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

                                 2015 UT 82


                                    IN THE
       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                 Appellee,
                                       v.
                            DEON L. CLOPTEN,
                               Appellant.

                             No. 20111020
                        Filed September 4, 2015

                      Third District, Salt Lake
                 The Honorable Randall N. Skanchy
                          No. 031903432

                                 Attorneys:
     Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,
                    Salt Lake City, for appellee
           Samuel P. Newton, Kalispell, MT, for appellant

    JUSTICE DURHAM authored the opinion of the Court in which
        CHIEF JUSTICE DURRANT and JUSTICE PARRISH joined.
   JUSTICE LEE filed a concurrence, in which JUDGE HARRIS joined.
     Due to his retirement, JUSTICE NEHRING did not participate
            herein; DISTRICT JUDGE RYAN M. HARRIS sat.
    JUSTICE DENO G. HIMONAS became a member of the Court on
        February 13, 2015, after oral argument in this matter
               and accordingly, did not participate.

   JUSTICE DURHAM, opinion of the Court:
                           INTRODUCTION
  ¶1     Deon Clopten was convicted of murdering Tony
Fuailemaa after a concert in Salt Lake City. He now appeals his
conviction, alleging five errors in the district court proceedings.
                          STATE V. CLOPTEN
                         Opinion of the Court

   ¶2     Two of these alleged errors relate to Mr. Clopten’s
principal theory at trial, namely that the murder was committed
by his cousin Freddie White. First, Mr. Clopten asked to call
Mr. White as a witness so that he would claim a Fifth Amendment
privilege in front of the jury, but the trial court denied this
request. Second, Mr. Clopten attempted to introduce testimony
that Mr. White told fellow prison inmates that Mr. Clopten was
not the murderer, but the trial court excluded this testimony as
inadmissible hearsay. Mr. Clopten challenges both of these rulings
on appeal.
    ¶3    The remaining three alleged errors relate to the
eyewitness testimony that identified Mr. Clopten as
Mr. Fuailemaa’s killer. As we have recognized in a series of
opinions beginning with State v. Long, 721 P.2d 483 (Utah 1986),
the use of eyewitness testimony to identify perpetrators of crime
presents a difficult constitutional problem. On the one hand, such
testimony is often the only evidence available to establish a
criminal’s identity. On the other hand, as forensic science has
demonstrated, eyewitness identifications are frequently wrong
but nevertheless powerfully persuasive to juries. Accordingly,
such identifications lead with unusual frequency to wrongful
convictions—an uncomfortable prospect for a criminal justice
system committed to letting ten felons escape before punishing a
single innocent. See 4 WILLIAM BLACKSTONE, COMMENTARIES *358.
We have now wrestled with this problem for nearly three
decades, articulating a number of doctrines intended to reduce the
likelihood of wrongful convictions based on unreliable eyewitness
identification testimony.
    ¶4    Mr. Clopten argues that the trial court incorrectly
applied three of these doctrines. First, he argues that under State v.
Ramirez, 817 P.2d 774 (Utah 1991), the trial court should have
excluded a number of the prosecution’s eyewitnesses as
unconstitutionally unreliable. Second, he argues that under State
v. Clopten (Clopten I), 2009 UT 84, 223 P.3d 1103, the trial court
should have excluded the testimony of a prosecution expert who
disputed the defense’s claims about eyewitness unreliability. The
prosecution     expert’s    testimony,     Mr.    Clopten    argues,
impermissibly contradicts Clopten I’s conclusions about forensic
science. Third and finally, he argues that the trial court’s
instructions to the jury regarding eyewitness reliability were
constitutionally insufficient under Long, 721 P.2d 483.



                                   2
                         Cite as: 2015 UT 82
                        Opinion of the Court

   ¶5    For reasons explained below, we reject all five of
Mr. Clopten’s assertions of error and affirm his conviction.
                         BACKGROUND
   ¶6     On December 1, 2002, Tony Fuailemaa attended a
concert in downtown Salt Lake City with his fiancée, Shannon
Pantoja. Also present at the concert were Deon Clopten, his cousin
Freddie White, and two of their friends.
   ¶7     Early in the evening, Mr. Fuailemaa pointed Mr. Clopten
out to his fiancée, asking her if she knew the guy “in all red, the
one all flamed up.” When she answered that she did not,
Mr. Fuailemaa told her his name, that Mr. Fuailemaa knew him,
and that “he had a problem with some of the homeys.” An
undercover officer testified that he noticed tension between the
groups, but no violence immediately ensued.
    ¶8    Both groups left the concert early; Ms. Pantoja testified
that she and Mr. Fuailemaa wanted to beat the traffic. Outside the
venue, she noticed Mr. Clopten’s three friends attempting to hide
on the street in front of them, and Mr. Fuailemaa told her that he
anticipated a confrontation. Ms. Pantoja suggested that they
return to the concert so as to avoid a fight, but Mr. Fuailemaa
insisted he would not back down. Ms. Pantoja then noticed
Mr. Clopten approaching Mr. Fuailemaa from behind with his
arm extended, holding a pistol. He exclaimed “What’s up now,
homey?” and shot Mr. Fuailemaa in the back of the head.
   ¶9     Four undercover officers at the concert heard the shots
and came running. Informed by Ms. Pantoja that the killer was the
man “in all red,” they chased Mr. Clopten and his friends to their
vehicle. Mr. Clopten and his friends drove away at high speed,
pursued by police, and threw the murder weapon out the window
before they were caught.
   ¶10 It is undisputed that Mr. Fuailemaa’s murderer was one
of the four men in the vehicle, but proving that it was Mr. Clopten
has now taken over a decade. Mr. Clopten was charged in 2003
and tried in 2005, but the court declared a mistrial. He was tried
again and convicted in 2006, but we reversed the conviction
because Mr. Clopten had not been allowed to present expert
testimony about the reliability of eyewitness identifications.
Clopten I, 2009 UT 84, ¶ 49, 223 P.3d 1103.
  ¶11 At Mr. Clopten’s third trial in 2011, the state presented
eyewitnesses who identified him as the shooter. Mr. Clopten

