State v. Dubose

Wisconsin, State Plaintiff-Respondent,

Tyrone L. Dubose, Defendant-Appellant-Petitioner.

Supreme Court 2, 2005. Oral March argument No. 2003AP1690-CR. July Decided

2005 WI 126 582.) (Also in 699 N.W.2d reported defendant-appellant-petitioner there were For argument by Olsen, E. assistant oral briefs and Jefren public defender. state argued plaintiff-respondent the cause was

For the general, attorney with Perlman, assistant David H. Lautenschlager, Peggy attor- A. on the brief was whom ney general. Findley, by Keith A. was filed

An amicus curiae brief Pray Byron Lichstein, Madison, on A. C. John Project Frank Innocence behalf the Wisconsin University Remington Law of Wisconsin Center, J. School. Ty- J. Petitioner CROOKS, 1. N. PATRICK (Dubose) unpublished review of an seeks

rone Dubose appeals affirmed the circuit of the court of decision robbery. judgment for armed of conviction court's presented circuit court us is whether the issue main suppress denying motion to Dubose's erred victim's him, out-of-court identifications of after deter- mining eyewitness procedures identification including showups,1 impermissibly used, two were not suggestive, illegal nor of an the result arrest. agree

¶ 2. with We Dubose that the circuit court denying suppress erred his motion to the out-of-court adopt However, identification evidence. decline we proposed per exclusionary regarding his se rule such adopt evidence. we Instead, standards the admissi- bility of out-of-court identification evidence similar to set those forth in the United States Court's (1967). Denno, decision in Stovall v. 388 U.S. 293 We showup hold that evidence obtained from such a will totality unless, not be admissible based on the showup necessary. circumstances, the was A necessary, police will not be however, unless the lacked probable cause to make an or, arrest as result other exigent circumstances, could not have conducted a lineup photo array. suppress or Since the motion to out-of-court identifications Dubose should have been granted here, because such identifications were unnec- essarily suggestive, we reverse the decision court appeals and remand the case to the circuit court for proceedings further consistent with the standards adopted herein.

HH Timothy Hiltsley (Hiltsley) Ryan Boyd 3. (Boyd) Bay left the Camelot Bar in Wisconsin, Green at approximately January Hiltsley 9, 1:00 a.m. on

1 'showup' "A is an pretrial out-of-court pro identification suspect cedure presented which singly to a witness for Wolverton, purposes." identification 234, State 193 2dWis. (1995) n.21, Denno, (citing N.W.2d 167 Stovall v. (1967)). U.S. being drinking and admitted at the bar had been Hiltsley parking lot, he left. In the when "buzzed" group Boyd of men, a some whom encountered liquor regular Hiltsley recognized of a as customers African-American, an Dubose, he worked. store where recognized. allegedly After a brief the men he one of was along Hiltsley men, two of the conversation, invited marijuana. Boyd, his residence to smoke to with Hiltsley's apartment, they ¶ When arrived at 4. pack Hiltsley a down on couch to bowl sat the marijuana. allegedly gun a to time, held At that Dubose money. temple Hiltsley's right After and demanded money, gave Hiltsley emptied men his his wallet and the apart- African-Americans, his left men, both the two ment. approxi- at incident, after the minutes 5. Within neighbors Hiltsley's

mately the called a.m., 1:21 one of burglary. possible police report two a She described to fleeing area, from the one men African-American wearing large At the a hooded flannel shirt. was whom Hiltsley Boyd attempted the time, to chase same Boyd's They car and the men in men. hoped searched nearly driving blocks, two them off. After to cut Hiltsley got for the men on car and searched out Hiltsley flagged police During a search, down his foot. Hiltsley burglary responding call. to the officer that was just gun- at that he had been robbed told the officer suspects African-American, point. as He described standing 6-inches, and the other man 5-feet one about standing a little taller. responded police also to Another officer

burglary he two scene, observed call. As he neared Hiltsley's apart- walking one-half block from men about Jeffrey Engelbrecht, to was unable officer, ment. This noted that individuals, but race determine the wearing large one of the men was hooded flannel squad shirt. When the officer turned car his around they men, face the ran east between two houses. The police quickly up perimeter set one-block in order to suspects. contain the subsequently requested

¶ 7. The officer head- quarters dispatch help a canine unit search for the perimeter men. While he waited at the for the canine police headquarters reported unit, another call re- gard robbery Hiltsley's apartment. to an armed at report suspects indicated that two were African- possibly males, American that one armed, was and that probably Upon the two calls were arrival, related. their dog began tracking the canine unit officer and his suspects perimeter. dog began barking the within backyard near a fence, wooden and the officer de- person manded that the behind the fence come out and responded show going A his hands. male voice that he was why police to surrender and asked the were chasing him. The male who came out from behind the subsequently fence Dubose, was who was arrested. wearing ¶ Dubose, a who was not flannel shirt, police argument told the that he had been in an with his girlfriend just and that he had left her house. He thought might police she have called him, the on which why squad ran he when he saw the car. After his any arrest, he was searched. The search did not uncover weapons, money, or contraband.2 Dubose was then placed squad in the back of a car and driven to an area Hiltsley's near residence. a.m., At approximately 3:57 police two attempted officers

to retrace Dubose's they movements see if could locate the weapon alleged used in the robbery. They a semi- located automatic pistol near the two allegedly houses where Dubose ran with the unidentified man. a location, the officers conducted 9. At this giving Hiltsley opportunity

showup procedure, alleged placed identify suspects. The officers one squad Hiltsley car, which of a second in the backseat apart parked rear was three feet so that its window was containing squad car from the rear window light turned on in the car The dome was Dubose. Hiltsley containing Du- The officers told that Dubose. possibly men who had him was one of the robbed bose identify Hiltsley gunpoint, if he could at and asked police Hiltsley squad that car. told the man in the other percent Dubose, alone in he certain that who sat was 98 squad car, was the man who of the other the back seat police gunpoint. Hiltsley also told the held at him recognized small, to his slender build and he hairstyle. him due squad separated and took both 10. The cars police Approxi- Hiltsley station. and Dubose to showup, mately after to 15 minutes the first Hiltsley showup. police There, a conducted second two-way through room, in a a Dubose, alone identified Hiltsley police Dubose was the same mirror. told previous showup, that he at man he observed A who robbed him. short was the man believed Dubose showup, police Hilts- showed time after the second ley mug him for Dubose, and he identified shot of third time. (State) charged Du-

¶ 11. The State of Wisconsin robbery. filed a motion to armed Dubose bose with suppress in of him connection with all identifications showup asserting specifically was case, that the first irrepa- suggestive "unnecessarily to an and conducive He claimed that also mistaken identification...." rable arrest, an were the fruits of unlawful the identifications him The Brown of law. which due denied County Judge, Court, Circuit Bischel, Sue E. denied jury motion trial, Dubose's and scheduled a trial. At Hiltsley subsequent testified about the events and showups January that occurred on 9, 2002. He also identified Dubose the courtroom as the man who gunpoint night question. jury held him at on the The robbery September convicted of armed on Dubose appealed ¶ 12. Dubose his conviction to the court appeals. unpublished opinion, In an the court appeals judgment affirmed the of the circuit The court. totality court held that the of the circumstances dem- onstrated that lawful, Dubose's arrest was and that prove impermis- not met Dubose had his burden to suggestiveness sible of the out-of-court identifications. concluding probable there was for arrest, cause appellate including court on factors, relied several proximity the time the arrest, of Dubose's loca- Hiltsley's apartment, similarity tion to Dubose's to the description provided by dispatch, flight and Dubose's seeing police after car. appeals

¶ 13. The court of also determined that showup impermissibly suggestive. the first was not argument concerning suggestiveness Dubose's relied on police the fact that he sat alone in the vehicle, the drinking witness had been and was "buzzed," iden- shortly robbery tification occurred after occurred Hiltsley upset, suggested while was and the officers Hiltsley showup they possibly caught before the had guys." appeals "one of the The court of held that the showup impermissibly suggestive not was based on the totality of the factors involved. rejected

¶ 14. Likewise, the court chal- Dubose's lenge police to the second at the station. persuaded by argument court was not Dubose's that he Hiltsley, and that shown only suspect was the one. soon after the first occurred too showup second to Hilts- only held that one showing suspect The court not, itself, impermissibly does render ley argument, other to Dubose's suggestive. responding related, closely was too showups timing held: the court appeals

First, extent that Dubose claims this second to the earlier mistaken premised was on an identification identification, solely our on inquiry we note that rests suggestiveness procedures used police and whether garnering an identification individual's suggestiveness. impermissible create procedures those that the second identi- Dubose's contention Therefore Hiltsley confirm an earlier mistake fication allowed the point. misses any authority to

Second, provided Dubose has not subsequent identifica- that a support assumption his lapsed to period of time has must occur after tion independent, separate ensure identification suggestiveness. In impermissible thereby preventing reliability only to the reality, argument relates Dubose's being any imper- Without there of the identification. showup, the in the second suggestiveness missible for is immaterial our reliability the identification due considering a defendant's whether purposes of rights violated. have been Dubose, 2003AP1690-CR, op., unpublished slip State v. 2004). (Wis. 2, Ct. March 36-37 App. ¶¶ We court for review. this 15. Dubose petitioned now, for 2004, on October his granted petition herein, forth reverse decision the reasons set we remand this case to Accordingly, court of appeals. with consistent court further proceedings the circuit this opinion.

