2006 UT 12
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
No. 20040647
Plaintiff and Respondent,
v.
F I L E D
Luis A. Guzman,
Defendant and Petitioner.
February 28, 2006
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Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 011909892
Attorneys: Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray,
Asst. Att'y Gen., Carlos A. Esqueda, Salt Lake City,
for plaintiff
Lori J. Seppi, Heather Johnson Chesnut, Salt Lake
City, for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1
Luis A. Guzman was convicted of aggravated robbery and
aggravated kidnapping in connection with a home invasion robbery.
On appeal, Guzman challenged the admission of eyewitness
certainty evidence. The court of appeals affirmed the trial
court's conviction, and we granted certiorari to review the court
of appeals's decision. We are asked to determine (1) whether the
admission of testimony concerning an eyewitness's subjective
certainty of identification violates the Due Process Clause of
the Utah Constitution and (2) whether testimony concerning an
eyewitness's subjective certainty of identification is admissible
under rule 403 of the Utah Rules of Evidence. We affirm.

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INTRODUCTION
I. FACTUAL BACKGROUND
¶2
Defendant Luis A. Guzman and four friends--three men
and one woman--used cocaine and methamphetamine on April 18,
2001, at a park, where the group of four planned to raid a
supposed drug house in South Salt Lake for cocaine and money that
evening. The plan was to first send Guzman and the woman to the
house, and once they had entered, Guzman would call the other
three men for back-up.
¶3
At approximately 6:00 p.m., twenty-two-year-old Claryn
Miller returned from work to see Guzman and the woman walking
down the street towards her home. Miller pulled into her garage,
turned off the engine of her car, and gathered her belongings.
But before Miller closed her garage door, Guzman and the woman
walked into the garage and approached her car window. Miller
rolled down the window and Guzman pointed a gun at her, ordering
her out of the car and onto the garage floor, where he tied her
hands and feet together with a pair of nylons. Believing that a
man who owed him drugs and money lived at the location, Guzman
yelled and cursed at Miller, calling her a liar when she
explained that only she and three other women lived in the house
and that they knew nothing about a drug ring. Unpersuaded,
Guzman rummaged through her purse for information. He found only
six dollars and a cell phone.
¶4
Guzman then entered Miller's house through the garage
door, leaving the woman in the garage with Miller. Guzman
immediately called the other three men waiting outside, and once
they knocked on the door, he let them into Miller's house. The
group of men ransacked the house looking for drugs and money but
found only two rings, some cigarettes, and a second cell phone.
¶5
During the home invasion robbery, Guzman occasionally
returned to the garage. Miller saw Guzman's face approximately
twenty times as he passed between the garage and the house. At
one point, a man with a "clown-jester type" tattoo over his right
eye, later identified as Fernando Fernandez, looked into the
garage at Miller. Guzman and his friends contemplated killing
Miller but ultimately decided to leave her alone. After fifteen
to twenty minutes in the house, Guzman and his cohorts told
Miller they had the wrong house.
¶6
When the men left the house, Miller waited on the
garage floor a few minutes and eventually freed herself.
Traumatized by the incident, she vomited when she walked into the
No. 20040647
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kitchen. Miller drove to work where she told a co-worker about
the incident, and the co-worker drove her to the house of a
neighbor, who was a police officer. The neighbor called the
police and had Miller report the incident. Shortly thereafter,
an officer assigned to the case arrived at Miller's home. He
called a crime scene technician and performed a standard walk-
through, but due to Miller's emotional state that night, he did
not take a formal statement. Nevertheless, one or two weeks
later, another officer assigned to the case took a formal
statement from Miller.
¶7
Based on the descriptions in Miller's statement,
officers prepared two photo arrays. The first included a photo
of Fernando Fernandez. The second included Guzman's photograph.
Miller identified Fernandez from the first photo array as the man
with the "clown-jester type" tattoo over his eye and rated her
level of certainty at six or seven out of ten. She identified
Guzman from the second photo array as the gunman and rated her
certainty at ten out of ten. The officer also presented two
other photo arrays, one of men and one of women, but Miller was
unable to identify anyone from those arrays. However, nine
months later, Miller again identified Guzman from a line-up with
one hundred percent certainty.
¶8
Fernandez eventually waived his right to remain silent
and spoke with the officer who compiled the photo arrays, Officer
Jewkes, as part of a plea bargain. Fernandez disclosed the names
of all parties involved and admitted that Guzman and the woman
had entered the house with the intent to commit robbery.
Fernandez further claimed that although he had been in the house
that night, the other men involved in the robbery never entered
the home.
II. PROCEDURAL BACKGROUND
¶9
The State charged Guzman with aggravated robbery and
aggravated kidnapping. Guzman waived his right to a preliminary
hearing, and the case was subsequently bound over for trial. In
a pretrial motion, Guzman asked the trial court to exclude
evidence pertaining to Miller's confidence level in her
identification of Guzman. But the trial court denied the motion.
Following a three-day trial, the jury convicted Guzman of both
aggravated burglary and aggravated kidnapping.
¶10
In a unanimous decision, the court of appeals affirmed
the trial court's admittance of the evidence pertaining to
Miller's confidence testimony. The court explained that a jury
may assess the credibility of the eyewitness rather than have the
3
No. 20040647