                                  3
                         STATE V. CLOPTEN
                        Opinion of the Court

primarily attacked the state’s case in two ways. First, he sought to
exclude the state’s evidence and to minimize its effect, calling an
expert witness to testify about the unreliability of eyewitness
identifications and asking the judge for jury instructions on the
same subject. Second, he presented his own evidence that another
man in the vehicle—Mr. Clopten’s cousin Mr. White—actually
committed the murder.
  ¶12 Mr. Clopten’s strategy failed. The jury convicted him of
murder, and he now challenges his conviction on appeal.
                             ANALYSIS
 I. THE TRIAL COURT CORECTLY DENIED MR. CLOPTEN’S
  REQUEST TO CALL A DEFENSE WITNESS FOR THE SOLE
PURPOSE OF PLEADING THE FIFTH IN FRONT OF THE JURY
   ¶13 In support of his defense that Mr. White was the true
perpetrator of Mr. Fuailemaa’s murder, Mr. Clopten proposed to
call Mr. White as a witness. But Mr. Clopten stipulated that Mr.
White would not give any testimony because he would invoke his
Fifth Amendment privilege when called to the stand. Mr. Clopten
argued in the trial court that the jury should be allowed to observe
Mr. White plead the Fifth on the witness stand, but the trial court
denied this request. Mr. Clopten later requested a jury instruction
informing the jury that Mr. White had invoked his Fifth
Amendment privilege and stating that the jurors were “entitled to
give whatever weight you deem appropriate and draw any
inference you feel is warranted regarding White’s invocation of
his Fifth Amendment privilege.” The trial court refused this
instruction.
   ¶14     On appeal, Mr. Clopten has challenged only the trial
court’s refusal to require Mr. White to take the witness stand and
invoke his Fifth Amendment privilege in the presence of the jury,
thus allowing him to argue inferences favorable to the defense
from that act. He has not challenged the trial court's refusal to
instruct the jury about the inferences jurors could make from
Mr. White’s out-of-court invocation of the privilege. Thus this case
does not reach the question of inferences, but only the question of
whether it was proper for the court to preclude an in-court
demonstration.
   ¶15 As to the trial court’s determination to avoid what
would have been purely a theatrical event—putting a witness on
the stand merely to refuse to testify—we have no doubt that its
decision was well within its power to manage the trial process. See

                                  4
                          Cite as: 2015 UT 82
                         Opinion of the Court

State v. Parsons, 781 P.2d 1275, 1282 (Utah 1989) (“The trial court,
with its inherent powers as the authority in charge of the trial, has
broad latitude to control and manage the proceedings and
preserve the integrity of the trial process.”) Therefore, it was
proper to exclude the witness.
    II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
          WHEN IT EXCLUDED HEARSAY TESTIMONY
                     A. Statements Against Interest
    ¶16 Next, Mr. Clopten claims that the trial court erred when
it excluded the hearsay testimony of two potential witnesses. Both
of these proposed witnesses were inmates who spoke with
Mr. White while he was in prison. At the time of these
conversations, Mr. White feared that Polynesians in the prison
system would harm his cousin, Mr. Clopten, because of their
belief that Mr. Clopten killed Mr. Fuailemaa. The first prisoner
claimed Mr. White told him, “Look, if you can just let your homies
know it wasn’t [Mr. Clopten], I was there and I can tell you for a
fact it wasn’t him.” When the prisoner asked Mr. White if he
killed Mr. Fuailemaa, Mr. White gave the prisoner a ”look” and
said, “It wasn’t [Mr. Clopten].” The second prisoner asked
Mr. White if Mr. Clopten shot Mr. Fuailemaa. Mr. White
responded negatively. When the prisoner then asked Mr. White if
he was the shooter, Mr. White said “I can’t talk about that.”
   ¶17 Mr. Clopten argued below that these two prisoners
should have been allowed to tell the jury about Mr. White’s
hearsay statements because they were admissible as statements
against interest. But the trial court excluded this testimony
because it found that Mr. White’s alleged statements were not
sufficiently contrary to his self-interest to warrant the application
of this exception to the hearsay rule. To reverse the trial court on
this issue, we must conclude the trial court abused its discretion.
See State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639.
   ¶18 Mr. Clopten had to satisfy two requirements in order to
qualify for the statement-against-interest exception to the hearsay
rule. First, he had to show that the hearsay statement was an
utterance that “a reasonable person in the declarant’s position
would have made only if the person believed it to be true because,
when made, it . . . had so great a tendency to . . . expose the
declarant to . . . criminal liability.” UTAH R. EVID. 804(b)(3)(A).
Second, because Mr. Clopten sought to introduce hearsay
testimony in a criminal case under the theory that it tended to

                                   5
                          STATE V. CLOPTEN
                         Opinion of the Court

expose the declarant to criminal liability, he also had to show that
the statement was “supported by corroborating circumstances
that clearly indicate its trustworthiness.” Id. 804(b)(3)(B).
    ¶19 “In determining if a statement is one made against penal
interest” under the first requirement, “we look to the
circumstances under which the statement was given.” State v.
Drawn, 791 P.2d 890, 894 (Utah Ct. App. 1990). The statement need
not be an outright confession to a crime in order to be sufficiently
contrary to the declarant’s penal interest to be admissible. The
United States Supreme Court, for example, has theorized that
statements such as “I hid the gun in Joe’s apartment” may be
sufficiently self-inculpatory where the declarant knows that it
would help the police to find a murder weapon. Williamson v.
United States, 512 U.S. 594, 603 (1994) (internal quotation marks
omitted). The key inquiry is whether the statement has a sufficient
tendency to expose the declarant to criminal liability that “a
reasonable person in the declarant’s position would have made
[it] only if the person believed it to be true.” UTAH R. EVID.
804(b)(3)(A); see also State v. Sanders, 496 P.2d 270, 273 (Utah 1972)
(statements that subject the declarant to criminal punishment are
admissible “because experience teaches that it is unlikely that [a
person] would so declare unless it were true”).
   ¶20 None of the hearsay statements allegedly made by
Mr. White directly exposed him to criminal liability because he
never said that he committed the murder. Mr. Clopten argues that
Mr. White’s statements that Mr. Clopten did not commit the
murder are nonetheless contrary to Mr. White’s penal interests.
Four individuals were in the vehicle that sped away from the
scene of the murder: Mr. Clopten, Mr. White, and two other
associates. The murder weapon was thrown from this vehicle
during the ensuing high-speed pursuit. Thus, Mr. White would
have known that the police suspected that one of these four
individuals murdered Mr. Fuailemaa. Under these circumstances,
statements exculpating Mr. Clopten necessarily indicate that one
of the other three occupants of the getaway vehicle was the
shooter.1



   1 Mr. Clopten argues that Mr. White’s statements are self-
inculpatory because State witnesses testified that the shooter was
dressed all in red and only Mr. Clopten and Mr. White wore solid
red tops on the night of the murder. But there is no indication that
                                   6
                          Cite as: 2015 UT 82
                         Opinion of the Court

