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

                                2013 UT 68

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH
                           STATE OF UTAH,
                         Plaintiff and Appellee,
                                      v.
                       RIQO MARIANO PEREA,
                       Defendant and Appellant.

                            No. 20100891
                      Filed November 15, 2013

                  Second District, Ogden Dep’t
                  The Honorable Ernest T. Jones
                        No. 071901847

                                Attorneys:
 John E. Swallow, Att’y Gen., Christopher D. Ballard, Asst. Att’y
               Gen., Salt Lake City, for appellee
         Samuel P. Newton, Kalispell, MT, for appellant

   JUSTICE PARRISH authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
             JUSTICE DURHAM, and JUSTICE LEE joined.
      JUSTICE DURHAM filed a concurring opinion, in which
            ASSOCIATE CHIEF JUSTICE NEHRING joined.
         JUSTICE LEE filed a concurring opinion, in which
                  CHIEF JUSTICE DURRANT joined.


   JUSTICE PARRISH, opinion of the Court:
                          INTRODUCTION
    ¶1 Riqo Perea appeals from a conviction for two counts of
aggravated murder in violation of Utah Code section 76-5-202 and
two counts of attempted murder in violation of Utah Code section
76-5-203. Mr. Perea was sentenced to life without parole (LWOP) for
each aggravated murder conviction and three years to life for each
attempted murder conviction.
    ¶2 Mr. Perea raises numerous issues. He contends that the
district court erred by limiting and excluding the testimony of
                          STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

defense experts, precluding the testimony of potentially exculpatory
defense witnesses, and denying Mr. Perea’s motion to suppress his
confession. Mr. Perea further contends that the combination of
errors constitutes cumulative error and requires reversal. Mr. Perea
also argues that Utah Code section 76-3-207.7, which provides the
sentencing scheme for first degree felony aggravated murder, is
unconstitutional. He finally argues that we should require recording
of confessions occurring at police stations.
    ¶3 We hold that the district court erred when it excluded the
testimony of the defense’s expert witnesses. But we conclude that
the error was harmless and does not undermine our confidence in
the verdict when viewed against the backdrop of Mr. Perea’s
overwhelming guilt. We also hold that section 76-3-207.7 is constitu-
tional on its face and was constitutionally applied to Mr. Perea. We
therefore affirm.
                         BACKGROUND
    ¶5 On the evening of August 4, 2007, Mr. Perea, then nineteen
years old, was spending time with friends. Mr. Perea and many of
those with him belonged to the Ogden Trece gang. That night,
Dominique Duran drove the group to the home of Christina Rivera
in her maroon GMC Yukon (SUV). When the group arrived at Ms.
Rivera’s residence, Sarah Valencia, who had been left in charge of
the residence, told the group they were not welcome.
    ¶6 When the group entered Ms. Rivera’s house over Ms.
Valencia’s objections, she and a friend walked across the street to
Anthony Nava’s house. Mr. Nava was hosting a wedding party that
included some members of the Norteños, a rival gang to the Ogden
Trece. Before Ms. Valencia and her friend made it to Mr. Nava’s
house, Mr. Perea and the others followed them and an argument
erupted. The argument led to an exchange of gang insults between
Mr. Perea’s group and some partygoers at Mr. Nava’s, at which
point an unknown person fired a shot in the air.
    ¶7 When the shot was fired, Mr. Perea and his group returned
to Ms. Duran’s SUV. Mr. Perea was seated in the front passenger
seat. Ms. Valencia, who was standing near the street, testified that
as the SUV pulled away, “I seen Riqo over the top, shooting.”
Similarly, Angelo Gallegos and Elias Garcia, passengers in the SUV,
testified that Mr. Perea fired shots from the SUV as it pulled away
from the party.




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   ¶8 Ms. Valencia and her friend, Sabrina Prieto, were standing
on a walkway between the front door and the carport of Mr. Nava’s
house when the shots rang out from the SUV. Ms. Valencia ran east
along the front of the home toward the carport, and as she sought
cover in a side door, she turned and saw Ms. Prieto fall on the
doorstep. Ms. Prieto had been fatally shot through the right side of
her chest.
    ¶9 Richard Esquivel, like many of the other witnesses, was
facing the road when the shots from the SUV were fired. Mr.
Esquivel testified that he saw someone from the passenger side of
the SUV lean over the roof and fire towards Mr. Nava’s house. After
the first shot was fired, Mr. Esquivel got down but was hit in the
back part of his shoulder and hip. Rocendo Nevarez, who was
standing slightly closer to the road, was fatally shot in the lower left
part of his back.
   ¶10 Keri Garcia was standing in Mr. Nava’s driveway when the
shots from the SUV were fired. She ran south along the side of the
house, but was shot in the lower back as she sought cover. Ms.
Garcia testified that the shots came only from the direction of the
road.
    ¶11 Lacey Randall was standing beside her car, which was
parked in Mr. Nava’s driveway. As did the other witnesses, Ms.
Randall testified that she saw the shooter sitting on the passenger
side windowsill of the SUV. Ms. Randall was pulled to the ground
just before a bullet struck the car window above her.
    ¶12 Mr. Gallegos, a passenger in the SUV, testified that when
Mr. Perea climbed back into the vehicle after the shootings, Mr.
Perea told them that “[i]f [they] said anything, there would be a
bullet with [their] name on it.” In contrast, Mr. Garcia, another
passenger, testified that Mr. Perea “was confused,” but “never
threatened to put a bullet in anybody.” Ms. Duran, who was
driving, testified that Mr. Perea said, “[D]rive right and let’s not get
pulled over.”
   ¶13 A short time later, Ms. Duran dropped off the group near
a church in North Ogden. Mr. Garcia testified that later that
morning, Mr. Perea dumped the gun in an alley. The gun was never
recovered.
   ¶14 The bullets recovered from Ms. Prieto’s and Mr. Navarez’s
bodies were .22 caliber and appeared to have been fired from the
same gun. Police recovered ten expended .22 caliber shell casings in


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the street in front of Mr. Nava’s house. No other shell casings were
found at the crime scene. While the State’s ballistic expert deter-
mined that all of the casings were expended from the same gun, the
expert was not able to determine if the gun that fired the bullets was
the same gun that expended the casings.
    ¶15 While investigating the case, Detective John Thomas called
Mr. Perea’s cell phone. Detective Thomas explained that he needed
Mr. Perea “to come into the police station, talk to [him],” and give
the detective “[Mr. Perea’s] version of what happened that night.”
Mr. Perea denied any involvement in the crime and then discon-
nected the call. When Detective Thomas called back, Mr. Perea
stated that “he wasn’t coming in yet, that he needed to speak with
his lawyer first before he came in,” and that “he got screwed the last
time he spoke with cops and he was innocent.”
    ¶16 Two days later, officers arrested Mr. Perea in Layton. They
transported Mr. Perea back to Ogden and placed him in an interview
room. Mr. Perea was allowed to use the bathroom, and when he
returned, Detective Thomas read Mr. Perea his Miranda rights.
Detective Thomas joked that Mr. Perea “had his rights read to him
so many times that he could probably read them back to [him], and
[Mr. Perea] kind of laughed and said, ‘Yeah, probably.’” Officer
Gent, who was standing outside the interview room, monitored the
conversation via a closed-circuit television. Despite the fact that the
closed-circuit television was equipped to do so, Officer Gent did not
record the interview because it was the Ogden Police Department’s
policy not to record interrogations.
    ¶17 After providing Mr. Perea some water, Detective Thomas
and Officer Gent began their questioning. Mr. Perea agreed to speak
with the investigators and told them his version of the events the
night of the shootings. Though the investigators told Mr. Perea that
his story did not match that of other witnesses, the conversation
remained calm and civil.
    ¶18 During the questioning, the investigators suggested that
perhaps Mr. Perea fired the shots from the SUV because he was
trying to protect Ms. Duran’s children, who were in the back seat of
the SUV. And in an attempt “to minimize the consequences of what
[Mr. Perea] was looking at,” Officer Gent suggested to Mr. Perea that
he intentionally shot low or high, not intending to kill anyone.
During this part of the questioning, Mr. Perea began to cry and
though “he was tearing up and his eyes were welling up,” Officer
Gent testified that “it wasn’t like [Mr. Perea] was full grown dis-


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traught.” When further questioned about whether he shot to protect
the children, Mr. Perea stated that “as they drove off [in the SUV] he
blacked out and he couldn’t remember what happened.”
    ¶19 The investigators told Mr. Perea that “it doesn’t usually
work out well” when people say they blacked out, and they
encouraged Mr. Perea to tell the truth. Mr. Perea thereafter admitted
to shooting from the SUV. When asked what kind of gun he fired,
Mr. Perea stated that it was a .22 caliber, a fact the investigators had
not previously disclosed.
    ¶20 After admitting to the shooting, Mr. Perea agreed to sign
a typewritten confession. Officer Gent once again gave Mr. Perea a
Miranda warning, and Mr. Perea again agreed to speak with the
officers. Officer Gent then asked Mr. Perea open-ended questions
about the shooting, to which Mr. Perea gave answers that “seemed
appropriate for the question.” Officer Gent testified that he tran-
scribed Mr. Perea’s statements “verbatim.”
    ¶21 After Officer Gent completed the transcription, he printed
the document and handed it to Mr. Perea for review. When Officer
Gent asked Mr. Perea if he could read, “[Mr. Perea] laughed at [the
officer] and said he could.” Mr. Perea read the statement and signed
where appropriate, including an acknowledgment that he volun-
tarily waived his Miranda rights. Officer Gent testified that he
“[n]ever saw any indication that [Mr. Perea] was not understanding
what [the investigators] were saying” and that Mr. Perea was
attentive and responsive throughout the process. Officer Gent
further testified that he never made any promises to Mr. Perea in
exchange for his cooperation with the investigators.
    ¶22 The State charged Mr. Perea with two counts of aggravated
murder and two counts of attempted murder. The State initially
filed, and then withdrew, a notice of intent to seek the death penalty.
Prior to trial, the district court made three substantive evidentiary
rulings relevant to the issues raised on appeal.
    ¶23 First, the district court denied the State’s motion to exclude
the testimony of James Gaskill, the defense’s crime scene reconstruc-
tion expert, who intended to testify that there were multiple shooters
and that the State’s conclusion that Mr. Perea fired all of the shots
was not supported by the forensic evidence. The State argued that
Mr. Gaskill’s theories were not supported by the facts and that his
anticipated testimony constituted an improper expression of opinion
on the credibility of other witnesses. The district court held that Mr.
Gaskill could testify regarding his conclusions about the sequence of

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events on the night of the crime. And while the district court ruled
that Mr. Gaskill could not comment on the credibility of other
witnesses, it allowed him to “testify that based on his examination[,]
he [did not] agree with what some of the witnesses testified to.”
     ¶24 Minutes before the defense presented its case, the State
renewed its motion to exclude Mr. Gaskill’s testimony. Citing
foundational concerns, the State objected to the admission of two
computer animations and a number of photographs Mr. Gaskill
intended to use in support of his testimony. After hearing testimony
from Mr. Gaskill in support of the evidentiary foundation, the court
excluded both animations and the photographic evidence. It ruled
that the photographs did not accurately depict the crime scene and
it excluded the animation because “[Mr.] Gaskill can’t lay any kind
of a foundation for the animation here. He didn’t prepare it. We
don’t know what went into it. We don’t know who was involved in
[its creation].” Although the court allowed Mr. Gaskill to testify at
trial regarding his theories, it sustained the majority of the State’s
multiple objections when Mr. Gaskill’s testimony commented
directly on the credibility of other witnesses.
    ¶25 The district court’s second relevant pretrial ruling involved
the testimony of Dr. Richard Ofshe, a defense expert who intended
to testify about the phenomena of false confessions and opine that
Mr. Perea had falsely confessed. The State argued that under rule
608 of the Utah Rules of Evidence, Dr. Ofshe could not testify “that
[Mr. Perea’s] confession was coerced” because “[t]hat is a legal
conclusion . . . [a]nd that is for the [district court] to determine.” The
State also argued that under rule 702, Dr. Ofshe’s “research is
sharply contested . . . [and] is not research that is generally accepted
within the scientific community in which he operates.” Finally, the
State argued that under rule 403, Dr. Ofshe’s testimony would be
more prejudicial than probative.
    ¶26 The defense responded by noting that the parties were not
before the court “on a Rimmasch hearing” and argued that the district
court had “appointed [Dr. Ofshe] as an expert.” The defense
continued, stating that “[w]e’re asking that [Dr. Ofshe] be able to
testify as an expert and ask for some sort of Rimmasch [hearing] that
could show that he’s not reliable,” otherwise, “I think that it would
be incumbent upon the Court to allow his testimony.” The defense
argued that Dr. Ofshe had testified in over one hundred cases
nationwide, that this court had cited to Dr. Ofshe’s work in two