II suppress, ¶ 16. On review of a motion to this employs two-step analysis. Eason, court State v. 98, ¶ 9, 206, First, WI 245 Wis. 2d 629 N.W.2d625. we findings uphold review the circuit court's of fact. Wewill findings they against great weight these unless are preponderance and clear of the evidence. State v. Mar twick, 5, ¶ 18, 801, 2000 WI 231 Wis. 2d 604 N.W.2d reviewing suppressing ap evidence, 552. "In an order pellate uphold findings evidentiary courts will or they clearly historical fact unless are erroneous." State (1998); Kieffer, 531, 541, 217 Wis. 2d 577 N.W.2d352 Harris, 243, 249-50, see also State v. 206 Wis. 2d (1996). independently Next, N.W.2d245 we must review application principles of relevant constitutional Vorburger, 105, ¶ 32, those facts. State v. 2002 WI presents Wis. 2d 648 N.W.2d829. Such a review question law, novo, which we review de but with the analyses benefit of of the circuit court and court of appeals. Kieffer, See 217 Wis. 2d at 541.

III analysis begins summary ¶ 17. Our with a relating right law to the to due in out-of-court procedures. Stovall, identification the United States Supreme whether, Court considered for the first time circumstances, and under what out-of-court identifica procedures implicate right tion could a defendant's process.3 case, due The defendant in that an Mrican- Stovall, 3. Priorto the United States Court had applied process analysis admissibility never eyewitness testimony. the due to the Benjamin Rosenberg, Rethinking See E. time male, was arrested for murder. Without American counsel, the defendant was or retain to consult with only surviving hospital witness room of the taken to the alleged The had stabbed crime. witness been to the awaiting surgery. multiple The defen times was police who, one of five officers dant was handcuffed to brought prosecutors, along him into the with two only hospital He African-American room. was the subsequently the defen identified room. witness hospital police after a officer asked from her bed dant uttered a few man," if he and the defendant her "was purpose The wit of voice identification. words at defendant's recovered, later and testified ness hospital in her room. occurred trial as to the events that an in-court identification time, she also made At that Stovall, 388 at 295. the defendant. U.S. Court consid- 18. The United States hospital in the room the confrontation

ered whether suggestive unnecessarily ir- and conducive to was "so reparable that he was denied mistaken identification process that at 302. The Court concluded of law."Id. due recognized ground process under a of attack was due showing "[t]he practice circumstances, sus- as such persons purpose pects singly identification, for the widely lineup, part been con- not of a has and as (footnote omitted). Nevertheless, the Su- Id. demned." process preme due the of a Court held that existence totality "depends the on circumstances the violation Pretrial in Connection With Right Due Process Identifi- Ky. Analysis Proposal, An and a L.J. cation Procedures: (1991). procedures, Justice discussing identification Brennan, Court, stated: "The Jr., writing J. for William always treated American courts have overwhelming majority of as one of admissibility one of but not as question the evidence Stovall, at jury." U.S. 299-300. credibility surrounding present it" not and this case did such necessity a violation. Id. The Court determined that key reviewing in factor whether a violates due process. Although suggestive, the identification was Court determined it not did violate the defendant's right procedure to due because the was neces- sary. It held: only person

"Here was the the world who could possibly words, exonerate Her only Stovall. her words, He is not the man1 could have resulted freedom for hospital Stovall. The not far was distant jail. from the long courthouse No one knew how might Mrs. Behrendt live. responsibility Faced with the identifying attacker, with the need for immediate knowledge action and with the that Mrs. Behrendt jail, could police only not visit the followed the procedure feasible and took Stovall to the hospital circumstances, room. Under these the usual police station line-up, argues which Stovall now he should had, have question." was out of the (citation omitted). Id. Thus, while out-of-court suppressed identification was not in that Stovall case, process right suspects "established due of criminal free be from that, confrontations under all circum- unnecessarily suggestive. right stances, are was enforceable exclusion at trial of evidence of the constitutionally invalid identification." Manson v. (1977) (Marshall, Brathwaite, 432 U.S. 120 J., dis- senting). day

¶ 19. On the same the United States Supreme Stovall, Court decided it also decided United (1967) Wade, States v. U.S. 218 388 and Gilbert v. (1967). California, 388 U.S. 263 These all decisions reliability reflected the concern Court's about the of eyewitness out-of-court identification evidence. See

156 (Marshall, dissenting). Brathwaite, J., 120 432 U.S. at strong Particularly, Wade, made state- in the Court eyewitness dangers with ments involved about identifications: compelled by the State between

[T]he confrontation or to a crime and the victim witnesses accused with peculiarly evidence is riddled elicit identification might dangers and factors innumerable variable which derogate a fair trial. The seriously, crucially, from even well-known; are vagaries eyewitness of identification criminal of law rife with instances the annals of are mistaken identification. omitted). (footnote

Wade, The founda- U.S. at "trilogy" recogni- "the of cases was Court's tion this justice' 'high miscarriage incidence tion eyewitness resulting mistaken from the admission of Brathwaite, at criminal trials." identification evidence (citation (Marshall, dissenting) J., U.S. at 119 omitted). Gilbert, Stovall, Wade, United 20. After identifica- next considered the Court

States States, U.S. 377 v. United tion issue Simmons (1968). was convicted case, In that the defendant robbery How- on in-court identification. armed based had been ever, the in-court identification witnesses prior photographs to trial. of the defendant shown argued the in-court identifications were defendant photo identification tainted, the out-of-court because suggestive. was "totality attempting to follow the Court, 21. The developed Stovall, that the in-court determined

test" However, exclusion- was tainted. "the identification not accomplished, already ary had been effect of Stovall suggestive prosecution made no use since the Simmons, therefore, did not deal with confrontation. constitutionality out-of-court identification procedure. only question impact The was the of the Due Process Clause on an in-court identification that was suggestive." unnecessarily Brathwaite, not itself 432 (Marshall, dissenting). at 121-22 J., U.S. Supreme 22. United Court States neverthe-

less held in Simmons each "that case must be consid- ered on facts, its own and that convictions based on eyewitness following pretrial at trial identification by photograph identification will be set aside on that ground only photographic proce- if the identification impermissibly suggestive give dure was so as to rise very irreparable substantial likelihood of misidentifi- holding, Simmons, cation." 390 U.S. at so Supreme expan- however, the Court "delineated a more totality sive definition of than the one established Twenty-Years Paseltiner, Stovall." David E. Diminish- ing Proposal A Protection: to Return to the Wade (1987). Trilogy's Standards, 15 Hofstra L. Rev. 'permissible' "Substitution of the word for 'unnecessar- ily' impression may creates that what be 'unneces- sary' 'permissible.' replacing could still be Moreover, irreparable 'conducive mistaken identification' with very irreparable 'a substantial likelihood of misidentifi- higher requires proof part cation' a much level of on the (footnote omitted). of the defendant." Id. result, As a Stovall and Simmons established two different due tests two different factual scenarios. See (Marshall, dissenting).4 Brathwaite, 432 U.S. J., at 4 The distinction established between the circumstances presented States, in Stovall and Simmons United 390 U.S. (1968), preserved was succeeding two United States (1970) Alabama, Court cases: Coleman v. 399 U.S. 1 (1969). California, and Foster v. U.S. 440 (1972), Biggers, 409 U.S. 188 the In Neil v. away Supreme from its Court shifted United States "necessity" identifi- of the out-of-court on the reliance emphasized and, instead, forth in Stovall cation as set reliability In in Simmons.5 established the standard showup Biggers, police that consisted conducted a the past walking the defendant the victim detectives of two request, police police the At the victim's at the station. you." say up respondent or I'll kill "shut directed the after the identified the defendant The victim objected to the The defendant and then later at trial. admissibility of the out-of-court identification. Supreme an determined that 24. The Court

improper not re- identification alone does out-of-court quire The Court con- exclusion of the evidence. the suggestive identification evidence from a cluded that under if a court can find it reliable be admissible would totality In determine circumstances. order to the of the totality the the if an identification is reliable under five-part developed a test: circumstances, Court (1) opportunity to view the defendant of the witness (2) degree the witness' crime; time of the at the (3) prior descrip- accuracy of the witness' attention; (4) certainty demon- defendant; the level tion of the (5) confrontation; the witness at the strated length confrontation. the crime and the of time between Biggers, 409 U.S. at 199-200.6 See

5 (1972), "the ob U.S. 188 Court Biggers, In v. Neil pre-Stovall and challenged procedure occurred served that the a regard to make little sense with rule would strict that a first indication preceded the Court's confrontation the exclusion of evidence." might lead to suggestive procedure (citation (1977) Brathwaite, omit U.S. Manson ted). decision, commentator observed: to this one response Supreme

¶ 25. The United States Court's next significant eyewitness identification case was Manson v. police positive case, Brathwaite. In that officer made a photo out-of-court days identification of the defendant two purchase drugs after he conducted an undercover parties agreed from the defendant. Both that the identi- improperly suggestive. fication was Court totality that, held under the circumstances, though identification was reliable even the confrontation procedure suggestive. Brathwaite, was 432 U.S. at 106. Biggers "reliability The Court reaffirmed and held that linchpin determining admissibility of identifi- testimony.... cation The factors to be considered are set (citation omitted). Biggers." out in Id. at guidance ¶ 26. With from the United States Su preme adopted Court, this court has the in test set forth Biggers attempt and in Brathwaite an to minimize the misidentification of defendants in Wisconsin. See State (1995); Wolverton, 234, 193 Wis. 2d 533 N.W.2d 167 (1974) (in State, Fells v. 525, 65 Wis. 2d 223 N.W.2d507 involving lineup photo a case and identifications, the- relatively objective [T]he Court moved from the tests of Gilbert v. California, (1967) and Stovall to a subjective 388 U.S. 263 test. The Biggers requires suggestiveness test first the determination expansive reading totality test, an then, under of the and even if the lineup suggestive, may used, if, is found to be it still be after weighing surrounding lineup, all the factors the it is found to be Biggers, therefore, rehable. makes it difficult for the defendant prove suggestiveness, making while at the same time it easier for prosecution suggestive use identification. The courts are flagrant thus able finding reliability, to dismiss violations on a police and concerning suppression have little to fear suggestive identifications. Paseltiner, David E. Twenty-Years Diminishing Protec- Proposal tion: A Standards, to Return Trilogy's to the Wade (1987)(footnotes omitted). Hofstra L. Rev. proper procedure if identifica- is to first determine "unnecessarily suggestive," if and, so, decide tion was totality the identi- whether, circumstances, under the reliable). Wolverton, In this fication was nevertheless presented factual cir- decided a case that similar court presently There, us. to the case before cumstances driveways police showups in of different wit- conducted suspect positively incidents. The was nesses to different squad sitting car. identified while alone the back of shortly alleged place after the The identifications took suspect incidents, and the later identified the witnesses trial. at relying Biggers Brathwaite, on we defendant demonstrates that

held that if the criminal impermissibly suggestive, the burden was 'under the to the state to demonstrate that "shifts "totality the identification was of the circumstances"' Accordingly, Wolverton, 2d . ." 193 Wis. at 264. reliable.. admissibility upheld identifi- of the out-of-court we involving due cations, not under standards necessity Stovall, under the as set forth but because totality were circumstances, such identifications determined to be reliable.

