State v. Sheehan

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090913‐CA
)
v. ) FILED
) (March 1, 2012 )
Robert Michael Sheehan, )
) 2012 UT App 62
Defendant and Appellant. )

‐‐‐‐‐

Third District, Salt Lake Department, 061908535
The Honorable William W. Barrett

Attorneys: Debra M. Nelson, Salt Lake City, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for
Appellee

‐‐‐‐‐

Before Judges Orme, Thorne, and Christiansen.

CHRISTIANSEN, Judge:

¶1 Defendant Robert Michael Sheehan challenges his jury convictions for
aggravated burglary, see Utah Code Ann. § 76‐6‐203 (2008), and aggravated assault, see
id. § 76‐5‐103 (current version at id. (Supp. 2011)). Sheehan argues that the trial court
abused its discretion when it failed to hold a Rimmasch or rule 702 hearing to determine
whether to admit the State’s expert testimony that a palm print found at the scene
matched Sheehan’s palm print. See generally Utah R. Evid. 702; State v. Rimmasch, 775
P.2d 388 (Utah 1989). We affirm the trial court’s decision in this matter. Sheehan also
argues that the trial court erred by excluding his expert’s testimony and limiting
Sheehan’s cross‐examination of the State’s experts. We determine that the trial court
erred in this regard, and therefore, we reverse and remand for a new trial.

BACKGROUND

¶2 On December 11, 2006, the victim was attacked and seriously injured in her
house. When the police arrived, the victim claimed that her attacker was a co‐worker
whom she had invited into her house earlier that night and who was in her house at the
time of the attack. Based on the evidence at the scene, the police eventually eliminated
that individual as a suspect despite the victim’s initial identification of him as the
attacker. During the initial investigation, an officer asked the victim if Sheehan could
have assaulted her. The victim responded in the negative. However, during
subsequent interviews in the days following the attack, the victim began to implicate
Sheehan.

¶3 The only evidence that allegedly tied Sheehan to the scene of the attack was part
of a bloody palm print found on a pillow case from the victim’s bed. Before trial,
Sheehan filed a motion requesting a hearing pursuant to State v. Rimmasch, 775 P.2d 388
(Utah 1989), to challenge the reliability and admissibility of the State’s print evidence.1
Alternatively, he requested that the jury be instructed “that fingerprint identifications
are opinions not facts and are not infallible.” Also, in the alternative, Sheehan requested
that “testimony of individualization” be excluded. Sheehan argued that

[b]ecause the reliability and accuracy of fingerprint
and palm print identification evidence can be reasonably
questioned and ha[d] never been evaluated under the more
stringent test now imposed upon novel scientific evidence, a
Rimmasch hearing [wa]s necessary to determine the
admissibility of the partial palm print identification evidence
at issue in this case.

1. Defendant’s arguments at the trial court and before this court do little to differentiate
between fingerprint and palm print evidence. Thus, we often refer to it as “print
evidence.”

20090913‐CA 2
¶4 On July 2, 2008, the trial court conducted a hearing at which the parties argued
about the necessity of a Rimmasch hearing. Sheehan attempted to present the testimony
of Dr. Simon A. Cole to dispute the reliability of the State’s proposed print evidence.
The court concluded that, based on Utah law as established by State v. Quintana, 2004
UT App 418, 103 P.3d 168 (mem.), cert. denied, 123 P.3d 815 (Utah 2005), Sheehan was
not entitled to a Rimmasch hearing to challenge the admissibility of the State’s print
evidence. Based on this conclusion, the court refused to allow Dr. Cole to testify at the
hearing and did not allow the defense to make a record of Dr. Cole’s testimony, even
though Dr. Cole had traveled from California to attend the hearing. Nevertheless, the
court indicated that it might allow Dr. Cole to testify at trial.

¶5 Sheehan subsequently filed a motion requesting the court’s permission for Dr.
Cole to testify at trial. Sheehan asserted that the court should allow him “to present
[expert] testimony challenging both the reliability of the methods employed by the
State’s expert in reaching her conclusions and the reliability of palm print evidence
generally.” Sheehan argued that, pursuant to Utah Rule of Evidence 702, “[d]ue process
[allowed] Sheehan to attack the State’s direct evidence against him, including the
reliability of the specific methods used to determine a ‘match’ of his palm print to a
partial print found at the scene of the alleged crime.”

¶6 On August 4, 2008, the court conducted a hearing on Sheehan’s motion. During
the hearing, Sheehan argued that it was “important that [he] have [his] own expert to
come in and testify about the shortcomings of fingerprint identification,” especially
given the expected testimony from the State’s expert that “there is a zero error rate” in
making print identifications. Defense counsel stated, “[T]he [c]ourt determines
admissibility, and ultimately the jury is going to decide the weight to give the evidence.
We’re not asking you to exclude the fingerprint evidence. We just want a fair chance to
respond to the [State’s] expert with our own expert.” The State responded by arguing
that Quintana established that fingerprint evidence was reliable and that Sheehan
should not be allowed “to have a Rimmasch hearing during the trial [because] it
circumvents [the court’s] prior ruling.” The State further addressed the procedure used
by its expert to analyze prints and argued that, while that procedure could be
challenged at trial, Sheehan was not “entitled to bring in a Ph.D. to talk about the fact
that he studied this and there have been mistakes in the past.” Finally, the State
asserted that its expert was “not going to say that there is a zero error rate.”