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judge make that determination. We granted certiorari to review
the decision of the court of appeals. We now affirm.

ANALYSIS
¶11
On certiorari, we review the decision of the court of
appeals for correctness.1 At the same time, because the question
of law requires the application of record facts to the due
process standard, we incorporate a clearly erroneous standard for
necessary subsidiary factual determinations.2
¶12
Defendant Guzman contends that the court of appeals
erred in admitting the victim's testimony regarding her certainty
in identifying Guzman. We are asked to determine (1) whether the
admission of testimony concerning an eyewitness's subjective
certainty of identification violates the Due Process Clause of
the Utah Constitution and (2) whether such testimony is
inadmissible under rule 403 of the Utah Rules of Evidence.
Because our case law supports the admission of certainty
evidence, we affirm the court of appeals's holdings on both
issues.
I. THE ADMISSION OF CERTAINTY EVIDENCE DOES NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE UTAH CONSTITUTION
¶13
We first address the question of whether the court of
appeals correctly affirmed the district court's decision to admit
the victim's testimony relating to her certainty in identifying
Guzman. Guzman argues that the Due Process Clause of the Utah
Constitution prohibits the admission of certainty testimony. We
disagree.
¶14
The Due Process Clause of the Utah Constitution
guarantees that "[n]o person shall be deprived of life, liberty
or property, without due process of law."3 "[T]he basic due
process issue is whether the identification is sufficiently
reliable to be admitted into evidence."4 Guzman cites a series
of Utah cases to support his assertion that admitting the
certainty testimony at hand deprives him of the life, liberty, or
property guaranteed under the Due Process Clause because the

1 See State v. Hansen, 2002 UT 125, ¶ 25, 63 P.3d 650.

2 See State v. Hubbard, 2002 UT 45, ¶ 22, 48 P.3d 953.

3 Utah Const. art. I, § 7.

4 State v. Nelson, 950 P.2d 940, 942 (Utah Ct. App. 1997)
see also Neil v. Biggers, 409 U.S. 188, 198-99 (1972).
No. 20040647
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evidence is sufficiently unreliable. A thorough analysis of our
case law regarding this issue requires a brief summation of each
relevant case relied on by Guzman.
¶15
First, Guzman supports his assertion by citing State v.
Long, a case involving the cautionary instructions given to
juries about the level of accuracy of eyewitness
identifications.5 In Long, we itemized the following factors a
jury instruction should address to assist jurors in determining
the accuracy of eyewitness identifications:
(1) the opportunity of the witness to view
the actor during the event; (2) the witness's
degree of attention to the actor at the time
of the event; (3) the witness's capacity to
observe the event, including his or her
physical and mental acuity; (4) whether the
witness's identification was made
spontaneously and remained consistent
thereafter, or whether it was the product of
suggestion; and (5) the nature of the event
being observed and the likelihood that the
witness would perceive, remember[,] and
relate it correctly.6
¶16
Guzman argues that our case law suggests that certainty
testimony must be excluded in Utah because it is not included on
the list of Long factors a jury should consider in determining
the accuracy of eyewitness identifications. He contrasts our
criteria with those of the United States Supreme Court, which
specifically includes certainty evidence on its list of factors a
jury should consider under similar circumstances.7 Guzman
incorrectly assumes we deem certainty evidence inadmissible
merely because we intentionally excluded it from our list of
factors a jury should consider. We concede that we "specifically
rejected the `level of certainty demonstrated by the witness at
the confrontation' as a factor to be used in determining the
constitutional reliability of an identification."8 Moreover, we
have explicitly stated that "Utah's due process analysis
pertaining to the constitutional reliability of eyewitness

5 721 P.2d 483 (Utah 1986).