IV opportunity presents an 28. This case us with regard position with to the United States revisit our Biggers in and Brathwaite. Court decisions urges reaffirm our adherence to these The State us to holdings, again from an conclude that evidence impermissibly suggestive identification can out-of-court totality of the if, at trial based on the still be used reliable. con- circumstances, the identification was approach and us to abandon this trast, Dubose asks exclusionary apply per in where out-of- se rule cases impermissibly suggestive. court identifications were 161 begin by recognizing ¶ 29. We our assessment that much new information has been assembled since showup procedure last in we reviewed Wolverton. decade, Over last there have been extensive studies on evidence, the issue of identification research that is impossible ignore. Nancy Steblay now for tous See et Eyewitness Accuracy Showup al., in Rates Police Lineup Meta-Analytic Comparison, A Presentations: 27 (2003); L. & Human Behav. Collins, Winn S. Im- proving Eyewitness Evidence Collection in Procedures Gary Wisconsin, L. 529; 2003 Wis. Rev. L. Wells & Eyewitness Testimony, Olson, Elizabeth 54 Ann. Rev. Psychol. (2003); Tiffany Kathy Hinz & Pezdek, The Exposure Multiple Lineups on Face Identi- Effect of Accuracy, (2001); 25 L. & Human Behav. 185 U. fication Department Eyewitness Justice, S. A Evidence: Guide (1999), http://www. Law available at for Enforcement ncjrs.org/pdffilesl/nij/178240.pdf; Gary Amy L. Wells & SuspectFeed- "Good, L. Bradfield, You Identified Eyewitnesses Reports back to Distorts Their Witnessing Experience, Appl. Psych. (1998); 83 J. Gary Eyewitness al., L. Wells et Proce- Identification Lineups dures: Recommendations and Photo- spreads, (1998); 22 L. & Human Behav. 603 U.S. De- partment by Justice, Juries, Convicted Exonerated Science: Case Studies the Use DNA Evidence to (1996), Establish Trial, Innocence available at After http://www.ncjrs.org/pdffiles/dnaevid.pdf. eyewitness

¶ 30. These studies confirm that testi- mony "hopelessly is often unreliable." Commonwealth v. (Mass. 1995). Johnson, 650 N.E.2d strongly supports eyewit- research the conclusion that single greatest ness misidentification is now the source wrongful States, convictions the United and re- wrongful sponsible more convictions than all other for Eyewitness Wells, combined. See causes Identification study Procedures, 6. In a 22 L. & Human Behav. at by Department of Justice conducted the United States (85 wrongful convictions, it determined that 24 of 28 pri- percent) of the erroneous convictions were based marily by a on the misidentification of the defendant Eyewitness Improving Collins, Evidence Col- witness. Wisconsin, Procedures in 2003 Wis. L. Rev. at lection study In a conducted the Innocence 532-33. similar Project Benjamin Law, mis- at the Cardozo School major part wrong- played a in the taken identifications post- ful conviction of over two-thirds of the first 138 http://www. at, exonerations. Available conviction DNA innocenceproject.org/causes/mistakenid.php. These sta- certainly Justice William J. Bren- tistics substantiate "the annals of criminal nan, Jr.'s concerns Wade that are rife with instances of mistaken identification." law omitted). (footnote Wade, U.S. at 228 light recognize evidence, we that such eyewitness approach to identification has our current significant decisions flaws.7 After the Court's showups Biggers Brathwaite, and the test for evolved unnecessary suggestiveness inquiry an from an inquiry into forgiv- suggestiveness, impermissible while suggestiveness ing impermissible if the identification have now shown to be reliable. Studies could be said note that procedure, of a we As further evidence flawed recently Attorney adopted has General's Office Wisconsin Eyewitness Policy and Procedure Model Identification. for experience and nationwide policy "[r]esearch a result of was (which) eyewitness par evidence can be demonstrated evidence, eyewitnesses can be ticularly fragile type of Justice, Policy Model Department mistaken." Wisconsin at, Eyewitness at available Procedure Identification http://www.doj.state.wi.us/dles/tns/EyewitnessPublic.pdf. approach extremely unsound, difficult, is since is it distinguish impossible, if not for courts to between were and identifications identifications that reliable "Considering complexity that were unreliable. the of the suggestive proce- human mind and the subtle effects of upon it, dures a determination that an identification by procedures open was unaffected such must itself be question." Leclair, to serious State v. 385 A.2d (N.H. 1978). a can Because witness be influenced the suggestive procedure exactly itself, a court cannot know how reliable identification would have been without suggestiveness. ¶ 32. It is now clear to us that the use of unnec- essarily suggestive resulting evidence from a procedure presents problems serious in Wisconsin Thurgood Marshall, criminal law cases.8 Justice senting dis- problem Brathwaite, took note of such a expressed concern he his when wrote: view, my totally ignores this conclusion the lessons of are, dangers

Wade. The of mistaken identification as held, simply great permit unnecessarily Stovall too to 8 One commentator stated: Unnecessarily suggestive pretrial procedures identification differ improper they from most other law enforcement activities because any Although do not further valid law enforcement interest. suspect's rights of a violation fourth or fifth amendment —for example, interrogation a warrantless search or an without lawyer present plainly might wrong, it at least further —is objective collecting By valid law enforcement relevant evidence. contrast, unnecessarily suggestive procedure an identification simply creates unreliable evidence where rehable evidence could gathered. good justify have been It is not a case where ends bad unnecessarily suggestive procedure means —the end result of an precisely worthless because of the means used. Rosenburg, Process, Rethinking Right Ky. to Due L.J. at (footnote omitted). nor Biggers Neither suggestive identifications. any contrary empirical opinion today points

Court's only reinforced the Wade have evidence. Studies since dangers of identifica- validity of its assessment rely 'content on testimony. While the Court is tion juries,' of American good judgment sense and repeated miscar- for Stovall and Wade was impetus resulting juries' willingness from riages justice eyewitness testimony. credit inaccurate (Marshall, dissenting) Brathwaite, J., 432 U.S. at 125-26 omitted) (citation omitted). (footnote agree him with We unnecessarily sug- many regarding of the concerns gestive procedures addressed Stovall Wade. were recognized the risk of misidentification is Stovall jury great to hear evidence from unnec- to allow the too essarily suggestive showup procedures. stated, As the specifically Supreme the Court held that States United showing suspects singly persons "practice for the widely purpose con- identification... has been omitted). (footnote Stovall, at 388 U.S. demned." showup the evidence be the Court allowed While holding limited to situa- case, in that its was admitted totality circumstances, where, on the the tions based necessary. requirement showup a strict Such the was precautions police helped take would ensure that showup considering showup and, if a the use of a when procedure appropriate, in a non- conduct the was suggestive manner. adopt guide, as our we now Stovall With admissibility regarding in

different test Wisconsin showup evidence conclude that identifications.9 We to the United States a result of our return As in any language now withdraw approach, Court's Stovall we obtained from an out-of-court is showup inherently unless, and will not be admissible suggestive based on totality circumstances, the procedure was A necessary. will not be necessary, however, unless the lacked make an police probable cause to or, arrest as result of other exigent circumstances, could not have conducted a or A lineup photo array. or fairer lineup photo array generally than a showup, because it the probability distributes of identification among the number of persons arrayed, thus reducing the risk of a misidentification. See Richard et Gonzalez al., Biases in Response 64 J. of Lineups Showups, (1993). & Personality 525, Soc. In Psych. a showup, however, the only for the option witness is to decide whether identify suspect.10 See id.