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opinions,1 and that his expert testimony would assist the jury and
should therefore be admitted.
    ¶27 The district court reasoned that a jury of lay people could
determine a confession’s voluntariness. It also expressed concern
that it
       ha[d] previously ruled that Defendant’s confession
       was voluntary. Dr. Ofshe’s proposed testimony that
       Defendant’s [confession] was coerced is a legal conclu-
       sion previously rejected by the Court and invades the
       fact finding function of the jury. . . . [Further,] Dr.
       Ofshe’s conclusions do not meet the Rimmasch stan-
       dard because they are based upon principles not
       generally accepted within the scientific community.
The district court did not “allow Dr. Ofshe to testify either in
generalities about coerced confessions or about the confession in this
particular case.” The district court noted, however, that “the defense
[could] develop their theory of whether it was a coerced confession
in the[ir] argument,” and it agreed to give a jury instruction
regarding coerced confessions.
    ¶28 The district court’s third relevant pretrial ruling involved
its decision to bar potential defense witnesses unless the defense
disclosed their names. The defense argued that anonymity was
critical because these potentially exculpatory witnesses would not
come forward, or would change their stories, if their names were
revealed outside of the courtroom. The State argued that such a
prohibition would prevent proper investigation of the witnesses’
stories. The district court ruled that “if these [witnesses] are not
willing to give their identity to the prosecutors and the law enforce-
ment [to] follow up on what they are going to say, then they are not
going to testify.” After the court’s ruling, the defense chose not to
disclose the names of the potential witnesses and did not call them
at trial.
    ¶29 The jury found Mr. Perea guilty as charged. At the
sentencing hearing, the district court identified several aggravating
and mitigating circumstances, and found that “the aggravating
circumstances outweigh the mitigating circumstances beyond a
reasonable doubt.” It sentenced Mr. Perea to LWOP for each


   1
     See State v. Rettenberger, 1999 UT 80, ¶¶ 22–23, 31, 984 P.2d 1009;
State v. Mauchley, 2003 UT 10, ¶¶ 21, 27 n.3, 53–54, 56, 67 P.3d 477.

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aggravated murder count and three years to life for each attempted
murder count. Mr. Perea timely appealed.
   ¶30 We have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(i).
                     STANDARD OF REVIEW
    ¶31 We review the district court’s decision to exclude expert
witness testimony for an abuse of discretion. Eskelson ex rel. Eskelson
v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5, 242 P.3d 762; State v.
Clopten, 2009 UT 84, ¶ 6, 223 P.3d 1103. The district court has “wide
discretion in determining the admissibility of expert testimony.”
State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (internal quotation
marks omitted). Therefore, “we disturb the district court’s decision
to strike expert testimony only when it exceeds the limits of
reasonability.” Eskelson, 2010 UT 59, ¶ 5 (internal quotation marks
omitted). But if the district court errs in its interpretation of the law
or the application of the law to the facts, “it [does] not act within the
limits of reasonability, and we will not defer to the evidentiary
decision.” Id.
    ¶32 Similarly, we give the district court “broad discretion to
admit or exclude evidence,” including lay witness testimony, “and
will disturb its ruling only for abuse of discretion.” Daines v.
Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269; see also Taylor v. Illinois, 484
U.S. 400, 415 (1988) (affirming the trial court’s preclusion of witness
testimony as a sanction for a discovery violation).
     ¶33 A district court’s “ruling on a motion to suppress is
reviewed for correctness, including its application of the law to the
facts.” State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. We review the
district court’s factual findings for clear error. Save Our Schools v. Bd.
of Educ., 2005 UT 55, ¶ 9, 122 P.3d 611. We will only find clear error
if the court’s factual findings “are not adequately supported by the
record, resolving all disputes in the evidence in a light most
favorable to the trial court's determination.” Id. (internal quotation
marks omitted).
    ¶34 Mr. Perea’s cumulative error claim requires that we first
apply “the standard of review applicable to each underlying claim
of error.” Radman v. Flanders Corp., 2007 UT App 351, ¶ 4, 172 P.3d
668. After assessing Mr. Perea’s underlying claims, we will reverse
“under the cumulative error doctrine only if the cumulative effect of
the several errors undermines . . . confidence that a fair trial was
had.” State v. Killpack, 2008 UT 49, ¶ 54, 191 P.3d 17 (internal


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quotation marks omitted). But, if Mr. Perea’s claims do not consti-
tute error, or if the cumulative effect of any errors does not under-
mine our confidence in the verdict, we will not apply the doctrine.
See id.
    ¶35 Mr. Perea’s challenge to his sentence of LWOP involves
statutory and constitutional interpretation. We therefore review the
district court’s decision “for correctness, and we provide no
deference to the district court’s legal conclusions.” State v. Poole,
2010 UT 25, ¶ 8, 232 P.3d 519.
                             ANALYSIS
     ¶36 Mr. Perea argues that the district court erred in:
(1) limiting the testimony of the defense’s crime scene reconstruction
expert, (2) excluding the testimony the defenses’s false confession
expert, (3) precluding the testimony of potentially exculpatory
witnesses, and (4) denying the defense’s motion to suppress Mr.
Perea’s confession. Mr. Perea argues that, taken together, these
errors constituted cumulative error and “effectively den[ied] Mr.
Perea a fair trial.” Mr. Perea further argues that his sentence of
LWOP is unconstitutional. Finally, Mr. Perea urges us to judicially
require the recording of all station house confessions.
   ¶37 We first address each of Mr. Perea’s asserted errors and
then turn to his cumulative error argument. We next discuss Mr.
Perea’s argument that his sentence of LWOP is unconstitutional.
Finally, we turn to Mr. Perea’s argument that we should judicially
mandate the recording of station house confessions.
      I. THE DISTRICT COURT ERRED IN LIMITING THE
              TESTIMONY OF JAMES GASKILL
    ¶38 Mr. Perea argues that the district court erroneously
excluded the testimony of James Gaskill, the defense expert on crime
scene reconstruction. Mr. Gaskill visited the scene, took measure-
ments, and determined that there “were multiple shooters[,] . . . that
the bullet casing pattern did not seem consistent with the State’s
version of events, [and] that it would be difficult, if not impossible,
for [Mr. Perea] to hit the[] victims according to the State’s theory.”
While the district court allowed Mr. Gaskill to testify to his investi-
gation and theory, it did not allow him to directly comment on the
credibility of the State’s witnesses, or utilize photographic and
animated evidence in support of his testimony.
   ¶39 We hold that the district court did not err when it pre-
vented Mr. Gaskill from commenting on the veracity of other

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witnesses and when it refused to admit his proffered photographs.
But the district court did abuse its discretion when it refused to
admit the computer animations in support of Mr. Gaskill’s testi-
mony.
A. The District Court Did Not Err when It Precluded Mr. Gaskill From
   Directly Commenting on the Credibility of the State’s Witnesses
    ¶40 “[W]e allow experts latitude to interpret the facts before
them,” even when that interpretation contradicts that of another
witness. Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT
59, ¶ 16, 242 P.3d 762. But we do not allow “an expert’s testimony
as to the truthfulness of a witness on a particular occasion.” State v.
Rimmasch, 775 P.2d 388, 392 (Utah 1989) (citing rule 608 of the Utah
Rules of Evidence for the proposition that witnesses may not
normally testify regarding “specific instances of [another] witness’s
conduct in order to attack or support the witness’s character for
truthfulness”). Because “the resolution of credibility [is] for the fact-
finder [alone],” it is not a proper subject on which an expert witness
may opine. State v. Hoyt, 806 P.2d 204, 211 (Utah Ct. App. 1991).
    ¶41 While our rules of evidence allow Mr. Gaskill to present
theories that contradicted the testimony of other witnesses, our rules
do not allow him to comment directly on the veracity of those
witnesses. See Eskelson, 2010 UT 59, ¶ 17. We therefore hold that the
district court did not err when it prohibited Mr. Gaskill from
testifying as to the truthfulness of the State’s witnesses.
  B. The District Court Did Not Err When It Excluded Mr. Gaskill’s
                      Crime Scene Photographs
    ¶42 Before evidence may be admitted, its proponent is required
to establish a proper foundation. Rule 402 of the Utah Rules of
Evidence requires that evidence must be relevant to be admitted.
Rule 901(a) requires that an exhibit must be authenticated and that
“the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Where an
exhibit is not representative of what its proponent claims it repre-
sents, a court does not abuse its discretion when it refuses to admit
the exhibit. See State v. Horton, 848 P.2d 708, 714 (Utah Ct. App.
1993). And even if an exhibit is both relevant and authenticated, rule
403 allows the district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”

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    ¶43 Here, the defense sought to introduce photographs taken
by Mr. Gaskill that he claimed represented the crime scene. The
State objected, arguing that the photographs did not accurately
represent the scene on the night of the shooting. Though the
photographs were based on actual crime scene photographs, Mr.
Gaskill admitted that there were many differences between his
photographs and the scene on the night of the shooting. He
admitted that the photos purporting to show Mr. Perea’s view from
the SUV could not be accurate because the appropriate make and
model SUV was not used. He further admitted that a pickup truck
in one of the photographs was not the same make or model as the
truck parked there on the night of the shooting. Finally, Mr. Gaskill
admitted that he was not certain if a car in one of the photographs
was in the same location as it had been on the night of the shooting.
    ¶44 Mr. Gaskill’s admissions create significant doubt as to the
accuracy and relevance of the photographs. Particularly where the
defense’s theory was contingent on the location and size of the
vehicles involved, the inaccurate use of substitute vehicles had the
potential to unfairly prejudice or mislead the jury or to confuse the
issues. See UTAH R. EVID. 403. Therefore, the district court did not
abuse its discretion when it refused to admit the inaccurate and
potentially misleading photographs.
C. The District Court Erred When It Excluded Mr. Gaskill’s Computer-
                        Generated Animations
    ¶45 The defense attempted to introduce two computer-
generated animations to visually represent Mr. Gaskill’s testimony.
Mr. Gaskill testified that although he did not personally create the
animations, they “g[a]ve an indication of what [he] believe[d] may
have happened” and would make it easier for the jury to understand
his testimony. The State objected and the district court refused to
admit the animations, finding that “there [was] no foundation for the
animation[s]” because Mr. Gaskill did not know “who created
[them],” “the background of the people who created [them],” “how
[they were] created,” or “what [the animators] relied upon in
creating [them].” We hold that the district court applied an errone-
ous legal standard in refusing to admit the animations.
   ¶46 Broadly speaking, all evidence can be categorized as either
substantive or demonstrative. See Steven C. Marks, The Admissibility
and Use of Demonstrative Aids, 32 A.B.A. THE BRIEF 24, 25 (2003).
Demonstrative evidence is evidence that is meant only to illustrate
a witness’s testimony. Id. It carries no independent probative value


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in and of itself, but aids a jury in understanding difficult factual
issues. Id. Common examples of demonstrative evidence include
models, charts, and timelines.
    ¶47 On the other hand, substantive evidence is “offered to help
establish a fact in issue.” BLACK’S LAW DICTIONARY 640 (9th ed.
2009). In other words, relevant “[substantive] evidence directly
affects the perceived likelihood that a fact of consequence has
occurred” whereas the “effect of demonstrative evidence is to help
clarify and make more understandable a piece of substantive proof.”
Robert D. Brain & Daniel J. Broderick, The Derivative Relevance of
Demonstrative Evidence: Charting Its Proper Evidentiary Status, 25 U.C.
DAVIS L. REV. 957, 967 (1992). Common examples of substantive
evidence include eyewitness testimony, ballistic reports, and
security camera footage.
    ¶48 Because rule 901(a) of the Utah Rules of Evidence requires
that “the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is,” the
distinction between substantive and demonstrative evidence is
critical to understanding the foundational burden imposed on the
evidence’s proponent. If the evidence is merely demonstrative, then
the proponent claims only that the proffered demonstrative evidence
accurately illustrates the testimony given and rule 901 is satisfied so
long as there is sufficient evidence to support the claim that it
accurately depicts a witness’s testimony as well as any uncontested
relevant facts.2 Alternatively, in the case of substantive evidence,
there must be some showing that the evidence itself supports the
proffered conclusion.3
   ¶49 Computer-generated evidence is simply a subset of general
evidence and the categories of computer-generated evidence
correspond with the two general categories of evidence. A “com-


   2
      Prior cases have held that demonstrations and reenactments
require substantially similar conditions. See, e.g., Whitehead v. Am.
Motors Sales Corp., 801 P.2d 920, 923 (Utah 1990). This substantial
similarity requirement is properly applied to the undisputed facts and
proponent’s own testimony. We have never held that such evidence
must be substantially similar to the opponent’s version of disputed
facts.
   3
    The type of support required will vary depending on the nature
of the substantive evidence. See R. COLLIN MANGRUM & DEE
BENSON, MANGRUM & BENSON ON UTAH EVIDENCE, 802–23 (2012).