   ¶21 Although Mr. White’s statements have at least some
tendency to expose him to criminal liability, this does not
necessarily mean that his statements have a sufficient tendency to
expose him to punishment that a reasonable person would not
utter them if they were not true. That is a question for the trial
court. Moreover, there is another motive for Mr. White to say that
Mr. Clopten did not commit the murder other than the truth of
the statement. Mr. White was concerned that other prisoners
would harm his cousin if they believed that Mr. Clopten
committed the murder. Mr. White, therefore, wanted to spread
the word that Mr. Clopten was innocent in order to protect his
cousin. The trial court was entitled to weigh the tendency of
Mr. White’s statements to expose him to criminal liability against
Mr. White’s other motives for uttering the statements. See Sanders,
496 P.2d at 273 (the district court may consider “various possible
motivations” for the declarant to make the hearsay statement that
cut against the application of the statement-against-interest
exception, including “concern for assisting the defendant”). Under
the facts of this case, the trial court did not abuse its discretion
when it determined that Mr. White’s statements did not have a
sufficient tendency to expose him to criminal punishment that “a
reasonable person in the declarant’s position would have made
[the statements] only if the person believed [them] to be true.”
UTAH R. EVID. 804(b)(3)(A).
    ¶22 Because the trial court did not abuse its discretion when
it found that the first requirement of the statement-against-interest
exception was not met, we need not examine the second
requirement—whether “corroborating circumstances” clearly
indicate the trustworthiness of the hearsay statements. See id.
804(b)(3)(B).
                   B. The Residual Hearsay Exception
   ¶23 Mr. Clopten also argues that the trial court erred when it
refused to admit the hearsay statements under the residual
exception to the hearsay rule. The residual exception is a catchall
provision that may be applied when a hearsay statement “is not
specifically covered by a hearsay exception in Rule 803 or 804.”


Mr. White knew that eyewitnesses would testify that the shooter
wore red when Mr. White made the statements. The relevant
inquiry is whether the declarant knew that a statement was
inculpatory at the time the statement was made. Information
unknown to the declarant at that time is irrelevant.
                                   7
                           STATE V. CLOPTEN
                          Opinion of the Court

UTAH R. EVID. 807(a). Under this exception, a hearsay statement is
admissible when
       (1) the statement has equivalent circumstantial
       guarantees of trustworthiness;
       (2) it is offered as evidence of a material fact;
       (3) it is more probative on the point for which it is
       offered than any other evidence that the proponent
       can obtain through reasonable efforts; and
       (4) admitting it will best serve the purposes of these
       rules and the interests of justice.
Id. This exception is “intended for use in those rare cases where,
although the out-of-court statement does not fit into a recognized
exception, its admission is justified by the inherent reliability of
the statement and the need for its admission.” State v. Nelson, 777
P.2d 479, 482 (Utah 1989).
   ¶24 We hold that the trial court did not abuse its discretion
when it declined to admit Mr. White’s hearsay statements under
the residual exception. Mr. Clopten has not shown that the
statements have “equivalent circumstantial guarantees of
trustworthiness” that are different from other recognized
exceptions to the hearsay rule.
   ¶25 Mr. Clopten first contends that Mr. White’s statements
exonerating Mr. Clopten are corroborated by extrinsic evidence
that Mr. White was the true killer. Mr. Clopten cites, for example,
evidence produced at trial that Mr. White had suggested to other
individuals that he was guilty of the crime and that he wore a red
top on the night of the murder, which would be consistent with
eyewitness testimony that the shooter was dressed “in all red.”
But the trustworthiness requirement is not satisfied by extrinsic
corroborating evidence. Instead, courts look to either the
circumstances in which the hearsay statement was made or the
content of the statement itself to determine whether the declarant
would be unlikely to lie. See, e.g., UTAH R. EVID. 804(b)(2) (hearsay
statement made under the belief of imminent death admissible);
id. 804(b)(3)(A) (hearsay statement that is contrary to declarant’s
self-interest may be admissible). In order to satisfy the “equivalent
circumstantial guarantees of trustworthiness” element of the
residual hearsay exception, id. 807(a)(1), “hearsay evidence . . .
must possess indicia of reliability by virtue of its inherent
trustworthiness, not by reference to other evidence at trial,” State

                                     8
                         Cite as: 2015 UT 82
                        Opinion of the Court

v. Plant, 461 N.W.2d 253, 265 (Neb. 1990) (internal quotation
marks omitted); see also Nelson, 777 P.2d at 482 (residual exception
applies where the hearsay statement’s “admission is justified by
the inherent reliability of the statement” (emphasis added)). Mr.
Clopten’s citations to evidence unrelated to the hearsay
statements are simply not relevant to the trustworthiness
requirement.
   ¶26 Mr. Clopten also argues that the statements have
circumstantial guarantees of trustworthiness because the
statements tended to subject Mr. White to potential harm from
other inmates. Mr. White believed that other prisoners wanted to
seek retribution against Mr. Fuailemaa’s killer. Thus, Mr. Clopten
contends that statements implicating Mr. White as the actual killer
are trustworthy because he would not subject himself to the
danger of prison violence had the statements not been true. But
the problem with this argument is that Mr. White never said that
he killed Mr. Fuailemaa. And any assertion that Mr. White’s
statements indirectly implicated himself as the killer could
reasonably be rejected by the trial court for the same reasons that
the statement-against-interest exception does not apply to the
hearsay statements. See supra ¶ 21.
                        C. Adoptive Admission
   ¶27 The state filed a motion in limine to prohibit the two
prisoners from testifying about Mr. White’s hearsay statements.
The motion, of necessity, provided the content of the hearsay
statements. Mr. Clopten claims that because the state repeated the
hearsay statements it sought to exclude, the testimony is
admissible as an adoptive admission. See UTAH R. EVID. 801(d)(2)
(a statement is not hearsay if it “is offered against an opposing
party and . . . is one the party manifested that it adopted or
believed to be true”).
    ¶28 This argument is without merit because it conflates the
filing of a motion summarizing the hearsay statements with the
endorsement of these statements. It is strange to suggest that
merely by articulating hearsay statements as part of a motion in
limine the state embraces the very statements it is trying to
exclude. Without some manifestation of adoption of the statement
or affirmation of the truthfulness of the statement, statements like
those in the state’s motion are not adoptive admissions.