Wolverton, 533, Streich, 209, 193 Wis. 2d at in State v. 87 Wis. 2d (1979), 274 N.W.2d 635 as well as of appeals' court (Ct. Kaelin, 1, decision in State v. 196 Wis. 2d 538 N.W.2d538 1995), App. therein, cases cited might interpreted be being as based on the Wisconsin Constitution. Those cases were based on the United States Constitution and focused more on reliability necessity identification than on the for a showup. Wisconsin, there are several criteria that should be regard considered in to whether to precedent. adhere to See Controls, Ins., Employers WI 108,

Johnson Inc. v. 264 Wis. 2d 665 N.W.2d257. One such factor relates to the need to reach a Id., decision that corresponds newly to ascertained facts. 98. Another prior ¶ factor is whether the decisions have become unsound, they because are based on principles that are longer no Id., conclude, light valid. 99. in ¶ We of the compelling research herein, discussed that these criteria have now been satisfied. " 10 'There great potential is a for misidentification a when stranger witness identifies a solely upon single based a brief observation, and this risk is increased when the observation was made at a time of stress or Cromedy, excitement.'" State v. (N.J. 1999) (citation omitted). 727 A.2d emphasize approach, our which is We that 34. extent on the recommendations based to some Project, per a Innocence is not se exclusion- Wisconsin ary requests. Showups a have been rule like Dubose prosecuting investigating in and useful instrument cases, and to circum- criminal there will continue be necessary procedure such a is in which stances appropriate.11 police that a If and when the determine necessary, showup special to care he taken is must pro- potential suggestiveness. We recommend minimize proposed similar to those the Wisconsin cedures Project showup help make identifications Innocence possible. impor- non-suggestive example, For it is as as showups in locations, in or tant are not conducted that conveys implicitly that manner, a the witness guilty. Showups police suspect conducted is suspect squad cars, in handcuffs stations, or with carry any them witness, all with visible to are guilt, should considered and thus be inferences suggestive.12 investigating Next, the matter at officers instructing proceed caution issue should with investigators realize must that "a witness's witness. fragile memory and that the amount of an event can be accuracy a wit- of the information obtained from a example police apprehend An of this be when would Terry person suspected If that suspect during stop. a crime, requisite do not committing police a but the have lineup photo a or probable to arrest and then conduct cause necessary. be array, could considered station, logic the police within suspect If a is detained lineup or procedure should be dictates that identification inherently showup. array, suggestive rather than the photo depends part questioning." ness on the method of Department Eyewitness United States of Justice, Evi- eyewitness dence, Therefore, at 3-4. an should be told suspect may may present, that the real or not be investigation regardless that the will continue of the impending procedure. result of the nally, identification Fi- important suspect it is that a be shown only suspect police witness If once. a is identified, the proce- have no reason to conduct further identification Conversely, suspect dures. if the is not identified presented witness, he or she should not be to that any subsequent showups. witness While this list is complete, far from conducted in accord with these standards will do much to alleviate the inherent suggestiveness procedure. Applying approach

¶ 36. this to the facts before showups us, it is clear that the conducted were unnec- essarily suggestive, and that the admission of identifi- right cation evidence denied Dubose a to due under I, Article Section 8 of the Wisconsin Constitution.

First, there existed sufficient facts at the time of probable Dubose's arrest to establish cause for his necessary police arrest.13 It was not for the to conduct showups, they against since had sufficient evidence showups.14 Dubose to him arrest without such Next, placed the officers handcuffed Dubose and him in the squad By placing back suspect seat of a squad car. in a 13We have held that" '[p]robable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a Koch, crime.'" State v. 684, 701, 2dWis. 499 N.W.2d 152 (1993) (citation omitted). Dubose, In State v. 2003AP1690-CR, unpublished slip (Wis. op., Ct. App. 2, 2004), March the court of appeals they suggest implicitly police the believe that car, the suspect the This is situation is the offender. similar held Stovall, Court where the United States suggestive showup procedure the was when that the hospital brought hand- into room in was the defendant by police prosecu- accompanied officers and and cuffs Hiltsley, police witness, Third, the officers told the tors. guys" may caught they had "one of the who have suggestive and, as him. a comment is Such robbed greatly the increases chance shown, have studies circumstances, there was that, totality on of the held based the the Dubose. It on probable cause to arrest sufficient relied following facts: early morning First, entirety in the the of the events occurred people on the streets. See State v. hours when there were few out (time (1979) 427, 447, day Flynn, 2d 285 N.W.2d710 92 Wis. factor). Second, Engelbrecht people noticed two in the relevant a burglary call,

very vicinity a a half about block and near of the Third, away, shortly was made. because after the call one hood, they a matched the wore a flannel shirt with individuals Fourth, burglary given call. the description with the in connection away Engelbrecht suspects after he his from turned then ran Wardlow, 528 U.S. in their direction. See Illinois v. vehicle (2000) dispositive, police, although (flight not can 124-25 from factor). half, Fifth, Engelbre- a minute and a within be a relevant Sixth, up perimeter lock-down the area. set a one-block cht arrive, Engelbrecht waiting unit heard a canine while robbery involving regarding dispatch armed two African- an may Dispatch suspects. male advised this call be American further Seventh, Rocky, burglary call. the canine related to the earlier up suspects immediately picked ran partner, scent of the who away Engelbrecht ultimately a and tracked Dubose to from perimeter. Eighth, that was the officers' one-block location within Ninth, backyard hiding a in someone's behind fence. Dubose was male, out, Dubose, being told an African-American after to come description robbery dispatch. appeared fit from the armed and probable constitutes cause. The sum total of these events analysis by agree with the court Id. We wholeheartedly this appeals. Although appeals

misidentification.15 court "nothing wrong police a stated it found with procedure an where officers indicate individual is a possible suspect," unpub- Dubose, 2003AP1690-CR, slip op. ¶ 33, lished at we consider such comment unnecessarily suggestive. Finally, showup

¶ 37. after the first was con- positively police identified, ducted Dubose was procedures, still conducted more two identification an- photo police Dubose, other at shortly station after Dubose's arrival. These subse- quent procedures unnecessarily identification were suggestive. already posi- had Dubose been arrested tively by Hiltsley. identified The record does not show any exigent making that circumstances existed the procedures out-of-court identification used here neces- sary. totality Therefore, conclude, we on based the suggestive "[t]he the circumstances, that elements in procedure this identification made it all but inevitable [the witness] identify [the defendant] that would or whether not he was in 'the effect, fact man.' In the police repeatedly said to the witness the 'This is man.'" (1969) (citation v. 440, Foster 394 California, U.S. omitted). For similar as reasons, above, discussed we appeals reverse court of and remand case this to the proceedings, court circuit for further consistent with adopted the standards herein. our focus is on While showups photo two here, that occurred identifica- by showing Hiltsley mug tion Dubose, shot of was also

15Studies have giving demonstrated that a proper instruc tion can reduce mistaken identification rates much as as 41 percent affecting without the rate of accurate identifications. Gary Olson, See L. Elizabeth Eyewitness Wells & A. Testimony, (2003). Pscyh. 277, Rev. Ann. 286-87 suggestive unnecessarily and that out-of-court identifi- suppressed. have been cation should recognize remand, we that the exclusion 38. On not identifications "does of evidence of the out-of-court guilt. deprive prosecutor of reliable evidence identify permitted the defen still be witness would an if is based on dant in court that identification pretrial properly independent conducted source. And viewings proven and, would be still at trial can be suggestive encouraged by prohibiting use rule 1981). (N.Y. People Adams, 423 N.E.2d ones." the circuit court's do not now case, In this we vacate judgment court must conviction, since the circuit any by a made witness identification Dubose review any during If the court such the trial. determines unnecessarily sugges on the was based identification showups photo then identification, tive ordered, trial must be aside and new conviction set independent any or was in-court identification unless any may uphold identifi The court in-court untainted. it an if "had cation the circuit court determines 'sufficiently lineup origin independent or of the was primary distinguishable purged taint.'" be McMorris, 156, 175, 2d 570 N.W.2d State v. 213 Wis. 241). (1997) (quoting words, In other Wade, 388 U.S. at any in-court identi if circuit court determines the not out-of-court of Dubose was tainted fication "[T]he stand. identifications, then the conviction should if carries the State in-court identification is admissible convincing showing 'by and evidence of clear the burden upon were based obser that the in-court identifications suspect [out-of-court] the of other than vations the (quoting McMorris, 2d 167 213 Wis. at identification.'" Wade, 388 U.S. at 240.

171 V 39. We find the of strong support adoption these in the Due standards Process Clause of the Constitution, I, Wisconsin Article Section 8.16 It reads in relevant "No part: person may be held to answer for a criminal offense without due ."17 process law. . . Based on our reading clause, of that and in keeping mind the herein, discussed the principles approach outlined in Biggers and Brathwaite does not satisfy this We conclude requirement. I, instead that Article Sec- tion 8 necessitates application we approach are now adopting,18 which is a return to the principles enunciated by the United States Court's deci- Stovall, Wade, and Gilbert. sions I, recognize While we that Article Section 1 of the Wiscon sin principles Constitution also to process, refers of due provision relevant case, of the Wisconsin Constitution at issue in this arguments counsel, as noted in briefs is Article I, result, Section 8. As discussing I, case law Article Section of the Wisconsin Constitution is not relevant present to this inquiry. 17The Fourteenth Amendment to the United States Con stitution states: persons States, subject All born or naturalized in the United jurisdiction thereof, are citizens of the United States and the they any State wherein reside. state No shall make or enforce law abridge privileges which shall or immunities citizens of the States; any deprive any person United life, nor shall State liberty, property, law; deny or any without due nor

person jurisdiction equal protection within its of the laws. 18We note that "the Federal Constitution does not foreclose experimentation by the States in the development of such ."Brathwaite, J., rules (Stevens, 432 U.S. at 118 concurring); see Tovar, (2004) (The also Iowa v. recently U.S. Court decided exclusively this case under the Federal Constitution by statute, noted "that states are free adopt rule, or useful."). any guides they decision ... deem brief that this ¶ The concedes in its 40. State interpreted 8 of the I, Article Section never court has equivalent to the Due Pro- Constitution as Wisconsin regard Constitution of the United States cess Clause argue, pretrial does how- identification. The State to pretrial identification, other than ever, that on issues essentially provisions are have stated that we interpret equivalent, them identi- and that we should interpret required cally However, we are not to here. I, Article Section 8 Due Process Clause of lock-step with the Federal Constitution in Wisconsin Ward, ¶ 59, 231 3, See v. 2000 WI Constitution. State ("[I]t irony be 517 a sad 723, 2d 604 N.W.2d would Wis. stamps to act mere rubber our- this court . .. as Constitution."); interpreting when our Wisconsin selves Knapp, ¶ 86, 2d 127, 60, 285 Wis. 700 v. 2005 WI State II) ("While similarity (Knapp or textual 899 N.W.2d determining depart identity important when to when is jurisprudence, cannot be it from federal constitutional interpret power court to conclusive, lest this forfeit its judiciary. people to the federal its own constitution shaped constitution, it is our our this state (citation it.") interpret responsibility omit- solemn ted). though Process Clause of Even the Due Constitution uses 8 of Wisconsin I,