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puter animation” demonstrates a witness’s testimony and is
therefore a subset of demonstrative evidence. See Kurtis A. Kemper,
Annotation, Admissibility of Computer-Generated Animation, 111 A.L.R.
5th 529 § 2b (2003). As such, the witness does not use the computer
animation to arrive at his or her conclusions. Rather, the animation
is wholly illustrative of the witness’s own conclusions drawn from
the underlying substantive evidence.
   ¶50 In contrast, a “computer simulation” is substantive
evidence used by the witness in drawing his conclusions.
       [C]omputer-generated simulations are typically
       recreations of events or experiments based on scien-
       tific principles and data; in a simulation, data is
       entered into a computer, which is programmed to
       analyze and draw conclusions from the data. Com-
       puter simulations are [therefore a type of] substantive
       evidence offered to support a fact in issue and have
       independent evidentiary value.
Id. (footnotes omitted). Computer simulations do not just illustrate
an expert’s conclusions but are submitted as substantive evidence
with independent probative value. As a subset of substantive
evidence, computer simulations must therefore meet a higher
threshold showing than that required for demonstrative evidence.
    ¶51 Because computer animations are merely a subset of
demonstrative evidence, it is not necessary that the testifying witness
know how the animation was created in order to satisfy rule 901's
authenticity requirement. Rather, it is sufficient that the animation
accurately reflects the witness’s testimony. See, e.g., Gosser v.
Commonwealth, 31 S.W.3d 897, 903 (Ky. 2000) (“[B]ecause a
computer-generated diagram, like any diagram, is merely illustra-
tive of a witness’s testimony, its admission normally does not
depend on testimony as to how the diagram was prepared, e.g., how
the data was gathered or inputted into the computer.”), abrogated on
other grounds by Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012). For
instance, an expert witness using a plastic model of a human organ
is not required to know how the model was created. It is sufficient
for the expert to confirm that the model accurately represents the
organ about which he is testifying.4

   4
    We recognize, however, that because the “animation represents
only a re-creation of the proponent’s version of the event,” it “should
                                                        (continued...)

                                  13
                            STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

    ¶52 Because the animations offered to illustrate Mr. Gaskill’s
testimony were only visual representations of his opinions, the
evidence was demonstrative in nature. It is uncontested that Mr.
Gaskill did not know the exact computer processes through which
the animations were created. But the court had already found that
Mr. Gaskill’s testimony about the events depicted in the animations
was relevant under rule 401 and it did not exclude the testimony or
animations based on prejudice under rule 403.
    ¶53 The State argues that the animations do not accurately
represent the facts because, under the State’s theory, there was only
one shooter. But this argument misapprehends the burden for
admissibility of demonstrative evidence under rule 901. Rule 901
does not require that the demonstrative evidence be uncontroversial,
but only that it accurately represents what its proponent claims. Mr.
Gaskill confirmed that the animations accurately represented his
expert interpretation of the facts. Therefore, the district court erred
when it did not admit the animations.
       II. THE DISTRICT COURT ERRED IN BARRING THE
                  TESTIMONY OF DR. OFSHE
    ¶54 Mr. Perea argues that the district court also erroneously
excluded the testimony of Dr. Richard Ofshe, a defense expert who
intended to testify regarding false confessions. The district court
ruled first that Dr. Ofshe could not testify as to the truthfulness of
Mr. Perea’s confession. It next questioned whether or not an expert
was needed to testify to the phenomena of false confessions and
concluded that “a jury of lay people can decide the question as to
whether or not a confession is reliable, involuntary, or coerced
without having an expert testify on that issue.”5 Finally, the court


   4
    (...continued)
in no way be viewed as the absolute truth.” Clark v. Cantrell, 529
S.E.2d 528, 537 (S.C. 2000). And we echo the Supreme Court of
South Carolina in “encourag[ing] the [district] court to give a
cautionary instruction” to the jury that it is not the absolute truth
“and, like all evidence, it may be accepted or rejected in whole or in
part.” Id.
   5
     We pause to note the distinction between false and coerced
confessions. Whether a confession is coerced is a question of law
that hinges on the manner in which the confession was obtained. In
contrast, whether a confession is false is a question of fact that hinges
                                                           (continued...)

                                   14
                         Cite as: 2013 UT 68
               JUSTICE PARRISH, opinion of the Court

found that Dr. Ofshe’s methods were not “science” and refused to
allow any of his proffered testimony.
    ¶55 Because we find that any error was harmless, we decline
to consider whether the district court erred when it prohibited Dr.
Ofshe from directly testifying as to the veracity of Mr. Perea’s
confession. However, we find the district court did err when it
barred Dr. Ofshe from testifying as to the phenomenon of false
confessions generally.
A. Because Any Error Was Harmless, We Decline to Consider Whether
the District Court Erred in Prohibiting Dr. Ofshe From Testifying as to
                the Veracity of Mr. Perea’s Confession
    ¶ 56 Mr. Perea first argues that the district court erred when it
ruled that Dr. Ofshe could not opine on the truthfulness of Mr.
Perea’s confession. The State disagrees. In arguing as to the
propriety of Dr. Ofshe’s proffered testimony on this point, both
parties frame their arguments around rule 608 of the Utah Rules of
Evidence, which prohibits testimony as to a witness’s truthfulness
on a particular occasion. See State v. Rimmasch, 775 P.2d 388, 391
(Utah 1989). However, by its plain language, rule 608 applies only
to a witness’s character for truthfulness. UTAH R. EVID. 608(a) (“A
witness’s credibility may be attacked or supported by testimony about
the witness’s reputation for having a character for truthfulness or
untruthfulness . . . .” (emphasis added)). Because Mr. Perea never
testified, he was not a witness in this case. Rule 608 is therefore not
controlling.
    ¶57 Although rule 608 is not controlling here, it may be that the
policy behind rule 608 is equally applicable to situations like this
where a witness offers to testify as to the truthfulness of a non-
testifying defendant’s out-of-court statement. Indeed, in Rimmasch,
we relied on rule 608 to disallow expert testimony as to the veracity
of a testifying witness’s specific out-of-court statement, recognizing
the important public policy goal of preventing “trials from being
turned into contests between what would amount to modern
oath-helpers who would largely usurp the fact-finding function of
judge or jury.” 775 P.2d at 392. This same public policy goal appears
to be implicated in the case of a defendant’s out-of-court confession


   5
    (...continued)
on the veracity of the confession. It is both possible to have a
coerced, but true, confession, or a false confession that was not
coerced.

                                  15
                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

when the defendant declines to testify. Thus, it may well be that rule
608’ s prohibitions should be extended to apply to the out-of-court
statements of nontestifying witnesses. However, because the parties
to this appeal did not brief this issue, and because we conclude that
any error in refusing to admit Dr. Ofshe’s testimony is ultimately
harmless, see infra Section V.A.2, we decline to resolve the issue here.
   ¶58 Thus, we do not reach the question of whether the district
court erred when it prohibited Dr. Ofshe from testifying about the
veracity of Mr. Perea’s confession.
B. The District Court Abused Its Discretion When It Refused to Allow
       Dr. Ofshe to Testify About False Confessions Generally
    ¶59 Mr. Perea argues that juries do not understand the
phenomenon of false confessions and frequently disregard the
possibility of a false confession. He also argues that juries do not
understand the prevalence of false confessions, the aggressive and
persuasive techniques employed by police to elicit confessions from
suspects, or other factors that contribute to false confessions.
accordingly argues that expert testimony was necessary to assist the
jury in evaluating the truthfulness of his confession. The State
responds that the district court was well within its discretion to
exclude the proposed expert testimony under rules 608(a) and 702(a)
of the Utah Rules of Evidence because such testimony constituted a
comment on Mr. Perea’s credibility, and because the scientific
methodology on which Dr. Ofshe relied is unreliable.
    ¶60 Issues relating to the admissibility of expert testimony
regarding the reliability of confessions are similar to those relating
to the admissibility of expert testimony regarding the reliability of
eyewitness identification testimony that we recently examined in
State v. Clopten, 2009 UT 84, 223 P.3d 1103. We therefore begin by
reviewing our analysis in that case.
1. Our Holding in Clopten Made Clear That Cautionary Instructions
and Cross-Examination Are No Substitute For Expert Testimony
    ¶61 In February 2006, Deon Clopten was convicted of first-
degree murder for the shooting of Tony Fuailemaa outside of a
nightclub in Salt Lake City. Clopten, 2009 UT 84, ¶ 2. While Mr.
Clopten claimed that a man named Freddie White was responsible
for the shooting, several eyewitnesses testified that Mr. Clopten was
the shooter. Id. Without strong physical or forensic evidence, the
State relied in large part on the eyewitness testimony to convict Mr.
Clopten. Id.