20090913‐CA 3
¶7 In denying Sheehan’s motion, the court first addressed the weight of the
evidence issue and stated that Sheehan could cross‐examine the State’s expert on
whether mistakes can be made in fingerprint analysis. Sheehan responded to this
ruling by arguing that, although he could cross‐examine the State’s expert on her
response that the error rate is zero, he needed his own expert and that he was “entitled
to under Rule 702 to come in and say, well, that’s just simply not true; that’s simply not
accurate.” In addressing the admissibility issue, the court once again relied on this
court’s decision in Quintana to exclude Dr. Cole’s testimony.

¶8 Because the court excluded Dr. Cole’s testimony, Sheehan’s only option at trial
was to attack the print evidence through cross‐examination of the State’s experts. The
State called two experts to testify at trial, Trenton Gary Grandy and Elisa Macken‐
Farmer.

¶9 Grandy, who worked at the Utah Bureau of Forensic Services (the State Crime
Lab), initially processed and photographed the print taken from the victim’s house, and
then, after another State Crime Lab employee, Macken‐Farmer, identified the print as
matching Sheehan’s print, Grandy verified it. During cross‐examination, Grandy
admitted that he was a member of the International Association for Identification (IAI)
and initially admitted that he was aware of IAI’s recommendation that its members not
assert a 100% infallibility or zero error rate when addressing the reliability of fingerprint
comparisons. However, the court, in response to the State’s objection, limited defense
counsel’s questioning of Grandy to whether he was aware of the IAI recommendation
and limited Grandy to a yes or no response. When asked again, Grandy stated that he
could not “really answer yes or no . . . because [he was] not sure exactly what [the IAI
report meant] by zero error rate.” The court then stated, “Then let’s stop . . . . Get on to
something else.” Defense counsel then asked Grandy if he was familiar with an
organization called the Scientific Working Group on Friction Ridge Analysis, Study and
Technology (SWGFAST), to which Grandy responded affirmatively. Defense counsel
continued, “Are you aware that they’ve reported that they acknowledge that errors do
occur, and furthermore that claims of zero error rate in the discipline are not
scientifically plausible?” Grandy responded, “No, I’m not aware of that.” When
defense counsel began the next question, the court interrupted by saying, “Wait a
minute, don’t argue with him. He said he’s not aware of it. Leave it alone.” On
redirect examination, the State then asked Grandy if he had ever erred in analyzing
prints and making comparisons; Grandy responded, “To my knowledge, I’ve never
made an error, no.”

20090913‐CA 4
¶10 Following the limits the court imposed on Sheehan’s cross‐examination of
Grandy and in anticipation of the court similarly limiting the defense during its cross‐
examination of Macken‐Farmer, defense counsel asked the court, outside the jury’s
presence, to revisit its prior ruling that the defense could not introduce into evidence
certain reports that questioned the reliability of print analysis. Defense counsel argued
that by excluding the reports the court had “limited what [defense counsel was] able to
say on the record” and limited “the exhibits that [defense counsel] intended to use . . . to
cross examine.” The court made clear that it was not going to revisit its prior ruling and
was not going to allow the defense to introduce the reports.

¶11 With the jury still excused, defense counsel then proffered the evidence that
would have been introduced during cross‐examination had the court allowed it.
Defense counsel discussed the 2009 report from the National Research Council (the
NAS report) and stated that the NAS report

specifically addresse[d] fingerprint analysis, fingerprint
evidence and concerns about how testimony has been
introduced and admitted in cases and talk[ed] about the zero
error rate. It talk[ed] about subjectivity, the two items that
Ms. Macken[‐Farmer] had previously written a report about,
and so [defense counsel] was going to use those sections to
impeach her on those two issues.

Defense counsel also discussed the SWGFAST report dated August 3, 2009. This report
addressed the “subjectivity . . . inherent in the [print analysis] process.” The report also
discussed that “the claim of zero error rate is not scientifically plausible” and gave
examples of misidentification, such as the Brandon Mayfield case.2 Defense counsel

2. Defense counsel referenced the well‐publicized Brandon Mayfield case in which the
Federal Bureau of Investigation (FBI) incorrectly determined that Mayfield’s prints
matched those found at a terrorist bomb scene in Madrid, Spain. See Simon A. Cole,
More Than Zero: Accounting for Error in Latent Fingerprint Identification, 95 J. Crim. L. &
Criminology 985, 985‐86 (2005). “Mayfield, an Oregon attorney and Muslim convert[,]
. . . was held for two weeks as a material witness in the Madrid bombing of March 11,
2004, a terrorist attack in which 191 people were killed,” after a senior examiner at the
(continued...)

20090913‐CA 5
then discussed the IAI report dated February 19, 2009. The IAI report advised its
members, which included both Grandy and Macken‐Farmer, to “not assert 100%
infallibility zero error rate when addressing the reliability of fingerprint comparison”
and to “avoid stating their conclusions in absolute terms when dealing with population
issues.” Finally, defense counsel discussed a March 2006 document prepared by the
Office of the Inspector General after reviewing the investigative techniques used in the
Brandon Mayfield case. Defense counsel quoted this document, which questioned the
accuracy of those “‘[m]any latent fingerprint examiners [who] have previously claimed
absolute certainty for their identifications and a zero error rate for their discipline.’”
Defense counsel also argued that rule 803(18) of the Utah Rules of Evidence allowed the
reports to be admitted into evidence.

