When must trial counsel call an eyewitness expert in Utah criminal cases? State v. Heywood Explained

In State v. Heywood, the Utah Court of Appeals examined when trial counsel’s failure to call an eyewitness expert constitutes ineffective assistance. This case provides important guidance for practitioners defending cases involving eyewitness identification testimony.

Background and Facts

Heywood was convicted of lewdness involving a child after a mother identified him as exposing himself while standing in his doorway. The mother made eye contact with Heywood multiple times, waved at him, called police, and waited outside his house until officers arrived. She later confirmed Heywood’s identity from his driver’s license photograph. Only Heywood and his adoptive brother were in the house at the time of the offenses.

Key Legal Issues

Heywood claimed his trial counsel rendered ineffective assistance by failing to call an eyewitness expert to testify about identification deficiencies, not requesting a Long instruction for eyewitness identification, and not challenging the officer’s failure to conduct a photo lineup. The court applied the Strickland standard requiring both deficient performance and resulting prejudice.

Court’s Analysis and Holding

The court analyzed the case under State v. Clopten, which identifies factors that may require eyewitness expert testimony. These include observer factors (visual defects, fatigue, intoxication, bias, cross-racial identification), circumstantial factors (stress, limited visibility, distractions, weapon focus), and identification factors (time delays, inconsistencies, suggestive police conduct). The court found none of these factors were present, noting that the mother observed under ideal conditions and identified one of only two men who could have committed the crime.

Practice Implications

This decision emphasizes that counsel cannot be deemed ineffective for strategic decisions that might be considered sound trial strategy. When Clopten factors favoring the witness’s identification are present, calling an expert might actually harm the defendant by highlighting the reliability of the identification. Practitioners should carefully evaluate whether the specific circumstances of their case present the reliability concerns that would benefit from expert testimony before claiming ineffective assistance.