground from where the stolen car had been
parked and leading north out of the driveway. Significantly, the jury
would have heard that the trail of liquid led them to find the stolen
car parked a few blocks away near an elementary school—and to
find Lujan “curled into a ball” and hiding next to a fenced-off air
conditioning unit in the adjacent school yard. Lujan was the only
person found in the area, and he largely fit the description of the
robber. And when the police found Lujan he expressed the same

_____________________________________________________________
    8 This is the federal standard for harmlessness of constitutional

errors under Chapman v. California, 386 U.S. 18, 24 (1967). We apply
this standard here based on the arguendo assumption that there may
have been a constitutional violation in admitting eyewitness
identification testimony that could be thought to have run afoul of
the above-stated due process standard.

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                          Cite as: 2020 UT 5
                         Opinion of the Court

concern the robber had raised earlier that night—stating “somebody
is following me.”
    ¶55 It is also significant that Lujan challenged only the
admission of the in-court and show-up identifications given by the
eyewitness. With this in mind, we may presume for purposes of our
harmlessness analysis that the jury would have heard a separate
identification given by the eyewitness—the identification given in
the lineup. Thus, the jury would also have been told that four
months after the robbery, two suspects were identified from a
lineup, and that only one of them was the only person located within
minutes of the early-morning robbery a short distance from the
stolen car, and who largely matched the description given to the
police minutes before.
    ¶56 In light of all the evidence we conclude that any error in
admitting the eyewitness identification testimony was harmless
beyond a reasonable doubt. The in-court and showup identifications
were undoubtedly important to the prosecution’s case. But we think
that evidence was cumulative and largely unnecessary. And in light
of the other evidence implicating Lujan we hold that any potential
error in the district court’s admission of his eyewitness identification
was harmless beyond a reasonable doubt. We affirm the trial verdict
against Lujan on this basis.
                                  III
    ¶57 Eyewitness identification testimony presents difficult
problems for our courts. Our past decisions could be read to suggest
that the admissibility of such evidence should be judged in the first
instance under a due process standard framed by factors identified
in our opinion in State v. Ramirez, 817 P.2d 774 (Utah 1991). We now
repudiate that notion. We hold that the admissibility of this kind of
evidence is to be measured in the first instance by our rules of
evidence. And we clarify that in cases in which eyewitness testimony
is procured by unnecessarily suggestive police misconduct, the role
of the due process inquiry is a limited one—a secondary backstop to
the threshold question of admissibility under our rules of evidence.




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