¶12 When the jury returned, the State called Macken‐Farmer from the State Crime
Lab to offer expert testimony that the palm print found at the crime scene matched
Sheehan’s palm print. On cross‐examination, Macken‐Farmer acknowledged that she
belonged to the IAI and that she was aware that IAI had issued a report that
recommended that ”its members not assert 100[%] infallibility or a zero error rate when
talking about the reliability of print comparisons.” In response to the State’s objection,
the court limited Macken‐Farmer’s response to whether or not she was aware of the
report. Similar questions, objections, and limitations were placed upon defense counsel
when questioning Macken‐Farmer about the SWGFAST report. On redirect, Macken‐
Farmer testified that while there can be human error in fingerprint analysis, she had
never made a bad identification. Macken‐Farmer also explained, in response to the
State’s questions, the serious repercussions that might arise if an analyst made an
incorrect identification and such a mistake was discovered, i.e., the analyst would be
removed from all case work, have past analyses reexamined, and go through rigorous
retraining and testing.

¶13 In addition to the palm print evidence, the State presented limited circumstantial
evidence during its case‐in‐chief. The State presented evidence that several hours

2. (...continued)
FBI matched Mayfield’s print with a latent print “found on a bag in Madrid containing
detonators and explosives.” Id. After the Spanish National Police matched the latent
print with another individual living in Spain, “the FBI retracted the identification
altogether and issued a rare apology to Mayfield.” Id. at 986.

20090913‐CA 6
before the assault Sheehan called 911 to report the victim’s vehicle being driven by
someone who appeared intoxicated. Additionally, Sheehan and the victim had lived
together from February to September 2005. The State also produced evidence that,
when Sheehan’s residence was searched, he possessed the victim’s dress and two pairs
of her underwear.

¶14 At the conclusion of the trial, the jury returned guilty verdicts for aggravated
burglary, see Utah Code Ann. § 76‐6‐203 (2008), and aggravated assault, see id. § 76‐5‐
103. Sheehan now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Sheehan asserts that the trial court abused its discretion when it refused to
conduct a Rimmasch hearing to determine whether the State’s print evidence was
admissible at trial.

The trial court has wide discretion in determining the
admissibility of expert testimony . . . . Accordingly, we
disturb the district court’s decision to [exclude] expert
testimony only when it exceeds the limits of reasonability.
Our review of the district court’s exercise of its discretion
include[s] review to ensure that no mistakes of law affected
a lower court’s use of its discretion. Thus, if the district
court erred in interpreting Utah Rule of Evidence 702 when
it [excluded the expert testimony], it did not act within the
limits of reasonability, and we will not defer to the
evidentiary decision.

Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5, 242 P.3d 762 (omission and second
alteration in original) (citations and internal quotation marks omitted).

¶16 In addition, Sheehan argues that the trial court violated his constitutional rights
by excluding Dr. Cole’s expert testimony. Whether a defendant’s constitutional rights
were violated “is a question of law, which we review for correctness.” See State v.
Calliham, 2002 UT 86, ¶ 42, 55 P.3d 573.

20090913‐CA 7
¶17 Finally, Sheehan argues that the trial court violated his constitutional rights by
limiting his cross‐examination of the State’s experts.

When reviewing a trial court’s decision to limit
cross‐examination, we review the legal rule applied for
correctness and the application of the rule to the facts of the
case for an abuse of discretion. If an error does occur, we
must determine “whether, assuming that the damaging
potential of cross‐examination [had been] fully realized,” the
error was nonetheless “harmless beyond a reasonable
doubt.”

State v. Chavez, 2002 UT App 9, ¶ 17, 41 P.3d 1137 (alteration in original) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)) (additional citation omitted); see also
State v. Marks, 2011 UT App 262, ¶ 11, 262 P.3d 13, cert. denied, 20110898‐SC (Utah Feb.
17, 2012). “Whether an evidentiary ruling violated a defendant’s right of confrontation
is a question of law that we review for correctness.”3 State v. Hamblin, 2010 UT App 239,
¶ 12, 239 P.3d 300, cert. denied, 245 P.3d 757 (Utah 2010).

ANALYSIS

I. The Trial Court Did Not Abuse Its Discretion in Denying Sheehan’s Request for a
Rimmasch Hearing.

A. Rimmasch Compared to the Amended Rule 702 of the Utah Rules of Evidence

¶18 Without providing any meaningful analysis, Sheehan occasionally mentioned
rule 702 of the Utah Rules of Evidence in his request for a Rimmasch hearing.
Nevertheless, he focused on Rimmasch’s novel versus nonnovel determination, even
though the amended rule 702 altered the procedure for the admission of expert
testimony. See Utah R. Evid. 702 advisory committee note. Accordingly, we begin our

3. Because we reverse and remand for a new trial, we do not reach the remaining issue
Sheehan raises on appeal—whether the trial court made a clerical error in determining
the amount of Sheehan’s restitution.