                                  16
                          Cite as: 2013 UT 68
                JUSTICE PARRISH, opinion of the Court

    ¶62 At trial, Mr. Clopten sought to introduce an expert in
eyewitness identification, Dr. David Dodd, to testify regarding
various factors that affect the accuracy of eyewitness testimony. Id.
¶ 3. These factors included “cross-racial identification, the impact of
violence and stress during an event, the tendency to focus on a
weapon” and the “suggestive nature of certain identification
procedures used by police.” Id. The district court refused to admit
the expert testimony, reasoning that it was unnecessary because
“potential problems with eyewitness identification could be
explained using a jury instruction.” Id. ¶ 4. The court of appeals
deferred to the district court’s judgment and upheld Mr. Clopten’s
conviction. Id. ¶ 5. We granted certiorari to review the question of
“whether expert testimony regarding the reliability of eyewitness
identification should be presumed admissible when timely re-
quested.” Id. ¶ 6.
    ¶63 Our analysis in Clopten began with a review of State v.
Long, in which we concluded that “[a]lthough research has convinc-
ingly demonstrated the weaknesses inherent in eyewitness identifi-
cation, jurors are, for the most part, unaware of these problems.”
721 P.2d 483, 490 (Utah 1986). In Long, we therefore “abandon[ed]
our discretionary approach to cautionary jury instructions and
direct[ed] that . . . [district] courts shall give such an instruction
whenever eyewitness identification is a central issue in a case and
such an instruction is requested by the defense.” Id. at 492.
    ¶64 Although it was not our intention in Long to preclude the
admission of expert testimony regarding the infirmities of eyewit-
ness identifications, that was what frequently occurred in practice.
Many district courts took the position that a cautionary jury
instruction entirely resolved the question of the reliability of
eyewitness identifications, and therefore precluded expert testimony
on that issue. Clopten, 2009 UT 84, ¶ 13. We recognized in Clopten
that “[t]his trend . . . is troubling in light of strong empirical research
suggesting that cautionary instructions are a poor substitute for
expert testimony.” Id. ¶ 14. We then noted that the more recent
empirical evidence had conclusively established that the accuracy of
eyewitness identification depends upon certain factors. Id. ¶ 15.
Such factors included the race of the accused and the witness, the
amount of time the accused was in view, lighting conditions,
distinctiveness of appearance, the use of a disguise, and the presence
of weapons or other distracting objects. Id. Unfortunately, “juries
are generally unaware of these deficiencies . . . and thus give great



                                    17
                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

weight to eyewitness identifications” even when they are potentially
unreliable. Id.
    ¶65 Without expert testimony, a defendant is left with only
cross-examination and a cautionary jury instruction to convey the
potential shortcomings of an eyewitness identification. We con-
cluded, however, that “[b]oth of these tools suffer from serious
shortcomings.” Id. ¶ 16. We noted that cautionary instructions were
only given when requested by the defense and were considered
ineffective at educating a jury because they are “given at the end of
what might be a long and fatiguing trial . . . buried in an overall
charge by the court” and “instructions may come too late to alter the
jury’s opinion of a witness whose testimony might have been heard
days before.” Id. ¶ 24 (internal quotation marks omitted). And we
reasoned that cross-examination, while often able to expose lies or
half-truths, is far less effective when witnesses are mistaken but
believe that what they say is true. Even if cross-examination could
expose the mistake, “[w]ithout the assistance of expert testimony, a
jury may have difficulty assessing the import of those factors in
gauging the reliability of the identification.” Id. ¶ 22.
    ¶66 On the other hand, we concluded that expert testimony
“substantially enhance[s] the ability of juries to recognize potential
problems with eyewitness testimony.” Id. ¶ 25. And although the
actual number of wrongful convictions from mistaken eyewitness
identifications is unknown, the possibility of such a wrongful
conviction provided sufficient justification for us to review the
implications of our decision in Long. Id. ¶ 16 n.7.
    ¶67 Because we found that the empirical research regarding the
limitations of eyewitness identification had matured since our
decision in Long, we held in Clopten that expert testimony regarding
eyewitness identifications should be admitted as long as it met the
standards set out in rule 702 of the Utah Rules of Evidence. Id. ¶ 32.
Our expectation was that the “application of rule 702 will result in
the liberal and routine admission of eyewitness expert testimony.”
Id. ¶ 30. Although we cautioned that the admission of eyewitness
testimony is not mandatory, we warned that “the testimony of an
eyewitness expert should not be considered cumulative or duplica-
tive of cautionary instructions to the jury.” Id. ¶¶ 33–34.
    ¶68 We then applied our holding to the facts in Clopten. We
noted that the witnesses “saw the shooter for no more than a few
seconds, from some distance away, at night, and while in extreme
fear for their own lives”; the shooter’s face was disguised; the


                                 18
                        Cite as: 2013 UT 68
               JUSTICE PARRISH, opinion of the Court

shooter was a different race than the witnesses; and the weapon
used in the murder may have distracted the witnesses. Id. ¶ 46. We
concluded that “the circumstances found in the Clopten trial are
exactly those under which the testimony of an eyewitness expert is
most helpful to a jury.” Id. ¶ 47. We overruled the court of appeals,
vacated the verdict, and remanded for a new trial because there was
a “reasonable likelihood that, if allowed to hear Dr. Dodd’s testi-
mony, the jury would have questioned the accuracy of the eyewit-
nesses more rigorously and would not have convicted Clopten.” Id.
¶ 48.
2. Our Reasoning in Clopten Is Directly Applicable to the Use of
Expert Testimony with Regard to the Phenomenon of False
Confessions
    ¶69 This case presents issues closely paralleling those we
decided in Clopton. A confession, much like an eyewitness identifi-
cation, is more or less reliable based on a number of factors.
Unfortunately, however, research has shown that the potential
infirmities of confessions are largely unknown to jurors.6
    ¶70 False confessions are an unsettling and unfortunate reality
of our criminal justice system. Just as the criminal law is “rife with
instances of mistaken identification,” Long, 721 P.2d at 491 (internal
quotation marks omitted), “[i]t is beyond dispute that some people
falsely confess to committing a crime that was never committed or
was committed by someone else,” State v. Mauchley, 2003 UT 10,
¶ 21, 67 P.3d 477. And like expert testimony regarding eyewitness
identification, expert testimony about factors leading to a false
confession assists a “trier of fact to understand the evidence or to
determine a fact in issue.” UTAH R. EVID. 702(a).
    ¶71 Recent laboratory-based studies have identified several
factors that increase the likelihood of false confessions.7 Among the
factors identified are sleep deprivation, the presentation of false


   6
      Our analogy to Clopton is limited to a recognition that
factfinders can benefit from expert testimony relating to
counterintuitive phenomena that are dependent on numerous inter-
related factors. We make no judgment as to the relative merits of the
studies relating to eyewitness identification versus those related to
the prevalence of false confessions.
   7
     These studies are discussed in greater detail below. See infra
Section II.B.3.

                                 19
                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

evidence and use of minimization techniques by questioners, the
subject’s age and intelligence level, and certain personality traits.
Though expert testimony regarding the phenomenon of false
confessions would not be appropriate in every case, when such
indicia are present, a defendant should be allowed to present expert
testimony on the subject.
    ¶72 Importantly, the shortcomings in the use of cautionary
instructions and cross-examination in lieu of expert testimony are
even more acute when dealing with potentially false confessions
than when dealing with potentially mistaken identifications. Cross-
examination of eyewitnesses is routine in all cases. Conversely, the
ability to examine the defendant is only possible if he waives his
Fifth Amendment protections and testifies in his own case—a
situation that is far from routine. To require a defendant to testify
regarding the factors that contributed to his alleged false confession,
rather than allow the use of an expert witness, opens the defendant
up to cross-examination and impinges on his constitutionally
guaranteed right against self-incrimination. For these reasons,
expert testimony regarding the phenomenon of false confessions
should be admitted so long as it meets the standards set out in rule
702 of the Utah Rules of Evidence and it is relevant to the facts of the
specific case.
3. Dr. Ofshe’s Testimony Satisfied the Requirements for
Admissibility Under Rule 702
    ¶73 The two-part analysis articulated by rule 702 of the Utah
Rules of Evidence governs the admissibility of expert witness
testimony. “First, the trial judge must find that the expert testimony
will ‘assist the trier of fact.’” Clopten, 2009 UT 84, ¶ 31 (quoting
UTAH R. EVID. 702(a)). Second, the party wishing to rely on the
expert’s testimony must make a threshold showing that “the
principles or methods that are underlying in the testimony (1) are
reliable, (2) are based upon sufficient facts or data, and (3) have been
reliably applied to the facts.” UTAH R. EVID. 702(b). We therefore
analyze Dr. Ofshe’s proffered testimony under these requirements.
   a. Dr. Ofshe’s proposed testimony would have enabled the jury
   to evaluate Mr. Perea’s claim that he falsely confessed
    ¶74 Under rule 702(a), proposed expert testimony must “assist
the trier of fact.” UTAH R. EVID. 702(a). Here, there is no question
that Dr. Ofshe’s proposed testimony would have assisted the jury in
evaluating the reliability of Mr. Perea’s confession. Testimony
regarding the factors that can lead to false confessions is exactly the

                                  20
                         Cite as: 2013 UT 68
               JUSTICE PARRISH, opinion of the Court

type of evidence that would have helped the jury assess Mr. Perea’s
claim that he falsely confessed. Such testimony aids a jury in
reaching a just verdict because it puts a jury on guard to protect
against giving disproportionate weight to confessions where
multiple indicia of false confessions are present. In other instances,
however, such expert testimony may embolden juries to give more
weight to confessions where no such factors are present.
   b. The science underlying Dr. Ofshe’s proffered testimony is
   sufficiently developed to satisfy rule 702
    ¶75 Rule 702 next requires that proposed expert testimony be
supported by reliable scientific study and methodology. UTAH R.
EVID. 702(b). Rule 702 “assigns to trial judges a ‘gatekeeper’
responsibility to screen out unreliable expert testimony” and
cautions that “trial judges should confront proposed expert testi-
mony with rational skepticism.” UTAH R. EVID. 702 advisory
committee’s note. But this “threshold showing” requires “only a
basic foundational showing of indicia of reliability for the testimony
to be admissible, not that the opinion is indisputably correct.” Id.
    ¶76 Although a science in its infancy may not meet the
reliability standards of rule 702, as it matures, the science may
become sufficiently reliable to meet the “basic foundational showing
of indicia of reliability for the testimony to be admissible.” Id. And
that is what has happened to the science relating to false confessions.
In the 1990s, little research had been conducted on the phenomenon
of false confessions and many of the theories relating to it were not
sufficiently supported. But more contemporary, laboratory-based
studies have since been performed and demonstrate that the science
surrounding false confessions now meets the reliability standards of
rule 702.
    ¶77 The State argues that Dr. Ofshe has no reliable scientific
evidence to support his conclusions about the factors that influence
the rate of false confessions.8 It argues that Dr. Ofshe’s “work is

   8
     The State additionally argues that “[s]ince Dr. Ofshe and his
allies have not been able to determine the rate at which false
confessions occur, a fortiorari, they have not been able to determine
the rate at which any particular feature they identify as a component
of a false confession is associated with a false confession.” The
State’s logic is mathematically flawed, however, because it is entirely
possible to know that a factor increases, decreases, or has no effect
                                                         (continued...)

                                  21
                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

predicated upon individual case studies of alleged false
confession[s]” rather than empirical evidence or laboratory research.
The State therefore contends that the defense cannot show that Dr.
Ofshe’s “principles or methods” were “based upon sufficient facts
or data.”
   ¶78 In support of its argument, the State principally relies on
Professor Paul Cassell’s article, The Guilty and the “Innocent”: An
Examination of Alleged Cases of Wrongful Conviction from False
Confessions, 22 HARV. J.L. & PUB. POL’Y 523 (1999). The district court
agreed with the State, concluding Dr. Ofshe’s proposed testimony
did not satisfy rule 702(b) because the false confession cases relied
upon by Dr. Ofshe “are not uniformly accepted within the scientific
community as being valid false confession cases,”and “[t]here is no
empirical data or credible research that supports Dr. Ofshe’s
opinions regarding false confessions.” The district court also
explicitly stated that Professor Cassell was “more reliable” than Dr.
Ofshe.9
    ¶79 Professor Cassell’s article criticizes the lack of empirical
evidence in Dr. Ofshe’s two original articles. But it does not speak
to the wealth of studies generated in the intervening years that the


   8
    (...continued)
on the underlying rate of false confessions without knowing the
underlying rate itself. A common sense example is that it is possible
to know that a car speeds up when the driver steps on the accelera-
tor even if the exact starting or ending speeds are unknown.
Therefore it is mathematically incorrect to say that nothing can be
known about the way factors influence the likelihood of a false
confession without knowing the underlying rate of false confessions.
   9
     The district court went beyond the mandate of its gatekeeping
role when it engaged in such weighing of competing expert
testimony. A district court does not abuse its discretion when it
concludes that expert testimony does not have sufficient founda-
tional support under rule 702—and this conclusion may be based, in
part, on a lack of consensus in the field. But a court exceeds its role
when it bars expert testimony because it prefers one theory or
researcher over another. An expert either meets or fails the stan-
dards under the rules of evidence. So-called “dueling experts” are
a standard feature of trials in which expert testimony is presented.
Rule 702 does not prohibit the admission of two reliable experts who
draw opposite conclusions based on the underlying evidence.

