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Utah Supreme Court weighing child kidnap case

The Utah Supreme Court is weighing the case of a Provo man whose child kidnapping conviction was tossed out over the question of whether eyewitnesses are always reliable, an issue that's come under increased scrutiny in recent years.
The Utah Supreme Court is weighing the case of a Provo man whose child kidnapping conviction was tossed out over the question of whether eyewitnesses are always reliable, an issue that's come under increased scrutiny in recent years.
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SALT LAKE CITY — The Utah Supreme Court is weighing the case of a Provo man whose child kidnapping conviction was tossed out over the question of whether eyewitnesses are always reliable, an issue that's come under increased scrutiny in recent years.

The Utah high court heard arguments Monday in the case of Jimmy D. Guard, who was found guilty of trying to snatch a 9-year-old girl walking home from her school bus stop in 2004.

The child told police she was grabbed from behind by someone who put a hand over her mouth and told her he had a knife. She fought him off, kicking the man in the shin and poking him repeatedly in the eye, according to court documents.

The would-be abductor ran away. Guard was arrested after the girl picked him out of police photo lineup, according to court papers. His conviction was entirely based on the eyewitness testimony of the girl, her classmate and two neighbors.

But his lawyers say the jury should have heard expert testimony about decades of research showing that eyewitness testimony is right only about half the time.

They argued the investigation was problematic: The girl, who was approached from behind, said her kidnapper had curly hair, and in the photo lineup Guard was the only person with that feature, according to court papers. The neighbors, meanwhile, reported seeing Guard in the area only after they were shown his picture. The classmate said she saw the kidnap attempt, but couldn't identify Guard specifically.

An appeals court agreed and ordered a new trial in the case, citing a 2009 opinion from the Utah Supreme Court in a murder case that found that testimony from experts on the potential problems of eyewitness testimony should routinely be considered in cases where the defendant has been identified by strangers.

Eyewitness testimony has come into question elsewhere. Courts, police and lawmakers in several states, including Texas, Oregon, and Maryland, have made changes on handling eyewitness testimony in the wake of thousands of studies showing it can be unreliable.

But prosecutors say those cases are outliers, and such efforts to throw into question testimony from witnesses can erode their ability to convict criminals.

In the Utah case, the girl's eyes got big when she saw Guard's picture in the photo lineup, and she later testified she was 100 percent certain that Guard was the culprit. Assistant attorney general Jeff Gray said Monday that the science of expert testimony is ever-changing.

"We have no clue of the science of which he's relying upon," Gray said during oral arguments, according to the official recording of the proceeding.

The Utah Supreme Court took the case under advisement Monday. No deadline was immediately set for a decision.