20090913‐CA 8
analysis by clarifying the differences and similarities between the Rimmasch test and the
admissibility requirements pursuant to rule 702 of the Utah Rules of Evidence.

1. Rimmasch and the Prior Rule 702

¶19 Prior to the 2007 amendment, rule 702 stated only that “if scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.” Id. R. 702(a) & advisory committee note; see also Eskelson, 2010 UT 59, ¶ 10.
The pre‐2007 version of Utah’s rule, which was identical to rule 702 of the Federal Rules
of Evidence in effect at that time, required that if “expert testimony [was] based upon
novel scientific principles or techniques, courts . . . imposed additional tests of
admissibility,” often referred to as the Frye or Rimmasch test. See State v. Rimmasch, 775
P.2d 388, 396 (Utah 1989). See generally Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923), superseded by rule as stated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587
(1993); Eskelson, 2010 UT 59, ¶ 10. Under this test, “‘in addition to satisfying the
traditional requirements of relevancy and helpfulness to the trier of fact, the proponent
must show general acceptance of the principle or technique [upon which the testimony
is based] in the scientific community.’” Rimmasch, 775 P.2d at 396 (alteration in original)
(citation omitted). “[T]he purpose of a more restrictive test for judging the admissibility
of scientific testimony [wa]s to assure, as a threshold matter, that the evidence [wa]s
sufficiently reliable to go to the finder of fact.” Id.

2. Utah’s Rule 702 as Amended in 2007

¶20 When rule 702 of the Utah Rules of Evidence was amended in 2007, it “retain[ed]
limited features of the traditional Frye [or Rimmasch] test” in section (c), which allowed
for admission of expert testimony upon a “[t]hreshold showing” that “the principles or
methods on which such knowledge is based . . . are generally accepted by the relevant
legal expert community,” see Utah R. Evid. 702(c) & advisory committee note; Gunn Hill
Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 30. “The
concept of general acceptance as used in section (c) [was] intended to replace the novel
vs. non‐novel dichotomy that has served as a central analytical tool in Utah’s Rule 702
jurisprudence.” Utah R. Evid. 702 advisory committee note.

20090913‐CA 9
¶21 The 2007 amendment also added an additional method for establishing the
reliability of expert testimony. See id. R. 702(b) & advisory committee note. “The failure
to show general acceptance meriting admission under section (c) does not mean the
evidence is inadmissible, only that the threshold showing for reliability under section
(b) must be shown by other means.” Id. R. 702 advisory committee note. Accordingly,
“if the principles or methods . . . are [not] generally accepted by the relevant expert
community,” id. R. 702(c), then the proponent of the evidence must establish that “the
scientific, technical, or other principles or methods underlying the testimony meet a
threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data,
and (iii) have been reliably applied to the facts of the case,” id. R. 702(b).

¶22 Utah’s rule 702 differs from its current federal counterpart by requiring “only a
‘threshold’ showing.” See id. R. 702 advisory committee note.

That “threshold” requires only a basic foundational showing
of indicia or reliability for the testimony to be admissible,
not that the opinion is indisputably correct. When the trial
court, applying this amendment, rules that an expert’s
testimony is reliable, this does not necessarily mean that
contradictory expert testimony is unreliable. The
amendment is broad enough to permit testimony that is the
product of competing principles or methods in the same
field of expertise. Contrary and inconsistent opinions may
simultaneously meet the threshold; it is for the factfinder to
reconcile—or choose between—the different opinions.

Id.; see also Gunn Hill Dairy Props., LLC, 2012 UT App 20, ¶¶ 33, 47 (discussing the
meaning of “threshold” and stating that “a trial court’s consideration of whether expert
testimony satisfies a ‘threshold showing’ of reliability marks only the beginning of a
reliability determination [and i]t is up to the trier of fact to determine the ultimate
reliability of the evidence” (citation omitted) and stating that “[t]he court’s role is only
preliminary; the factfinder bears the ultimate responsibility for evaluating the accuracy,
reliability, and weight of the testimony”). With that background in mind, we turn to
the facts of this case.

20090913‐CA 10
B. The Trial Court Did Not Abuse Its Discretion When It Denied Sheehan’s Request for
a Rimmasch Hearing.

¶23 On appeal, Sheehan argues that both the State and the trial court understood that
his request for a Rimmasch hearing was for “the trial court to determine the accuracy
and reliability of the print evidence given that recent studies have undermined its
reliability.” However, in arguing about the admissibility of the print evidence pursuant
to Rimmasch, Sheehan necessarily requested the trial court to focus on whether the
State’s print identification evidence was novel scientific evidence. Because Sheehan
requested that the trial court focus solely on the issue of novelty, the trial court correctly
concluded that State v. Quintana, 2004 UT App 418, 103 P.3d 168 (mem.), cert. denied, 123
P.3d 815 (Utah 2005), was determinative. The Quintana court was asked to determine if
the Rimmasch standard should apply to expert testimony regarding fingerprint
identification evidence because there was “lack of empirical research on fingerprint
evidence.” See id. ¶ 5. The Quintana court “conclude[d] that fingerprint identification is
not novel scientific evidence.” Id. Thus, given Sheehan’s arguments to the trial court
and the Quintana court’s determination, the trial court’s decision to admit the State’s
proposed expert testimony at trial was reasonable and correct. Thus, the court did not
abuse its discretion in refusing to hold a Rimmasch hearing to determine whether the
State’s proposed expert testimony was admissible. See State v. Hamilton, 827 P.2d 232,
236‐37 (Utah 1992) (declining to treat fingerprint evidence according to a “more
stringent standard”); Quintana, 2004 UT App 418, ¶ 6 (determining that based on State v.
Hamilton, 827 P.2d 232 (Utah 1992), “and a longstanding reliance on fingerprint
evidence, the trial court did not abuse its discretion when it admitted the fingerprint
expert’s testimony”); see also Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5, 242
P.3d 762 (stating that the trial court is granted “‘wide discretion in determining the
admissibility of expert testimony’” (citation omitted)).

