Long instruction in Utah

2026Such a cautionary instruction is often referred to as “a Long instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986) (directing trial courts to give a cautionary jury instruction on the potential unreliability of eyewitness identifications “whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”). ¶48 As a starting point, we note that our supreme court has rejected the notion “that in every case in which eyewitness 20230970-CA 25 2026 UT App 35 State v. Horn identification is an issue, trial counsel’s performance is per se de

2026Such a cautionary instruction is often referred to as “a Long instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986) (directing trial courts to give a cautionary jury instruction on the potential unreliability of eyewitness identifications “whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”). ¶48 As a starting point, we note that our supreme court has rejected the notion “that in every case in which eyewitness 20230970-CA 25 2026 UT App 35 State v. Horn identification is an issue, trial counsel’s performance is per se de

2021Moreover, “juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy.” Clopten I, 2009 UT 84, ¶ 15 . ¶44 Trial courts must give a Long instruction whenever three elements are met: (1) “eyewitness identification is a central issue in a case”; (2) “such an instruction is requested by the defense”; and (3) the defense has not called an expert witness on eyewitness testimony.

2021Moreover, “juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy.” Clopten I, 2009 UT 84, ¶ 15 . ¶44 Trial courts must give a Long instruction whenever three elements are met: (1) “eyewitness identification is a central issue in a case”; (2) “such an instruction is requested by the defense”; and (3) the defense has not called an expert witness on eyewitness testimony.

2026Such a cautionary instruction is often referred to as “a Long instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986) (directing trial courts to give a cautionary jury instruction on the potential unreliability of eyewitness identifications “whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”). ¶48 As a starting point, we note that our supreme court has rejected the notion “that in every case in which eyewitness 20230970-CA 25 2026 UT App 35 State v. Horn identification is an issue, trial counsel’s performance is per se de

2026Such a cautionary instruction is often referred to as “a Long instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986) (directing trial courts to give a cautionary jury instruction on the potential unreliability of eyewitness identifications “whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”). ¶48 As a starting point, we note that our supreme court has rejected the notion “that in every case in which eyewitness 20230970-CA 25 2026 UT App 35 State v. Horn identification is an issue, trial counsel’s performance is per se de

2008See 2002 UT 45, ¶ 19 , 48 P.3d 953 ("In this case the trial court gave a cautionary Long instruction instead of permitting expert testimony regarding eyewitness identification.").

2008See 2002 UT 45, ¶ 19 , 48 P.3d 953 ("In this case the trial court gave a cautionary Long instruction instead of permitting expert testimony regarding eyewitness identification.").

2026See id. ¶49 Instructively for purposes of ineffective assistance of counsel in this context, our supreme court concluded in State v. Hunter, 2021 UT 44 , 496 P.3d 119 , that although the eyewitness identification testimony in that case was susceptible to attack under some of the rule 617 factors, defense counsel did not perform deficiently by not requesting a Long instruction because other factors would have bolstered the eyewitness identification testimony.

2026See id. ¶49 Instructively for purposes of ineffective assistance of counsel in this context, our supreme court concluded in State v. Hunter, 2021 UT 44 , 496 P.3d 119 , that although the eyewitness identification testimony in that case was susceptible to attack under some of the rule 617 factors, defense counsel did not perform deficiently by not requesting a Long instruction because other factors would have bolstered the eyewitness identification testimony.

2026Such a cautionary instruction is often referred to as “a Long instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986) (directing trial courts to give a cautionary jury instruction on the potential unreliability of eyewitness identifications “whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”). ¶48 As a starting point, we note that our supreme court has rejected the notion “that in every case in which eyewitness 20230970-CA 25 2026 UT App 35 State v. Horn identification is an issue, trial counsel’s performance is per se de

2026Such a cautionary instruction is often referred to as “a Long instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986) (directing trial courts to give a cautionary jury instruction on the potential unreliability of eyewitness identifications “whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”). ¶48 As a starting point, we note that our supreme court has rejected the notion “that in every case in which eyewitness 20230970-CA 25 2026 UT App 35 State v. Horn identification is an issue, trial counsel’s performance is per se de

2021It is whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial.’” Id. ¶ 36 (citations omitted); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” (quoting Strickland, 466 U.S. at 690 )). ¶69 Hunter argues that his trial counsel was deficient for not requesting a Long instruction.