                                  9
                         STATE V. CLOPTEN
                        Opinion of the Court

                D. Constitutionality of the Hearsay Rule
   ¶29 Finally, Mr. Clopten argues that if no exception to the
hearsay rule applies to the statements, he nonetheless should have
been permitted to introduce the hearsay statements into evidence
because of his constitutional due process right to present evidence
in his defense. In support of this contention, he quotes State v.
Harding, where we stated that “the defendant’s right to present all
competent evidence in his defense is a right guaranteed by the due
process clause of our State Constitution, Art. I, Sec. 7, as well as
our Federal Constitution.” 635 P.2d 33, 34 (Utah 1981) (emphasis
added). But a criminal defendant does not have a due process
right to present any evidence the defendant may desire. A
defendant only has a right to introduce competent, admissible
evidence. See Evidence, BLACK’S LAW DICTIONARY (9th ed. 2009)
(defining “competent evidence” by cross-referencing the term
“admissible evidence”). Because hearsay evidence is not competent
evidence under Utah law, and because Mr. Clopten has not
presented any support for the proposition that the hearsay rule is
unconstitutional when applied to evidence proffered by a criminal
defendant, we reject his constitutional claim.
     III. ADMISSION OF EYEWITNESS IDENTIFICATIONS
   ¶30 As we explained above, the prosecution had little
difficulty proving that Mr. Fuailemaa was killed by one of the
four men the police captured after the shooting. But to prove that
Mr. Clopten committed the murder, rather than Mr. White as the
defense argued, the state relied on the testimony of eyewitnesses.
Because some of these eyewitnesses testified that they recognized
Mr. Clopten as the killer, their testimony potentially implicates
the doctrines we have articulated to protect the innocent from
convictions based on unreliable eyewitness identifications.
   ¶31 The first such doctrine to which Mr. Clopten appeals is
the Ramirez test, announced by State v. Ramirez, 817 P.2d 774 (Utah
1991), which, according to Mr. Clopten, governs the admission of
eyewitness identification testimony under the Utah due process
clause. Mr. Clopten argues that the trial court violated Ramirez by
allowing two of the state’s eyewitnesses—Shannon Pantoja and
Melissa Valdez—to identify him as the killer. Because of the
importance of these witnesses’ identifications to the state’s case,
Mr. Clopten argues, his conviction must be reversed.
   ¶32 We reject Mr. Clopten’s appeals to Ramirez, concluding
that we can apply it neither to Ms. Valdez’s testimony nor to

                                  10
                         Cite as: 2015 UT 82
                        Opinion of the Court

Ms. Pantoja’s. First, as to Ms. Valdez, we conclude that the state
did not actually present her identification of Mr. Clopten to the
jury and that Ramirez therefore simply does not apply. Second, as
to Ms. Pantoja, we conclude that we cannot review the trial court’s
decision to allow Ms. Pantoja to identify Mr. Clopten because
Mr. Clopten has not adequately challenged that decision on
appeal.
         A. The State Did Not Present Ms. Valdez’s Identification
                         of Mr. Clopten to the Jury
   ¶33 The state argues that Ramirez does not apply to
Ms. Valdez because her testimony did not actually identify
Mr. Clopten as the killer. Although the state was permitted by
pretrial ruling both to have Ms. Valdez identify Mr. Clopten in
court and to introduce evidence that she had picked Mr. Clopten
out of a police photo lineup, it ultimately chose to do neither of
these things. Instead, it questioned Ms. Valdez primarily about
her memories of the night of the murder.
   ¶34 Mr. Clopten disputes the state’s characterization of
Ms. Valdez’s testimony, suggesting three ways in which
Ms. Valdez identified Mr. Clopten before the jury. First,
Ms. Valdez identified Mr. Clopten’s red sweatsuit as the clothing
the killer wore. Second, her testimony corroborated the testimony
of other eyewitnesses who did identify Mr. Clopten as the killer.
And third, she testified that a defense investigator had presented
her with a photo array, that she had recognized a person in the
photo array as the killer, and that the defense investigator then
told her that she “wasn’t going to be any help to his case.”
   ¶35 We can easily dismiss Mr. Clopten’s first two arguments
because Ramirez applies only to “eyewitness identifications.”
Ramirez, 817 P.2d at 779. This category includes in-court
identifications and testimony about out-of-court identifications
like police lineups and photo arrays, but it does not include, as
Mr. Clopten seems to believe, all eyewitness testimony tying a
defendant to a crime. Ramirez thus does not apply to witnesses
who, like Ms. Valdez, testify merely about a perpetrator’s
appearance or apparel—his height, build, coloring, clothing,
tattoos, and other qualities that might be shared by any number of
people. It applies only when the state seeks to inform the jury that
an eyewitness has recognized the defendant as the perpetrator.
   ¶36 Mr. Clopten’s third argument is a closer call since the
state did ask Ms. Valdez to testify that she had recognized the

                                  11
                         STATE V. CLOPTEN
                        Opinion of the Court

killer in the defense’s photo array. The question, then, is whether
the state sought to inform the jury that the person Ms. Valdez had
recognized was Mr. Clopten.
   ¶37 If we viewed the relevant testimony in isolation, we
would likely conclude that was precisely the state’s intent. Why
else would the state have asked about Ms. Valdez’s interview
with the defense investigator? Yet the broader context ultimately
persuades us that such a conclusion would be incorrect. At no
point did the state present testimony that the person Ms. Valdez
had identified was Mr. Clopten, or even that Mr. Clopten was
among the people depicted in the defense investigator’s photo
array.2 Neither did it admit the photo array into evidence, or even
mention Ms. Valdez’s testimony about the photo arrays in its first
closing statement.
   ¶38 Instead, it was the defense that made sure the jury knew
that Ms. Valdez had identified Mr. Clopten. It questioned her in
detail about the various lineups she saw, admitted those lineups
into evidence, and called a detective to testify about their flaws.
Finally, during closing arguments, it was the defense that brought
up Ms. Valdez’s identification of Mr. Clopten, using the manifest
weakness of the identification to support its argument for
reasonable doubt.
   ¶39 This effort by the defense to tear down Ms. Valdez’s
identifications of Mr. Clopten—identifications the defense itself
had presented to the jury—provoked the following rebuttal from
the state:



  2  During the state’s direct examination, Ms. Valdez testified
only that she had recognized one of the defense investigator’s
photographs as the killer, and that the investigator had told her
that she would not be helpful for his case. Although in hindsight
it may seem obvious that this meant she had identified
Mr. Clopten, it may not have been obvious at the time. From the
state’s questioning, the jury knew nothing about the lineup except
that it had been shown to Ms. Valdez by a defense investigator,
and the jurors may have imagined alternative explanations for the
defense investigator’s reaction. In particular, given the defense’s
theory that Mr. White was the killer, the jurors may have
imagined that Mr. White, not Mr. Clopten, was depicted on the
array, and that rather than successfully identifying Mr. Clopten,
Ms. Valdez had failed to identify Mr. White.
                                 12
                         Cite as: 2015 UT 82
                        Opinion of the Court