                                  22
                          Cite as: 2013 UT 68
                JUSTICE PARRISH, opinion of the Court

defense presented to the district court. Dr. Ofshe’s report states that
his testimony not only relies on his original two articles, but also on
several more recent articles which, in turn, cite to numerous studies
performed by many other researchers.10 These studies are based on
empirical data and laboratory research indicating that such factors
as sleep deprivation, presentation of false evidence, minimization
techniques, age, intelligence level, and personality traits all affect the
rate of false confessions.11 This development of the science of false
confessions is substantially similar to the development of the science
of eyewitness identifications we considered in Clopten.
    ¶80 While a comprehensive review of the relevant studies is
beyond the scope of this opinion, a few of the most important
studies will be set forth here. For example, controlled laboratory
experiments have proven that sleep deprivation, which may be
present in prolonged interrogations, can increase susceptibility to
influence and has been shown to increase the rate of false confes-
sions. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors
and Recommendations, 34 LAW & HUM. BEHAV. 3, 16 (2010). “[S]leep
deprivation markedly impairs the ability to sustain attention,
flexibility of thinking, and suggestibility in response to leading
questions.” Id.; see also, Mark Blagrove, Effects of Length of Sleep
Deprivation on Interrogative Suggestibility, 2 J. EXPERIMENTAL
PSYCHOL.: APPLIED 48 (1996); Yvonne Harrison & James A. Horn, The
Impact of Sleep Deprivation on Decision Making: A Review, 6 J. EXPERI-
MENTAL PSYCHOL.: APPLIED 236 (2000).

   ¶81 Presentation of false evidence is another factor that has
been shown to increase the rate of false confessions. Numerous


   10
      Specifically, his report states: “There are several more recent
literature reviews which report research on which I also rely. These
reviews include The Psychology of Interrogation and Confessions -
Gudjonsson, John Wiley, New York 2003; The Psychology of Confes-
sions - Kassin and Gudjonsson in Psychological Science in the Public
Interest, 5, 2004, The Road to Perdition: Extreme Influence Tactics in the
Interrogation Room, D. Davis and W O’Donahue in O’Donahue and
Hollin (eds.), Handbook of Forensic Psychology, New York, Basic
Books, 2004.”
   11
     For a list of the independent studies corroborating the existence
of these factors see Saul M. Kassin et al., Police-Induced Confessions:
Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 14–22
(2010).

                                   23
                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

studies have demonstrated that the presentation of false evidence
renders individuals more vulnerable to manipulation. Kassin et al.,
Police-Induced Confessions, supra, at 14. These studies reveal that the
presentation of false information through confederates, witnesses,
counterfeit test results, and false physiological feedback can alter the
test subjects’ visual judgments,12 beliefs,13 perceptions of other
people,14 behaviors towards other people,15 emotional states,16 self-
assessments,17 and memories for observed and experienced events.18
Additionally, laboratory experiments have confirmed that the
presentation of false evidence can increase the probability that an
innocent person confesses.
    ¶82 In one study, college students were falsely accused of
pressing a key on a computer, causing it to crash, after they were
instructed to avoid the key. See Saul M. Kassin & Katherine L.
Kiechel, The Social Psychology of False Confessions: Compliance,

     12
     E.g., Solomon E. Asch, Studies of Independence and Conformity: A
Minority of One Against a Unanimous Majority, 70 PSYCHOL. MONO-
GRAPHS: GEN & APPLIED 1 (1956); MUZAFER SHERIF, THE PSYCHOLOGY
OF SOCIAL NORMS (1936).

13
 Craig A. Anderson et al., Perseverance of Social Theories: The Role of
Explanation in the Persistence of Discredited Information, 39 J.
PERSONALITY & SOC. PSYCHOL. 1037 (1980).
14
 Henri Tajfel et al., Social Categorization and Intergroup Behaviour, 1
EURO. J. SOC. PSYCHOL. 149 (1971).
15
  ROBERT ROSENTHAL & LENORE JACOBSON, PYGMALION IN THE
CLASSROOM: TEACHER EXPECTATION AND PUPILS’ INTELLECTUAL
DEVELOPMENT (1968).
16
   Stanley Schachter & Jerome E. Singer, Cognitive, Social, and
Physiological Determinants of Emotional State, 69 PSYCHOL. REV. 379,
(1962).
17
  Jennifer Crocker et al., Social Stigma: The Affective Consequences of
Attributional Ambiguity, 60 J. PERSONALITY & SOC. PSYCHOL. 218
(1991).
18
 Elizabeth F. Loftus, Planting Misinformation in the Human Mind: A
30-year Investigation of the Malleability of Memory, 12 LEARNING &
MEMORY 361(2005).

                                  24
                         Cite as: 2013 UT 68
               JUSTICE PARRISH, opinion of the Court

Internalization, and Confabulation, 7 PSYCHOL. SCI. 125(1996).
       Despite their innocence and initial denials, subjects
       were asked to sign a confession. In some sessions but
       not others, a confederate said she witnessed the
       subject hit the forbidden key. This false evidence
       nearly doubled the number of students who signed a
       written confession, from 48% to 94%.
Kassin et al., Police-Induced Confessions, supra, at 17. Similar studies
have replicated this experiment and found similar results even when
the subject’s confession led to detrimental financial or other
consequences. See, e.g., Robert Horselenberg et al., Individual
Differences and False Confessions: A Conceptual Replication of Kassin and
Kiechel, 9 PSYCHOL., CRIME & L. 1(2003); Allison D. Redlich & Gail S.
Goodman, Taking Responsibility for an Act Not Committed: The
Influence of Age and Suggestibility, 27 L. & HUM. BEHAV. 141 (2003).
The false confession rate in similar experiments was particularly
acute among children and juveniles. See, e.g., Ingrid Candel et al., “I
Hit the Shift-Key and Then the Computer Crashed”: Children and False
Admissions, 38 PERSONALITY & INDIVIDUAL DIFFERENCES 1381 (2005).
     ¶83 Minimization techniques used by police officers have also
been shown to increase the rate of false confessions. Using the
results from the experiment described above, it was found that
remarks that minimized the subjects’ culpability significantly
increased the false confession rate. Jessica R. Klaver et al., Effects of
Personality, Interrogation Techniques and Plausibility in an Experimental
False Confession Paradigm, 13 LEGAL & CRIMINOLOGICAL PSYCHOL. 71
(2008). In another study, the test subjects were paired with a
confederate and given problem solving tasks. Melissa B. Russano et
al., Investigating True and False Confessions Within a Novel Experimental
Paradigm, 16 PSYCHOL. SCI. 481 (2005). They were instructed to work
together on some problems and alone on others. Id. By design,
some of the confederates sought help on a problem that was
supposed to be solved alone while others did not. Id. at 483. The
experimenter would then claim to find similarities in their answers
and accuse the subject of cheating. Id. When the accusation was
accompanied by minimization techniques, the rate of false confes-
sions tripled. Id.
    ¶84 Paradoxically, anecdotal evidence suggests that a defen-
dant’s actual innocence may actually increase an individual’s
susceptibility to manipulation. Kassin et al., Police-Induced Confes-
sions, supra, at 22–23. The innocent are often more likely to waive


                                   25
                            STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

their rights, believing that since they did nothing wrong, they have
nothing to hide. Id. at 23. This comports with the commonplace, but
naive, notion that only the guilty are accused of crimes and only the
guilty need attorneys. Id.
    ¶85 We detail these studies not to endorse a particular position
on the false confessions literature, but rather to emphasize the
proper role of courts as gatekeepers under the rules of evidence. The
aforementioned factors and studies are but a portion of the scientifi-
cally reliable information on risk factors of false confessions. And
the defense presented this information to the district court, either
directly through Dr. Ofshe’s proposed testimony or through the
various articles on which Dr. Ofshe based his intended testimony.
Rule 702(b)(2) requires that the district court consider all the relevant
indicia of reliability in determining whether a threshold showing has
been made. UTAH R. EVID. 702 advisory committee note. Therefore,
even if Dr. Ofshe’s original two articles lacked the requisite founda-
tion of “sufficient facts or data,” the district court could only
properly exclude Dr. Ofshe’s testimony if it concluded that all the
other studies on which the testimony is based also lacked “sufficient
facts or data.” UTAH. R. EVID. 702(b)(2). At a minimum, the science
behind these studies of false confessions is sufficiently developed to
meet the threshold of admissibility.
    ¶86 The district court abused its discretion when it evaluated
only the reliability of Dr. Ofshe’s two articles and failed to consider
the dozens of other studies on which his testimony relied. Just as the
science regarding eyewitness identifications has sufficiently matured
to allow its routine introduction after Clopten, so too has the science
regarding false confessions.
III. THE DISTRICT COURT DID NOT ERR WHEN IT REFUSED
 TO ALLOW POTENTIAL DEFENSE WITNESSES TO TESTIFY
    ¶87 Prior to trial, the district court ruled that if the defense was
unwilling to provide the State with the names of potentially
exculpatory witnesses, the court would not allow those witnesses to
testify. Mr. Perea argues that the district court’s decision “deprived
[him] of an opportunity to present crucial evidence in his defense.”
The State counters that because “the prosecution, the [district] court,
and the public have a vital interest in the integrity of the trial
process,” the court’s decision to make the testimony conditional on
the disclosure of the witnesses’ names was within the discretion
granted to the district court.



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    ¶88 Mr. Perea argues that the Compulsory Process Clause of
the Sixth Amendment grants defendants the right to call favorable
witnesses, particularly when those witnesses are “material and
favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S.
858, 867 (1982). While a defendant’s right to call favorable witnesses
is a “fundamental element of due process of law,” Washington v.
Texas, 388 U.S. 14, 19 (1967), “[t]he right to present defense
witnesses . . . is not absolute,” United States v. Russell, 109 F.3d 1503,
1509 (10th Cir. 1997). For instance, in Taylor v. Illinois, the U.S.
Supreme Court affirmed a district court’s exclusion of a potentially
exculpatory defense witness based on the defense’s discovery
violation. 484 U.S. 400, 418 (1988). The Court began by stating that
“[t]he accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.” Id. at 410. The Court continued,
stating:
       The defendant’s right to compulsory process is itself
       designed to . . . [ensure that] judgments [are not]
       founded on a partial or speculative presentation of the
       facts. Rules that provide for pretrial discovery of an
       opponent’s witnesses serve the same high purpose . . .
       [and] minimize[] the risk that a judgment will be
       predicated on incomplete, misleading, or even deliber-
       ately fabricated testimony.
Id. at 411–12 (internal quotation marks omitted). The Court’s ruling
makes clear that a district court’s decision to “[e]xclud[e] witnesses
for failure to comply with discovery orders, if not an abuse of
discretion, does not violate a defendant’s Sixth Amendment right to
compulsory process.” Russell, 109 F.3d at 1509.
    ¶89 Under rule 16(c) of the Utah Rules of Criminal Procedure,
“[e]xcept as otherwise provided or as privileged, the defense shall
disclose to the prosecutor such information . . . [or] item of evidence
which the court determines on good cause shown should be made
available to the prosecutor in order for the prosecutor to adequately
prepare his case.” Because district courts must manage discovery in
such a way as to prevent unfair prejudice to either party, they do not
abuse their discretion when they exclude witnesses based on a
party’s failure or refusal to disclose a witness’s identity. For
instance, in State v. Maestas our court of appeals held that the district
court did not abuse its discretion when it excluded an alibi witness
because the defense had failed to timely notify the prosecution of the
witness. 815 P.2d 1319, 1325 (Utah Ct. App. 1991). The court