6 Id. at 492-93.

7 See, e.g., Biggers, 409 U.S. at 199.

8 State v. Hoffhine, 2001 UT 4, ¶ 16, 20 P.3d 265.
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No. 20040647

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testimony is different than, but `as stringent as, if not more
stringent than, the federal analysis.'"9 Nevertheless, in Long
we held that "failure to give a cautionary instruction when
eyewitness identification is a crucial issue would `deny the
defendant due process of law under article I, section 7 of the
Utah Constitution.'"10 We did not conclude that considering
eyewitness certainty violated due process. In sum, although our
analysis addressed the "weaknesses inherent in eyewitness
identification," we did not hold that confidence testimony must
be excluded from the list of factors a jury may consider.11
¶17
Guzman next cites State v. Ramirez, a case in which we
dealt with the admissibility of eyewitness identifications.12
Guzman argues that Ramirez denies trial judges the ability to
consider certainty testimony in determining the reliability, and
thus admissibility, of eyewitness identifications. We held that
"[t]he ultimate question to be determined is whether, under the
totality of the circumstances, the identification was
reliable."13 Although Ramirez presented different issues than
those in Long, we applied the Long analysis because both cases
confronted the reliability of certainty testimony. Specifically,
Long dealt with whether jury instructions should admonish the
jurors to consider certainty testimony when assessing eyewitness
identifications, while Ramirez addressed whether trial courts may
consider certainty testimony in determining the reliability and
admissibility of those identifications and related testimony.
Applying the Long factors to Ramirez, we again excluded a
witness's level of certainty as a factor a judge must consider.
We did not, however, preclude the judge from taking certainty
evidence into account.
¶18
Furthermore, our Ramirez holding emphasized the "role
of judge, as the arbiter of the constitutional admissibility of
an identification, and the role of the jury, as the ultimate

9 Nelson, 950 P.2d at 942 (quoting State v. Ramirez, 817
P.2d 774, 784 (Utah 1991)).

10 Long, 721 P.2d at 492.

11 Id. at 490.

12 817 P.2d 774.

13 Id. at 781.
No. 20040647
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finder of fact."14 We explained that after the prosecution
demonstrates the admissibility of the proffered evidence, "[t]he
defendant is then entitled to a determination by the court of the
evidence's constitutional admissibility. If the court finds the
evidence admissible, it may be presented to the jury."15 In
other words, once the judge determines the threshold reliability
of the witness's testimony and identification, which may include
certainty evidence, the jury has the ultimate duty to determine
the weight given to the relevant certainty testimony.16
¶19
Guzman also bases his argument on our reasoning in
State v. Hoffhine, a case involving the admissibility of evidence
regarding a showup identification.17 In particular, we were
asked to determine the reliability of the eyewitness
identification, which included the witness's testimony that he
was certain to "nine and a half" on a ten-point scale. The trial
court granted the motion to suppress any mention at trial of the
eyewitness identification and explicitly prohibited the officers
from testifying that the victim positively identified the
defendant. On appeal, we applied the five Long factors because
the central issue turned on the reliability of eyewitness
identification. We concluded that the showup identification met
the threshold test for constitutional reliability and that all
evidence from the showup, including the certainty testimony,
should have been admitted.18 Again, we never explicitly stated,
nor did we imply, that either eyewitness identifications or
certainty evidence is per se inadmissible.
¶20
Finally, Guzman relies on our most recent case
involving eyewitness identifications, State v. Hubbard.19 In
Hubbard, a man convicted of aggravated robbery, aggravated
burglary, and aggravated assault argued that the trial court
should have allowed an expert witness to testify regarding the
fallibility of eyewitness identification. The defendant also
argued that the trial court erred in admitting a witness's
pretrial photo array identification of defendant, which included

14 Id. at 778.

15 Id.

16 See id.

17 2001 UT 4, 20 P.3d 265.