      [T]hese photo arrays here are a pointless distraction.
      Defense counsel is correct. Melissa Valdez didn’t
      pick [Clopten] out of those lineups that were
      presented to her. Keep in mind, yes, she points to a
      guy to the defense investigator, but then when she is
      shown this [police photo array] she is unable to pick
      him out . . . .
      Her testimony is not important because she picks
      somebody or doesn’t pick somebody. Her testimony
      is critical, absolutely. But it’s important because she
      corroborates [other eyewitnesses] and her
      description of what the shooter was wearing
      matches what the defendant was wearing.
    ¶40 We are persuaded that the state did not intend to
present Ms. Valdez’s identification of Mr. Clopten to the jury, and
that if the defense had not used the weakness of Ms. Valdez’s
identification to bolster its own case, the jury would probably not
have known that Ms. Valdez had identified Mr. Clopten. Though
it is a close question, we therefore conclude that Ramirez does not
apply.
         B. Mr. Clopten Has Not Adequately Challenged the
               Admission of Ms. Pantoja’s Testimony
   ¶41 Ms. Pantoja, Mr. Fuailemaa’s fiancée, was especially
important to the prosecution’s case because she was the closest
observer of the murder and because she identified Mr. Clopten as
the shooter less than an hour after the shooting. These factors,
combined with her close personal connection to the victim, likely
made her identification of Mr. Clopten very persuasive to the jury.
   ¶42 Accordingly, the defense asked Judge Skanchy, who
presided over Mr. Clopten’s third trial, to suppress Ms. Pantoja’s
testimony because it was insufficiently reliable under Ramirez.
Judge Skanchy “decline[d]” to consider this argument, concluding
that he “need not readdress whether Ms. Pantoja’s identification
of Mr. Clopten is sufficiently reliable” because Judge Fuchs, who
presided over Mr. Clopten’s second trial, had already decided that
issue. To support this decision, Judge Skanchy cited the following
paragraph from one of our cases:
      A different branch of the law of the case doctrine—
      often called the mandate rule—dictates that a prior
      decision of a district court becomes mandatory after
      an appeal and remand. The mandate rule, unlike the

                                 13
                           STATE V. CLOPTEN
                          Opinion of the Court

       law of the case before a remand, binds both the
       district court and the parties to honor the mandate
       of the appellate court. The mandate is also binding
       on the appellate court should the case return on
       appeal after remand.
IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 28, 196
P.2d 588 (footnotes omitted). This rule, if it applied in this case,
would presumably not only prohibit the trial court from
reconsidering the reliability of Ms. Pantoja’s testimony, but also
prohibit us from considering Ms. Pantoja’s reliability on appeal.
   ¶43 We decline to address the question of whether the
mandate rule applies in this case because Mr. Clopten has not
properly raised or briefed it. In all of Mr. Clopten’s briefing, the
trial court’s decision not to reconsider Judge Fuchs’s order is
challenged only in a single footnote, reproduced here in its
entirety:
          Judge Fuchs did not have the benefit of the
       multiple times Ms. Pantoja testified in this matter to
       highlight the numerous contradictions (including a
       subsequent trial) and the trial court should have
       revisited the issue given the new testimony.
This footnote neither acknowledges that the trial court invoked
the mandate rule, nor argues that its invocation of that rule was in
error, nor tells us whether any challenge to the trial court’s use of
the mandate rule has been preserved. Cf. UTAH R. APP. P.
24(a)(5)(A) (requiring appellants’ briefs to include a “citation to
the record showing that the issue was preserved in the trial
court”). With some charity, we might read it as asserting that the
mandate rule should not apply where new evidence has cast
doubt on the earlier ruling, but it cites no authority for such an
exception. Cf. id. 24(a)(9) (requiring “citations to the authorities . . .
relied on”). And it certainly raises no argument that the mandate
rule does not apply in a new trial. In short, it is entirely
inadequate for contesting the trial court’s decision.
   ¶44 Instead of contesting Judge Skanchy’s decision not to
determine Ms. Pantoja’s reliability, Mr. Clopten has asked us to
determine Ms. Pantoja’s reliability ourselves. We cannot oblige.
We cannot simply review Judge Fuchs’s order, as Mr. Clopten
apparently intends us to do: it was Judge Skanchy’s order, not
Judge Fuchs’s order, that admitted Ms. Pantoja’s testimony in the
trial from which Mr. Clopten appeals. We also cannot review

                                     14
                          Cite as: 2015 UT 82
                         Opinion of the Court

Judge Skanchy’s order as if he had independently decided that
Ms. Pantoja’s testimony is reliable under Ramirez: applying
Ramirez involves factual determinations that are outside our
purview as an appellate court, and Judge Skanchy made none of
those determinations because he concluded that the mandate rule
prevented him from applying Ramirez.
   ¶45 Our cases occasionally remark that we are not “‘a
depository in which the appealing party may dump the burden of
argument and research.’” Carlton v. Brown, 2014 UT 6, ¶ 18, 323
P.3d 571 (quoting State v. Thomas, 961 P.2d 299, 305 (Utah 1998)).
Mr. Clopten did not intend to use us as one; his brief is lengthy
and generally thorough. But where Ms. Pantoja’s testimony is
concerned, he has asked us to review a decision the trial court did
not make, and he has failed to challenge the decision the trial
court did make. We therefore decline to consider whether the trial
court erred in allowing Ms. Pantoja to testify.
  IV. THE STATE’S EXPERT TESTIMONY WAS ADMISSIBLE
            UNDER RULE 702 AND CLOPTEN I
   ¶46 At trial, Mr. Clopten took advantage of our decision in
his first appeal and called an expert witness to testify about the
various factors that might make eyewitness testimony unreliable.
In response, the state called its own expert, Dr. John Yuille.
   ¶47 Dr. Yuille testified primarily that the laboratory studies
on which the defense expert based his testimony have limited
real-world applicability because of the differences between
laboratory studies and actual crimes. Consequently, although
many laboratory studies have shown that such factors as high
stress and the presence of a weapon reduce the likelihood of
accurate identifications—and although we have adopted these
factors into our jurisprudence in Long and Ramirez—Dr. Yuille
testified that the extent to which these factors actually influence
eyewitnesses’ ability to remember crimes is much less certain and
much more complicated than the laboratory studies suggest.
   ¶48 Mr. Clopten now argues that Dr. Yuille’s testimony was
inadmissible under rule 702 of the Utah Rules of Evidence and
our decision in Clopten I. Because the defense did not object below
to the qualification of Dr. Yuille as an expert witness or to most of
his testimony, Mr. Clopten acknowledges that this issue was not
preserved. He argues that we may nevertheless consider it
because admitting the testimony was plain error and because the
defense’s failure to object denied Mr. Clopten his constitutional