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               JUSTICE PARRISH, opinion of the Court

reasoned that disclosure “prevents last minute surprises and enables
the prosecution to make a full and thorough investigation of the
merits of the defense.” Id.
    ¶91 Here, the district court acknowledged concerns regarding
potential retaliation against the defense witnesses, and it left open
the possibility that it would allow the witnesses to testify under an
assumed name or undertake similar protective measures. But,
emphasizing its duty “to [ensure] a fair trial,” and concluding that
the potential witnesses were both relevant and material to Mr.
Perea’s defense, the district court determined that fairness afforded
the State an opportunity to fully investigate the witnesses’ stories.
Such a decision is not an abuse of discretion when it “prevents last
minute surprises and enables the prosecution to make a full and
thorough investigation of the merits of the defense.” Id. We
therefore hold that the district court did not err when it excluded the
potential defense witnesses.
 IV. THE DISTRICT COURT DID NOT ERR WHEN IT DENIED
   MR. PEREA’S MOTION TO SUPPRESS HIS CONFESSION
    ¶92 Mr. Perea next argues that his confession should have been
suppressed for a Miranda violation. Specifically, Mr. Perea argues
that his statement “that he needed to speak with a lawyer first before
he came in” was sufficient to anticipatorily invoke his right to
counsel. The State argues first that a defendant cannot anticipatorily
invoke his right to counsel prior to a custodial interrogation. It next
argues that even if an anticipatory invocation of the right is proper,
Mr. Perea’s statements do not constitute a proper invocation of that
right. We agree with the State and therefore hold that the district
court did not err when it denied Mr. Perea’s motion to suppress his
confession.
   ¶93 The U.S. Supreme Court’s landmark decision in Miranda v.
Arizona prevents the use of incriminating statements “stemming
from custodial interrogation of [a] defendant” unless certain
procedural safeguards are met. 384 U.S. 436, 444 (1966). Therefore,
“[p]rior to any questioning, the person must be warned that he
has . . . a right to the presence of an attorney, either retained or
appointed . . . [and if] he indicates in any manner and at any stage of
the process that he wishes to consult with an attorney before
speaking there can be no questioning.” Id. at 444–45. In Edwards v.
Arizona, the Court expanded the scope of Miranda and held that
once a custodial suspect has “expressed his desire to deal with the
police only through counsel,” he cannot be “subject to further


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interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” 451
U.S. 477, 484–85 (1981).
   ¶94 Although the Court has not ruled directly on the issue
before us, a footnote in McNeil v. Wisconsin suggests that the Court
would not allow a defendant to anticipatorily invoke his right to
counsel. 501 U.S. 171 (1991). The Court stated that while it has
       never held that a person can invoke his Miranda rights
       anticipatorily, in a context other than “custodial inter-
       rogation” . . . [t]he fact that we have allowed the
       Miranda right to counsel, once asserted, to be effective
       with respect to future custodial interrogation does not
       necessarily mean that we will allow it to be asserted
       initially outside the context of custodial interrogation,
       with similar future effect.
Id. at 182 n.3 (citations omitted). Moreover, the Court has repeatedly
clarified that a suspect’s Miranda rights are contingent on his being
subject to a custodial interrogation. See, e.g., Illinois v. Perkins, 496
U.S. 292, 297 (1990) (stating that Miranda is premised on “the
interaction of custody and official interrogation”); Rhode Island v.
Innis, 446 U.S. 291, 299 (1980) (“The concern of the Court in Miranda
was that the interrogation environment created by the interplay of
interrogation and custody would subjugate the individual to the will
of his examiner and thereby undermine the privilege against
compulsory self-incrimination.” (internal quotation marks omitted));
Oregon v. Mathiason, 429 U.S. 492, 494 (1977) (“Our decision in
Miranda set forth rules of police procedure applicable to custodial
interrogation.” (internal quotation marks omitted)).
    ¶95 Similarly, this court has stated that the procedural
safeguards of Miranda apply only when a defendant is in custody.
In State v. Shuman, we stated that “Miranda warnings are required
only where a person has been taken into custody or otherwise
deprived of his freedom in a significant way.” 639 P.2d 155, 157
(Utah 1981). And in State v. Cruz, we stated that “the Fifth Amend-
ment right to counsel attaches during custodial interrogation, or
questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of
action in any significant way.” 2005 UT 45, ¶ 43, 122 P.3d 543
(internal quotation marks omitted).



                                   29
                            STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

    ¶96 Here, Mr. Perea’s statement “that he needed to speak with
a lawyer first before he came in” occurred two days before Mr. Perea
was arrested. When he was arrested, police read Mr. Perea his
Miranda rights, which he then waived. Prior to his interrogation, he
was again advised of his Miranda rights, and he once again waived
those rights. Mr. Perea was once again advised of his Miranda rights
when he signed the confession and he acknowledged in writing that
he was aware of the waiver of his rights.
    ¶97 Assuming, without deciding, that Mr. Perea’s statement
two days before his arrest constitutes a request for a lawyer’s
assistance, such a prospective request would still be subject to
waiver. Had Mr. Perea made the same statement at any point
during his custodial interrogation, our decision may be different.
But that was not the case. And once he was taken into custody, Mr.
Perea waived his rights to the assistance of counsel when he
consented to the investigators’ questioning and confessed to the
shootings.
   ¶98 Because Mr. Perea was advised of and subsequently
waived his Miranda rights, the district court did not err when it
denied Mr. Perea’s motion to suppress his confession.
  V. BASED ON THE OVERWHELMING EVIDENCE OF MR.
 PEREA’S GUILT, WE HOLD THAT THE DISTRICT COURT’S
 ERRORS WERE HARMLESS AND THAT THE CUMULATIVE
          ERROR DOCTRINE DOES NOT APPLY
    ¶99 Even if the district court did err, we will not reverse if that
error was harmless. See State v. Vargas, 2001 UT 5, ¶ 48, 20 P.3d 271.
“In order to show that the error is harmful, [Mr. Perea] must
demonstrate that absent the error, there is a reasonable likelihood of
a more favorable outcome for [him], or phrased differently, our
confidence in the verdict is undermined.” State v. Medina-Juarez,
2001 UT 79, ¶ 18, 34 P.3d 187 (internal quotation marks omitted).
Similarly, the doctrine of cumulative error is applicable “only if the
cumulative effect of the several errors undermines . . . confidence
that a fair trial was had.” State v. Gallegos, 2009 UT 42, ¶ 39, 220 P.3d
136. It is a doctrine used when a single error may not constitute
grounds for reversal, but many errors, when taken collectively,
nonetheless undermine confidence in the fairness of a trial.
       A. Individually, the District Court’s Errors Are Harmless
    ¶100 We have concluded that the district erred when it limited
the testimony of Mr. Gaskill and chose not to admit the proposed


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testimony of Dr. Ofshe. But the potential harm of each error must be
viewed against the backdrop of the entire body of evidence. And
when so viewed, the errors were harmless.
    ¶101 There was significant testimony from witnesses both
inside and outside of the SUV stating that Mr. Perea was the
individual who fired shots into the crowd at Mr. Nava’s house.
Angelo Gallegos and Elias Garcia, both passengers in the SUV and
friends of Mr. Perea, testified that Mr. Perea fired shots from the
SUV as it pulled away from the party. Similarly, Ms. Valencia, who
was standing near the street and knew Mr. Perea, testified that as the
SUV pulled away, “I seen [him] over the top, shooting.” Two other
party guests, Richard Esquivel and Lacey Randall, testified that they
saw someone from the passenger side of the SUV lean over the roof
and fire towards Mr. Nava’s house. And Keri Garcia, who was
standing in Mr. Nava’s driveway when the shots from the SUV were
fired, testified that the shots came only from the direction of the
road.
    ¶102 Additionally, during questioning, Mr. Perea volunteered
that the gun he had used was .22 caliber, a fact that the police had
not shared with the public. Although the murder weapon was not
recovered, police investigators recovered ten expended .22 caliber
shell casings in the street in front of Mr. Nava’s house, all fired from
the same weapon. Likewise, the bullets from Ms. Prieto’s and Mr.
Navarez’s bodies were .22 caliber. No other shell casings were
found at the crime scene.
1. The District Court’s Exclusion of Mr. Gaskill’s Animations Was
Harmless
    ¶103 While the district court excluded Mr. Gaskill’s computer-
generated animations, it did not exclude his expert testimony on
which the animations were based. It allowed him to opine as to his
theory that there were multiple shooters and that the location of
some of the injuries made it unlikely that Mr. Perea could have made
the shots. He was allowed to refer to diagrams depicting the scene
and demonstrate the bullet trajectories that gave him concern. And
although Mr. Gaskill’s theories conflicted with the State’s theory and
the testimony of many of the State’s witnesses, the district court
appropriately allowed him to present his theory to the jury.
    ¶104 After having reviewed both the testimony provided by
Mr. Gaskill and his proffered animations, we hold that the exclusion
of the animations does not create the “reasonable likelihood of a
more favorable outcome for the appellant.” Medina-Juarez, 2001 UT

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                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

79, ¶ 18 (internal quotation marks omitted). The animations were
short, provided nothing that Mr. Gaskill did not make clear in his
testimony, and used a perspective that was unhelpful in putting Mr.
Gaskill’s testimony in context. Because Mr. Gaskill was allowed to
fully testify as to his multiple-shooter theory and cast doubt on the
State’s single-shooter theory, the exclusion of the animations does
not undermine our confidence in the verdict.
2. The District Court’s Exclusion of Dr. Ofshe’s Testimony Was
Harmless
    ¶105 We next evaluate any prejudice arising from the errone-
ous exclusion of Dr. Ofshe’s testimony. We begin by noting that the
district court did not err in admitting Mr. Perea’s confession. Even
had the district court allowed Dr. Ofshe to testify, the jury would
have been entitled to consider Mr. Perea’s confession. Nor did it err
in ruling that Dr. Ofshe could not testify as to the veracity of Mr.
Perea’s confession. Rather, its only error consisted in barring Dr.
Ofshe’s proffered testimony about the factors that may contribute to
false confessions. We find this error to be harmless because of the
overwhelming evidence of Mr. Perea’s guilt.
    ¶106 Multiple individuals who knew Mr. Perea testified that
he shot into the crowd. Indeed, the defense’s theory was not based
on Mr. Perea’s exclusion from the crime but on a multiple-shooter
theory. Thus, the exclusion of testimony that would have merely
cast doubt on Mr. Perea’s confession does not undermine our
confidence in the verdict. Had this been a case like Clopten, in which
the evidence of guilt was circumstantial and there were significant
issues with eyewitness identification, the exclusion of Dr. Ofshe’s
testimony would be more concerning. In that case, the admission of
an unrebutted confession would have the potential to overwhelm
any other evidence of innocence. But here, where there was
substantial, independent evidence of Mr. Perea’s guilt and his
primary defense did not necessarily absolve him of the crime, the
admission of Dr. Ofshe’s proposed testimony was unlikely to change
the outcome of the trial.
 B. The District Court’s Errors Do Not Constitute Cumulative Error
    ¶107 Having concluded that the district court’s errors were
harmless individually, we now evaluate their cumulative effect on
our confidence in the verdict. Cumulative error is applicable in
those instances where the district court’s collective errors rise to a
level that undermine our confidence in the fairness of the proceed-


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                JUSTICE PARRISH, opinion of the Court

ings. But that analysis cannot be conducted in a vacuum, ignorant
of the other evidence demonstrating guilt.
    ¶108 The body of evidence established that Mr. Perea was at
the crime scene that evening. It left no doubt that he was in the
vehicle from which a number of witnesses testified the shots came.
Those witnesses, two of whom were present in the vehicle, testified
that it was Mr. Perea who fired shots into the crowd at Mr. Nava’s
house. The two witnesses who were in the SUV, and at least one of
whom witnessed the shooting from Mr. Nava’s front yard, were
personally familiar with Mr. Perea—he was not a nameless, faceless
defendant to them. And, Mr. Perea’s knowledge of the type of
weapon used in the shooting and the physical evidence at the crime
scene provides further evidence that the jury could consider in
evaluating his guilt. Finally, Mr. Perea’s confession was evidence
that the jury was entitled to consider.
    ¶109 When viewed against the eyewitness testimony, the
physical evidence, and Mr. Perea’s confession, we cannot say that
the district court’s individual errors rise to the level of cumulative
error. Where there is overwhelming evidence that Mr. Perea shot
into the crowd, the exclusion of the expert testimony at issue does
not undermine our confidence in the overall fairness of the proceed-
ings or the jury’s verdict.
VI. MR. PEREA’S SENTENCE OF LWOP IS CONSTITUTIONAL
    ¶110 Utah Code section 76-3-207.7 provides that “[a] person
who has pled guilty to or been convicted of first degree felony
aggravated murder . . . shall be sentenced by the court . . . [to] life in
prison without parole or an indeterminate prison term of not less
than 25 years and which may be for life.”
    ¶111 Mr. Perea argues that section 76-3-207.7 violates the Utah
Constitution and the United States Constitution in a number of
ways. First, he argues that the statute is unconstitutionally vague
because it authorizes arbitrary and discriminatory enforcement. He
next argues that the statute violates the due process and equal
protection clauses of the Utah Constitution and the federal constitu-
tion and that it runs afoul of the uniform operation of laws provi-
sions of the Utah Constitution. Finally, he argues that his sentence
violates the unnecessary rigor provision of the Utah Constitution
and the cruel and unusual punishment clause of the federal
constitution. We find these arguments unavailing and conclude that
section 76-3-207.7 is constitutional on its face and as applied to Mr.
Perea.