Article Section language not identical, similar, but somewhat Amendment of the Fourteenth Due Process Clause right Constitution, retain the we to the United States greater protec- provide interpret our constitution to counterpart. Knapp II, 285 See than its federal tions 226, 2d Hansford, 2d State v. Wis. 86, 59; Wis. (1998); Doe, 2d v. Wis. 242, 580 State N.W.2d (1977); Hoyer State, 180 Wis. 171-72, 254 N.W.2d Dane, v. Carpenter County (1923); 407 9 249, Wis. of " (1859). [*274] in a divergence '[W]hile this results of meaning between words which are the same in both constitutions, federal and state system federalism envisaged by United States Constitution tolerates such divergence greater where the result protection of individual rights under state than law under federal State Constitutions Brennan, law....'" Jr., William J. and the Protection Individual Rights, 90 Harv. L. Rev. (1977) Kaluna, State v. 489, 500 (quoting 51, 520 P.2d 58 (Haw. 1974)).19 n.6 gainWe for our support reliance on the

Wisconsin Constitution by noting that the federal stan- dard in eyewitness out-of-court identifications has also not been on state accepted, grounds, constitutional in two prominent York states —New and Massachusetts. Johnson, Adams, See 1257; 650 N.E.2d at 423 N.E.2d at 379.20 Although these states have a adopted se per

19 recognize experimentation We that in state courts serves guide the United States Supreme Court in its determina Shirley tions. Abrahamson, See S. Reincarnation State Courts, (1982). 951, 36 L.J. Thus, Sw. 966 "a state can be innovative within its own borders involving without the entire nation. greater State courts devising have latitude in remedies that respond Indeed, judicial to local may concerns. state review be said to foster the allowing values federalism the nation profit by using in what succeeds avoiding state and what Shirley Abrahamson, Law, fails." S. State Constitutional New Federalism, Court, Judicial Rehnquist and the 51 St. Clev. L. (2004) (footnote 339, omitted). Rev. Likewise, fully expect we experimentation our with this test will be successful in adopted Wisconsin and later elsewhere. Adams, (N.Y. People 1981), 2d N.E. justified

New York Court of Appeals its reliance on its state constitution in following passage: respective exclusionary state constitu- rule under their approach provide a different than this tions, and thus recognize does court, nevertheless that Wisconsin we issues. out-of-court identification not stand alone on recognize case is not the this 43. We also change principles on based first to result completed after a court decision new studies extensive interpretation premised on that was constitutional example, application. Educa- For in Brown v. Board of (1954), tion, the United States 347 U.S. 483 support comprehensive on its relied studies Court equal separate legal but conclusion that doctrine and, of the United States Constitution was violative (1896) Plessy Ferguson, U.S. thus, v. 163 537 support For of this much-needed overruled. should be Supreme United States law, in constitutional shift modern studies and its decision on several Court based public segregation in education.21 The on the effects guarantees, interpreted as past In the Federal constitutional Court, Supreme generally and often exceeded satisfied comparable provisions of Constitution. requirements of the State Rights independent Bill of need for an State But there would be no particularly years always In recent if the case. that were encouraged Supreme emphasized this and related Court and has by exercising special prescribing in aspects restraint of Federalism displace procedure foreclose which would or constitutional rules problems specifically development of tailored to local State rules experiences.. and .. omitted). (citations Id. 21 in a the studies seriatim foot simply "The Court cited proposi note, supporting as it list citations much would case Walker, Authority: Social John Monahan & Laurens tion law." Law, Establishing Social Science Obtaining, Evaluating omitted). (1986) (footnote Thus, 477, 483-84 134 U. Pa. L. Rev. Education, 347 U.S. 483 in Brown v. Board the decision (1954) using of an court example appellate a "prototypical "[W]e Court stated: cannot turn the clock back adopted, when the Amendment was or even Plessy Ferguson when public was written. We must consider light development

education in the of its full present place throughout its in American life the Na- Brown, tion." 347 U.S. at 492-93. agreeing position "Negro

¶ 44. In with the receiv(e) opportunities children, class, as a educational substantially are which inferior to those available to similarly white children otherwise id. situated," at 494 (Del. (quoting Gebhart, n.10 Belton v. A.2d 862, 1952)), Ch. the United States Court based its holding authority." on "modern at 494. Id. Because we part, authority," also decision, base our on "modern following have we no trouble the lead of Brown and making change jurisprudence a much-needed to our application on based of the Due Process Clause of I, Article Section 8 of the Wisconsin Constitution.22

VI agree sum, we with Dubose that denying suppress circuit court erred in his motion to the out-of-court identification evidence. However, we adopt proposed per exclusionary decline his se rule regarding adopt such Instead, evidence. we standards admissibility for the of out-of-court identification evi- modern social legislative and behavioral sciences as evidence to Cromedy, support its of a choice rule of law." 727 A.2d 457 at 463 (citation omitted). 22For a example more recent of current influencing studies Simmons, a constitutional principle, see v. shift Roper 125 S. (2005) (The Ct. 1183 held, United States Supreme Court based largely on evidence, current that the execution of minors is prohibited by Eighth the and Fourteenth Amendments of the Constitution). United States

176 United States those set forth the dence similar to Supreme that in Stovall. We hold Court's decision showup not be a will obtained from such evidence totality of the circum- unless, on the admissible based necessary. showup showup A not will stances, the was probable necessary, police however, lacked unless be exigent other or, an as a result of cause to make arrest lineup or conducted a circumstances, could not have array. suppress photo out-of- the motion to Since have been of Dubose should court identifications granted here, identifications were unnec- because such suggestive, essarily of the court we reverse the decision appeals, to the circuit court and remand case proceedings consistent with standards further adopted herein. appeals

By of the court of the Court.—The decision is to the circuit reversed, and the cause remanded court. (concurring).

¶ JR., I BUTLER, B. J. 46. LOUIS sepa- respects. join majority opinion in all I write rately respond one of to the concerns raised dissenting. Roggensack, dissenting opinions. J., See Roggensack agree ¶ that with I with Justice testimony respect trials, in criminal to identification key admissibility. Roggen- reliability be should dissenting, agree I criminal sack, J., 79. also process when identification is denied due defendant imper- testimony is "so admitted at trial from very suggestive give missibly to a substantial rise as Roggen- irreparable likelihood misidentification." (citing dissenting, Wolverton, 193 State v. sack, J., (1995); 234, Simmons 264, 2d 533 N.W.2d Wis. (1968)). agree Finally, I States, United U.S. presentation impede reliable, "the should not we dissenting, Roggensack, J., relevant evidence at trial." part ways precisely ¶ 86. However, I with the dissent because unreliable, identifications have been shown be

thereby legal undercutting fiction that operated respect eyewitness we have under with testimony. very upon by

¶ 48. Some of the research relied "disagreements dissent to illustrate the about the un- reliability showups" (Roggensack, dissenting, J., 90) accuracy percent ¶ sets forth an overall rate of 69 showups, compared percent lineups. for to 51 for Id. (citing Nancy Steblay, Eyewitness Accuracy al., et Rates Showup Lineup in Police Presentations: A Meta- Analytic Comparison, 27 Law and Human Behavior (2003)). Although by 523, 535 not mentioned dis- sent, that research further indicates that when the target display, is in the a correct identification occurs only percent showups, compared of the time in to 45 percent lineups. Steblay time at 530. Moreover, target display, when the is not in the a false identifica- (minus Ids) suspect tion of an innocent foil occurs 23 percent showups, opposed time in as to 17 percent lineups. of the time in Id. "disputed

¶ theory." 49. This is not social science Roggensack, dissenting, ¶ J., 79. This is data relied by upon dealing Id., the dissent. 90. What we are respect eyewitness is a with serious failure rate with looking identifications. we Whether are at the dissent's showups percent, percent, failure rate of 53 percent, percent, simply unacceptable. 16 or that rate is Steblay, Roggensack, 530, 532-33, at 535. See also J., dissenting, seriously argue 90. The dissent cannot any of these statistical misidentification rates lead eyewitness to the conclusion that identifications are inherently legal reliable. What we have here is fiction simply that is not borne out Unless, the facts. procedures identification until, eyewitness we improve is misidentification irreparable that the likelihood so no as reduced, longer proceed we can significantly in the Land of Oz. good all is though eyewitness not mean that 50. All of this does ¶ in a a valuable evidence testimony piece cannot be to used where continue be Showups criminal trial. will 34. The necessary Majority op., goal and appropriate. ¶ view, very is to avoid majority's opinion, my misidentification. irreparable likelihood of substantial Id., ¶ our supporting approach 51. The reasons If the is wrong person readily apparent.

should be identified, poten- an innocent faces person incorrectly More incarceration, and conviction.1 tial prosecution, system is justice is that it A tenet our criminal basic go than that one innocent guilty persons that ten free better Blackstone, Commentaries on the 4 W. person is convicted. See (1769) 27, 352; see also Furman England p. c. Laws of (1972) (Marshall, J., concur 238, 367 n.158 Georgia, 408 U.S. ("It to free than for one guilty be set ring) people is better for ten O. (quoting unjustly imprisoned.") William innocent man be Frank, Not & Barbara to Jerome Frank Douglas, Foreword (1970) (1957)); U.S. Winship, In re Guilty 11-12 ("It innocent (Harlan, J., far to convict an concurring) is worse free.")). majority go While the guilty man man than to let Education, (1954), I fail 347 U.S. 483 Brown v.Board relies on position majority prestigious on Brown's "trades see how majority opinion's jurisprudence support in American J., theory." Roggensack, See disputed reliance on a social science High sought to out the dissenting, Court root 93. Just as Brown, to root unjust "separate equal" we seek doctrine of but on mistaken identifications. unjust out convictions based are ways, the error of our we the same: if we see principle is That, discern, point is the duty-bound I to correct error. analogy. majority's important, guilty perpetra- however, the fact that the large, upon tor remains at able to wreak havoc an unsuspecting populace. Wrongly See Tom Kertscher, Freed, Convicted Man Milwaukee Journal On- Sentinel http://www.jsonline.com/news/state/ available at line, sep03/169169.asp. join I No one wants that. therefore majority opinion in this matter. foregoing respectfully

¶ 52. For the I reasons, concur.