                                  15
                         STATE V. CLOPTEN
                        Opinion of the Court

right to effective assistance of counsel. Both arguments fail
because Dr. Yuille’s testimony was admissible under rule 702 and
Clopten I.
       A. Dr. Yuille’s Testimony Was Admissible Under Rule 702
   ¶49 Dr. John Yuille is an emeritus professor in the
Department of Psychology at the University of British Columbia.
He has specialized in eyewitness memory research for forty years,
during which time he has published over a hundred scholarly
works, including eight books and many dozens of peer-reviewed
articles. In recognition of his work, he has been inducted as a
fellow into the Canadian Psychological Association.
   ¶50 There is therefore no dispute that Dr. Yuille is a qualified
expert under rule 702(a). The only question is whether his
testimony is based on “principles or methods” that “(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). This
condition is automatically deemed satisfied “if the underlying
principles or methods, including the sufficiency of facts or data
and the manner of their application to the facts of the case, are
generally accepted by the relevant expert community.” UTAH R.
EVID. 702(c). Mr. Clopten argues that Dr. Yuille’s testimony did
not meet the requirements of rule 702(b) because, as Dr. Yuille
acknowledged, his conclusions differed from those of the majority
of researchers.
   ¶51 Mr. Clopten’s argument fails because rule 702(b)’s
reliability requirement does not apply to expert witnesses’
conclusions, but rather to the “principles and methods”
underlying their conclusions. Certainly, if an expert’s conclusions
are universally rejected by other experts in the field, that may be
strong evidence that her principles and methods are unsound, or
at least not generally accepted. But rule 702 does not permit courts
to exclude expert testimony because it represents a minority view
or because the court disagrees with it. See UTAH R. EVID. 702,
advisory comm. note (“Contrary and inconsistent opinions may
simultaneously meet the threshold; it is for the factfinder to
reconcile—or choose between—the different opinions.”). It allows
suppression only where the testimony lacks an adequate
methodological basis.
   ¶52 In this case, nothing amiss has been identified in the
methodological basis for Dr. Yuille’s testimony. His criticism of
the defense expert’s conclusions was not mere speculation, as

                                  16
                          Cite as: 2015 UT 82
                         Opinion of the Court

Mr. Clopten has asserted on appeal. Rather, it was based on a
thirty-year history of peer-reviewed field studies, many of them
not conducted by Dr. Yuille, and on the generally accepted
principle of psychological science that differences between
laboratory studies and the real world sometimes limit the studies’
external validity—that is, their ability to predict real-world
behavior. That Dr. Yuille disagrees with the majority of
researchers in his field about some laboratory studies’ external
validity does not prove that his conclusions lack an adequate
methodological basis. It merely demonstrates that eyewitness
memory science, like all science, is an unfinished project whose
conclusions are subject to debate and revision as researchers
publish more studies and methodologies improve.
       B. Dr. Yuille’s Testimony Was Admissible Under Clopten I
   ¶53 The continued progress of science is among the chief
reasons that expert testimony is superior to the Long instructions:
expert witnesses will be aware of recent developments in the field
and testify accordingly, while our Long factors are now almost
thirty years old. See State v. Long, 721 P.2d 483 (Utah 1986). Even
our lengthy discussion of eyewitness memory science in Clopten I
is five years old, see Clopten I, 2009 UT 84, 223 P.3d 1103, and we
expect that some of the scientific findings on which Clopten I
relied have already been called into question by subsequent
research. We would not have expected otherwise when Clopten I
was decided.
   ¶54 Yet Mr. Clopten asks us to bind trial judges and experts
like Dr. Yuille forever to our own assessment of the state of the
science in 2009, arguing that “Yuille’s claims directly violated this
Court’s clear precedent.” This argument is a category error:
precedent is a statement of law, not fact, so it is logically
impossible for a witness’s factual claims to “violate precedent.”
   ¶55 It may violate precedent for a judge to allow a particular
witness to testify, but nothing in Clopten I directs judges to accept
only those expert witnesses whose understanding of eyewitness
memory science agrees with the one we expressed five years ago
based on the state of the science at that time. Indeed, it would
have been legally problematic if the Clopten I court had required
suppression of experts who disagreed with it—Clopten I interprets
and applies rule 702, and, as explained above, rule 702 does not
allow a court to suppress expert witnesses because it disagrees
with their conclusions.


                                  17
                          STATE V. CLOPTEN
                         Opinion of the Court

   ¶56 We therefore conclude that Dr. Yuille’s testimony was
properly admitted. Consequently, Mr. Clopten’s trial counsel was
not constitutionally ineffective for failing to object to it, and the
trial court did not plainly err by failing to exclude it.
 V. THE TRIAL COURT DID NOT ERR WHEN IT DECLINED
  TO GIVE ADDITIONAL PROPOSED INSTRUCTIONS ON
               EYEWITNESS TESTIMONY
   ¶57 Finally, Mr. Clopten argues that his conviction should be
reversed because the trial court did not give certain instructions
on eyewitness identification that he had requested. Even though
Mr. Clopten and the State presented expert testimony on the
reliability of eyewitness identifications, the trial court instructed
the jury on the Long factors. The Long factors identify a number of
considerations a jury may weigh in determining the reliability of
an eyewitness identification, including whether the eyewitness
had an adequate opportunity and capacity to observe a criminal
actor and whether the eyewitness’s memories are reliable. State v.
Long, 721 P.2d 483, 494 n.8 (Utah 1986). In addition to these Long
instructions, Mr. Clopten asked the trial court to give more
detailed instructions regarding identifications where the
eyewitness and the suspect are of different races and instructions
regarding the degree of certainty expressed by the eyewitness.
   ¶58 The trial court refused to give these proposed
instructions. On appeal, Mr. Clopten argues that the trial court
erred. He asserts that the trial court improperly denied him “the
ability to educate the jury about factors this Court expressly
countenanced in Clopten I.”¶59          In State v. Long, we directed
trial courts to instruct the jury on eyewitness identifications
whenever it “is a central issue in a case and such an instruction is
requested by the defense.” 721 P.2d at 492. Later, in Clopten I, we
held that expert testimony “regarding factors that have been
shown to contribute to inaccurate eyewitness identifications
should be admitted whenever it meets the requirements of rule
702 of the Utah Rules of Evidence.” 2009 UT 84, ¶ 30, 223 P.3d
1103. In order to reconcile the central holdings of Long and Clopten
I, we further clarified that trial courts should still give a Long
instruction where the defendant does not call an expert on
eyewitness identifications. Id. ¶ 34. “Where eyewitness expert
testimony is heard, however, Long no longer applies and the
inclusion of a cautionary instruction, if requested, is a matter for
the trial judge’s discretion.” Id.