                                   33
                            STATE v. PEREA
                JUSTICE PARRISH, opinion of the Court

  A. Utah Code Section 76-3-207.7 Is Not Unconstitutionally Vague
      ¶112 Because Utah Code section 76-3-207.7 does not list the
factors a sentencing court must consider when deciding whether to
impose a sentence of 25 years to life or LWOP, Mr. Perea argues that
it is unconstitutionally vague. Unconstitutionally vague laws violate
the due process prohibition that no one “may be required at peril of
life, liberty or property to speculate as to the meaning of penal
statutes.” United States v. Batchelder, 442 U.S. 114, 123 (1979) (internal
quotation marks omitted). Similarly, a statute may be unconstitu-
tionally vague if written in a way that “authorizes or even encour-
ages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530
U.S. 703, 732 (2000).
     ¶113 In arguing that section 76-3-207.7 is unconstitutionally
vague, Mr. Perea cites primarily to cases where courts have over-
turned statutes that did not adequately explain the criminal act. See,
e.g., City of Chicago v. Morales, 527 U.S. 41, 64 (1999) (holding that a
city’s loitering statute was unconstitutionally vague because it gave
officers unfettered discretion to criminalize otherwise lawful
behavior). Although it is well settled that statutes must clearly
articulate the behavior that they proscribe, there are far fewer cases
in which vague sentencing guidelines have been overturned. Even
so, the U. S. Supreme Court has made clear that “vague sentencing
provisions may pose constitutional questions if they do not state
with sufficient clarity the consequences of violating a given criminal
statute.” Batchelder, 442 U.S. at 123.
    ¶114 We conclude that Section 76-3-207.7 does not suffer from
such an infirmity. It states clearly that a defendant convicted of non-
capital first-degree felony aggravated murder may be incarcerated
for a term up to and including the rest of his life. While it also holds
out the possibility of a more lenient sentence of 25 years to life, the
fact that the sentencing court may choose to impose the more lenient
sentence does not render the statute unconstitutional. Sentencing
courts have long been afforded broad discretion in sentencing. And
when section 76-3-207.7 is read in the context of Utah’s sentencing
scheme as a whole, we conclude that it provides sufficient guidance
to withstand Mr. Perea’s facial vagueness challenge. We further
conclude that it was not unconstitutionally applied to Mr. Perea.
    ¶115 District courts have historically been afforded broad
discretion when it comes to sentencing. The U.S. Supreme Court has
stated:
       [Although t]ribunals passing on the guilt of a defen-

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                JUSTICE PARRISH, opinion of the Court

        dant always have been hedged in by strict evidentiary
        procedural limitations . . . both before and since the
        American colonies became a nation, courts in this
        country and in England practiced a policy under
        which a sentencing judge could exercise a wide
        discretion in the sources and types of evidence used to
        assist him in determining the kind and extent of
        punishment to be imposed within limits fixed by law.
Williams v. New York, 337 U.S. 241, 246 (1949).19
    ¶116 So long as a statute clearly specifies the maximum
allowable penalty, it is not unconstitutional for sentencing judges to
exercise their discretion in offering leniency. See State v. Shelby, 728
P.2d 987, 988 (Utah 1986) (stating that this court will overturn a
sentence that is within the statutorily prescribed range only for an
abuse of discretion). For example, sentencing judges may choose to
suspend all or part of a sentence. See UTAH CODE § 77-18-1(2)(a);
Williams v. Harris, 149 P.2d 640, 642 (Utah 1944) (noting that “[t]he
right to suspend imposition of sentence . . . is a discretionary right”).
Even under Utah’s indeterminate sentencing scheme, where the
actual time served by any particular defendant is determined by the
Board of Pardons, sentencing judges are given discretion to sentence
a defendant as if he had been convicted of the next lower degree of
offense. UTAH CODE § 76-3-402(1).20 And we can find no authority


   19
     See also State v. Shuler, 780 P.2d 1067, 1069 (Ariz. Ct. App. 1989)
(holding that a sentencing court may consider a defendant’s
“criminal character and history” despite the absence of prior
convictions); State v. Huey, 505 A.2d 1242, 1245–46 (Conn. 1986)
(finding that a sentencing court may consider prior indictments,
uncharged allegations, dismissed counts, and acquittals); Smith v.
State, 517 A.2d 1081, 1083 (Md. 1986) (holding that a sentencing
judge may consider “the facts and circumstances of the crime itself
and the background of the individual convicted of committing the
crime”).
   20
      Utah Code section 76-3-402(1) provides that if “the court,
having regard to the nature and circumstances of the offense of
which the defendant was found guilty and to the history and
character of the defendant . . . concludes it would be unduly harsh
to record the conviction as being for that degree of offense estab-
lished by statute, the court may enter a judgment of conviction for
                                                       (continued...)

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                             STATE v. PEREA
                JUSTICE PARRISH, opinion of the Court

to support the notion that a sentencing judge’s statutory authority
to grant leniency renders a sentencing statute unconstitutional.
    ¶117 Mr. Perea argues that section 76-3-207.7 is impermissibly
vague because it does not specify the particular items the sentencing
court must consider in deciding which of the two possible sentences
to impose. We are unpersuaded. Section 76-3-207.7 must be read in
the context of Utah’s sentencing scheme as a whole. To give full
effect to the Legislature’s intent, we construe statutes in harmony
“with other statutes under the same and related chapters.” Lyon v.
Burton, 2000 UT 19, ¶ 17, 5 P.3d 616. And, when read in context, the
statutory scheme provides adequate guidance to sentencing courts.
Utah Code section 76-1-104 provides that “[t]he provisions of [the
criminal] code shall be construed . . . [to p]revent arbitrary or
oppressive treatment . . . [and to p]rescribe penalties which are
proportionate to the seriousness of offenses and which permit
recognition o[f] differences in rehabilitation possibilities among
individual offenders.” Section 76-1-106 reinforces section 76-1-104
by providing that “[a]ll provisions of this code and offenses defined
by the laws of this state shall be construed . . . to effect the objects of
the law and general purposes of [s]ection 76-1-104.” When read in
harmony, these provisions make clear that a sentencing court is to
consider all the evidence before it—the totality of the circum-
stances—in imposing a sentence that is proportionate to the crime
and the culpability of the defendant.
    ¶ 118 The notion that a sentencing court consider the totality
of the circumstances in determining a proportionate sentence is also
supported by our evidentiary rules. Rule 1101(c) of the Utah Rules
of Evidence provides that our evidentiary rules do not apply during
sentencing, opening the door to the court’s evaluation of a variety of
factors. See also State v. Sanwick, 713 P.2d 707, 708 (Utah 1986) (A
sentencing court “must be permitted to consider any and all
information that reasonably may bear on the proper sentence for the
particular defendant, given the crime committed.” (quoting Wasman
v. United States, 468 U.S. 559, 563 (1984)). Because our rules do not
constrain the introduction of any evidence tending to inform the
court’s determination, it is not incumbent upon the statute to
enumerate the factors the sentencing judge may or must consider.


   20
     (...continued)
the next lower degree of offense and impose sentence accordingly.”


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               JUSTICE PARRISH, opinion of the Court

     ¶119      Indeed, it has only been in capital cases that we have
required an explicit weighing of aggravating and mitigating factors.
See, e.g., State v. Lafferty, 2001 UT 19, ¶ 130, 20 P.3d 342 (reiterating
the district court’s obligation to weigh the mitigating and aggravat-
ing circumstances in a capital case); State v. Holland, 777 P.2d 1019,
1027 (Utah 1989) (stating that the “first step” in a capital sentencing
evaluation is “to determine whether the aggravating circumstances
outweigh the mitigating circumstances beyond a reasonable doubt”);
State v. Wood, 648 P.2d 71, 83 (Utah 1982) (holding that the capital
sentencing standards “require that the sentencing body compare the
totality of the mitigating against the totality of the aggravating
factors”). Absent statutorily articulated aggravating and mitigating
circumstances in noncapital cases, courts have historically based
their sentencing decisions on the totality of the circumstances. See,
e.g., State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17 (stating that
“courts must consider all legally relevant factors in making a
sentencing decision”); State v. McClendon, 611 P.2d 728, 729 (Utah
1980) (“A sentence in a criminal case should be appropriate for the
defendant in light of his background and the crime committed and
also serve the interests of society which underlie the criminal justice
system.”).
    ¶120     And that is exactly what the district court did here.
Specifically, the district court found that Mr. Perea's relative youth,
his poor educational background, and his borderline IQ/learning
disability constituted mitigating factors. But the district court found
that there were a wealth of aggravating factors to offset these
considerations, including the multiple young victims, the fact that
Mr. Perea fired ten shots into a large group of partygoers, and Mr.
Perea’s lengthy prior criminal record.
    ¶121 Because district courts are “in the best position to ensure
that justice is done and to determine whether any ‘[o]ne factor in
mitigation or aggravation [should] weigh more than several factors
on the opposite scale,’” they are “allowed a great deal of discretion
in determining the relative weight of competing aggravating and
mitigating circumstances.” State v. Moreno, 2005 UT App 200, ¶ 9,
113 P.3d 992 (alteration in original) (quoting State v. Russell, 791 P.2d
188, 192 (Utah 1990)). And as here, where the district court consid-
ered the totality of the circumstances and explicitly weighed the
mitigating and aggravating factors, we are not persuaded that it
abused its discretion or applied the statute in an unconstitutional
fashion.



                                   37
                           STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

B. Mr. Perea’s Argument That Utah Code Section 76-3-207.7 Violates
     the Due Process Protections of the Utah and United States
                Constitutions Is Inadequately Briefed
    ¶122 Mr. Perea next argues that section 76-3-207.7 violates the
due process protections contained within the Utah and United States
Constitutions. While he cites to relevant constitutional provisions,
he provides absolutely no analysis as to how those provisions render
his sentence unconstitutional. Because an issue is inadequately
briefed “when it merely contains bald citation[s] to authority
[without] development of that authority and reasoned analysis
based on that authority,” Smith v. Four Corners Mental Health Center,
Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (alteration in original) (internal
quotation marks omitted), we decline to address Mr. Perea’s
assertion that section 76-3-207.7 violates his due process rights.
    C. Utah Code Section 76-3-207.7 Does Not Violate the Uniform
                    Operation of Laws Provision
     ¶123 Mr. Perea argues that section 76-3-207.7 violates the
uniform operation of laws provision of the Utah Constitution.
Article 1, section 24 of the Utah Constitution requires that “[a]ll laws
of a general nature shall have uniform operation.” Under the
uniform operation of laws provision, a statute must be “uniform on
its face.” State v. Mohi, 901 P.2d 991, 997 (Utah 1995). Further, it “is
critical that the operation of the [statute] be uniform,” such that
similarly situated people are treated similarly under the statute. Id.
(emphasis in original).
    ¶124 Our analysis under the uniform operation of laws
provision requires that we first “determine what classifications, if
any, are created by the statute.” Id. We must then analyze “whether
different classes or subclasses are treated disparately. Finally, if any
disparate treatment exists between classes or subclasses, we must
determine whether the legislature had any reasonable objective that
warrants the disparity.” Id. Mr. Perea asserts that section 76-3-207.7
divides the general class made up of those found guilty of aggra-
vated murder into two subclasses based on the sentence imposed by
the district court. He then asserts that the disparate treatment
between those sentenced to 25 years to life and those sentenced to
LWOP is not justified because the statute fails to provide guidance
to the district court.
    ¶125 We disagree. Not all those found guilty of aggravated
murder are similarly situated. While all are found guilty of the same
crime, each case and each defendant presents a different set of facts