II. The Trial Court Erred in Excluding Sheehan’s Expert and Limiting His Cross‐
Examination of the State’s Experts.

¶24 In addition to challenging the admissibility of the State’s expert testimony,
Sheehan argues that the trial court violated his due process and confrontation rights
when it excluded his expert from testifying and limited his cross‐examination of the
State’s experts. We agree.

20090913‐CA 11
A. The Trial Court Erred in Excluding Sheehan’s Expert.

¶25 The trial court did not allow Sheehan’s expert to testify at trial because the trial
court found determinative Quintana’s holding that the scientific principles underlying
fingerprint comparison meet the threshold foundational requirements for admission in
Utah courts. See generally 2004 UT App 418, ¶¶ 5‐6. However, as explained above,
while the trial court acts as a gatekeeper to keep expert evidence that is not reliable from
the fact finder, this threshold determination does not extend to exclude contradictory
evidence. While it is true that a fingerprint expert’s testimony about a fingerprint
identification is considered sufficiently reliable to allow such evidence to be presented
to a jury pursuant to Quintana, see id. ¶ 6, and the trial court properly relied on this
court’s determination in Quintana to admit the State’s expert testimony, see supra ¶ 23,
such a determination does not automatically exclude any contradictory expert
testimony from trial, as long as the competing expert qualifies under rule 702. In fact,
rule 702’s advisory committee note states,

When the trial court, applying this amendment, rules that an
expert’s testimony is reliable, this does not necessarily mean
that contradictory expert testimony is unreliable. The
amendment is broad enough to permit testimony that is the
product of competing principles or methods in the same
field of expertise. Contrary and inconsistent opinions may
simultaneously meet the threshold; it is for the factfinder to
reconcile—or choose between—the different opinions.

Utah R. Evid. 702 advisory committee note. Thus, rule 702 requires a trial court to
independently evaluate whether the proposed expert’s testimony meets the reliability
threshold requirements under rule 702, rather than excluding one expert’s testimony
simply because it contradicts another expert’s testimony that has already met the
reliability threshold requirements. See id.

¶26 Because the trial court failed to independently evaluate whether Sheehan’s
expert’s testimony was admissible under rule 702, the trial court misapplied rule 702 to

20090913‐CA 12
exclude Sheehan’s expert.4 Instead, the court essentially determined that because the
State’s print evidence was reliable for admissibility purposes, any evidence offered to
challenge the State’s print evidence at trial was necessarily unreliable. Consequently,
the court’s misapplication of the rule “‘exceed[ed] the limits of reasonability.’” See
Eskelson, 2010 UT 59, ¶ 5 (citation omitted) (“[I]f the district court erred in interpreting
Utah Rule of Evidence 702 when it [excluded the expert], it did not act within the limits
of reasonability, and we will not defer to the evidentiary decision.”).

¶27 Some of the trial court’s confusion seemed to be based on its acceptance of the
State’s argument that the court alone determines whether expert testimony is reliable.
Specifically, the State argued that Dr. Cole’s testimony should be excluded because
allowing contradictory evidence at trial impinged on the trial court’s role to make a
legal determination about the reliability of the evidence. Although a trial court makes a
legal determination about the reliability of the expert’s testimony under rule 702, such a
determination is a threshold decision about admissibility. See Utah R. Evid. 702. Once
the court determines that evidence is sufficiently reliable to be admitted at trial, the
court may not then violate a defendant’s constitutional rights to present an effective
defense by excluding conflicting evidence or testimony that challenges that expert’s
opinion or credibility. See Crane v. Kentucky, 476 U.S. 683, 690‐91 (1986) (“Whether
rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the . . .
Confrontation clause[] of the Sixth Amendment, the Constitution guarantees criminal

4. Sheehan had previously attempted to use Dr. Cole’s testimony to establish that the
State’s print evidence and expert testimony should have been excluded because it was
unreliable. However, Sheehan subsequently requested the court to determine whether
Dr. Cole’s testimony was admissible for trial to rebut the State’s evidence and impeach
the State’s experts’ testimony. Like most evidence, expert testimony can be introduced
for different purposes. While a proponent may first offer evidence for an improper
purpose, the initial exclusion does not automatically mean that the evidence must
necessarily be permanently excluded. See, e.g., Crane v. Kentucky, 476 U.S. 683, 685‐87
(1986) (examining the admissibility of evidence for two different purposes). While Dr.
Cole’s testimony was unnecessary to determine whether the State’s expert testimony
was admissible, see supra ¶ 23, the trial court was still required to analyze whether Dr.
Cole’s testimony was independently admissible, including whether Dr. Cole’s
testimony would be helpful to the fact finder by challenging the credibility and weight
of the State’s experts at trial. See Utah R. Evid. 702.