                                  18
                          Cite as: 2015 UT 82
                         Opinion of the Court

    ¶60 Because Mr. Clopten presented extensive expert
testimony designed to educate the jury on the factors relevant to
the reliability of eyewitness identifications, the trial court had no
obligation to present a Long instruction. The presentation of any
instructions on this subject, including the supplemental
eyewitness identification instructions created by Mr. Clopten, was
discretionary. Given the extent of expert testimony on eyewitness
identifications at trial, we see no reason to believe it was an abuse
of discretion to decline to give the additional proposed
instructions.
                           CONCLUSION
   ¶61 We conclude that none of Mr. Clopten’s assertions of
error have merit. We therefore affirm his conviction.




                                  19
                         STATE v. CLOPTEN
    ASSOCIATE CHIEF JUSTICE LEE, concurring in part and in result

   ASSOCIATE CHIEF JUSTICE LEE, concurring in part and
concurring in the judgment:
   ¶62 I concur in the judgment of the court and concur in its
opinion in part. I write separately, however, because I disagree
with the analysis in Part III of the majority opinion.
    ¶63 In Part III the majority holds that Clopten lacks
standing to complain about the eyewitness identification
testimony of Melissa Valdez because it was the defense, and not
the prosecution, that presented Valdez’s identification to the jury.
Supra ¶ 38. In so concluding, the court sidesteps the question
whether the due process standards articulated in State v. Ramirez,
817 P.2d 774 (Utah 1991), are implicated in a case in which there is
no state action in the form of suggestive police misconduct.
    ¶64 I see the matter differently. I see no basis for the
decision to deem Clopten to have affirmatively advanced the
eyewitness in question. Valdez was unquestionably a witness for
the prosecution. And Clopten did not present her identification
testimony to the jury for any of his own purposes; he only sought
to undermine the credibility of her eyewitness identification on
cross-examination. In deeming such cross-examination the
equivalent of affirmative advancement of a witness’s testimony,
the court imposes a substantial (and unnecessary) burden on the
exercise of the right of cross-examination. It also creates a Catch-
22 for defense counsel—of either accepting the eyewitness as
presented by the prosecution (while preserving the right to
challenge that witness under Ramirez) or undermining that
eyewitness on cross-examination (but waiving the right to assert a
Ramirez claim).
    ¶65 The court’s analysis on this point is both legally and
practically troubling. Accordingly, I would reject Clopten’s claim
on a different ground. I would hold that the due process standard
in Ramirez requires a threshold showing of police misconduct, and
that Clopten’s claim fails because there was nothing of that sort in
this case.
                                   I
    ¶66 The briefs filed on appeal argued at length over a
threshold question concerning the applicability of the standards
set forth in State v. Ramirez, 817 P.2d 774 (Utah 1991), in a case like

                                   20
                         Cite as: 2015 UT 82
     Associate Chief Justice Lee, concurring in part and in result

this one. The question is whether the factors we identified in
Ramirez apply in a case in which there is no allegation of
suggestive police activity. In the State’s view, such activity is
required because Ramirez articulates standards for analyzing a
constitutional due process claim, and police misconduct is
necessary to establish the state action element of any such claim.
Clopten staked out the contrary view. He asserted that Ramirez
has been extended—and should be extended—to all cases where
eyewitness identification testimony is in question. And he asked
us to construe the Due Process Clause of the Utah Constitution to
establish a standard of evidentiary reliability even absent police
misconduct.
   ¶67 The majority avoids this question. It does so on the
ground that that Clopten has no standing to complain about
Valdez’s testimony regarding the photo lineup because “it was
the defense” (and not the State) who “made sure the jury knew
that Ms. Valdez had identified Mr. Clopten.” Supra ¶ 38. The court
acknowledges that it was the State that first put Valdez on the
witness stand—and elicited her testimony “that a defense
investigator had presented her with a photo array, that she had
recognized a person in the photo array as the killer, and that the
defense investigator then told her that she ‘wasn’t going to be any
help to his case.’” Supra ¶ 34. But it nonetheless concludes that the
State somehow “did not intend to present Ms. Valdez’s
identification of Clopten to the jury,” and thus that it was the
defense that ultimately did so. Supra ¶ 40.
   ¶68 I find this analysis unpersuasive. Melissa Valdez was
unquestionably the prosecution’s witness, and the prosecutor’s
questions regarding the photo array had only one purpose—to
imply that Valdez had identified Clopten. Certainly the defense
understood her testimony in that way. And it accordingly went
out of its way to do damage control. Its cross-examination of
Valdez, however, was aimed at undermining her identification.
Clearly the defense had no interest in “seek[ing] to inform the jury
that an eyewitness ha[d] recognized the defendant as the
perpetrator.” Supra ¶¶ 35–36. And the prosecution had a clear
incentive to do so; it’s hard to imagine any other reason for
presenting this evidence to the jury.
   ¶69 I suppose there is a sense in which “it was the defense
that made sure the jury knew that Ms. Valdez had identified Mr.

                                  21
                         STATE v. CLOPTEN
    ASSOCIATE CHIEF JUSTICE LEE, concurring in part and in result

Clopten.” Supra ¶ 38. But the defense’s cross-examination of
Valdez was hardly “intend[ed] to present Ms. Valdez’s
identification of Clopten to the jury.” Supra ¶ 40 (emphasis
added). It was aimed at undermining the (implied) identification
presented in Valdez’s direct–examination. So if the question is
which side—prosecution or defense—introduced Valdez’s
identification to the jury, there can be only one answer. It was
clearly the prosecution.
   ¶70 We create perverse incentives in holding the contrary.
Under the majority’s rule, a defense lawyer will act at his peril in
pursuing the course of undermining an eyewitness for the
prosecution. Cross-examination for the purpose of damage
control will risk waiver of a due process claim under Ramirez.
     ¶71 I see no reason to put defense lawyers in this quandary.
We can avoid the problem by resolving the case on the
straightforward ground that the due process standard in Ramirez
is triggered only by state action in the form of police misconduct. I
would so hold, for reasons explained below.
                                  II
    ¶72 Our cases in this area are not a model of clarity. On one
hand, Clopten is right to note that our cases at least arguably
suggest that Ramirez may extend to cases where police misconduct
is absent. Yet the State, for its part, correctly notes that standard
due process analysis would require suggestive police activity, and
that we have never squarely held the contrary. We should resolve
this issue. It is squarely presented and well-briefed. And putting it
off will sow the seeds of confusion in our lower courts going
forward.
    ¶73 Ramirez involved “blatant [police] suggestiveness” in
the course of a police “showup”—a point the court deemed “most
critical[] for purposes of this case.” State v. Ramirez, 817 P.2d 774,
777, 784 (Utah 1991). Yet Clopten is right to note that Ramirez did
not expressly establish police misconduct as a threshold
requirement. And it is true that the Ramirez factors have been