¶ 53. I am authorized to state that Justice N. joins PATRICK CROOKS this concurrence. {dissenting). ¶ agree 54. WILCOX, JON E J. I Roggensack with Justice that if constitution is to anything, principles subject mean its must not be change prevailing based on the winds of the time. See Roggensack's ¶ dissent, Justice 80.

¶ 55. The Fourteenth Amendment to the United provides, part: "[N]or States Constitution in relevant any deprive any person liberty, shall State life, of or property, process deny any law; without due of nor jurisdiction person equal protection within its of the equivalent laws." The Wisconsin of the Federal Due Clause, I, Process Article Section 8 of the Wisconsin provides, part: person Constitution, in relevant "No may be held to for a answer criminal offense without process law[.] virtually due of Both are clauses identi- cal.1

1Wisconsin recognized courts have also due co-extensive process right originating I, from Article 1 Section of the Constitution, Wisconsin which provides: people "All are born equally and independent, free and have certain rights; inherent among life, liberty are these and the pursuit happiness; rights, governments secure instituted, these deriving are their just powers from the consent of governed." Reginald See D.

180 today's years ago, ma ¶ the author 56. Seven repeatedly recognized: jority opinion "This court has process the state and clauses of the due stated that essentially equivalent and are are federal constitutions subject interpretation." R., v. Hezzie State to identical (1998)(emphasis 848, 891, N.W.2d660 2d 580 219 Wis. added). ¶ n.1, Harris, 64, 2004 WI 2 v. See also State (accord); County 80, 680 N.W.2d 737 272 2dWis. Mgmt., Inc., 373, 393, 2d 588 S 223 Wis. v. C& Kenosha ("On (1999) a few occasions we 236 more than N.W.2d equal process expressly the due held have protection of our state constitution clauses essentially are States Constitution United same[.]"); Greenwold, 59, 2d 71, v. 189 Wis. State 1994) ("[I]t (Ct. App. is well established N.W.2d Constitution clause Wisconsin the due respective equivalent in the clause its the substantial constitution."). federal Thorp Lebanon, 2000 Town Likewise, this n.11, 610, 59, 2d N.W.2d Wis.

WI ruled: court federal under Thorps' claims

We treat claims under the consistently with their Constitution ordinarily no dis- there is constitution because state Equal Protec- in intent between the cernible difference under the Wisconsin Due Process Clauses tion and Constitution. Com- and the United States Constitution Const, Const, I, XIV with Wis. art. pare amend. U.S. 164, 180-81, 2d 593 1, 226 Agnello, §§ 8. v. Wis. State (1999) (stating ... the lan- "[w]here that 427 N.W.2d constitution is in the state guage provision of the (1995); 299, 306-07, 181 State State, 533 N.W.2d 193 2d v. Wis. (1989); McManus, 654 State 113, 130, 447 N.W.2d 152 Wis. 2d v. 43, 49-50, 132 2d N.W.2d Sylvester, v. 26 Wis. ex rel. Sonneborn (1965). 249

181 'virtually provision identical1 to that of the federal or discernible, where no difference in intent is Wisconsin normally courts have construed the state constitution consistent with the United States Court's constitution") construction of the (citing federal State Tompkins, 116, 133, 144 Wis. 2d 423 N.W.2d 823 (1988)). sum, our decisions have recognized the language because of the two provisions is almost identical, there is no simply basis to conclude that drafters of the Wisconsin Constitution intended our Due Process Clause mean anything different than its federal analogue. Furthermore, this court has repeat- edly recognized unwritten due process protec- tion in I, Article Section 1 of the Wisconsin Constitution is the same as that accorded under the Fourteenth Amendment the United States Constitution. 59. As this court D. v. Reginald explained State, (1995): 299, 2d 306-07, Wis. N.W.2d

The Fourteenth Amendment to the United States provides Constitution any any "nor shall deprive State life, person liberty, or property, without due law; deny to any person nor jurisdiction within its equal protection of the laws." The functional equivalent is I, 1, this clause found in Article sec. the Wisconsin Constitution: people "All are born equally free and independent, and have certain inher rights; ent among life, these are liberty pursuit and the happiness; rights, governments secure these are instituted, deriving just their powers from the consent governed." As noted in State ex rel. Sonneborn v. Sylvester, 43, 49-50, 2d (1965), Wis. 132 N.W.2d249 I, though even Article sec. is based on the Declaration of Independence, "there no substantial difference" between its equal protection and process protec due tions and that of the Fourteenth Amendment." See also McManus, 113, 130, N.W.2d 152 2d 447 v. Wis. [State ("This (1989)] the due process court has held that 654 Consti equal protection clauses of the Wisconsin and of respective their equivalents tution are substantial constitution); v. Funk Wollin Silo clauses in federal Inc., 59, n.2, 61 435 N.W.2d Equipment, 148 Wis. 2d & (1989) ('We given equal-protection provi have 244 parallel Constitution and the sion Wisconsin identical in of the United States Constitution clause terpretation."). interpreta- of parallel 60. The this legitimacy clauses of Wisconsin Consti-

tion of the due recognized and the federal constitution has been tution this history. As throughout court Wisconsin's by this Sonneborn, 2d 49-50: in 26 Wis. at court discussed 1, I of the Preliminarily, point we out that sec. art. language of is in constitution framed Wisconsin Rights reminiscent of the Declara Declaration many has held to Independence, times been tion and the substantially equivalent due-process be of the Fourteenth amendment clauses equal-protection v. State In Black the United States constitution. 205, 522, (1902), N.W. the court said Wis. law, if it "equality before must mean

the section more anything," and, expressed "The idea means Again, Pauly amendment." happily in the Fourteenth 554, 428, 185 said (1921), it was Keebler 175 Wis. N.W. that the first referring to the Fourteenth amendment Rights in our constitution the Declaration article of legislative substantially limitation equivalent awas legislature to accord all is bound and "our power jurisdiction protection of equal persons within its concept recently More we reaffirmed the laws." I, 1, equated with the Fourteenth art. is to be sec. (1959), 2d 8 Wis. in Boden v. Milwaukee amendment (1960), 318, 156; 10 Wis. Lathrop v. Donohue N.W.2d (1963), 404; and Haase v. Sawicki 2d N.W.2d 20 Wis. 2d 876. N.W.2d Since there is no constitutions, substantial difference between the two only we will henceforth refer the Fourteenth amend ment of the United States constitution. Today majority

¶ 61. alters course and aban- long precedent, dons this line of well-established con- tending that the Due of Process Clause the Wisconsin greater protections Constitution now affords than its doing counterpart. majority provides so, federal justification legal no for its decision other than raw its power majority op., majority ¶ to do so. See 40. The recognizes even result, that as a the exact same words in the federal and state mean constitutions now differ- things according Id., ¶ ent to this court. 41. Yet, the majority fails to articulate a rationale for how identical language in the two documents can mean the same thing years suddenly for a number of and now mean something Simply stating majority different. that a of disagrees Supreme the court with a United States power Court decision and has the to construe our state broadly principled constitution more is anot basis suddenly rejecting long history interpreting our process due clauses of the federal and state constitu- tions concert. nearly

¶ language 62. Given identical in the provisions practice two and this court's historic interpreting provisions the two in the fashion, same majority simply support has no for its conclusion language I, Article Section 8 "necessitates" rejection opinions of the United States Court's Biggers, (1972), in Neil v. 409 U.S. 188 Manson (1977), Brathwaite, 432 U.S. 98 and that the these opinions "do[ ] satisfy" requirements not Majority op., ¶ Wisconsin's due clause. 39. legal majority for its ¶ has no basis thus 63. I, the Wisconsin that Article Section conclusion change gov- requires a in our law radical Constitution put, showups. Simply erning 8 "neces- I, Article Section only the court because the rule announced sitates" justices majority Thus, it this court wills to be so. on "[t]he Roggensack agree rule of law I with Justice prin- today not based on constitutional announced Roggensack's ciple." dissent, Justice term court is the second time this this 64. This similarly interpreting practice of our has abandoned provisions of state and federal constitutions worded the Knapp, 2d WI 127, 285 v. Wis. in concert. State previous 899, abandoned our 86, N.W.2d this court holding jurisprudence the I, Article Section of rights does not create broader Constitution Wisconsin by provided the Fifth Amendment of the than those majority a of this Thus, United States Constitution. unjustifiably rejected only has not twice court needlessly decisis, it called but has strictures stare opinions question that have of this court countless parallel interpretation a of the Wisconsin on relied federal constitutions. by