2021It is whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial.’” Id. ¶ 36 (citations omitted); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” (quoting Strickland, 466 U.S. at 690 )). ¶69 Hunter argues that his trial counsel was deficient for not requesting a Long instruction.

2021It is whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial.’” Id. ¶ 36 (citations omitted); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” (quoting Strickland, 466 U.S. at 690 )). ¶69 Hunter argues that his trial counsel was deficient for not requesting a Long instruction.

2021It is whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial.’” Id. ¶ 36 (citations omitted); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The question is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” (quoting Strickland, 466 U.S. at 690 )). ¶69 Hunter argues that his trial counsel was deficient for not requesting a Long instruction.

2021See State v. Long, 721 P.2d 483 , 492– 93 (Utah 1986). ¶38 “[W]e evaluate claims of ineffective assistance under the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).” Ray, 2020 UT 12, ¶ 24 . “[W]e employ the two-part test Strickland established, which requires the defendant to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” State v. Gallegos, 2020 UT 19, ¶ 33 , 463 P.3d 641 (emphases added) (citations omitted) (internal quotation marks omitted). 6 Specifically, we granted

2021See State v. Long, 721 P.2d 483 , 492– 93 (Utah 1986). ¶38 “[W]e evaluate claims of ineffective assistance under the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).” Ray, 2020 UT 12, ¶ 24 . “[W]e employ the two-part test Strickland established, which requires the defendant to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” State v. Gallegos, 2020 UT 19, ¶ 33 , 463 P.3d 641 (emphases added) (citations omitted) (internal quotation marks omitted). 6 Specifically, we granted

2021We were not analyzing whether it would be constitutionally deficient for a defense counsel not to request expert eyewitness testimony, let alone whether it would be constitutionally deficient for defense counsel not to request a cautionary instruction. ¶93 The question before us is simply whether Hunter’s trial counsel’s failure to request a Long instruction “caused [his] representation to fall below an objective standard of reasonableness,” Gallegos, 2020 UT 19, ¶ 57 , or “whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial

2021We were not analyzing whether it would be constitutionally deficient for a defense counsel not to request expert eyewitness testimony, let alone whether it would be constitutionally deficient for defense counsel not to request a cautionary instruction. ¶93 The question before us is simply whether Hunter’s trial counsel’s failure to request a Long instruction “caused [his] representation to fall below an objective standard of reasonableness,” Gallegos, 2020 UT 19, ¶ 57 , or “whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial

2019See State v. Pascual , 804 P.2d 553 , 555 (Utah Ct. App. 1991) (explaining that a Long cautionary instruction is not required when it "goes to eyewitness testimony as to circumstances , not identification ").

2019See State v. Pascual , 804 P.2d 553 , 555 (Utah Ct. App. 1991) (explaining that a Long cautionary instruction is not required when it "goes to eyewitness testimony as to circumstances , not identification ").

2016Instead, the Utah standard focuses on a single “totality of the circumstances” determination for “reliability,” using each of the five Long factors, as discussed in State v. Ramirez, See 817 P.2d 774, 781 (Utah 1991). ¶41 We next consider whether under the totality of the circumstances Manager’s identification was reliable.

2016After examining each of the Long factors, the Ramirez court found it “to be an extremely close case.” Id. at 784 .

2008There, we stated the long held presumption that "where a defendant seeks to collaterally attack a court's judgment, we presume the regularity of the proceedings below." Lucero, 2005 UT 79, ¶ 24 , 125 P.3d 917 ; see also Johnson v. Zerbst, 304 U.S. 458, 468 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) ("When collaterally attacked, the judgment of a court carries with it a presumption of regularity.").

2008There, we stated the long held presumption that "where a defendant seeks to collaterally attack a court's judgment, we presume the regularity of the proceedings below." Lucero, 2005 UT 79, ¶ 24 , 125 P.3d 917 ; see also Johnson v. Zerbst, 304 U.S. 458, 468 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) ("When collaterally attacked, the judgment of a court carries with it a presumption of regularity.").

2002Under tire federal test, the first question is whether the pretrial photographic identification procedure tainted the subsequent in-court identification because the procedure was “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifi-cation.” Lopez, 886 P.2d at 1111 (citation omitted).

2002Under tire federal test, the first question is whether the pretrial photographic identification procedure tainted the subsequent in-court identification because the procedure was “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifi-cation.” Lopez, 886 P.2d at 1111 (citation omitted).