18 See id. ¶ 17.

19 2002 UT 45, 48 P.3d 953.
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No. 20040647

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the statement "I'm positive." We concluded that the decision to
"allow proffered expert testimony regarding eyewitness
identification testimony is a matter best left to the trial
court's discretion because of the trial court's superior position
to judge the advisability of allowing such testimony."20 We also
held that the pretrial identification procedures used by the
officers in the case were not impermissibly suggestive and that
admitting the eyewitness testimony, which included the certainty
statement, was not violative of the Due Process Clause.
¶21
In our Hubbard analysis, we emphasized that the
"standard for determining whether defendant's right to due
process as guaranteed by article I, section 7 of the Utah
Constitution was denied is whether, under the totality of the
circumstances, the identifications were reliable."21 We noted
that "trial courts have a critical responsibility to scrutinize
proffered evidence for constitutional defects, and failure to do
so `would leave protection of constitutional rights to the whim
of a jury and would abandon the courts' responsibility to apply
the law.'"22 We recognized the powerful effect eyewitness
identifications have on juries and therefore chose to, again,
apply the five Long factors "as a test for analyzing, as a
preliminary constitutional matter, whether an eyewitness
identification is sufficiently reliable to be presented to the
jury."23 And this list of factors excludes the witness's level
of certainty.24 Nevertheless, we explicitly stated that "[w]hile
these factors provide guidance, the list is certainly not an
exhaustive or exclusive list of factors that may be considered in
determining whether an identification is reliable, and therefore,
not violative of due process."25 We concluded our Due Process
Clause analysis by explaining that
[c]ourts need not, nor should they, step into
the province of the jury and decide the
ultimate matter of identification for the

20 Id. ¶ 14.

21 Id. ¶ 25.

22 Id. ¶ 26 (quoting State v. Ramirez, 817 P.2d 774, 778
(Utah 1991)).

23 Id. ¶ 27.

24 Id.

25 Id.
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jurors. Courts must simply decide whether
the testimony was sufficiently reliable so as
not to offend defendant's right to due
process by permitting clearly unreliable
identification testimony before the jury.26
Therefore, the court's responsibility is to initially screen,
under a totality of the circumstances standard, the eyewitness
testimony so that it is sufficiently reliable as not to offend
a defendant's right to due process. The jury, on the other hand,
taking all presented evidence into consideration, determines
whether to believe the eyewitness's identification.
¶22
In addition to the above-mentioned cases, Guzman
supplements his argument with sociological research supporting
the inaccuracy of eyewitness identifications. We accordingly
recognize the potential problems with admitting eyewitness
certainty testimony. For example, witness confidence may be
influenced by clues, intentional or inadvertent, from law
enforcement officers or even lawyers working on the case.
Similarly, positive feedback to the witness may inflate the
witness's confidence. There is also a potential danger for
jurors to give too much weight to witness confidence. Even so,
some recent research supports a direct link between witness
certainty and the accuracy of the identification.27 Ultimately,
we acknowledge the sociological concerns with certainty evidence
but are unpersuaded by Guzman's argument that admitting such
evidence and testimony is unconstitutional.
¶23
In summary, both our case law and modern sociological
research support the admission of testimony concerning an
eyewitness's certainty of identification. A jury ought to be
able to consider certainty evidence in determining a witness's
credibility and portrayal of the facts. The jury may then
decide, based on the remaining facts, whether the certainty
testimony is accurate and truthful. However, we do not require
the court or the jury to consider a witness's level of certainty
in determining admissibility or reliability, as indicated by its
exclusion from the Long factors. Nevertheless, due process is
not violated by permitting the court or the jury to weigh
certainty testimony with all other evidence it considers in
making necessary determinations. Thus, the court of appeals

26 Id. ¶ 30.

27 See Gary L. Wells et al., Eyewitness Identification
Procedures: Recommendations for Lineups and Photospreads, 22 Law
& Hum. Behav. 603, 622 (1998).
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No. 20040647

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correctly held that admitting eyewitness certainty testimony did
not violate the Utah Due Process Clause.
II. TESTIMONY CONCERNING EYEWITNESS CERTAINTY OF IDENTIFICATION
IS ADMISSIBLE UNDER UTAH RULE OF EVIDENCE 403
¶24
Guzman also contends that testimony concerning an
eyewitness's certainty of identification is inadmissible under
rule 403 of the Utah Rules of Evidence. We disagree.
¶25
Rule 403 precludes the admission of evidence where the
probative value of the evidence "is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence."28
Therefore, absent an "unusual propensity to unfairly prejudice,
inflame, or mislead the jury," proffered evidence is admissible
under rule 403.29 The court of appeals correctly noted that
Guzman failed to cite any Utah cases supporting his argument
that, under rule 403, certainty testimony "has an unusual
propensity to unfairly prejudice, inflame, or mislead the
jury."30
¶26
Furthermore, the court of appeals correctly relied on
the trial judge's statement: "I think the jury would want to know
how confident the witness was in their identification. They may
choose to believe it. At least they are entitled to know how
confident the witness is."31 The court of appeals astutely noted
that the defendant would agree with the trial judge's statement
"if the thrust of the witness's testimony was that she was not very
certain of her identification of Defendant or if she
characterized the level of her certainty as only being a two or
three on a scale of one to ten."32 Most likely, Guzman contests
the admissibility of this particular certainty evidence because
it does not help him. However, evidence adverse to a defendant's
argument is not necessarily too prejudicial to admit.