20090913‐CA 13
defendants a meaningful opportunity to present a complete defense. . . . That
opportunity would be an empty one if the State were permitted to exclude competent,
reliable evidence bearing on the credibility . . . when such evidence is central to the
defendant’s claim of innocence. In the absence of any valid state justification, exclusion
of this kind of exculpatory evidence deprives a defendant of the basic right to have the
prosecutor’s case encounter and survive the crucible of meaningful adversarial testing.”
(citations and internal quotation marks omitted)); Christiansen v. Harris, 109 Utah 1, 163
P.2d 314, 317 (1945) (“[A]ll the[] me[]thods and means provided [to ensure due process]
have the same basic requirements—that no party can be affected by such action, until
his legal rights have been the subject of an inquiry by a person or body authorized by
law to determine such rights, of which inquiry the party has due notice, and at which he
had an opportunity to be heard and to give evidence as to his rights and defenses. In
depriving a person of life or liberty, the essentials of due process are[, inter alia,] . . . [a]
fair opportunity to submit evidence, examine and cross‐examine witnesses.”). Thus, the
trial court’s legal determination that the State’s expert testimony was admissible did not
allow the court to then impinge on the jury’s role as the fact finder by excluding the
evidence that Sheehan may have used to challenge the credibility and weight of the
State’s expert testimony. See generally Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of
Water & Power, 2012 UT App 20, ¶ 47 (“Under . . . rule [702], the line between assessing
reliability and weighing evidence can be elusive. But the trial court may not cross that
line when assessing threshold reliability for purposes of ruling on admissibility
pursuant to rule 702. The court’s role is only preliminary; the factfinder bears the
ultimate responsibility for evaluating the accuracy, reliability, and weight of the
testimony.”).

¶28 Quite simply, there are two separate reliability determinations: admissibility,
which is a legal determination the court makes, and the weight assigned to the evidence
admitted at trial, which is a factual determination made by the fact finder. The court
cannot impinge on the factual determinations correctly left to the finder of fact by
excluding evidence or testimony because the court has made an incorrect legal
determination that competing evidence is not reliable for admissibility purposes.

¶29 Furthermore, although the trial court retains wide latitude in excluding evidence,
there must be a proper basis for doing so. See Crane, 476 U.S. at 689‐91 (“[T]he
Constitution leaves to judges who must make [evidentiary rulings] ‘wide latitude’ to
exclude evidence that is ‘repetitive . . . , only marginally relevant’ or poses an undue
risk of ‘harassment, prejudice, [or] confusion of the issues.’ Moreover, [the United

20090913‐CA 14
States Supreme Court] has never questioned the power of States to exclude evidence
through the application of evidentiary rules that themselves serve the interests of
fairness and reliability—even if the defendant would prefer to see that evidence
admitted. . . . [Nevertheless, i]n the absence of any valid state justification, exclusion of
this kind of exculpatory evidence [challenging the credibility of the confession] deprives
a defendant of the basic right to have the prosecutor’s case encounter and survive the
crucible of meaningful adversarial testing.” (first omission and third alteration in
original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); accord State v. Chavez,
2002 UT App 9, ¶ 19, 41 P.3d 1137. Because the trial court misapplied rule 702 to
exclude Sheehan’s expert and because we see no other justification in the record for this
exclusion, we determine that the trial court violated Sheehan’s constitutional rights by
preventing him from presenting a complete defense.

¶30 However, before we reverse a conviction because the trial court’s misapplication
of a rule of evidence violated Defendant’s constitutional rights, we must determine if
the constitutional error was harmless beyond a reasonable doubt. See Van Arsdall, 475
U.S. at 681 (“[The U.S. Supreme Court] ha[s] repeatedly reaffirmed the principle that an
otherwise valid conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error was harmless beyond
a reasonable doubt.”); accord State v. Marks, 2011 UT App 262, ¶ 11, 262 P.3d 13, cert.
denied, 20110898‐SC (Utah Feb. 17, 2012). To determine whether this error was
harmless, we would normally evaluate whether Dr. Cole’s testimony would have
affected the outcome of Sheehan’s trial. Although the record of Dr. Cole’s anticipated
testimony is limited, mainly because the trial court did not allow the defense to proffer
or make a record of such testimony, Sheehan did introduce Dr. Cole’s Expert Witness
Report and Curriculum Vitae (the expert report). The expert report sets forth Dr. Cole’s
extensive qualifications, associations, and an outline of his publications. The expert
report discusses the fallibility of fingerprint identification and specifies those instances
in which Dr. Cole has “cataloged cases in which latent print misattributions have
occurred, thereby falsifying [the] claim” that print identifications are infallible. The
expert report also discusses how “no study has been conducted . . . from which one
could measure the accuracy of latent print identification” and “no accuracy
measurement [exists because] the technique has not been validated and its accuracy is
unknown.” “Without an accuracy measurement, it is not possible to convey to the fact‐
finder how much confidence [he or she] should have [in] a latent print examiner’s
conclusion.” Discussing individualization, the expert report states,

20090913‐CA 15
[L]atent print examiners have no data from which to make a
responsible estimate of the rarity of a particular
configuration of friction ridge details within a population.
Without such an estimate, it is not possible to estimate the
likelihood that a latent print showing a particular
configuration of friction ridge details was made by a person
other than the defendant. Without such an estimate, it is not
possible to convey to the fact‐finder the likelihood that a
particular[] latent print derives from a source other than the
defendant. To testify, absent such an estimate, that the
defendant “is” the source of a particular latent print is
inconsistent with scientific and logical thinking.