                                   22
                           Cite as: 2015 UT 82
       Associate Chief Justice Lee, concurring in part and in result

applied in some subsequent cases in which suggestive police
activity is missing. 3
    ¶74 That said, our court has never squarely addressed the
question presented in this case under the Due Process Clause of
the Utah Constitution. Ramirez itself involved suggestive activity
by the police, so there was no reason in that case for us to address
that question. And in introducing its discussion of reliability, the
Ramirez court framed the matter as “the analytical model to be
used by a trial court in determining the admissibility of arguably
suggestive eyewitness identifications.” Id. at 779 (emphasis added).
It also emphasized that the factors it identified “depart[ed] from
federal case law only to the degree that [it] f[ou]nd the federal
analytical model scientifically unsupported.” Id. at 780 (emphasis
added).
    ¶75 The federal model, moreover, is one that unequivocally
requires threshold proof of state action in the form of police
misconduct. That was our conclusion in State v. McCumber, 622
P.2d 353, 357 (Utah 1980). In McCumber we acknowledged that
factors undermining an eyewitness identification’s reliability
“may weaken the probative impact of the evidence offered,” but
concluded that such considerations “do not mandate suppression
of the evidence in the name of due process without some showing
that the identification procedures were themselves impermissibly
suggestive.” Id. (emphasis added). Under that standard, our
decision in McCumber rejected a due process challenge to an
eyewitness identification made pursuant to a photographic
display and subsequent lineup performed by the police because it
found that neither was “impermissibly suggestive.” Id.
    ¶76 The McCumber decision appears to be based on the Due
Process Clause of the U.S. Constitution. And in interpreting the
Utah Constitution, we are by no means bound to follow federal
caselaw. Our prerogative of interpreting the state constitution is
not a license to make policy, however; it is a charge to interpret.
Clopten, moreover, has proffered no basis for reading the words
of the Due Process Clause of the Utah Constitution in a manner



   3 State v. Decorso, 1999 UT 57, ¶ 47, 993 P.2d 837; State v.
Hubbard, 2002 UT 45, ¶ 25, 48 P.3d 202; State v. Hollen, 2002 UT 35,
¶ 64, 44 P.3d 794; State v. Willett, 909 P.2d 218, 224 (Utah 1995).
                                    23
                            STATE v. CLOPTEN
       ASSOCIATE CHIEF JUSTICE LEE, concurring in part and in result

inconsistent with the traditional understanding of “due process”
(which requires proof of suggestive police activity). And absent
such a basis, I would construe the Utah Due Process Clause to be
in line with its federal counterpart.
    ¶77 Historically, the guarantee of due process has been
understood as a bar on state action that deprives a protected party
of “life, liberty, or property, without due process of law.” 4 This is
not a sweeping charter for judges to assure fairness by excluding
evidence that may be of questionable reliability in light of
emerging principles of social science. It is as a limitation on
government action depriving a person of the traditional
components of “due process,” such as the right to reasonable
notice and a meaningful opportunity to be heard. 5
    ¶78 I see no basis for extending this longstanding view of
due process to establish an omnibus guarantee of evidentiary
reliability. Nor do I see a limiting principle on such a slippery
slope.
    ¶79 Our law has never required trial judges to make
independent assessments of evidentiary reliability based on an
informed understanding of social science. Instead we require
judges simply to follow the law of evidence, and to rule on
counsel’s objections thereunder. A judge is accordingly a state
actor to the extent he is performing the duties our law expects of
him. But it makes no sense to charge the judge, as Clopten
suggests, with a due process obligation to foreclose the admission of
evidence that is perfectly admissible under the law as it currently



   4 UTAH CONST. art. I, § 7. See Mathews v. Eldridge, 424 U.S. 319,
332 (1976) (“Procedural due process imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests within the meaning of the Due Process Clause
of the Fifth or Fourteenth Amendment.” (emphasis added)).
   5 See Perry v. New Hampshire, 132 S. Ct. 716, 720–21 (2012)
(holding that due process concerns, absent “the presence of
[suggestive] state action” relating to an eyewitness identification,
are met by the traditional guarantees of a “fair trial” embedded in
the Sixth Amendment, such as “the right to counsel, compulsory
process to obtain defense witnesses, and the opportunity to cross-
examine witnesses for the prosecution”).
                                    24
                         Cite as: 2015 UT 82
     Associate Chief Justice Lee, concurring in part and in result

stands. That is not the judge’s job under longstanding rules of
evidence, and it cannot therefore be his job as a matter of due
process.
    ¶80 Any concerns about our current law, moreover, can and
should be dealt with by an amendment to our rules of evidence.
We would lose the many virtues of that system—and thwart the
reliance interests of parties and lower courts—if we required
judges to make rules of evidence on the fly based on evolving
social science.
    ¶81 In any event, established caselaw forecloses the
conclusion that the admission of unreliable evidence is state
action infringing a defendant’s right to due process. Unreliability
is not the touchstone of a due process challenge to the admission
of evidence. State action is. See Colorado v. Connelly, 479 U.S. 157,
164 (1986) (upholding admission of privately coerced confession
against due process attack given the lack of state action); Mooney
v. Holohan, 294 U.S. 103, 112 (1935) (concluding that only the
knowing presentation of perjured testimony implicates due
process).
    ¶82 This principle dooms Clopten’s position. If we are to
remain consistent to the historical understanding of due process,
we cannot hold that it guarantees a defendant that only reliable
evidence will be admitted against him. Coerced confessions and
perjured testimony are undoubtedly unreliable. Yet they do not
implicate due process unless they are actively, knowingly
proffered by the State. See Connelly, 479 U.S. at 164 (“Absent police
conduct causally related to the confession, there is simply no basis
for concluding that any state actor has deprived a criminal
defendant of due process of law.”); Mooney, 294 U.S. at 113
(requiring knowing presentation of perjured testimony;
emphasizing that due process governs only the “action of a
state”).
   ¶83 I would apply this principle here. I would hold that the
Utah Constitution’s Due Process Clause is not a guarantee of
evidentiary reliability but a bar to state action in knowingly
presenting unreliable evidence. And I would reject Clopten’s
challenge to Melissa Valdez’s testimony on that basis.




                                  25