28 Utah R. Evid. 403.

29 State v. Dunn, 850 P.2d 1201, 1221 (Utah 1993).

30 Id.

31 State v. Guzman, 2004 UT App 211, ¶ 33 n.10, 95 P.3d 302.

32 Id.
No. 20040647
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¶27
The critical question is whether certainty testimony is
so prejudicial that the jury will be unable to fairly weigh the
evidence. Our case law suggests that we have confidence in our
juries to appropriately weigh evidence that may be adverse to a
defendant, particularly when instructed, as required by Long, of
the potential problems with eyewitness identifications. Absent a
substantial, not potential or minor, prejudicial effect, the
certainty evidence is admissible for the jury's consideration in
reviewing all other facts.
CONCLUSION
¶28
The court of appeals correctly affirmed the trial
court's admission of eyewitness certainty evidence in this case.
The State did not violate Guzman's due process rights by
admitting the testimony. And the testimony was not so
prejudicial as to substantially outweigh its probative value.
We affirm.
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¶29
Justice Durrant, Justice Parrish, and Justice Nehring
concur in Associate Chief Justice Wilkins' opinion.
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DURHAM, Chief Justice, concurring:
¶30
I agree with the majority's holding that the admission
of eyewitness certainty testimony does not violate the Due
Process Clause of the Utah Constitution. However, I would add
that, upon request, a defendant is entitled to a cautionary
instruction summarizing the troublesome nature of certainty
testimony and explaining that it is only one indicator of witness
accuracy. Requiring this type of instruction addresses the
potential dangers of certainty testimony, such as the risk that
witness confidence may be influenced by intentional or
inadvertent clues from law enforcement, may be conflated by
positive feedback, or may be afforded too much weight by a jury.1

1 For example, one study suggests that where confidence
testimony is given, jurors "overestimate the accuracy of
identifications, fail to differentiate accurate from inaccurate
eyewitnesses . . . and are generally insensitive to other factors
that influence identification accuracy." Wells et al., supra
¶ 30, at 624; see also Penrod & Cutler, supra ¶ 30, at 831
(commenting "that jurors are largely insensitive to factors known
(continued...)
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No. 20040647

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See Gary L. Wells et al., Eyewitness Identification Procedures:
Recommendations for Lineups and Photospreads, 22 Law & Hum.
Behav. 603, 620-29 (1998). This instruction is also consistent
with research suggesting that witness confidence is not
necessarily an indicator of witness accuracy. See id. at 620-21,
626 (citing studies finding that confidence and accuracy were
either not related or only somewhat related and concluding that,
at best, confidence is "only modestly related to accuracy under
pristine conditions"); Steven Penrod & Brian Cutler, Witness
Confidence and Witness Accuracy: Assessing Their Forensic
Relation, 1 Psychol. Pub. Pol'y & L. 817, 830 (1995) (noting that
witness confidence "is a weak indicator of eyewitness accuracy
even when measured at the time an identification is made and
under relatively `pristine' laboratory conditions" and is "highly
malleable and influenced by postidentification factors" such as
questioning, briefing, and feedback).
¶31
Moreover, I believe our reasoning in State v. Long, 721
P.2d 483 (Utah 1986), supports the addition of a cautionary
instruction in cases with certainty evidence. In Long, this
court recognized that there are "deep and generally unperceived
flaws" in eyewitness identifications and held that additional
instruction is necessary where jurors are likely to give great
weight to eyewitness testimony. Id. at 492. While Long dealt
exclusively with eyewitness identification, see id., the policy
this court expressed applies to certainty evidence because, like
eyewitness identification, it is potentially unreliable2 and
there is evidence that jurors afford it great weight, see Wells
et al., supra ¶ 30, at 620, 626. I therefore conclude that where
certainty testimony is admitted, a cautionary instruction should
be given where the defendant requests one.
---

1(...continued)
to influence eyewitness performance but are (overly) sensitive to
witness confidence").

2 In fact, in Long this court recognized that eyewitness
testimony tends to appear "more accurate" as witnesses "wend
their way through the criminal justice process." Long, 721 P.2d
at 490 (citation and internal quotation marks omitted).
No. 20040647
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