Finally, the expert report discusses “confirmation bias” by stating,

Psychological studies have demonstrated that latent print
examiners can be induced to alter their conclusion based on
“contextual information”—that is, information that should
be irrelevant to their analysis (such as that other examiners
have reached a particular conclusion). This suggests that
latent print analysis may be subject to psychological biases,
especially if the examiner is cued to believe that the source of
a particular exemplar has been identified as a suspect.

¶31 Assuming that Dr. Cole would have testified to this same information at trial, we
determine that the jury’s verdict would have been affected by this contradictory
evidence. Importantly, the most damaging evidence admitted against Sheehan, and the
only evidence placing Sheehan at the scene of the attack, was the print evidence. If Dr.
Cole had been allowed to testify and challenge the reliability and validity of the State’s
expert witnesses, the jury could have easily found that reasonable doubt existed
regarding whether Sheehan assaulted the victim, especially given her earlier
identification of a different perpetrator.

¶32 However, this determination assumes that Dr. Cole could be correctly qualified
as an expert under rule 702. The trial court did not make any of the necessary findings
or determinations pursuant to rule 702 concerning whether Dr. Cole qualified as an
expert, i.e., that the expert’s testimony “will assist the trier of fact,” that the expert is

20090913‐CA 16
qualified, and that the expert’s testimony meets the threshold reliability standard.5 See
Utah R. Evid. 702(a)‐(c); State v. Clopten, 2009 UT 84, ¶ 31, 223 P.3d 1103. Therefore,
given the facts of this case, we are unable to properly evaluate prejudice because the
court’s error denied Sheehan the opportunity to develop whether Dr. Cole would
qualify as an expert and whether any testimony he would have given at trial was
admissible. We express no opinion on whether Dr. Cole is qualified under rule 702 or
whether his proposed testimony is sufficiently reliable for admission and leave that
determination to the trial court on remand under the correct legal standard.6
Nevertheless, because we also determine that the trial court violated Sheehan’s
constitutional rights in limiting the cross‐examination of the State’s experts, see infra
¶¶ 35‐38, any determination of whether Dr. Cole qualifies as an expert should be made
before the new trial is held.

B. Limiting Cross‐Examination of the State’s Experts Violated Sheehan’s Confrontation
Right.

¶33 The trial court also based its exclusion of Dr. Cole’s testimony on the assumption
that the studies Dr. Cole would testify about could be explored on cross‐examination of
the State’s experts. However, at trial, the court limited Sheehan’s ability to cross‐
examine the State’s experts about this very matter, specifically refusing to allow
Sheehan to rely on reports that discussed the error rates in matching prints. On appeal,

5. The trial court’s refusal to allow the defense to make a record to aid in our review is
apparent from the July 2, 2008 hearing regarding whether to hold a Rimmasch hearing.
During that hearing, Sheehan repeatedly asked the court to allow Dr. Cole, who was
present at the hearing and had come from California, to testify, at least to make a
record. The court repeatedly refused such a request.

6. On remand and in the context of determining whether Dr. Cole qualifies to testify at
the new trial, if the trial court determines that Dr. Cole’s testimony is admissible,
Sheehan was necessarily prejudiced by the trial court’s error and the new trial will
remedy the error. However, if the court determines that Dr. Cole’s testimony is not
admissible, then Sheehan could not have been prejudiced by the exclusion of Dr. Cole’s
testimony at the first trial. In any event, Sheehan is entitled to the new trial based on
the improper limitation the trial court placed on the cross‐examination of the State’s
experts. See infra ¶¶ 35‐38

20090913‐CA 17
Sheehan challenges the limitations the court placed on his cross‐examination regarding
the reliability of print evidence.

¶34 “The Confrontation Clause of the Sixth Amendment guarantees the right of an
accused in a criminal prosecution ‘to be confronted with the witnesses against him.’”
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). “‘The main and essential purpose of
confrontation is to secure the opponent the opportunity of cross‐examination.’” Id. (quoting
Davis v. Alaska, 415 U.S. 308, 315‐16 (1974)). The Confrontation “Clause’s ultimate goal
is to ensure reliability of evidence, but it is a procedural rather than a substantive
guarantee. It commands, not that evidence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of cross‐examination.” Crawford v.
Washington, 541 U.S. 36, 61 (2004). “‘[T]he exposure of a witness’[s] motivation in
testifying is a proper and important function of the constitutionally protected right of
cross‐examination.’” Van Arsdall, 475 U.S. at 678‐79 (quoting Davis, 415 U.S. at 316‐17).