¶ Furthermore, too, am troubled I, 65. majority's "studies," science on recent social reliance advocacy presented by groups, majority op., ¶¶ 29-30, only justify departure is stare decisis. Not from to its Roggen- recognized disputed, Justice as such data Roggensack's dissent, ¶¶ 89-91, but, sack, see Justice importantly, not to determine it is a valid basis more majority meaning to fails of our constitution. meaning adequately explain of the text of how the change every series of time new constitution can presented social science is to "studies" the court.2 If the fluid, text sois then our constitution is no constitution merely at all, device be invoked whenever four change members this court wish to the law. ¶ 66. It is not the function of this court create good policy it what considers to be social based on data province from social science "studies." That is the legislature. Our task is to render decisions based on legal principles authority. and constitutional See Panzer Doyle, ¶ 39, 2004 WI 295, Wis. 2d 680 N.W.2d 666. consistency jurispru- ¶ 67. There must be in our any dence if our are decisions to have semblance lawas simply majority not unfettered will of a agree members of this court. Because I that "constitu- principles change depending tional not are on what theory social science in fashion[,]" Justice Roggensack's dissent, 80, and because the mere abil- ity of the court to construe the Due Process Clause broadly the state constitution more than its federal counterpart justify majority's does not decision to history according provisions abandon our both an interpretation, identical I dissent. (dissenting). DAVID PROSSER, T. J. Noth-

ing justifies precipitous in the facts this case the departure precedent majority from state and federal the undertakes. any

¶ in case, 69. As the facts are critical. After committing robbery against Timothy Hiltsley, an armed Hiltsley's Bay. two men fled from residence in A Green This the second time majority this term that a court has utilized "studies" and "data" meaning to alter the generally constitution. See our Ferndon Wisconsin Patients Fund, Compensation 125, 2005 WI 284 Wis. 2d 701 N.W.2d 440. neighbor a later, A.M., 1:21 called minutes at about

few fleeing police report two men the scene. to the the immediately, and one the Police officers arrived walking responding near men the officers observed two apartment. around the officer turned his vehicle When investigate, houses, fled two into the men between to a block. the middle of residential perimeter police immediately up ¶ a The set 70. By accounts, this took less than 90 around the block. all police quickly Upon searching area, the the seconds. placed in The Dubose discovered Dubose. officers Hiltsley's squad location, him of a car and drove to back Hiltsley immediately they showup. conducted where him man robbed at Dubose as the who identified gunpoint, mentioning recognized he to Dubose due hairstyle. his build and

¶ after All within minutes 71. of this occurred robbery. Shortly

¶ thereafter, officers located other 72. pistol perimeter, near the within semi-automatic being men ran after where the unidentified houses two police. pursued opinion spends majority

¶ most its The 73. depart discussing energy on from the studies it relies precedent. to only para- two It devotes and federal state theory graphs application case.1 of its this to the are in this not sufficient 74. facts case majority's justify that this defendant's conclusion Nothing rights in these facts violated. due were justifies suggestive inherently that it this unfair or is so change law. sea court-ordered repeat- Throughout has term, this the court power interpret provisions edly used its raw 1 Majority op., 36-37. ¶¶ differently way

Wisconsin Constitution from the Supreme interprets provisions United States Court in may the U.S. Constitution. While the court exercise this power, pay the court should more attention whether power. it this should exercise By Supreme ¶ 76. of cases, sheer volume developed experience interpret- Court has substantial ing reaching provisions. constitutional Matters the Su- preme import they likely Court are of such are also argued to be briefed and than in better issues the state system. adopt myriad court state When courts different interpretations constitutions, of state the level of un- certainty exponentially. suspect's rises A constitutional rights may change dramatically depending on which acquaintance. side a state he line robs an apparent majority opinion It is only 77. that the is out step not with the United States Court, proudly pro- but also with other most state courts. It as claims much. It is a curious that court so confident superiority analysis the wisdom and of its should consis- tently attempt to insulate its decisions from review. respectfully For stated, I reasons dis- sent.

¶ 79. PATIENCE ROGGENSACK, DRAKE J. (dissenting). majority reading concludes that its process the due clause I, of Article Section 8 of the requires suppression Wisconsin Constitution1 now any through process identification obtained a known as "showup"2 necessary it unless was to make identifica- I, Article 8 provides Section part: relevant (1) person may No held to be answer for criminal offense without

due of law.... 2 showup A presentation is the individual suspect of a in the of a commission crime to a witness that crime. concluding, Majority op., By in that manner. 2. so tion majority requires suppression of identifications the the charged crimes, matter reli- with no how of defendants holding the identification. This substitutes search able every the for truth, should form foundation for the which theory prosecution, criminal with one social science suggestive." "unnecessarily showup identifications are majority opinion doing, our Id. In so the abandons Supreme previous jurisprudence and the United States concerning showup jurisprudence identifica- Court's reliability the tions, which have used the of both of determining linchpin the admissibil- identification as reliability, disputed ity. I not a social dissent because admissibility key theory, all must be the to of science testimony I and because in criminal trials identification totality bearing on conclude that the of circumstances in a identification this case resulted rehable the perpetrator the the of armed identification of Dubose as robbery Accordingly, I of he was convicted. would which appeals. the of affirm court process from The term "due of law" comes by Magna promise "law of a trial directed the

the Carta's body legislative the of established of the land" as (1967) government. Denno, Stovall v. U.S. (Black, dissenting). paintings in the J., of the four One hearing depicts Supreme Court room Wisconsin many Magna though signing And of the of Carta. repealed, subsequently Magna provisions Carta's were subject painting understanding my is that the significance founda- chosen because was Magna principle due Carta tional promised courts were in 1215 and that Wisconsin principles preserve. I constitutional note this because change depending on social science are not what theory is in fashion. Supreme

¶ 81. The United States Court ad- process in dressed constitutional due the context of a showup eyewitness identification in Stovall. It held that suppress impli- a claim to an out-of-court identification right procedural cates defendant's constitutional process. Stovall, However, due 388 U.S. at 299. explained United States Court also that blan- suppressions keeping ket are identifications not in promotion justice. with rule, however, per goes se too since applica- far its automatically tion and and con- peremptorily, without factors, sideration alleviating keeps evidence from jury the is and that reliable relevant. (1977). Brathwaite,

Manson v. 432 U.S. 112 98, And, as " explained, we have 'the admission of evidence of a showup process.'" without more does not violate due Streich, State v. 2d 209, 214, 87 Wis. 274 N.W.2d 635 (1979) (quoting Biggers, Neil 409 U.S. (1972)). We have also held that a one-to-one identifica per suggestive, tion is not se and because such an memory identification is often done while the witness's actually promotes by assuring fresh, it fairness reli ability preventing holding and the of an innocent sus pect. (citing Streich, 87 2d at Wis. 215-16 State v. (1975); Isham, 70 2d 718, 724-25, Wis. 235 N.W.2d506 State, see also Johnson v. 13, 18, Wis. 2d 176 N.W.2d (1970). today's ruling, 82. Prior to Wisconsin courts criminal have held that a defendant was denied due process only when identification evidence admitted at " showup impermis- trial stemmed from a that was 'so sibly suggestive give very as to rise to substantial irreparable likelihood of misidentification.'" State v. (1995) Wolverton, 234, 264, 193 Wis. 2d 533 N.W.2d167 States, 377, 384 (quoting 390 U.S. v. United Simmons (1968). [bore] burden the initial "A criminal defendant impermissibly demonstrating was suggestive." If Wolverton, 2d at 264. this 193 Wis. prove required met, was the State burden was 'totality identifica- circumstances' the "under proce- though confrontation even tion was reliable following using suggestive," five factors: was dure "(1) the criminal to view opportunity of the witness (2) crime, degree of the witness' the time of the at (3) attention, description of accuracy prior of his (4) at criminal, certainty demonstrated the level of (5) crime confrontation, the time between the the confrontation." (quoting Brathwaite, Wolverton, 2d at 264-65 193 Wis. Biggers, 199-200; 409 U.S. at 114; at see also 432 U.S. State, 51, 65, 2d 271 N.W.2d 86 Wis. Powell v. £¿1 (1978). eyewitness iden- The court's examinations reliability, it is the because ab- focused on tifications process. reliability Stovall, due that violates sence of at 301-02. 388 U.S. many bear on factors that There are Showup identifi is reliable. an identification

whether of the after the commission done soon cations that are perpetrator appearance is fresh crime, while reliability identi than mind, have more in a -witness's passage of considerable time.3 done after fications Russell, 60 Wis. Wolverton, 267; 2d at State 193 Wis. (1973);Johnson, 2d 47 Wis. 721, 211 N.W.2d637 712, 2d 565, 586, 49 Wis. 2d DiMaggio, State v. See also (1971) ("An inherently immediate confrontation N.W.2d identify one, failure to delayed while reliable than a more Turner v. suspect."); any terminates inconvenience 1993) ("[Ijdentifi- (D.C. States, 667, App. 622 A.2d United explained Johnson, at 18. in As we a "fresh identifica- promotes "by assuring reliability." tion" fairness Id. Additionally, showup in-person, identifications are done corporeal generally identifications are held more photo reliable than Simmons, identifications. 390 U.S. rades, at 386 Criminal Cases 83 ^[1955] n.6 (citing Crim. L. E (1965); Wall, Rev. Eye-Witness Williams, 531). Identification Identification Pa- majority opinion ¶ rely- 84. The asserts that it is ing Majority op., ¶ on Stovall. 32. It contends that Stovall is totality where, "limited to situations based on the

of the circumstances, the was neces- sary."Majority op., misreading ¶ 32. This is a of Stovall nothing because there is in Stovall that limits the use of showup identifications to those circumstances where "necessary." that mode of identification was Instead, determining Stovall defines its task as whether "the confrontation conducted in this case was so unneces- sarily suggestive irreparable and conducive to mistaken [the defendant] identification that was denied due process Stovall, of law." 388 U.S. at 301-02. The United explained, States Court then further "a claimed violation of due law the conduct of depends totality a confrontation on the of the circum- surrounding stances it." Id. at Therefore, 302. Stovall expressly reliability focuses on the of the identification, "necessary" showup, not on whether it was to do a as the majority opinion represents. majority opinion 85. also relies on United (1967) Wade,