                                  38
                         Cite as: 2013 UT 68
               JUSTICE PARRISH, opinion of the Court

and a different combination of aggravating and mitigating factors.
The discretion afforded to district courts furthers the legitimate
legislative purpose of sentencing offenders based on the totality of
the unique circumstances present in each case. District courts are
authorized and empowered by the Legislature to review the totality
of the circumstances before imposing a sentence. Therefore, because
the discretion given to district courts therefore furthers the legiti-
mate legislative purpose of sentencing offenders based on the
severity of their particular circumstances, we hold that section 76-3-
207.7 does not violate our uniform operation of laws provision.
   D. Mr. Perea’s Sentence Does Not Violate the Unnecessary Rigor
                 Provision of the Utah Constitution
    ¶126 Mr. Perea argues that his sentence of LWOP violates Utah
Constitution’s unnecessary rigor provision because it fails to take
into account his “age, mental disabilities and IQ.” But Mr. Perea
misapprehends the application of the unnecessary rigor provision.
That provision protects prisoners from “the imposition of circum-
stances . . . during their confinement that demand more of the
prisoner than society is entitled to require.” Dexter v. Bosko, 2008 UT
29, ¶ 17, 184 P.3d 592. It therefore applies only to the conditions of
one’s confinement and does not speak to the proportionality of the
particular sentence imposed. The unnecessary rigor provision is
therefore not implicated by the imposition of his sentence of LWOP.
   E. Mr. Perea’s Sentence Does Not Constitute Cruel and Unusual
         Punishment Under the United States Constitution
    ¶127 Finally, Mr. Perea argues that his sentence violates the
Eighth Amendment to the United States Constitution, which
prohibits cruel and unusual punishments. He argues that his
relatively young age, coupled with his low IQ, militates against a
sentence of LWOP. In support of his argument, Mr. Perea cites to
the Supreme Court’s holdings in Roper v. Simmons, 543 U.S. 551, 574
(2005) (holding that juveniles, those persons under eighteen years of
age, cannot be sentenced to death); Graham v. Florida, 560 U.S. 48, ___
(2010) (holding that the Eighth Amendment prohibits a sentence of
LWOP for juvenile non-homicide offenders); and Atkins v. Virginia,
536 U.S. 304, 318 (2002) (holding that persons with an IQ below 70
cannot be executed because such individuals are too mentally
impaired to “understand and process information, to
communicate . . . to engage in logical reasoning, [and] to control
impulses”).



                                  39
                            STATE v. PEREA
               JUSTICE PARRISH, opinion of the Court

    ¶128 But the holdings of these cases are inapplicable to the
present case. Roper does not control because Mr. Perea was neither
sentenced to death21 nor a juvenile offender at the time of the
shootings. It is uncontested that Mr. Perea was nineteen years old
at the time of the shootings and he was sentenced only to LWOP.
Similarly, the Court’s holding in Graham is inapplicable because Mr.
Perea was not found guilty of a non-homicide crime, but was found
guilty of aggravated murder arising from the death of two individu-
als. Finally, it is uncontested that although Mr. Perea has been
diagnosed with a low IQ, his score of 77 puts him above the line
drawn by the Supreme Court in Atkins.
    ¶129 In spite of the differences between Mr. Perea and the
defendants sentenced in Roper, Graham, and Atkins, the district court
was authorized to evaluate the totality of the circumstances and
could have chosen to impose a less severe sentence. It did not,
however, based on its weighing of the aggravating and mitigating
circumstances present in this case. And in the absence of a statutory
mandate or compelling factual circumstances indicating the district
court erred, we will not second-guess the district court, which is “in
the best position to ensure that justice is done.” Moreno, 2005 UT
App 200, ¶ 9. We therefore hold that Mr. Perea’s sentence is not
unconstitutional under the Cruel and Unusual Punishment Clause
of the federal constitution.
    VII. MR. PEREA’S CLAIM THAT ALL STATION-HOUSE
     CONFESSIONS SHOULD BE RECORDED DOES NOT
          CONSTITUTE GROUNDS FOR REVERSAL
    ¶130 Finally, we turn to Mr. Perea’s argument that we should
require the police to record all confessions given at police stations.
Mr. Perea argues that recording station-house confessions aids the
fact finder in ascertaining the truth and that the absence of a
recording makes it difficult to assess the voluntariness of a confes-
sion. The State concedes that “an electronic recording requirement
would have benefits,” but argues the determination of this issue is
better left to a legislative body. While we have concerns about the


   21
     See Solem v. Helm, 463 U.S. 277, 289–90 (1983) (“It is true that the
penalty of death differs from all other forms of criminal punishment,
not in degree but in kind. As a result, our decisions [in] capital cases
are of limited assistance in deciding the constitutionality of the
punishment in a noncapital case.” (alteration in original) (internal
quotation marks omitted)).

                                   40
                         Cite as: 2013 UT 68
               JUSTICE PARRISH, opinion of the Court

Ogden Police Department’s policy of not recording interrogations or
confessions, this appeal is not the appropriate context for addressing
those concerns.
    ¶131 Although Mr. Perea goes on at great length about the
necessity of recording a suspect’s confession, he concedes that such
recordings are not required by the Utah Constitution or our case
law.22 Nor does Mr. Perea explain how a ruling in his favor on this
issue would change the outcome of his appeal. Rather, Mr. Perea
argues that this court “should require” the recording of station-house
confessions—a prospective ruling that would not impact the
investigators’ decision not to record the confession in this case.
    ¶132 Because there was no constitutional, statutory, or
common law obligation for the investigators to record Mr. Perea’s
confession, and because any ruling that law enforcement should
record interrogations in the future would have no effect on the case
before us, we decline Mr. Perea’s invitation to judicially pronounce
a requirement that investigators record station-house confessions.
Nevertheless, the benefits of recording station-house confessions are
worth considering,23 especially when viewed in light of current


   22
     See State v. Villarreal, 889 P.2d 419, 427 (Utah 1995) (concluding
that the recording of confessions is not required by the Utah
Constitution).
   23
       Such benefits include “avoiding unwarranted claims of
coercion,” preventing the use of “actual coercive tactics by police,”
and demonstrating “the voluntariness of the confession, the context
in which a particular statement was made, and . . . the actual content
of the statement.” State v. James, 858 P.2d 1012, 1018 (Utah Ct. App.
1993) (internal quotation marks omitted). The recording of confes-
sions provides clear evidence of coercion or a lack of coercion and
assists the fact-finder in determining a confession’s voluntariness.
Furthermore, such recordings protect police officers and depart-
ments from false claims of coercion and misconduct. In the past,
there were serious technical and cost barriers to recording confes-
sions. But such concerns have been largely ameliorated by technol-
ogy. The necessary equipment is not cost prohibitive and is
standard equipment on almost every cell phone. When police
officers refuse to record interrogations and confessions despite the
presence of recording equipment, the State runs the risk that the fact-
finder will draw the natural inference that the officers have at-
                                                        (continued...)

                                  41
                           STATE v. PEREA
                    JUSTICE DURHAM, concurring

technological advances and the Attorney General’s recommenda-
tions in favor of recording.24 These potential benefits, along with
possible arguments against recording station-house confessions, are
most appropriately addressed in the first instance by our Advisory
Committee on the Rules of Evidence, within which the relative
merits of mandating a recording requirement can be fully debated.
                           CONCLUSION
    ¶133 The district court did not err when it denied Mr. Perea’s
motion to suppress his confession because, even if his ambiguous
statement made two days before he was taken into custody was
sufficient to constitute an invocation of his right to counsel under the
Sixth Amendment, Mr. Perea thereafter voluntarily waived his right
to counsel. Similarly, the district court did not err when it barred the
testimony of potentially exculpatory witnesses whom the defense
would not identify
    ¶134 Although the district court did err when it limited and
excluded the testimony of the defense’s expert witnesses, we
conclude these errors were harmless. Similarly, the combined result
of these errors does not undermine our confidence in the verdict.
We also find that section 76-3-207.7 is not unconstitutional and thus
affirm Mr. Perea’s sentence. Finally, the arguments for and against
a requirement to record station-house confessions are more appro-
priately addressed through the administrative process.

   JUSTICE DURHAM, concurring:
  ¶135 I concur fully in the reasoning and the result of the
majority opinion. I only write separately to express my views

   23
     (...continued)
tempted to hide some aspect of the interrogation, even when there
are no ill intentions.
   24
     In 2008, the Utah Attorney General’s Office, in cooperation with
statewide law enforcement organizations, drafted a statement for
law enforcement that recommends electronic recording of custodial
interviews and gives guidelines for doing so. Contrary to those
recommendations, Ogden police department policy dictates that
officers are not to electronically record interrogations or confessions.
Despite the fact that the room in which Mr. Perea was questioned
was equipped to record (and an officer actually watched a live feed),
no effort was made to record his interrogation and subsequent
confession.

                                  42
                         Cite as: 2013 UT __
                       JUSTICE LEE, concurring

regarding the Ogden Police Department’s policy not to record
station-house interrogations or confessions—despite having the
means to do so. At the present time, I am persuaded that recording
confessions can only further the interests of justice by enhancing a
court’s ability both to safeguard important Sixth Amendment
protections and to detect false claims of improper police coercion.
See supra ¶ 132 n.23. Due to these benefits, I believe that we should
adopt an evidentiary rule requiring station-house interrogations to
be recorded. I do not object to the referral of the question to our
rules advisory committee for study and recommendations, but note
that on the present state of the evidence and policy considerations
regarding this question, the arguments for a rule appear strong.

  JUSTICE LEE, concurring:
   ¶136 I agree with and concur in the court’s opinion and
disposition of this case, including its determination not to opine on
the “advisability” of issuing a rule regarding station-house interro-
gations. Supra ¶ 132. As the majority opinion explains, we are in no
position to weigh in on this matter, as there is no law currently
requiring recording of such interrogations and “a prospective
ruling . . . would not impact the investigators’ decision not to record
the confession in this case.” Supra ¶ 131.
   ¶137 In my view that should be the end of the matter. If we are
to leave it to our Advisory Committee on the Rules of Evidence to
address this question “in the first instance,” supra ¶ 132, we should
not get ahead of the committee by weighing in through our opinions
in this case. Thus, I would not express the view “that recording
confessions can only further the interests of justice,” or endorse the
position “that we should adopt an evidentiary rule requiring station-
house interrogations to be recorded.” Supra ¶ 135 (Durham, J.,
concurring).
   ¶138 First, we have no authority to adopt a rule, of evidence or
otherwise, “requiring station-house interrogations to be recorded.”
Supra ¶ 135. Our supervisory rulemaking authority extends only to
matters of evidence and procedure. See Utah Const., art VIII, § 4
(“The Supreme Court shall adopt rules of procedure and evidence
to be used in the courts of the state and shall by rule manage the
appellate process.”). It does not encompass the power to direct the
operations of law enforcement.
  ¶139 Second, although we conceivably could adopt a rule
deeming unrecorded stationhouse confessions inadmissible under


                                  43
                           STATE v. PEREA
                      JUSTICE LEE, concurring

the law of evidence, I do not think we have sufficient perspective on
the matter to opine on the wisdom of such a rule at this juncture.
Certainly there would be upsides to a rule foreclosing the admissibil-
ity of unrecorded confessions, as acknowledged above. See supra
¶ 132. But I have no idea whether the benefits of such a rule are
“strong,” supra ¶ 135, much less whether they might outweigh any
of the various costs or downsides of that approach (none of which
have been presented to us on this appeal, but surely will be consid-
ered by our advisory committee in due course).
   ¶140 Finally, the devil is undoubtedly in the details here. The
decision whether to adopt a rule of evidence should of course be
informed by the nature and content of any proposed rule. Such a
rule, moreover, would almost certainly have to be subject to
exceptions set forth in any proposed rule. And unless and until we
have the proposed text in front of us, I see no basis for an advisory
thumb on the scale in its favor. I would accordingly await the
results of our advisory committee process instead of weighing in in
advance.




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