It does not follow, of course, that the Confrontation Clause
of the Sixth Amendment prevents a trial judge from
imposing any limits on defense counsel’s inquiry into the
potential bias of a prosecution witness. On the contrary, trial
judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such
cross‐examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’[s] safety, or interrogation that is repetitive or only
marginally relevant.

Id. at 679; accord State v. Hamblin, 2010 UT App 239, ¶ 22, 239 P.3d 300, cert. denied, 245
P.3d 757 (Utah 2010).

A defendant’s confrontation right is violated, however, if a court
prohibits the defendant from “engaging in otherwise appropriate
cross‐examination designed to show a prototypical form of bias on
the part of the witness, and thereby to expose the jury to the facts
from which [it] . . . could appropriately draw inferences relating to
the reliability of the witnesses.”

20090913‐CA 18
Hamblin, 2010 UT App 239, ¶ 22 (alteration and omission in original) (quoting Van
Arsdall, 475 U.S. at 680) (additional internal quotation marks omitted).

¶35 The trial court refused to allow Sheehan to cross‐examine the State’s experts
about the subjectivity and error rate associated with making print identifications. Thus,
the jury was not allowed to hear about all of the problems that may arise in making
print identifications. This information defense counsel sought to elicit directly related
to the credibility of the State’s experts and to the weight that the jury might give the
experts’ testimony, especially because both experts claimed to be 100% accurate. See
Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam) (stating that under U.S. Supreme
Court case law “‘the cross‐examiner has traditionally been allowed to impeach, i.e.,
discredit the witness,’” (quoting Davis, 415 U.S. at 316), and “that ‘a criminal defendant
states a violation of the Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross‐examination designed to show a prototypical
form of bias on the part of the witness, and thereby to expose to the jury the facts from
which jurors . . . could appropriately draw inferences relating to the reliability of the
witness,’” (quoting Van Arsdall, 475 U.S. at 680) (additional internal quotation marks
omitted)); Crane v. Kentucky, 476 U.S. 683, 690‐91 (1986).

¶36 In excluding the reports and limiting the cross‐examination of the State’s experts,
the trial court did not provide an appropriate justification for why the evidence could
not be used to impeach the State’s experts’ testimony. See Michigan v. Lucas, 500 U.S.
145, 149 (1991) (“[T]he right to present relevant testimony is not without limitation. The
right may, in appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process. . . . [F]or example, . . . trial judges retain wide latitude to limit
reasonably a criminal defendant’s right to cross‐examine a witness based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the
witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” (first
alteration in original) (internal quotation marks omitted)); Crane, 476 U.S. at 690‐91. By
limiting Sheehan’s cross‐examination and attempts to impeach the State’s experts
without any valid justification, the trial court’s limitations violated Sheehan’s
constitutional right to confrontation.

¶37 Notwithstanding this constitutional error, we will only reverse Sheehan’s
conviction if the error was prejudicial. See Van Arsdall, 475 U.S. at 684.

20090913‐CA 19
The correct inquiry is whether, assuming that the damaging
potential of the cross‐examination were fully realized, a
reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt. Whether such an error
is harmless in a particular case depends upon a host of
factors, all readily accessible to reviewing courts. These
factors include the importance of the witness’[s] testimony in
the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness
on material points, the extent of cross‐examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case.

Id.

¶38 In this case, the trial court’s error in limiting Sheehan’s use of the evidence
proffered to cross‐examine the State’s experts was not harmless. See id. The State’s case
relied almost entirely on the print identification made by the State’s experts, making the
State’s experts’ testimony crucial in its case against Sheehan. No other evidence
corroborated that Sheehan was physically present at the victim’s residence on the night
of the attack. The State did not elicit testimony from the victim, presumably because of
her inconsistent identification of her attacker. Furthermore, the court did not allow the
defense to cross‐examine the State’s experts to challenge their subjectivity and possible
misidentification of the print evidence. Thus, because the constitutional error was not
harmless beyond a reasonable doubt, we reverse Sheehan’s convictions.7

7. Although we determine that Sheehan’s constitutional rights were violated by both
the exclusion of his expert and evidence, and the limitations on cross‐examination, the
specific facts of this case lead to that conclusion. We recognize that, had the trial court
allowed the expert to testify, then the limitations on cross‐examination may not have
been prejudicial, or had the trial court allowed cross‐examination, then the limitations
on the expert testimony may not have been prejudicial. See generally State v. Clopten,
2009 UT 84, ¶ 16, 223 P.3d 1103 (“[I]n the absence of expert testimony, a defendant is left
with two tools—cross‐examination and cautionary instructions—with which to convey
the possibility of a mistaken identity to the jury.”).

20090913‐CA 20
CONCLUSION

¶39 Although the trial court did not abuse its discretion in determining that the
State’s experts were allowed to testify at trial, the trial court erred in excluding
Sheehan’s expert witness, which may have been prejudicial. We reverse Sheehan’s
convictions and remand for a new trial because the trial court erred in limiting
Sheehan’s cross‐examination of the State’s experts, which was not harmless beyond a
reasonable doubt.

____________________________________
Michele M. Christiansen, Judge

‐‐‐‐‐

¶40 WE CONCUR:

____________________________________
Gregory K. Orme, Judge

____________________________________
William A. Thorne Jr., Judge

20090913‐CA 21