States v. 388 U.S. 218 and Gilbert v. (1967), California, 388 U.S. 263 which were decided day Majority op., same as Stovall. However, Wade cations conducted soon after the crime enhance the accuracy witnesses' identifications and allow innocent suspects to be freed."). quickly

192 they process Instead, are are not due cases. and Gilbert cases, Amendment where the United States Su- Sixth post-indictment preme that identifica- Court concluded and the tions could not be conducted without notice to presence Wade, Gilbert, 219-21; at of counsel. 388 U.S. in in at The concern Wade and Gilbert was 388 U.S. 272. right at all critical to the assistance of counsel prosecution,

phases of a criminal and the Court con- conducted after indict- cluded that an identification phase prosecution. Wade, ment was a critical of a showup Gilbert, 236-37; at 272. The U.S. at 388 U.S. post-indictment identification of Dubose was not application. have no identification, so Wade Gilbert banning showups By all unless there is a "necessity," majority completely overrides one of the justice: major in the administration of tenets presentation reliable, relevant evidence at trial. Brathwaite, 112. The United States Su- 432 U.S. at preme reasoned that inflexible rules of exclu- Court has justice, may promote Id. at frustrate rather than it. sion agree completely. 113.1 today rule of announced is not 87. The law principle. This is demonstrated on constitutional

based by majority opinion's part if officers decision that showup permis- probable arrest, lack cause to then Majority op., ¶ 34 n.ll. follows from this is sible. What prosecuted later at the trial of such a defendant suppression crime, of the identification will defendant is able to meet the not occur unless the showing identification was unreliable.4 current test I, If clause of Article Section 8 the due Wolverton, 193 Wis. 2d As set out State v. (1995), prove a defendant must such N.W.2d so, Id. at 264. If he does impermissibly suggestive. showup was truly requires suppression Wisconsin Constitution the through showup, of identifications made the use of a majority opinion provides suspects the those for whom guilt law enforcement has less evidence of with less protection person constitutional when that comes to majority may opinion place trial. The also a defendant position arguing in the unusual that law enforcement probable showup had cause to arrest, so the identifica- unnecessary accordingly sup- tion was pressed. should be position place an

This is odd in which to a defendant is, whose defense "It wasn't me." In 88. the us, case before Dubose's person, identification was done within 30 minutes robbery, his commission of the armed which occurred in well-lighted apartment, a when he wore no the mask, significant period victim had a of time to him view by prior had Dubose been seen the victim to the date of robbery. unreliability the There is no indication of this identification.5 Nevertheless, in the event of a new majority opinion deny jury right trial, the will then the required State is prove 'totality "under the (citations the circumstances' the identification was reliable." Id. ommitted).

5 1 disagree majority's with the citing discussion Foster v. California, (1969), 394 U.S. 440 case, as in that the witness initially positively could not identify the suspect and was "talked identifying into" the suspect speaking after him with one-on- viewing one and There, another lineup. though even the wit ness initially identify could not the suspect, effect, "[i]n police repeatedly said to witness, 'This is the man.1" Id. at Here, 443. while the second showup and photograph identifica tion needlessly redundant, were they were used police to ask victim, you "Are They sure?" were not used to talk the witness out of an initial identify failure to Accordingly, Dubose. the coercive nature of the procedures identification in Foster was not present here. relevant, evidence, and unless reliable

hear this independent there is an concludes that circuit court the victim of Dubose that for the identification basis suppressed will be trial, identification made at doing, majority By Majority op., ¶ sets so also. prevented up process from witnesses will be where jury. perpetrator identifying the crime for the justice require served and how is does due How by refusing permit relevant, the admission this my process does not view, due evidence? reliable require perpe- justice Instead, the is not served. it and robbery may be set free to armed trator of violent victimize others. majority's holding that main for basis 89. suppressed

showups on is "extensive studies must be that evidence" that assert of identification the issue " testimony 'hopelessly eyewitness Ma- unreliable.'" (quoting jority op., ¶¶ v. 29-30 Commonwealth (Mass. 1995)).6 my Johnson, 1257, 1262 650 N.E.2d disputed by adopting majority opinion errs view, the theory requirement for constitution- as a science social continuing ally to focus instead of due sufficient reliability the evidence. on majority does not cited The research subject theory only represent on the science social have social scientists Hard data that of identifications. analyzed disagreements about have resulted study showups. unreliability re- One social science "[ojverall, surprising present ports the results that [showups commonality and line- in outcome between from quoted statement be noted that the broad It should (Mass. Johnson, 1257, 1262 650 N.E.2d Commonwealth all questions It 1995), showup limited to identifications. is not for this court be step the next identifications. Will eyewitness eyewitness of all identifications? suppression apparent ups] an and ... contradiction of the ambient knowledge showups dangerous are inno- more suspects lineups." Nancy Steblay, cent than are et al., Eyewitness Accuracy Showup Rates in Police Lineup Meta-Analytic Comparison, Presentations: A (2003). Steblay Law and Human Behavior reported that tabulated,

[w]hen overall identification decisions are showups accuracy advantage an produce lineups over (69% 51%). qualified by vs. This initial result is subse- analyses. quent anticipated, As a consideration of spe- subject provides complete cific choices a more picture. (hit) Correct identification rate within the context of a target-present nearly condition is identical for the two types of procedures: Approximately 46% of witnesses lineup shown either a showup correctly or a identified perpetrator when he or she was present. False suspect target-absent identification in a rates display approximately equal are also showups between lineups, at about 16%.

Id. study reports, "[0]ur sug-

¶ 91. Another results gest one-person the formal task structure aof unacceptable does not create an increase in the suspect risk that an innocent perpetrator." will be identified the as Response Gonzalez, al., Richard et Biases Lineups Showups, in 64 Journal of Pers. and Soc. (1993). Psychol. experiments 525, 533 One of the that striking tendency Gonzalez conducted showed "a subjects respond yes to no to the but to the lineup." Id. at 528. majority opinion attempts gain sup-

¶ 92. The to port disputed theory for its reliance on a social science by paralleling its use of social science data with the reports reference to social science in the landmark 196 in Court Brown States the United decision (1954). Majority Education, U.S. 483 Board v. of majority opinion op., asserts, "we have ¶¶ The 43-44. Majority op., following Brown." the lead of trouble no ¶ 44. holding made was not

¶ the Brown However, 93. theory, the nor was Brown science in reliance on social to a social science case to refer or the latest earliest e.g., Roper report. Simmons, Ct. 1183 See, 125 S. v. (2005); Slaton, I 413 U.S. Theatre v. Paris Adult (1908). (1973); Oregon, 208 U.S. Muller reports footnote and used in one in Brown were listed support in entire the to one sentence discussion without opinion. Rather, Brown Brown, at 494 n.ll. 347 U.S. judicially proclaimed preeminent it because generation suffering generation enormity after by the to endure were forced African-Americans they equal" simply "separate because but doctrine object I to color, was unconstitutional. a different were opinion majority Brown uses manner which position prestigious Brown's trades on because it majority support jurisprudence American theory. disputed opinion's science on a social reliance wrong person as identified one wants 94. No part I perpetrator However, where of a crime. majority opinion concur- company and the with willing out identifica- I am to throw is that not rence reliable, as the that are one now before us tions like the addressing that are not identifications those means Suppressing a reliable identification the use of reliable. guarantee necessary due in order to is not only identification that an unreliable it is law because process. Stovall, U.S. at 301-02. due violates showups procedures, from All identification by crafting improved arrays, lineups photo can be techniques sugges- better for these methods to reduce reliability.7 Proposed improve- tiveness and increase videotaping eyewitness ments include identifications making and standard the need for officers to inform eyewitnesses suspect showup may that the in the not be perpetrator perpetrator may or that not be lineup array. Gary included or See L. &Wells Eyewitness Testimony, Olson, Elizabeth A. 54 Ann. Rev. (2003). Psychol. 277, 286 Research and common sense agree Attorney with former United States General Janet Reno's that, statement "Even the most honest objective people recalling can make mistakes in interpreting a event; witnessed it is the nature memory." Department of human United States of Jus- Eyewitness tice, A Evidence: Guide Law Enforce- (1999), http://www.ncjrs.org/pdf ment, at iii available at filesl/nij/178240.pdf. proposed Other in- enhancements allowing expert testimony reliability clude on the eyewitness jury eye- or identifications instructions on well-respected witness identification. None of these sources advocate ban of identifications as majority opinion they Instead, has done. advocate for law enforcement education on how to better conduct eyewitness complete identifications and for a more presentation problems eyewitness with identifi- cation at trial.

7 1 do not "eyewitness contend that I49. rec i d ognize eyewitness that no form of identification is reliable 100% of the time. But I eyewitness do contend that an identification made very witness soon after the witness observed the commission of the good crime and the opportu witness had a nity to the perpetrator significant view for a period of time is inherently not unreliable. reliability, and not a dis- sum, because

¶ key theory, admis- must be puted social science testimony in criminal trials sibility identification of all totality circum- I conclude and because re- bearing case this identification on the stances as the of Dubose identification in a reliable sulted robbery which he was perpetrator armed appeals. the court I affirm convicted, would respectfully Accordingly, from dissent I ¶ 97. majority opinion.

Case Details

Case Name: State v. Dubose

Court Name: Wisconsin Supreme Court

Date Published: Jul 14, 2005

Citation: 699 N.W.2d 582

Docket Number: 2003AP1690-CR

Court Abbreviation: Wis.